[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13039

____________________

CORPORACIÓN AIC, SA, 

Plaintiff-Appellant,

versus

HIDROELÉCTRICA SANTA RITA S.A., 

a Guatemalan company, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:19-cv-20294-RNS

____________________

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2 Opinion of the Court 20-13039

Before WILLIAM PRYOR, Chief Judge, and WILSON, JORDAN, 

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, 

BRASHER, and TJOFLAT, Circuit Judges.1

JORDAN, Circuit Judge:

The United States is a signatory to the New York Convention, a treaty which regulates international arbitration awards. See 

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 4739. Congress has implemented the Convention through Chapter 2 of the 

Federal Arbitration Act. See 9 U.S.C. §§ 201 et seq. 

Our task is to decide what grounds can be asserted to vacate 

an arbitral award governed by the New York Convention. We 

hold that in a case under the Convention where the United States 

is the primary jurisdiction—the jurisdiction where the arbitration 

was seated or whose law governed the conduct of the arbitration—

the grounds for vacatur of an arbitral award are set out in domestic 

law, currently Chapter 1 of the FAA. And we overrule Industrial 

Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 

1434, 1445–46 (11th Cir. 1998), and Inversiones y Procesadora 

Tropical INPROTSA, S.A. v. Del Monte International GmbH, 921 

1

Judge Tjoflat was a member of the en banc Court, having elected to participate in this decision pursuant to 28 U.S.C. § 46(c)(1).

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F.3d 1291, 1301–02 (11th Cir. 2019), to the extent that they are inconsistent with our ruling. 

I 

 This case arose from a dispute between two Guatemalan 

companies, Corporación AIC, S.A., and Hidroeléctrica Santa Rita, 

S.A. Pursuant to a contract signed in March of 2012, Corporación 

AIC agreed to build a new hydroelectric power plant for Hidroeléctrica in Guatemala. In October of 2013, Hidroeléctrica issued a 

force majeure notice that forced Corporación AIC to stop work on 

the project. Hidroeléctrica eventually filed an arbitration proceeding in the International Court of Arbitration to recover advance 

payments it had made to Corporación AIC, and the latter counterclaimed for damages, costs, and other expenses. See Corporación

AIC, S.A. v. Hidroeléctrica Santa Rita, S.A., 34 F.4th 1290, 1292–93

(11th Cir. 2022). 

The arbitration was held in Miami, Florida, and a divided 

arbitral panel ordered Corporación AIC to return about $7 million 

and €435,000 in advance payments but allowed it to keep what it 

had earned on the contract, about $2.5 million and €700,000. See 

id. at 1292–93. Everyone agrees that the arbitral award was a nondomestic award governed by the New York Convention because it 

was issued in the United States in a dispute between two foreign 

companies. See id. at 1293–94; 9 U.S.C. § 202.

Dissatisfied with the arbitral decision, Corporación AIC filed 

suit in federal court seeking to vacate the award. It asserted that 

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4 Opinion of the Court 20-13039

the arbitral panel had exceeded its powers, a ground set out in 9 

U.S.C. § 10(a)(4), a provision of Chapter 1 of the FAA. See 34 F.4th

at 1293. The district court ruled that such a challenge was unavailable because under Eleventh Circuit precedent, namely Industrial 

Risk and Inversiones, the grounds for vacatur of an arbitral award 

governed by the New York Convention are limited to those set out 

in Article V of the Convention. The district court therefore did not 

analyze whether the arbitral panel had exceeded its powers. See id. 

A panel of this court affirmed. The panel concluded that it 

was bound by Industrial Risk and Inversiones but opined that those 

cases were wrongly decided and should be overruled by the full 

court. See 34 F.4th at 1292, 1301; id. at 1302 (Jordan, J., concurring). 

