UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

UNIVERSAL FORUM OF CULTURES 

BARCELONA 2004, S.L., IN 

LIQUIDATION,

Petitioner,

v.

COUNCIL FOR A PARLIAMENT OF 

THE WORLD’S RELIGIONS,

 Respondent.

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Case No. 12-CV-3542

Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Petitioner Universal Forum of Cultures Barcelona 2004, S.L., in liquidation (the 

“Forum”) has filed a petition to confirm a foreign arbitral award in its favor and against 

Respondent Council for a Parliament of the World’s Religions (the “Council”). The 

Council has moved to dismiss that petition pursuant to Federal Rule of Civil Procedure 

12(b)(1) or, in the alternative, to refuse to confirm the foreign arbitral award. The Forum 

has filed a cross-motion to confirm the foreign arbitral award. For the reasons discussed 

below, the Council’s motions are denied; and the foreign arbitral award in the Forum’s 

favor is confirmed. 

BACKGROUND

In June 2003, the Forum, the Council and a third party, the UNESCO Centre of 

Catalonia (the “Centre”), finalized an agreement to hold an “international interreligious 

event” in Barcelona, Spain, called the “2004 Parliament of the World’s Religions” (the 
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“Parliament”). The parties executed a Memorandum of Understanding (the “MOU”), a 

twenty-seven page document dated June 4, 2003, which “govern[ed] the relationship” 

between the Forum, the Council, and the Centre. According to the MOU, the Forum and

the Council were the “governing” parties and “responsible for all matters pertaining to 

policy, procedures, operations, programming, and funding” of the Parliament. In 

paragraph 20, entitled “Conflict negotiation process,” the MOU provided the following 

conflict resolution process:

This Agreement is governed by Spanish Law. In the event that conflicts, 

disagreements, misunderstandings, or differences cannot be resolved 

through the normal and established channels of communication and 

authority, the following two-step process would [sic] be undertaken:

• Three principal Executive officers of the COUNCIL, [THE 

FORUM], and the CENTRE would seek to mediate these matters 

to the satisfaction of all parties; and if unsuccessful,

• The parties accept the institutional arbitration of the Court of 

Arbitration of Barcelona, of the Catalan Association for 

Arbitration, which is in charge of appointing the arbitrator or 

arbitrators and the administration of the arbitration. The parties 

herein agree to comply with the arbitration decision. The parties 

agree that the Arbitration will be according to Law.

(MOU, p. 26.) 

Shortly after the Parliament’s “international interreligious event” ended, the 

Forum and the Council began to disagree about how much money the Council owed the

Forum. From September 2004 through January 2005, the parties exchanged several 

offers and counteroffers. On January 31, 2005, the Forum sent to the Council a short, 

two-page letter regarding the Council’s outstanding debt of $565,159 (the “2005 Letter 

Agreement”). (See Resp.’s Memo. in Support of Mot. to Dismiss, Exh. B.) In that letter, 
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the Forum proposed a payment schedule for the Council to pay back its debt through 

2008. (See Resp.’s Memo. in Support of Mot. to Dismiss, Exh. B.) The Council signed 

and accepted that agreement on March 28, 2005. (Id.) However, the Council failed to 

make all the payments as set forth in the 2005 Letter Agreement. On February 10, 2009, 

the Forum made a demand for payment on the outstanding debt of $238,592.52. The

Council made a partial payment of $25,000 in November 2009 but made no further 

payments. (See Petition Exh. 2, Final Arbitration Award, at 11.) 

On May 20, 2010, the Forum convened an arbitration proceeding in the 

Arbitration Court of Barcelona, invoking the arbitration clause contained in paragraph 20 

of the MOU. In its submission to the Arbitration Court on June 24, 2010, the Council 

acknowledged the existence of the arbitration agreement in the MOU, but argued that the 

mediation step of paragraph 20 had not been satisfied. (Id. at 8.) Both parties requested 

that the Arbitration Court appoint a sole arbitrator, and Carlos Valls Martinez was 

appointed. The Council was represented by two Barcelona-based attorneys, Cesar Rivera 

and Carlos Gomez. On April 8, 2011, the initial arbitration proceedings commenced, in 

the presence of the reporting magistrate of the Arbitration Court of Barcelona, the 

arbitrator, and the Forum, but without the appearance of the Council. (Id. at 9.) 

