"the judge will modify the award based on count # 6 and on NY law" - The body of case law is quite clear that an arbitration award does NOT have to follow NY law, or any law that is referenced in the contract, or any law at all, so long as the issue was submitted by the parties for private arbitration.
Nok and IDCC submitted "all disputes" to arbitration. And, the SE trigger issue was certainly a submitted dispute.
The body of case law is quite consistent and clear that the act of submitting an issue to arbitration TRUMPS any requirement that the award follow any law. Everyone recognizes (the parties and the courts) that the choice to submit to arbitration is a CHOICE NOT to submit the issue to a court. Private arbitration is not court. Courts must follow all applicable laws, but an arbitration does not. And, submitting the issue to arbitration was the choice of the parties.
The surprise for me in Nok's motion to vacate is how weak it is, arguing entirely about how unfair the award is and that is does not follow NY law. There were no accusations of malfeasance by the tribunal e.g. improper procedures, ex parte communications, etc.. It seems as if Nok's lawyers really do not have much experience opposing arbitration awards by attacking the award and not the arbitration process. The grounds for vacation that are permitted by the courts all have to do with fairness of the process, not fairness of the award.
The ICC tribunal was fully empowered by the parties to decide the SE trigger issue, past due amounts, interest, and prepayment discounts.
To my reading, the Court MUST and WILL confirm IDCC's award in its entirety; otherwise, IDCC will rightfully appeal any significant "modifications".
MO,
Corp_Buyer