We vacated the panel opinion and ordered rehearing en banc. See 

50 F.4th 97 (11th Cir. 2022).

II 

Industrial Risk, decided in 1998, held that when a party seeks 

vacatur of an arbitral award issued under the New York Convention a district court can only consider the grounds set out in Article 

V of the Convention. See 141 F.3d at 1446. After setting out the 

purpose of the New York Convention—encouraging the recognition and enforcement of international arbitral awards—we stated 

in Industrial Risk that an arbitral award that falls within the Convention “must be confirmed unless [the challenger] can successfully assert one of the seven defenses against enforcement enumerated in Article V of the . . . Convention.” Id. at 1441. In so doing 

we cited to a former Fifth Circuit case and a district court case from 

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Delaware, both of which involved a proceeding to enforce (but not 

a proceeding to vacate) an arbitral award under the Convention. 

See id. at 1442 (citing Imperial Ethiopian Gov’t v. Baruch-Foster 

Corp., 535 F.2d 334, 335–36 (5th Cir. 1976), and Nat’l Oil Corp. v. 

Lybian Sun Oil Co., 733 F. Supp. 800, 813 (D. Del. 1990)). We 

noted that the Convention’s “enumeration of defenses” to recognition and enforcement of an award “is exclusive” under § 207 of 

the FAA, but then read those defenses as also constituting the only 

grounds for vacatur of an award. See 141 F.3d at 1446. In other 

words, we equated the defenses to recognition and enforcement 

with the grounds for vacatur. See id. at 1445-46. 

Over 20 years later, Inversiones adhered to Industrial Risk

because it constituted binding Eleventh Circuit precedent. See Inversiones, 921 F.3d at 1301–02. Although we had previously noted 

some tension between Industrial Risk and BG Group, PLC v. Republic of Argentina, 572 U.S. 25, 44–45 (2014), in Bamberger Rosenheim, Ltd., (Israel) v. OA Development, Inc., (United States), 862 

F.3d 1284, 1287 n.2 (11th Cir. 2017), we concluded in Inversiones 

that BG Group did not abrogate Industrial Risk. See 921 F.3d at 

1302. 

We now consider whether the grounds for vacatur of a New 

York Convention arbitral award are set out in Article V of the Convention or in § 10 of the FAA. 

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III 

Our task is to interpret the New York Convention and the 

FAA. As a result, our review is plenary. See Underwriters at 

Lloyd’s Subscribing to Cover Note B0753PC1308275000 v. Expeditors Korea, Ltd., 882 F.3d 1033, 1039 (11th Cir. 2018) (treaty interpretation); United States v. Garcon, 54 F.4th 1274, 1277 (11th Cir. 

2022) (en banc) (statutory interpretation). We begin with some 

background concepts concerning international arbitration, and 

then turn to the language of the Convention and the FAA.

A 

Arbitration awards, including international ones, “are not 

self-enforcing and are only given legal effect through court orders 

and judgments enforcing them.” 3 Martin Domke, Domke on 

Commercial Arbitration § 42:1 (3d ed. 2022). In the usual international arbitration case, the prevailing party goes to court seeking a 

judgment which recognizes and enforces (i.e., confirms) the award. 

The losing party, in turn, opposes recognition and enforcement,

and sometimes—as here—moves to vacate the award. See CBF 

Indústria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 72 (2d 

Cir. 2017); Stephen Balthasar, International Commercial Arbitration 794 (2d ed. 2021). For example, Chapter 2 of the FAA provides 

that “any party to the arbitration may apply to any court having 

jurisdiction under this chapter for an order confirming the award 

as against any other party to the arbitration.” 9 U.S.C. § 207.

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Confirmation under the FAA is essentially the same as 

recognition and enforcement under the New York Convention. Indeed, § 207 of the FAA uses confirmation interchangeably with 

recognition and enforcement: “The 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.”

As the Second Circuit has put it: “Read in context with the New 

York Convention, it is evident that the term ‘confirm’ as used in [§] 

207 [of the FAA] is the equivalent of ‘recognition and enforcement’ 

as used in the New York Convention for the purposes of foreign 

arbitral awards.” CBF, 850 F.3d at 72. See also LLC SPC Stileks v. 

Republic of Moldova, 985 F.3d 871, 875 (D.C. Cir. 2021) (stating 

that, under § 207 of the FAA, “[c]onfirmation is the process by 

which an arbitration award is converted to a legal judgment”).2

 

Set aside, suspend, and annul under the New York Convention are, in turn, generally interchangeable with vacatur under the 

FAA. They all refer to the invalidation of an arbitral award. See 

2

Strictly speaking, recognition and enforcement are distinct legal concepts. 

