Ghors: The Samsung filing has a little more information on the collateral estoppel argument. While still redacted, my impression is that Samsung is arguing that the arbitration panel should have used the rate setting methodology used by the Samsung 1 panel, rather than the methodolgy used in making the Nokia award.
To me it seems that this argument, if that is what it is, does not take into consideration Samsung's MFL implementation. What I found interesting, was that in the contents of the filing that were made public, I didn't see where Samsung used the term MFL in any instance.
In regard to Samsung's FAA 10(a)(3) argument, it appears that the panel got quite involved in considering the Nokia Settlement Agreement before they decided not to use the settlement in determining Samsung's rates. I would assume that the members of the panel and the ICC Court reviewers were well aware of the implications of FAA 10(a)(3), when they made their determination
The following is from the 2nd Circuit's Tempo Shain decision, which is a case cited by Samsung..
"Courts have interpreted section 10(a)(3) to mean that except where fundamental fairness is violated, arbitration determinations will not be opened up to evidentiary review. In making evidentiary determinations, an arbitrator "need not follow all the niceties observed by the federal courts." Bell Aerospace Co. Div. of Textron v. Local 516 , 500 F.2d 921, 923 (1974). However, although not required to hear all the evidence proffered by a party, an arbitrator "must give each of the parties to the dispute an adequate opportunity to present its evidence and argument." Hoteles Condado Beach v. Union de Tronquistas Local 901 , 763 F.2d 34, 39 (1st Cir. 1985). "Federal courts do not superintend arbitration proceedings. Our review is restricted to determining whether the procedure was fundamentally unfair." See Teamsters, Local Union 657 v. Stanley Structures, Inc. , 735 F.2d 903, 906 (5th Cir. 1984); accord Concourse Beauty School, Inc. v. Polakov , 685 F. Supp. 1311, 1318 (S.D.N.Y. 1988) ("The misconduct must amount to a denial of fundamental fairness of the arbitration proceeding in order to warrant vacating the award." (quoting Transit Cas. Co. v. Trenwick Reinsurance Co. , 659 F. Supp. 1346, 1354 (S.D.N.Y. 1987), aff'd mem. , 841 F.2d 1117 (2d Cir. 1988))). "
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