* District Judge of the Southern District of Texas, sitting by

designation. United States Court of Appeals

Fifth Circuit



## FILED

March 23, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

Nos. 02-20042 & 03-20602

____________________

Karaha Bodas Co., L.L.C.,

Plaintiff-Appellee,

V.

Perusahaan Pertambangan Minyak Dan Gas Bumi Negara; Et Al,

Defendants,

Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

Before KING, Chief Circuit Judge, DAVIS, Circuit Judge, and

ROSENTHAL, * District Judge.

ROSENTHAL, District Judge:

Thirty years ago, the United States Supreme Court recognized

that “[a] contractual provision specifying in advance the forum in

which disputes shall be litigated and the law to be applied

is

. . . an almost indispensable precondition to achievement of the

orderliness and predictability essential to any international1 Scherk v. Alberto-Culver Co. , 417 U.S. 506, 516 (1974).

2 United Nations Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38

(entered into force with respect to the United States, Dec. 29, 1970),

codified at 9 U.S.C. § 201 et seq.

2 business transaction.

. . . Such a provision obviates the danger

that a dispute under the agreement might be submitted to a forum

hostile to the interests of one of the parties or unfamiliar with

the problem area invol ved.” 1 When, as here, parties to

international commercial contracts agree to arbitrate future

disputes in a neu tral forum, orderliness and predictability also

depend on the procedures for reviewing and enforcing arbitral

awards that may result. This appeal arises from an arbitral award

(the “Award”) made in Geneva, Switzerland, involving contracts

negotiated and allegedly breached in Indonesia. The Award imposed

liability and damages against Perus ahaan Pertambangan Minyak Dan

Gas Bumi Negara (“Pertamina”), which is owned by the government of

Indonesia, in favor of Karaha Bodas Company, L.L.C. (“KBC”), a

Cayman Islands company. KBC filed this suit in the federal

district court in Texas to enforce the Award under the United

National Convention on the Recognition and Enforcement of Foreign

Arbitral Awards (the “New York Convention”), and filed enforcement

actions in Hong Kong and Canada as well. 2 While those enforcement

proceedings were pending, Pertamina appealed the Award in the Swiss

courts, seeking annulment. When that effort failed, and after the

Texas district court granted summary judgment enforcing the Award,3 A different panel of this court heard a separate appeal from the

district court’s injunction against Pertamina’s prosecution of the

act ion in Indonesia, but did not decide the effect of the Indonesian

court’s annulment order on the enforcement proceedin g

. K araha Bodas

Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

, 335

F.3d 357, 373-74 (5th Cir. 2003). One of the issues before this panel

is whether the Indonesian court’s order is a defense to the enforcement

of the Award.

4 K araha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan

Gas Bumi Negara , 2003 WL 21027134, at *4-6 (5th Cir. March 5, 2003).

3 Pertamina obtained an order from an Indonesian court annulling the

Award. 3

Per tamina appealed to this court. During the appeal,

Pertamina fi led in the district court a motion to set aside the

judgment under Federal Rule of Civil Procedure 60(b)(2), based on

newly-discovered evidence Pertamina contended should have been

disclosed during the arbitration, and under Rule 60(b)(5), based on

the Indonesian court’s decision annul ling the arbitration Award.

This court remanded to the district court for consideration of

Pertamina’s Rule 60(b) motion. 4 On remand, the district court

denied Pertamina’s Rule 60(b) motion. This appeal consolidates

Pertamina’s challenges to the grant of summary judgment and to the

denial of the Rule 60(b) motion.

Pertamina urges this court to reverse the dis trict court’s

decision enforcing the Award on several grounds under the New York

Convention. We conclude that the record forecloses Pertamina’s

arguments that procedural viola tions and other errors during the

arbitration preclude enforcement. We reject Pertamina’s argument5 We note that the length of this opinion reflects the number of

arguments Pertamina raises to evade its obligations under the Award more

than the strength of those arguments.