Recognition adjudicates the validity (i.e., the binding nature) of an arbitral 

award, while enforcement reduces such an award to a judgment. See Compañía de Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua 

S.A.B. de C.V., 58 F.4th 429, 454 (10th Cir. 2023); Rogelio Vidal, Influence of 

the Arbitral Seat in the Outcome of an International Commercial Arbitration, 

50 Int’l Lawyer 329, 335 (2017). But to be enforced an award must be recognized. See CBF, 850 F.3d at 72; Nigel Blackaby, Redfern and Hunter on International Arbitration 611 (6th ed. 2015). So in practice enforcement is functionally the same as recognition and enforcement.

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Restatement of the Law, U.S. Law of Int’l Com. Arbitration and 

Investor-State Arbitration § 1.1 cmt. uu (ALI Proposed Final Draft 

2019) (“Restatement of International Arbitration”) (“Vacatur is 

largely synonymous with ‘annul’ and ‘set aside’ as those terms are 

understood in the New York and Panama Conventions.”).

3

Recognition and enforcement “serve different purposes

[and] request different relief” than vacatur. See McLaurin v. Terminix Int’l Co., LP, 13 F.4th 1232, 1238 (11th Cir. 2021) (addressing 

the FAA). Recognition and enforcement seek to give effect to an 

arbitral award, while vacatur challenges the validity of the award

and seeks to have it declared null and void. See CBF, 850 F.3d at 

72; Blackaby, International Arbitration, at 570. 

With respect to judicial remedies, the New York Convention allocates different responsibilities to different jurisdictions. 

The country which is the legal seat of the arbitration (or whose law 

governs the conduct of the arbitration) is referred to as the primary 

jurisdiction and its law (the lex arbitri) generally controls the procedural side of the proceeding. All other countries which are signatories to the Convention are considered secondary jurisdictions. 

See Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan 

Gas Bumi Negara, 335 F.3d 357, 364 (5th Cir. 2003); CBF, 850 F.3d 

3

The Proposed Final Draft of the Restatement of International Arbitration was 

approved by the Council and membership of the American Law Institute in 

2019, and represents the official position of the Institute until the Restatement 

is officially published. 

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at 71; Alan Scott Rau, Understanding (and Misunderstanding) “Primary Jurisdiction,” 21 Am. Rev. of Int’l Arb. 47, 49 (2010).

4

Under the New York Convention, only courts in the primary jurisdiction can vacate an arbitral award. See, e.g., BG 

Group, 572 U.S. at 37 (“[T]he national courts and the law of the 

legal situs of arbitration control a losing party’s attempt to set aside 

[an] award.”) (internal quotation marks omitted); TermoRio S.A. 

E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C. Cir. 2007) (“Only 

a court in a country with primary jurisdiction over an arbitral 

award may annul that award.”) (citation omitted); M & C Corp. v. 

Erwin Behr GmbH & Co., KG, 87 F.3d 844, 849 (6th Cir. 1996) (“[A] 

motion to vacate [under the New York Convention] may be heard 

only in the courts of the country where the arbitration occurred or 

in the courts of any country whose procedural law was specifically 

invoked in the contract calling for arbitration[.]”) (emphasis deleted); Restatement of International Arbitration, at § 1.3(a) (“The 

choice of an arbitral seat ordinarily determines . . . the courts that 

have the exclusive authority to set aside the arbitral award.”). An 

award that is vacated is generally a nullity in the primary 

4 The lex arbitri should not be confused with whatever substantive law (the 

lex causae) governs the parties’ commercial relationship. Parties may select a 

seat of arbitration in one country but choose to apply the law of a different 

country to their dispute. See generally Lindo v. NCL (Bahamas), LTD., 652 

F.3d 1257, 1275 (11th Cir. 2011); Loukas Mistelis, Reality Test: Current State 

of Affairs in Theory and Practice Relating to “Lex Arbitri,” 17 Am. Rev. of Int’l 

Arb. 155, 158-61 (2006).

