Ia-idcc-fan: You have sharp eyes. Yesterday IDCC submitted their “AMENDED PETITION FOR ORDER CONFIRMING ARBITRATION AWARDS AND SUPPORTING MEMORANDUM OF LAW” that covered the final award. As I expected, it covers the arbitrator’s determination of the initial payment owed based on the terms set in the previous partial award. The confirmation petition does not state what the payment amount was.
To shorten the post, I deleted basic introductory material, and in para 19 below the standard legal reasons for not confirming arbitration awards, which have been previously posted,
STATEMENT OF FACTS
8. InterDigital and Huawei have been negotiating a license to certain InterDigital patents since at least 2007. The parties dispute what constitutes FRAND terms and conditions for a license to those patents and have been unable to agree on certain terms and conditions for a license, including the royalty terms. InterDigital and Huawei have also engaged in litigation regarding patent infringement and FRAND issues in various fora.
9. On December 23, 2013, InterDigital and Huawei entered into a Binding Settlement Agreement, in which the parties agreed to dismiss most of their litigation and enter
into binding arbitration to set FRAND terms and conditions for a license to certain InterDigital patents. Yen Decl. ¶ 3.
10. Following more than three months of further negotiations, the parties subsequently entered into an Arbitration Agreement, which set forth in detail the procedures for their arbitration and sought a determination by an Arbitral Tribunal of FRAND royalty terms and conditions to be included in a binding worldwide patent license agreement to take effect upon issuance of the Award. Id. ¶ 4.
11. Pursuant to the terms of the Arbitration Agreement, the parties submitted a Joint Request for Arbitration to the ICC International Court of Arbitration on or about April 9, 2014. Id. ¶ 5.
12. The Arbitral Tribunal conducted a full hearing on the merits from January 12 to January 16, 2015, during which both sides presented fact and expert testimony in support of their respective claims and defenses. The parties were afforded due process and given every opportunity to fully present their cases. The Tribunal considered opening statements, written witness submissions, accompanying exhibits, live fact and expert testimony, hundreds of pages of briefing, and post-hearing arguments.
13. The Arbitral Tribunal rendered in writing the Partial Award on May 22, 2015, which was delivered to the parties in accordance with ICC procedures. The Partial Award set forth the Arbitral Tribunal’s adjudicated terms and conditions for all disputed provisions between the parties, and now constitutes a legally binding contract between the parties. Id. ¶ 6. The lengthy Partial Award is carefully reasoned, methodically sound, and fully considers the evidence and arguments of both parties.
14. Once the parties received the Partial Award, they conferred on the initial payment owed (“Initial Royalty Payment”) in accordance with the terms of the Partial Award. The parties reached agreement on the Initial Royalty Payment owed, and the Partial Award is deemed final. See id.
15. Pursuant to the Arbitration Agreement, on June 23, 2015, InterDigital requested that the Arbitral Tribunal issue a supplemental award incorporating the Initial Royalty Payment owed. On June 25, 2015, Huawei indicated that it did not object to the Arbitral Tribunal issuing a supplemental Final Award.
16. The Arbitral Tribunal supplemented the Partial Award with the Final Award, which it rendered in writing on July 14, 2015, and which was delivered to the parties in accordance with ICC procedures. Id. ¶ 7. Like the Partial Award, the Final Award is carefully reasoned, methodically sound, and fully considers the evidence and arguments of both parties.
17. The Arbitration Agreement provides that the Awards shall constitute a binding worldwide patent license agreement between the parties.
ARGUMENT
18. The Federal Arbitration Act provides that upon the application of a party to an arbitration award made pursuant to the New York Convention, a district court “shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.” 9 U.S.C. § 207 (emphasis added); see also Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 405 (2d Cir. 2009). The sole grounds for refusal or deferral of recognition or enforcement of an award are listed in Article V of the Convention and include failure of the party against whom the award is invoked to receive notice of the arbitration proceedings and other fundamental defects in the process itself.
Arbitral Tribunal considered voluminous written witness statements, five days of live testimony, hundreds of exhibits, extensive briefing by each side in this dispute, and two days of oral argument. The Arbitral Tribunal’s decision is thorough and carefully reasoned; there is absolutely no basis to refuse or defer recognition or enforcement of the Awards.
19. New York courts recognize the strong public policy in favor of arbitration and gives great deference to arbitral awards. Scandinavian Reinsurance Co. Ltd. v. St. Paul Fire & Marine Ins. Co., 668 F.3d 60, 72 (2d Cir. 2012); see also Compagnie Noga D’Importation et D’Exportation S.A. v. Russian Fed’n, 361 F.3d 676, 683 (2d Cir. 2004). Thus, review of arbitral awards is very limited in order to avoid undermining the “twin goals of arbitration,
Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(SNIP)
None of those grounds is present in this case
A petition for confirmation is “not an occasion for de novo review” of an arbitral award. Scandinavian Reinsurance, 668 F.3d at 71. Rather, a confirmation of an arbitral awards is generally “a summary proceeding that merely makes what is already a final arbitration award a judgment of the court.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006). Only a “barely colorable” justification for the arbitration outcome is necessary for confirmation. Id. The party opposing confirmation bears a heavy burden of establishing that the award should not be confirmed. Compagnie Noga, 361 F.3d at 683. Huawei cannot meet that burden in this case. Accordingly, pursuant to the mandate of the Federal Arbitration Act, the Court should confirm the Awards in their entirety. See 9 U.S.C. § 207.
CONCLUSION
20. For all of the foregoing reasons, InterDigital respectfully moves the Court to:
a. Enter an Order confirming the Awards as entered by the Arbitral Tribunal;
b. Enter judgment in conformity therewith;
c. Award InterDigital its costs of suit, including reasonable attorneys’ fees; and
d. Award InterDigital such other and further relief as this Court may deem just and appropriate.
Dated: August 14, 2015