6 PLN, an electric utility owned by the government of Indonesia,

was a party to the arbitration but was dismissed from the district court

action.

4 that the Indonesian court’s order annulling the Award bars its

enforcement under the New York Conven tion; this argument is

inconsistent with the arbitration agreements Pertamina signed and

with its earlier position that Switzerland, the neutral forum the

parties s elected, had exclusive jurisdiction over an annulment

proceeding. We reject Pertamina’s efforts to delay or avoid

enforcement of the Award as evidencing a disregard for the

international commercial arbitration procedures it agreed to

follow. 5 In short, we affirm the district court’s judgment

enforcing the Award, for the reasons set out in detail below.

I. Background

A. Procedural and Factual History

KBC explores and develops geothermal energy sources and builds

electric generating stations using geothermal sources. Pertamina

is an oil, gas, and geothermal energy company owned by the Republic

of Indonesia. 6 In November 1994, KBC signed two contracts to

produce electricity from geothermal sources in Indonesia. Under

the Joint Operation Contract (“JOC”), KBC had the right to develop

geother mal energy sources in the Karaha area of Indonesia;

Pertamina was to ma nage the project and receive the electricity7 Article 13.2(a) of the arbitration provision of the JOC

provided:

If the Dispute cannot be settled within thirty

(30) working days by mutual discussions as

contemplated by Article 13.1 hereof, the Dispute

shall finally be settled by an arbitral tribunal

(the “Tribunal”) under the UNCITRAL ar bitration

rules . . . . Each Party will appoint an

arbitrator within thirty (30) days after the date

of a request to initiate arbitration, who will

t hen jointly appoint a third arbitrator withi n

thirty (30) days of the date of the appointment of

the second arbitrator, to act as Chairman of the

Tribu nal. Arbitrators not appointed within the

time li mits set forth in the preceding sentence

shall be appointed by the Secretary General of the

International Center for Settlement of Investment

Disputes. Both Parties undertake to implement the

arbitration awa rd. The site of the arbitration

shall be Geneva, Switzerland. The language of the

arbitration shall be English. The Parties

expressly agree to waive [certain Indonesian

procedural laws]. . . .

JOC, Art. 13.2(a),(d). Section 8.2(a) of the ESC’s arbitration

provision similarly read:

If the Dispute cannot be settled within forty-five

calendar (45) days by mutual disc ussions as

contemplated by Section 8.1 hereof, t he Dispute

shall finally be settled by an arbitral tribunal

(the “Tribunal”) under the UNCITRAL arbit ration

rules . . . . PLN on one hand, and [KBC] and

PERTAMINA on the other hand, will each appoint one

arbitrator, in each case within thirty (30) days

after the date of a request to i nitiate

arbitration, who will then jointly appoint a third

arbitrator within thirty (30) days of the date of

5 generated. Under the Energy Sales Contract (“ESC”), PLN agreed to

purchase from Pertamina the energy generated by KBC’s facilities.

Both contracts contained almost identical broad arbitration

clauses, requiring the parties to arbitrate any disputes in Geneva,

Switzerland under the Arbitration Rules of the United Nations

Commission on International Trade Law (“UNCITRAL”). 7the appointment of the second arbitrator, to act

as Chairman of the Tribunal. Arbitrators not

appointed within the time limits set forth in the

preceding sentence shall be appointed by the

Secretary General of the International Center for

Settlement of Investment Dispu t es, upon the

request of any Party. All Parties undertake to

implement the arbitration award. The site of the

arbitration shall be Geneva, Switzerland. The

language of the arbitration shall be English. The

Parties expressly agree to waive the applicability

of [certain Indonesian procedural laws]. . . .

Both contracts contained the following addit ional arbitration

language:

The award ren dered in any arbitration commenced

hereunder shall be final and bind ing upon the

Parties and judgment thereon may be entered in any

court having jurisdiction for its enforcement.