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jurisdiction. See Restatement of International Arbitration, at §§ 1.1 

cmt. pp & 4.1 cmt. d.; Blackaby, International Arbitration, at 618. 

Vacatur also has legal consequences internationally, as it is a 

ground on which recognition and enforcement of the vacated 

award may be refused by a court in a secondary jurisdiction. See 

New York Convention, Art. V(1)(e); Zeiler v. Deitsch, 500 F.3d 157, 

165 n.6 (2d Cir. 2007).

Courts in secondary jurisdictions can only decide whether 

to recognize and enforce an arbitral award. See New York Convention, Art. III (“Each Contracting State shall recognize arbitral 

awards as binding and enforce them in accordance with the rules 

of procedure of the territory where the award is relied upon, under 

the conditions laid down in the following articles.”). See also 

Karaha, 335 F.3d at 369 (explaining that “a court of secondary jurisdiction[,] under the New York Convention, [is] charged only with 

enforcing or refusing to enforce a foreign arbitral award”). The legal effect of the recognition and enforcement (or the denial of 

recognition and enforcement) of an award is limited to the secondary jurisdiction that rules on the request. See Blackaby, International Arbitration, at 615 (“The immediate consequence of a refusal 

to enforce an award is that the winning party fails to get what it 

wants—namely seizure of the loser’s assets in the place in which 

enforcement is sought . . . [I]t should be borne in mind that [the 

winning party] may still have an award that can be enforced in 

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another state in which the losing party has assets.”) (emphasis deleted). 5

B 

“The interpretation of a treaty, like the interpretation of a 

statute, begins with its text.” GE Energy Power Conversion France 

SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 

1645 (2020) (internal quotation marks omitted). We turn, therefore, to the relevant language of the New York Convention and the 

FAA.

1 

Article III of the Convention calls upon signatory countries 

to “recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the 

award is relied upon,” under the conditions laid down in other Articles. Article IV then lists the conditions that must be fulfilled for 

recognition and enforcement: “To obtain the recognition and enforcement mentioned in [Article III], the party applying for recognition and enforcement shall, at the time of the application, supply 

5 Sometimes the same country can act as both the primary and secondary jurisdiction. This occurs when the prevailing party seeks recognition and enforcement of the arbitral award in the primary jurisdiction and the losing party 

seeks to vacate the award in the same jurisdiction. In such a case the court 

considering the parties’ dueling requests performs a “double role,” exercising 

secondary jurisdiction with respect to the request for recognition and enforcement and primary jurisdiction with respect to the request for vacatur. See

Zeiler, 500 F.3d at 165 n.6.

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(a) [t]he duly authenticated original award . . . ; [and] (b) [t]he original agreement . . . .”

Article V sets out a limited number of grounds on which a 

court can refuse to recognize and enforce an arbitral award. It does 

so through two subsections.

First, Article V(1) provides that recognition and enforcement of an arbitral award “may be refused” on five grounds: (a) the 

parties to the arbitral agreement were “under some incapacity” or 

the agreement is “not valid under the law to which the parties have 

subjected it . . . or under the law of the country where the award 

was made;” (b) the “party against whom the award is invoked was 

not given proper notice of the appointment of the arbitrator or of 

the arbitration proceedings or was otherwise unable to present his 

case;” (c) the “award deals with a difference not contemplated by

or not falling within the submission to arbitration, or it contains 

decisions on matters beyond the scope of the submission to arbitration . . . ;” (d) the “composition of the arbitral authority or the 

arbitral procedure was not in accordance with the agreement of the 

parties, or, failing such agreement, was not in accordance with the 

law of the country where the arbitration took place;” or (e) the 

“award has not yet become binding on the parties, or has been set 

aside or suspended by a competent authority of the country in 

which, or under the law of which, that award was made.” 

Second, Article V(2) provides that recognition and enforcement “may also be refused” on two additional grounds: (a) the 

“subject matter of the difference is not capable of settlement by 

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arbitration under the law of t[he] country” where, or under the law 

of which, the award was made; or (b) the “recognition and enforcement of the award would be contrary to the public policy of that 

country.”