On April 27, 2011, the Forum submitted its Request for Arbitration outlining its 

claims and demands. In its Response to the Request, the Council acknowledged that the 

MOU “effectively included in its clause 20 a valid arbitration agreement,” but repeated 

its objection that the arbitration clause was not in effect because the “first phase” of 

mediation had not taken place and, for that reason, requested that the MOU be declared 
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null and invalid. (Id. at 11.) The Council further requested that the arbitrator “declare 

the lack of competence of this Arbitration Court ... since the [Forum] has failed to 

comply with the measures agreed upon which were to be pursued prior to proceeding to 

arbitration.” (Id. at 12.) 

On September 9, 2011, the arbitrator issued an award in the Forum’s favor in 

the total amount of US $276,196.22 (the “Award”).1

 The arbitrator also issued a lengthy 

decision, in which he analyzed and rejected the Council’s objection regarding the 

mediation phase of the MOU. (Id. at 17-35.) On May 9, 2012, the Forum filed its 

petition to confirm the foreign arbitral award with this Court. 

DISCUSSION

The Federal Arbitration Act (the “FAA”), 9 U.S.C. § 201 et seq, incorporates into 

federal law the United Nations Convention on the Recognition and Enforcement of 

Foreign Arbitral Awards, June 10, 1985, commonly known as the New York Convention 

(the “Convention”). See Slaney v. Int’l Amateur Ath. Fed’n, 244 F.3d 580, 588 (7th Cir. 

2001) (Slaney). The FAA provides for the enforcement of foreign arbitration agreements 

and awards and vests federal district courts with original jurisdiction over actions “falling 

under the Convention.” 9 U.S.C. § 203; see also Czarina, L.L.C. v. W.F. Poe Syndicate, 

358 F.3d 1286, 1291 (11th Cir. 2004) (Czarina). Under the FAA, a party to an 

 1 The award was comprised of the following: (1) award on the principal claim in 

the amount of US $213,592.52; (2) award of interest in the amount of US $22,488.65; 

(3) award of attorney fees in the amount of US $15,211.34; and (4) award of arbitrator 

fees in the amount of US $24,903.70. 
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arbitration may seek confirmation of a foreign arbitral award in a district court within 

three years of the award. 9 U.S.C. §§ 203, 207. 

The Convention’s “Agreement In Writing” Prerequisite

As a threshold matter, a district court must determine if it has jurisdiction under 

the FAA to enforce an arbitral award. An arbitral award “falls under” the Convention 

and the FAA so as to grant jurisdiction when: (1) there is “an agreement in writing” to 

arbitrate; (2) the agreement provides for arbitration in the territory of a Convention 

signatory; (3) there was a commercial legal relationship; and (4) one party to the 

agreement is not an American citizen. 9 U.S.C. § 202; Convention, Art. II, III, IV, 9 

U.S.C. § 201 (historical and statutory notes); see also Francisco v. Stolt Achievement MT,

293 F.3d 270, 273 (5th Cir. 2002); Czarina, 358 F.3d at 1291. Consequently, an 

arbitration award will not be enforced if a party fails to satisfy the Convention’s 

“agreement-in-writing prerequisite.” Czarina, 358 F.3d at 1291. 

Whether an “agreement in writing” to arbitrate exists is determined under state 

contract law. See First Options v. Kaplan, 514 U.S. 938, 944 (1995) (“When deciding 

whether the parties agreed to arbitrate . . . courts generally . . . should apply ordinary 

state-law principles that govern the formation of contracts.”); see also Howsam v. Dean 

Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (Howsam) (stating that “a gateway dispute 

about whether the parties are bound by a given arbitration clause raises ‘a question of 

arbitrability’ for a court to decide”). Consequently, the parties’ contract is examined 

under Illinois, and not Spanish, law. Under Illinois law, the analysis starts by “addressing 

whether the ‘basic ingredients’ of a contract — offer, acceptance, and consideration —
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are present.” Carey v. Richards Bldg. Supply Co., 856 N.E.2d 24, 27 (Ill. App. 2d Dist. 

2006). 

In this case, the parties appear to agree that the MOU is a valid agreement. 

However, the Council argues that the 2005 Letter Agreement was either an “accord and 

satisfaction” that replaced the MOU or a contract under the doctrine of merger that 

superseded the MOU agreement. The Council contends there is no “agreement in 

writing” to arbitrate because the 2005 Letter Agreement does not contain an arbitration 

clause and, as such, the Court does not have jurisdiction over the Forum’s petition. 