The Parties hereby renounce their right to appeal

from the decision of the arbitral panel and agree

that in accordance with Se ction 641 of the

Indonesian Code of Civil Procedure [neither] Party

shall appeal to any court from the decision of the

arbitral panel and accordingly the Parties hereby

waiv e the applicability of [certain Indonesian

laws]. In addition, the Parties agree that

[neither] Party shall have any right to commence

or maintain any suit or legal proceeding

concerning a [dispute hereunder until the] dispute

has been determined in accordance with the

arbitration procedure provided for herein and then

only to enforce or facilitate the execution of the

award rendered in such arbitration.

JOC, Art. 13.2(d); ESC, § 8.2(d).

6 On September 20, 1997, the government o f Indonesia

temporarily suspended the project because of the country’s

financial crisis. The government of Indonesia indefinitely

suspended the project on January 10, 1998. On February 10, 1998,

KBC notified Pertamina and PLN that the government’s in definite

suspension constituted an eve nt of “force majeure” under the7

contracts. KBC initiated arbitration proceedings on April 30,

1998. In its notice of arbitration, KBC appointed Professor Piero

Bernardini, vice-chair of the International Chamber of Commerce’s

(“ICC”) International Court of Arbitration and member of the London

Court of International Arbitration, to serve as an arbitrator.

Pertamina , however, did not designate an arbitrator in the

contractually allotted thirty days. The JOC and ESC both provided

that if a party failed to appoint an arbitrator within thirty days,

the Secretary-General of the International Center for Settlement of

Investment Disputes (“ICSID”) was to make the appointment. After

notifying Pertamina, PLN, and the government of Indonesia, the

ICSID appointed Dr. Ahmed El-Kosheri, ano ther vice-chair of the

ICC, as the second arbitrator. As specified in the JOC and ESC,

t he two appointed arbitrators then selected the chairman of the

arbitration panel, Yves Derains, the former Secretary-General of

the ICC.

Pertamina raised threshold challenges to the Tribunal’s

consolida tion of the claims KBC raised under the JOC and the ESC

into one arbitration proceeding and to the selection of the panel.

In October 1999, the Tribunal issued a Preliminary Award, rejecting

Pertamina’s threshold challenges and ruling that the government of

Indonesia was not a party to the contracts or to the arbitration

proceeding.

KBC filed its Revised Statement of Claim in November 1999.

Pertamina received a number of extensions before it filed its reply8

to the Revised Statement of Claim in April 2000. KBC filed a

rebuttal to that reply in May 2000. In response to KBC’s rebuttal,

Pertamina sought additional discovery and a c ontinuance of the

proceedings, claiming that KBC had raised assertions and added

elements to its cas e-in-chief not contained in the Revised

Statement of Claim.

From the outset, the parties vigorously disputed whether KBC

could have ob tained financing to build the project if the

government of Indonesia had not issued the suspension decree.

Pertamina contended that KBC could not have built the project

– and

therefore suffered no damages from the government decree suspending

the work

– be cause the precarious situation in Indonesia

effectively made the necessary financing unavailable. Pertamina

asserted that KBC’s rebuttal introduced a new theory as to how

project financing could have been obtained. KBC changed from

focusing on the availability of third-party financing and argued in

the rebuttal that one of its direct investors, FPL Energy (“FPL”),

would have provided project financing if no other source was

available. Shortly before the scheduled hearing, Pertamina sought

discovery of documents relati ng to FPL’s asserted willingness to

finance the project. In May 2000, the Tribunal denied Pertamina’s

request to obtain this discovery before the hearing and denied the

request for a continuance. The Tribunal stated that it would

decide at the conclusion of the hearing “whether any adjustment to

the proceeding” would be required because of the di scovery9

requested. The hearing on the merits proceeded as scheduled in

June 2000.

The Tribunal received a l arge record. Both sides submitted

extensive witness statements, expert reports, exhibits, and briefs.