The only reference to vacatur (i.e., “set aside or suspended”) 

in Article V is found in subsection (1)(e). Article V(1)(e) allows a 

court exercising secondary jurisdiction to deny a request to recognize and enforce a New York Convention award on the ground 

that it has been vacated by a court (“a competent authority”) in the 

primary jurisdiction (“in which, or under the law of which, that

award was made”). But it does not purport to regulate the procedures or set out the grounds for vacatur in the primary jurisdiction. 

See Restatement of International Arbitration, at § 4.9 reporters’ 

note (a)(iv) (“[I]t is well established that the New York [Convention] . . . do[es] not regulate the grounds for vacating Convention 

awards under national arbitration law.”); Reimar Wolff, New York 

Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Commentary 7 (Hart Publishing 2012) (explaining that 

Article V “does not harmonize the grounds for challenging an 

award”) (emphasis deleted). 

The other Articles of the Convention—all of which refer to 

recognition and enforcement—confirm that Article V(1)(e) does 

not provide the grounds for vacatur. See Lozano v. Montoya Alvarez, 572 U.S. 1, 11 (2014) (“For treaties, which are primarily compact[s] between independent nations, our duty [i]s to ascertain the 

intent of the parties by looking to the document’s text and 

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context.”) (internal quotation marks and citation omitted). Article 

I establishes the limited scope of the Convention in relation to arbitral awards, stating that the “Convention shall apply to the recognition and enforcement of arbitral awards.” Article III introduces 

the provisions related to recognition and enforcement, mandating

that signatory countries “recognize arbitral awards as binding and 

enforce them . . . under the conditions laid down in the following 

articles.” Article IV lists the conditions that must be fulfilled by a 

party “[t]o obtain the recognition and enforcement” of an award. 

Article V then enumerates the only grounds on which “[r]ecognition and enforcement of the award may be refused.” And Article 

VI allows a court exercising secondary jurisdiction to “adjourn the 

decision on the enforcement of the award” in the face of a pending 

vacatur application in the primary jurisdiction.6

Chapter 2 of the FAA implements the Convention. The two 

texts should therefore be read harmoniously. See Antonin Scalia & 

Bryan Garner, Reading Law: The Interpretation of Legal Texts 252 

(2012); William N. Erskine, Jr., Interpreting Law: A Primer on How 

to Read Statutes and the Constitution 121 (2016). Like Article V of 

the Convention, Chapter 2 of the FAA focuses only on recognition 

and enforcement. As noted, § 207 of the FAA directs courts to confirm an arbitral award “unless it finds one of the grounds for refusal 

or deferral of recognition or enforcement of the award specified in 

the . . . Convention.” And Article V enumerates the grounds on 

6All the emphases in this paragraph are ours. 

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which a court exercising secondary jurisdiction can refuse to recognize and enforce an award. Not surprisingly, our more recent 

cases have recognized that § 207 and Article V address enforcement 

and recognition. See, e.g., Lindo v. NCL (Bahamas), Ltd., 652 F.3d 

1257, 1263 (11th Cir. 2011) (“Article V of the Convention . . . enumerates seven defenses that—like 9 U.S.C. § 207—are directed at 

courts considering whether to recognize and enforce an arbitral 

award. Article V applies at the award-enforcement stage.”).

In sum, neither Article V of the Convention nor § 207 of the 

FAA provides the grounds on which a court in the primary jurisdiction can vacate an arbitral award. In coming to a different conclusion, Industrial Risk “d[id] not track the [text or] logic of the . . .

Convention.” Charles H. Brower II, Hollow Spaces, 61 Buff. L. 

Rev. 731, 821 (2013). 

2 

Chapter 2 of the FAA provides that “Chapter 1 applies to actions and proceedings brought under [Chapter 2] to the extent that 

[Chapter 1] is not inconsistent with [Chapter 2] or the Convention 

as ratified by the United States.” 9 U.S.C. § 208. In discussing 

§ 208—Chapter 2’s so-called residual clause—the Supreme Court 

has explained that “the [New York] Convention was drafted against 

the backdrop of domestic law,” and concluded that “the Convention requires courts to rely on domestic law to fill gaps; it does not 

set out a comprehensive regime that displaces domestic law.” Outokumpu, 140 S. Ct. at 1645. 