This is the first time the Council has raised this argument. In the underlying 

arbitration, the Council never claimed that the 2005 Letter Agreement, as opposed to the 

MOU, was the governing contract between the parties. Rather, in direct contrast, the 

Council acknowledged that the MOU was the relevant contract and had “a valid 

arbitration agreement.” Indeed, the Council relied on the MOU because its objection to 

the arbitration was based entirely on the mediation language found in paragraph 20 of the 

MOU. 

The Council’s reliance on the MOU in the underlying arbitration belies its newly 

raised assertion that the 2005 Letter Agreement is the governing contract. There is no 

evidence that the parties intended to extinguish or supersede the MOU when they 

executed the 2005 Letter Agreement. See, e.g., Grundstad v. Ritt, 166 F.3d 867, 871 (7th 

Cir. 1999) (“Under Illinois law, all the parties to the original agreement must assent to a 

novation, that is, to the substitution of a new debt or obligation for a previous debt or 

obligation.”); Thomas v. Frederick J. Borgsmiller, Inc., 508 N.E.2d 1235, 1238 (Ill. App. 
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5th Dist. 1987) (“The essential elements of a novation are: (1) a previous, valid 

obligation; (2) a subsequent agreement of all the parties to the new contract; (3) the 

extinguishment of the old contract; and (4) the validity of the new contract.”). The 2005 

Letter Agreement contains no mention of an intent to create a new contract that would 

replace the MOU. Rather, the 2005 Letter Agreement simply modifies the payment 

terms of the MOU – a modification that appears to be solely to accommodate the 

Council’s difficulty in paying its debt to the Forum. Therefore, because the MOU 

contains a valid arbitration clause, the MOU clearly satisfies the Convention’s 

“agreement in writing” prerequisite.2

Defenses to An Arbitral Award Under The Convention

Since the MOU “falls under” the Convention to satisfy the jurisdictional 

prerequisite, the analysis next turns to whether the arbitral award should be confirmed. 

The purpose of the Convention is to effectuate arbitration proceedings and their 

enforcement in international contracts and to unify the standards by which arbitration 

agreements are observed and arbitral awards are enforced. See Scherk v. Alberto-Culver 

 2 The Forum argues that the Council waived this argument by failing to raise it in 

the underlying arbitration. See, e.g., Ganton Techs. v. UAW, Local 627, 358 F.3d 459, 

462 (7th Cir. 2004) (“The failure to pose an available argument to the arbitrator waives 

that argument in collateral proceedings to enforce or vacate the arbitration award) 

(citation omitted); National Wrecking Co. v. Int'l Bhd. of Teamsters, Local 731, 990 F.2d 

957, 960-61 (7th Cir. 1993) (“Permitting parties to keep silent during arbitration and raise 

arguments in enforcement proceedings would undermine the purpose of arbitration”) 

(citation omitted); see also Slaney, 244 F.3d at 591 (“Slaney could not sit back and allow 

the arbitration to go forward, and only after it was all done . . . say: oh by the way, we 

never agreed to the arbitration clause. That is a tactic that the law of arbitration, with its 

commitment to speed, will not tolerate.”) (quotation omitted). However, because the 

MOU contains a valid arbitration agreement that falls under the Convention, the waiver 

argument does not need to be addressed. 
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Co., 417 U.S. 506, 520 (1974). To this end, the FAA mandates that the confirming 

district 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 . . . Convention.” 9 

U.S.C. § 207. Thus, the arbitral award must be enforced unless the party opposing 

enforcement proves one of the enumerated defenses under Article V of the Convention. 

See Slaney, 244 3d at 588; Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan 

Minyak Dan Gas Bumi Negara, 364 F.3d 274, 288 (5th Cir. 2003). 

Article V(1)(c) of the Convention provides that an award will not be enforced if 

the party furnishes proof that the award “contains decisions on matters beyond the scope 

of the submission to arbitration.” The Council claims that the arbitrator acted “beyond 

the scope of the submissions” because he “erroneously made his own decision as to his 

jurisdiction to conduct the arbitration” and “ignored the ... arbitration clause requiring 

mediation of the matter.” The Council allots roughly one page in its opening brief and 

less than two pages in its reply brief to this argument. The Council has failed to carry its 

burden of proving this defense. 

In Howsam, the Supreme Court held that “procedural questions which grow out of 

the dispute and bear on its final disposition are presumptively not for the judge, but for an 

arbitrator, to decide.” 537 U.S. at 84 (emphasis in original) (internal quotations omitted). 