During the hearing, Pertamina and PLN cross-examined KBC’s

witnesses, including two witn esses who testified about KBC’s

ability to finance the project, Robert McGrath, Treasurer o f FPL

Group, Inc., and Leslie Gelber, forme r Vice-President of

Development at FPL Energy. Both witnesses submitted declarations

stating that “FPL Energy was prepared in 1998 to provide bridge

financing or direct capital to continue the Project through the

phases of the Project that were scheduled to be completed during

Indonesia’s period of instability.” At the hearing, counsel for

Pertamina specifically questioned McGrath about the availability of

project fin ancing from FPL. During that questioning, a Tribunal

member asked McGrath whether the investment in the project was

protected by a form of political risk insurance. McGrath

respo nded, “I am not sure of that. I know there were some

discussions at the time, but I don’t recollect as to whether it was

or wasn’t.” Counsel for Pertamina asked no follow-up questions.

At the end of the hearing, counsel for Pertamina declined to pursue

the previously requested discovery and stated that the record had

been “fully” made.

In the Final Award, the Tribunal found that under the JOC and

the ESC, Pertamina and PLN had accepted the ris k of loss arising10

from a “Government Related Event.” The Tribunal interpreted the

contracts as “putting the consequences of a Governmental decision

which prevents the performance of the contract at Pertamina’s

. . .

sole risk.” The Tribunal awarded KBC $111.1 million, the amount

KBC had expended on the project, and $150 million in lost profits.

The Tribunal explained in detail why it rejected the lost profits

amount KBC sought

– $512.5 million – and how it arrived at the

amount awarded.

In February 2001, Pertamina appealed the Award to the Supreme

Court of Switzerland. While that appeal was pending, KBC initiated

this suit in the federal district court to enforce the Award.

B. The District Court Decisions

Pertamina challenged enforcement of the Award in the federal

district court on four grounds under Ar ticle V of the New York

Convention: (1) the procedure for selecting the arbitrators was

not in accordance with the agreement of the parties; (2) the

Tribunal improperly consolidated the claims into one arbitration;

(3) Pertamina was “unable to present its case” to the Tribunal; and

(4) enforcement of the damages Award would violate t he public

policy of the United States. As to the first two grounds,

Pertamina contended that the decision to consolidate the claims

under the two contracts was procedurally improper and t hat KBC’s

unilatera l appointment of an arbitrator violated the ESC

arbitration provision. As to the third ground, Pertamina argued11

that the Tribunal impro perly reversed its finding in the

Preliminary Award that Pertamina did not breach the contracts by

holding Pertamina liable for non performance in the Final Award;

that the Tribunal’s denial of Pertamina’s request for discovery of

FPL’s records prevented Pertamina from fully presenting its case;

and that the Tribunal’s denial of a continuance after KBC filed its

rebuttal to the reply to the Revised Statement of Claim prevented

Pertamina from fully preparing to meet KBC’s contentions. As to

the fourth ground, Pertamina argued th at the Award violated the

international abuse of rights doctrine and punished Pertamina for

obeying the Indonesian government’s decree. Under Federal Rule of

Civil Procedure 56(f), Pertamina requested a delay in the district

court in responding to KBC’s summary judgment motio n to seek

discovery of the same FPL records it had unsuccessfully sought in

the arbitration.

Pertamina continued its appeal seeking annulment of the Award

to the Supreme Court of Switzer land while the enforcement action

was pending in the district court in Texas. The Texas district

court slowed the proceedings in deference to Pertam ina’s request

that the Swiss court first be allowed to decide whether to annul

the Award. In April 2001, the Swiss Supreme Court dismissed

Pertamina’s claim because of untimely payment of costs. Pertamina

moved for reconsideration; the Swiss court denied that motion in

August 2001.12

In December 2001, the district court enforced the Award,

rejecting each of Pertamina’s grounds for refusal. The district

court caref ully reviewed the record in examining Pertamina’s

claimed inability to challenge in the arbitration proceeding KBC’s

argument that it could have obtained project financing from its

investor, FPL. The district court denied Pertamina’s Rule 56(f)

request for additional discovery on this issue. Pertamina filed

its notice of appeal from the district court’s summary judgment

enforcing the Award in January 2002.

