Apparently, Nok's main argument is that the first arbitration was limited to filling in the blanks i.e. rates and that it could not be about default or past due payments. And, it seems Nok succeeded in arguing that the Arb Tribunal could not award any monetary amount e.g. a past due dollar amount.
Accordingly, the Tribunal filled in the blanks i.e. rates. BUT, fortunately, the Tribunal also then DECLARED that Nok now has the (presumably) contractual length of time to report and pay the past due amount (plus interest), now that the rates have been determined.
Nok, it seems, wants to have the past due declaration part of the Award vacated as "premature". In other words, Nok it seems wants to have a second arbitration over any default and the dollar amount past due.
I once obtained a very similar declaratory arbitration award (AAA) for PAST and FUTURE amounts due (i.e. a % of past and future amounts). In that case, the (state) Court CONFIRMED the AWARD in its entirety (just as the NY Court SHOULD do with IDCC's Award IMO).
When my Judgement Debtor then still failed to comply with the Confirmed Award which was then in the form of a COURT ORDER, a Motion to Show Cause for Contempt was filed and WON i.e. the Judgment Debtor was found to be in Contempt of Court (a very, very BAD situation for the debtor BTW).
So, IDCC's Award feature that declares Nok is to report and pay the proper past due amount, IF it is CONFIRMED by the Court (as expected), will become in effect a Court Order for Nok to report and pay the past due amount, which the Court will surely and harshly enforce.
So, in my experience, having a declaratory Court Order (assuming confirmation) for the past due amount is a STRONGER situation for IDCC than if the Arb. Award was simply for a past due monetary amount that is Confirmed into a monetary judgment, which would then be up to the Judgment Creditor (IDCC) to enforce through the usual Judgment Creditor means of forcible collection.
Nok seems to think it has grounds to vacate either the entire Award, or part of the Award. Presumably, the part of the Award Nok finds most objectionable is the Declaration that it must pay promptly the past due amounts per the contract, now that the rates have been set by the Tribunal.
Nok may have other grounds to vacate the entire Award if the dissenting arbitrator provided any evidence of malfeasance in the arbitration (perhaps bias, refusal to hear relevant evidence, pre-juding issues, disregarding the law, ex-parte communications, etc.) and we just don't know what evidence may be in the dissent. But, we will soon know Nok's best shot when they file their motion to vacate all or part of the Award.
I believe the Tribunal acted properly, so I expect Nok's main argument will be in opposition to the declaration (hopefully soon to be Court Order) directing Nok to pay promptly the past due amount with interest.
Nok's argument against the Tribunal's past due declaration is that it is "premature", out of sequence, and that another arbitration may be needed to decide any dispute over breach, the failure by Nok to report its # of units sold, the application of the rates, etc. and to resolve the actual past due MONETARY amount due, based on the rates set by the first Tribunal.
To my logic, and based on my prior experience, the Court can and should uphold the declaratory relief for the past due amount and confirm the Award in its entirety. If so, then IDCC will then have Contempt as an added and very strong method of enforcement to collect on the past due amount.
Of course, (unlikely) the Court could direct Nok to report units and the Court resolves the monetary amount due. Or, (worst case for IDCC) the Court agrees with Nok and strikes the past due directive, and sends the parties back to another arbitration to determine the past due amounts.
So, it is not surprising that Nok will oppose IDCC's motion to Confirm the Arb. Award and that Nok will try to vacate all or part of the Award. As many have posted, Nok faces a large uphill battle to put any dent at all in the Award confirmation. And even after Confirmation, Nok may still be expected to Appeal the Confirmation, especially if the Award is confirmed in its entirety including the declaration to pay the proper past due amount.
MO,
Corp_Buyer
AI