Therefore, “questions such as whether prerequisites to arbitration have been met, or 

questions of waiver, delay or other defenses to arbitrability, should be determined by the 

arbitrator.” Lumbermens Mutual Casualty Co. v. Broadspire Mgmt Servs., 623 F.3d 476, 

480 (7th Cir. 2010) (Lumbermens); see also John Wiley & Sons, Inc. v. Livingston, 376 
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U.S. 543, 557 (U.S. 1964) (holding that an arbitrator should decide whether the first two 

steps of a grievance procedure were completed, where these steps are prerequisites to 

arbitration). 

In this case, whether the MOU requires mediation before arbitration is a 

“procedural question over a precondition to arbitration” that is for the arbitrator to decide. 

See Lumbermens, 623 F.3d at 483. Consequently, the arbitrator did not act “beyond the 

scope of the submission to arbitration.” Instead, in a discussion of approximately twenty 

pages, the arbitrator thoroughly examined and rejected the Council’s argument that the 

parties had to mediate before proceeding to arbitration. 

Specifically, the arbitrator studied and relied upon the language of the MOU, 

which provides that “the parties would seek to mediate these matters to the satisfaction of 

all parties” before submitting to arbitration. (MOU at 6.) (emphasis added).3

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arbitrator concluded that this language meant that mediation was not a mandatory step 

but, rather, that the parties only had to attempt it. According to the arbitrator, the Forum 

had “complied with its obligation to attempt to engage in mediation” and had sent a letter 

to the Council that requested mediation. In contrast, the arbitrator found that the Council 

had failed to attempt to mediate and instead had “thrown up obstacles through its 

response and stalling tactics,” including possibly manipulating a key document. The 

arbitrator further concluded that the Council’s mediation objection “was solely intended 

 3 In its briefs, the Council selectively, and disingenuously, quotes the MOU as 

requiring the parties “to mediate the matters,” instead of the more accurate statement that 

the parties “would seek to mediate the matters.” (Council Br. at 9.) 
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to delay due compliance with its payment obligation.” Because the arbitrator properly 

decided a procedural question related to a condition of arbitration under the MOU, the 

Council has failed to establish a defense to the arbitral award. 

Evidentiary Hearing

Lastly, in its reply to the Forum’s cross-motion, the Council contends that the 

Court should order discovery and hold an evidentiary hearing. The Council alleges that 

there are two “factual disputes”: (1) a factual dispute regarding the “arbitrability of the 

parties’ various agreements”; and (2) a factual dispute regarding the applicability of 

Spanish law. Neither of these alleged “factual” disputes warrants additional discovery 

nor an evidentiary hearing. 

Confirming a foreign arbitral award is a “summary proceeding that merely makes 

what is already a final arbitration award a judgment of the court.” Yusuf Ahmed 

Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 25 (2d Cir. 1997) (internal 

quotation omitted). Thus, the scope of judicial action upon an award is “very limited.” 

Id. (internal quotation omitted). Evidentiary hearings regarding confirmation of a foreign 

arbitral awards involve issues such as misconduct or bias of the arbitrator that “cannot be 

gauged on the face of the arbitral record alone.” Legion Ins. Co. v. Insurance General 

Agency, Inc., 822 F.2d 541, 543 (5th Cir. 1987) (Legion) (finding that no hearing was 

required to confirm arbitration award). Indeed, “[t]o permit time-consuming, costly 

discovery simply to replicate the substance of the arbitration would thwart its goal.” Id.

at 543. 
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The Council has not alleged any factual disputes that go beyond the arbitral 

record. See Legion, 822 F.2d at 543. Regarding the alleged dispute of arbitrability, the 

Council has merely rehashed its argument regarding whether the MOU is the governing 

contract. Further, the Council claims that whether Spanish law applies presents a factual 

dispute, but this is a question of law. Both of these alleged “disputes” have been 

addressed and resolved in the discussion above. Consequently, there is no need for 

additional discovery or an evidentiary hearing. 

CONCLUSION

In light of the foregoing analysis, it is ordered that: the Council’s Motion to 

Dismiss [12] is denied; the Forum’s Cross-Motion to Confirm Foreign Arbitral Award

[23] is granted; and the clerk of the court is directed to enter judgment in favor of the 

Forum confirming the arbitral award and to close the case. 

Date:____March 21, 2012_________ ______________________________

JOHN W. DARRAH

United States District Court Judge