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Based on the Supreme Court’s discussion in Outokumpu

and the New York Convention’s binary framework, we hold that 

the primary jurisdiction’s domestic law acts as a gap-filler and provides the vacatur grounds for an arbitral award. Stated differently, 

in a case like this one, § 208 of the FAA contemplates that the

grounds for vacatur are the ones set out in Chapter 1 of the FAA. 

And because Article V of the Convention is “simply silent” on the 

grounds for vacatur, there is no conflict if Chapter 1 is applied. See 

Outokumpu, 140 S. Ct. at 145. Cf. BG Group, 572 U.S. at 29 (addressing, in a case where the international arbitral proceeding was 

seated in the United States, whether the arbitrators exceeded their 

powers under § 10(a)(4) of the FAA). 

This is how the Second, Third, Fifth, and Seventh Circuits 

have interpreted the Convention. Their decisions, which align 

with the language of Article V of the Convention and Chapter 2 of 

the FAA, are persuasive. See Yusuf Ahmed Alghanim & Sons v. 

Toys “R” Us, Inc., 126 F.3d 15, 22 (2d Cir. 1997) (“There is no indication in the Convention of any intention to deprive the rendering 

state of its supervisory authority over an arbitral award, including 

its authority to set aside that award under domestic law.”); Ario v. 

Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of 

Account, 618 F.3d 277, 292 (3d Cir. 2010) (agreeing with Yusuf , 126 

F.3d at 23, that “‘[t]he Convention specifically contemplates that 

the [country] in which, or under the law of which, the award is 

made, will be free to set aside or modify an award in accordance 

with its domestic arbitral law’” and explaining that “[w]hen both 

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the arbitration and the enforcement of the award falling under the 

Convention occur in the United States, there is no conflict between 

the Convention and the domestic FAA”); Karaha Bodas, 335 F.3d 

at 368 (“By its silence on the matter, the Convention does not restrict the grounds on which primary-jurisdiction courts may annul 

an award, thereby leaving to a primary jurisdiction’s local law the 

decision whether to set aside an award.”); Lander Co. v. MMP 

Invs., Inc., 107 F.3d 476, 478 (7th Cir. 1997) (“[T]he New York Convention contains no provision for seeking to vacate an award, although it contemplates the possibility of the award’s being set aside 

in a proceeding under local law . . . and recognizes defenses to the 

enforcement of an award.”). 

The Restatement of International Arbitration reads the Convention in the same manner: “[T]he exclusive vacatur grounds 

[where the arbitration is seated in the United States] are those set 

out in FAA § 10. This interpretation is supported by the text of the 

New York Convention—which does not purport to regulate the 

grounds for vacating awards at the arbitral seat—and of the FAA, 

as well as by the majority of the U.S. courts of appeal to have addressed the issue.” Restatement of International Arbitration, at § 

4.9 cmt. a. See also id. at § 4.14 cmt. a (“The scope and proper 

exercise of set-aside authority are determined by the arbitration 

law of the country in which or under the law of which the award 

was made.”). And so do most international arbitration scholars. 

See James H. Carter & John Fellas, International Commercial Arbitration in New York §§ 1.88, 1.91 (2d ed. 2016) (“Nondomestic 

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18 Opinion of the Court 20-13039

arbitral awards issued by a tribunal seated in the United States or 

made pursuant to U.S. arbitration law may be vacated under U.S. 

arbitration law. . . . This means that U.S. courts may vacate awards 

made in the United States relying on the grounds listed in [§] 10 of 

the FAA[.]”); Blackaby, International Arbitration, at 635 (“[T]he 

New York Convention does not in any way restrict the grounds on 

which an award may be set aside . . . by the court of [primary jurisdiction]. This is a matter that is left to the domestic law of the 

country concerned.”); Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 95 (1981) (“[T]he grounds on which the award has been 

set aside in the country of origin can be any ground set out in the 

arbitration law of that country.”); Wolff, New York Convention, at 

367 (“The NYC sets neither any standards nor any limits for the 

courts of the State where the award was rendered for their decision-making process as to setting aside or suspending the award.

