Arbitration review
Always remember that the art of a lawyer representing a wrongdoer or one who seeks to avoid a legal obligation that he has created through contract is the ability to create confusion and shift focus. The art of his opposing counsel is to hold the focus on the events that have placed the parties in litigation.
The arbitration review both at the Federal Court and the ICC level involves the simple concept of due process as it is applied to the ability of Samsung to present its position to the fact finders and decision makers, the Tribunal. We know that Samsung was able to file the agreement entered into by IDCC and Nok in April of 2006. We also know that the Tribunal received the document. Further, we know that the Tribunal conducted a conference call regarding the submission and its actions regarding same in deciding not to give the document any weight in reaching its decision. What we do not know are the actions by the Tribunal.
If the Tribunal received and reviewed the IDCC/Nok agreement for its content and possible relevance regarding additional royalty liability of Samsung, then Samsung should fail on its due diligence argument and its assertion that a 3rd arbitration is needed to render a decision regarding the impasse of the parties with respect to additional royalty liability under the PLA. However, if the Tribunal merely looked at the document and dismissed its weight in the decision process because of tardiness or because of some objection by IDCC, then Samsung may have a due process argument. In my experience with arbitration, any submissions filed after the evidentiary hearing are reviewed for their content and relevance. Thus, I believe that Samsung will fail in its argument. This is important because the standard for review is the process, not the result, unless the decision is completely outside of the laws of the jurisdiction of the Arbitration which is the State of New York in this instance. Remember that a judge will not vacate an arbitration award just because he disagrees with some or all of the decision so long as the decisions fall within the confines of the contract laws of New York.
The ICC policy is that the awards are final unless vacated. The Tribunal issued a second final award regarding the additional liability of Samsung as determined under the guidelines of the first arbitration award issued 4 years ago. The first award recognized the MFL option rights of the Samsung PLA and its selection of the Nok PLA for the determination of any additional royalty under its 2g PLA. The ICC is adamant that it does not accept and entertain appeals of its final arbitration awards. The second arbitration was decided in accordance with the first arbitration award and the terms of reference involve the same subject matter that would be considered in a third arbitration if the April 2006 IDCC/Nok agreement was considered in rendering the second final arbitration award. Therefore, the ICC should not accept a third arbitration request and filing absent a vacatur by the New York Federal District Court. For this reasoning I conclude that the ICC will defer its decision until a ruling from the court is made.
The review now becomes simply about the treatment of the April 2006 IDCC/Nok agreement by the Tribunal in rendering its decision which became the final arbitration award of the ICC. This is where our focus should be as we wade through the various filings and documents posted on this and Rev Bill's site.
MO
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