Having failed in its effort to annul the Award in the Swiss

courts, Pertamina filed suit in Ind onesia seeking annulment. In

August 2002, an Indonesian court annulled the Award. KBC continued

with enforcement suits in Hong Kong and Canada. In October 2002,

while this appeal was pending, Pertamina discovered in the Canadian

proceeding that FPL and one other KBC investor, Caithness, had held

a political risk insurance policy covering the KBC project through

Lloyd’s of London. Pertamina also learned that Lloyd’s had paid

$75 million under that insurance policy to FPL and Caithness for

the losses resulting from the Indonesian government’s suspension of

the project.

In December 2002, Pertamina filed a motion in the district

court to vacate the judgment on three grounds: (1) newly-discovered

evidence of the polit ical risk insurance policy, under Rule

60(b) (2); (2) the Indonesian court’s annulment of the underlying

arb itral Award, under Rule 60(b)(5); and (3) satisfaction of13

judgment to the extent of the $75 milli on insurance payment.

Pertamina also filed a motion in this court to supplement the

record and briefing. In both motions, Pertamina argued that the

existence of political risk insurance coverage in favor of FPL

undermine d KBC’s claims that the contracts allocated political

risks to Pertamina and that FPL would have financed the project in

order to avoid losing its earlier investment. Additionally,

Pertamina argued that th e payment of the insurance proceeds

undermined the Tribunal’s determination of damages. Pertamina

urged t hat KBC’s failure to disclose the insurance during the

arbitration provided a basis for refusing to enforce the Award and

made the district court’s summary judgment improper.

This court denied Per tamina’s motion to supplement the

appellate record under Federal Ru le of Appellate Procedure 10(e)

and remanded to the district court for consideration of Pertamina’s

Rule 60(b) motion. O n remand, the district court denied the

motion, finding that Pertamina failed to show that KBC had misled

the tribunal or that KBC’s failure to produce the political risk

insurance policy violated the rules governing the arbitration.

The district court also rejected Pertamina’s claim that

Indonesia had primary jurisdiction to decide to annul the Award and

declined to give effect to the Indonesian court’s annulment order

as a defense to enforcement. The district court imposed judicial

estoppel to preclude Pertam i na from asserting that Indonesian

procedural law had governed the a rbitration and that Indonesian8 The day after the district court issued its final order denying

Pertamina’s Rule 60(b) motion, KBC submitte d a letter to the court

“clarifying” that while FPL was not the insured under the political risk

insurance policy, FPL owned one of the named insureds that benefitted

under the policy. The district court issued a supplemental order

acknowledging KBC’s letter and noting that the fact that FPL was not a

named insured under the insurance policy “was only one of many factors

that the Court considered in denying Pertamina’s Rule 60(b) Motion.

Thus, the fact that an entity owned by FP L, but not FPL itself,

benefit[t]ed under the policy does not change any legal conclusion” in

the court’s decision. On the same day that the district court issued

its supplemental orde r, and ten days after the court’s denial of

Pertamina’s Rule 60(b) motion, KBC filed a Motion to Amend Findings of

Fact under Federal Rule of Civil Procedure 52(b). In a second

supplemental order, the district court recogn ized KBC’s motion as a

Motion to Amend or Alter Judgment under Federal Rule of Civil Procedure

59(e) and granted the motion. The court assumed, without deciding, that

FPL benefitted from the risk insurance policy, but held that it did not

affect the basis of the court’s decision. Pertamina argues that the

d istrict court did not have jurisdiction to issue either of these two

supplemental orders. This court agrees that the issue addressed in the

supplemental orders does not affect the outcome of this case.