An application to set aside the award in the country of origin is 

governed by the domestic law of the seat State.”) (emphasis deleted); Lea H. Kuck & Amanda R. Kalantirsky, Vacating an International Arbitration Award Rendered in the United States: Does 

the New York Convention, the Federal Arbitration Act or State 

Law Apply?, 3 Arb. L. Rev. 4, 7 (2011) (“The Convention contains 

no description of or limitation on the capacity of the jurisdiction 

where the award was rendered to apply its own law vacating the 

award. This means that the parties’ choice of the seat of arbitration 

can have significant consequences for any judicial review of the 

award.”).

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We recognize that one leading international arbitration treatise defends Industrial Risk (and, by definition, Inversiones). See 

Gary B. Born, International Commercial Arbitration 3211 (3d ed. 

2021) (asserting that the reference to the Convention in § 207 of the 

FAA “does not include the more expansive bases for vacatur under 

§ 10 of the domestic FAA and, on the contrary, was included in 

§ 207 precisely to avoid consideration of § 10’s domestic vacatur 

grounds in recognition actions”). But that treatise glosses over the 

critical fact that the Convention does not set out any grounds for 

vacatur, ignores the differences between recognition/enforcement 

and vacatur, and fails to account for the varied roles of courts in 

primary and secondary jurisdictions in post-award judicial proceedings. It also does not satisfactorily address § 208’s command that 

Chapter 1 of the FAA—including its § 10 vacatur grounds—applies 

in New York Convention cases as long as there is no conflict.

C 

Hidroeléctrica contends that applying domestic grounds to 

the vacatur of international arbitral awards would run counter to 

the New York Convention’s objective of standardizing the treatment of such awards. See, e.g., Richard W. Hulbert, The Case for 

Coherent Application of Chapter 2 of the Federal Arbitration Act, 

22 Am. Rev. of Int’l Arb. 45, 72 (2011) (“An intention that inconsistent standards are to be applied to the validity of an award falling 

under the Convention, by the same court in the same case between 

the same parties, depending on whether the issue is to confirm the 

award (at the suit of the winner) or to vacate it (at the suit of the 

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20 Opinion of the Court 20-13039

loser), cannot easily (or even plausibly be imputed to Congress.”)). 

We are not persuaded.

The argument may have some appeal on policy grounds,

but it starts from a faulty premise—it wrongly presumes that the 

Convention seeks to prescribe comprehensive standards which displace domestic law across the board. See Outokumpu, 140 S. Ct. 

at 1645. “While it would have provided greater reliability to the 

enforcement of awards under the Convention had the available 

grounds [for vacatur] been defined in some way, such action would 

have constituted meddling with national procedure for handling 

domestic awards, a subject beyond the competence of the Conference.” Leonard V. Quigley, Accession by the United States to the 

United Nations Convention on the Recognition and Enforcement 

of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1069–70 (1961). The 

Convention, which does not provide the grounds for vacatur, cannot attempt to make uniform that which it does not address. 

D 

Hidroeléctrica also argues that, even if Industrial Risk and 

Inversiones were wrongly decided, principles of stare decisis counsel against overruling them because of the settled expectations they 

have created. Hidroeléctrica is correct that “[o]verruling precedent 

is never a small matter,” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 

455 (2015), but here we conclude that it is appropriate.

Though stare decisis is a hallmark of our judicial system, it 

“is not an inexorable command[.]” McKinney v. Pate, 20 F.3d 1550, 

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1565 n.21 (11th Cir. 1994) (en banc) (citation omitted). We may 

overrule a prior case that is “plainly and palpably wrong” if doing 

so would not “result in more harm than continuing to follow the 

erroneous decision.” McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1096 (11th Cir. 2017) (en banc) (citation 

omitted). 

In deciding whether to overrule precedent, we consider “the 

quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the 

decision.” Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020) (citation omitted). Here these factors weigh in favor of overruling 

those aspects of Industrial Risk and Inversiones which hold that Article V of the New York Convention provides the vacatur grounds 

for an arbitral award. 

For starters, Industrial Risk and Inversiones are wrong, and 

clearly so. They fail to analyze the text of the New York Convention or of Chapter 2 of the FAA. And they improperly conflate 

recognition and enforcement with vacatur by ignoring the different 

roles given to primary and secondary jurisdictions in post-award 

judicial proceedings under the Convention. 

In addition, Industrial Risk and Inversiones are outliers. 

They are in significant tension with the Supreme Court’s understanding of the Convention in Outokumpu, 140 S. Ct. at 1645, and 

they directly conflict with the decisions of our sister circuits. 

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In evaluating whether a prior decision “causes ‘more harm 

than good’ we . . . evaluate a range of consequences.” 

SmileDirectClub, LLC v. Battle, 4 F.4th 1274, 1285 (11th Cir. 2021) 

(en banc) (W. Pryor, C.J., concurring) (citation omitted). In this 

respect, some commentators have noted that if left undisturbed Industrial Risk and Inversiones may affect how we interpret and apply the Inter-American Convention on International Commercial 

Arbitration (popularly known as the Panama Convention), Jan. 30, 

1975, S. Treaty Doc. No. 97–12, 1438 U.N.T.S. 245, which Congress 

implemented through Chapter 3 of the FAA, 9 U.S.C. §§ 301 et seq. 

See Juan C. Garcia & Ivan Bracho Gonzalez, Interpretation of Article V of the New York Convention in the Eleventh Circuit: Industrial Risk Insurers, 74 U. Miami L. Rev. 1080, 1108 (2020). 

Although we do not address the Panama Convention today, 

we note that its enforcement and recognition provisions are “substantively identical” to those in the New York Convention. See 

Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat’l Petroleum Corp., 

40 F.4th 56, 62 n.2 (2d Cir. 2022); TermoRio, 487 F.3d at 933. Relying on the panel decision in this case, one of our recent decisions 

states that the “Panama Convention lists seven defenses which provide the exclusive grounds for vacatur.” Técnicas Reunidas de 

Talara S.A.C. v. SSK Ingenería y Construcción S.A.C., 40 F.4th 

1339, 1344 (11th Cir. 2022) (citing Corporación AIC, 34 F.4th at 

1298). This statement in Técnicas Reunidas equating recognition 

and enforcement with vacatur was arguably dicta because the case 

was decided solely on waiver grounds, see 40 F.4th at 1345-46, but

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it nevertheless shows that Industrial Risk and Inversiones may not 

be limited to the New York Convention and may spill over to the 

Panama Convention. 

We acknowledge that Industrial Risk and Inversiones may 

have created certain reliance interests. But those interests, we 

think, are relatively minor. First, there are two sets of parties who 

might be detrimentally affected by our decision today: (a) those 

whose arbitral proceedings under the New York Convention (i) are 

seated somewhere within the Eleventh Circuit and (ii) are currently ongoing; and (b) those whose agreements stipulate to an arbitral location within the Eleventh Circuit but have not yet initiated arbitration proceedings. Whether those parties number in the 

single, double, or triple digits is anyone’s guess. Second, we do not 

know which, if any, of these parties chose to conduct their arbitral 

proceedings in the Eleventh Circuit because of Industrial Risk and 

Inversiones. Cf. Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 

1499 (2019) (“[C]ase-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of 

an important constitutional question.”).

IV 

We hold that in a New York Convention case where the arbitration is seated in the United States, or where United States law 

governs the conduct of the arbitration, Chapter 1 of the FAA provides the grounds for vacatur of an arbitral award. To the extent 

that Industrial Risk and Inversiones are inconsistent with this holding, we overrule them. 

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The district court correctly followed Industrial Risk and Inversiones, which constituted binding precedent at the time, and declined to address Corporación AIC’s argument that the arbitral 

award should be vacated because the panel exceeded its powers 

under 9 U.S.C. § 10(a)(4). We vacate the judgment in favor of Hidroeléctrica and remand for the district court to consider Corporación AIC’s § 10(a)(4) contention.7

VACATED and REMANDED. 

7

We decline Hidroeléctrica’s invitation to decide the § 10(a)(4) issue ourselves. 

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