14 courts had primary jurisdiction to review the Award. Finally, the

district court rejected Pertamina’s argument that the amount of the

Award should be offset by the $75 million insurance payment. 8

This appeal followed. Pertamina argues that the Tribunal

improperly consolidated the claims into one arbitration proceeding;

the selection of the arbitrators violated the JOC and ESC; the

Tribunal denied Pertamina a fair opportunity to present its case

because the Tribunal reversed part of its Preliminary Award without

notice, denied Pertamina’s request to postpone the arbitration, and

denied Pertamina’s discovery requests; the Award is contrary to

public policy because it violated t he international law abuse of

rights doctrine and because the district court’s decision holds

Pertamina liable for co mplying with Indonesian law; and the9 F irst Options of Chicago, Inc. v. Kaplan

, 514 U.S. 938, 947-948

(1999); Hughes Tr aining, Inc. v. Cook , 254 F.3d 588, 592 (5th Cir.

2001)

.

10 Eason v. Thaler , 73 F.3d 1322, 1324 (5th Cir. 1996).

11 Karaha Bodas Co. , 335 F.3d at 364; see Yusuf Ahmed Alghanim &

Sons, W.L.L. v. Toys “R” Us, Inc. , 126 F.3d 15, 23 (2d Cir. 1997).

12 Karaha Bodas Co. , 335 F.3d at 364.

15 Indonesian court’s annulment of the arbitral Award is a defense to

enforcement under the New York Convention. Each ground is

addressed below.

II. Analysis

A district court’s decision confirming an arbitration award is

reviewed under the same standard as any other district court

decision. 9 This court reviews a district court’s grant of summary

judgment de novo

. 10

A. The New York Convention

The New Yo rk Convention provides a carefully structured

framework for the review and enforcement of international arbitral

awards. Only a court in a country with primary jurisdiction over

an arbitral award may annul that award. 11 Courts in other countries

have secondary jurisdiction; a court in a cou ntry with secondary

jurisdiction is limited to deciding whether the award may be

enforced in that country. 12 The Convention "mandates very different

regimes for the review of arbitral awards (1) in the [countries] in

which, or under the l aw of which, the award was made, and (2) in13 A lghanim

, 126 F.3d at 23 (quoted in Karaha Bodas Co.

, 335 F.3d

at 364).

14 Karaha Bodas Co. , 335 F.3d at 364.

15 Id.

16 Article V, Section 201 of the New York Convention provides:

1. Recognition and enforcement of the award may be

refused, at the request of the party against whom

it is invoked, only if that party furnishes to the

competent authority where the recognition and

enforcement is sought, proof that:

(a) The parties to the agreement referred to in

article II were, under the law applicable to them,

under some incapacity, or the said agr eement is

not valid under the law to which the parties have

subjected it or, failing any indication thereon,

under the law of the country where the award was

made; or

(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; or

(c) The aw ard deals with a difference not

contemplated by or not falling within the terms of

16 other [countries] where recognition and enforcement are sought." 13

Unde r the Convention, "the country in which, or under the

[arbitration] law o f which, [an] award was made" is said to have

primary jurisdiction over the arbitration award. 14 All other

signatory states are secondary jurisdictions, in which parties can

only contest whether that state should enforce the arbitral award. 15

It is clear that the district court had secondary jurisdiction and

considered only whether to enforce the Award in the United States.

Article V en umerates specific grounds on which a court with

secondary jurisdiction may refuse enforcement. 16 In contrast to thethe submission to arbitration, or it contains

decisions on matters beyond the scope of the

submission to arbitration, provided that, if the

decisions on matters submitted to arbitration can

be separated from those not so submit ted, that

p art of the award which contains decisi ons on

matters submitted to arbitration may be recognized

and enforced; or

(d) The composition of the arbitral authority or

the arbitral procedure was not in accordance with

the agre ement 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 b ecome binding on the

parties, or has been set aside or suspended by a

competent a uthority of the country in which, or

under the law of which, that award was made.

2. Recognition and enforcement of an arbitral

award may also be ref used if the competent

authority in the country where r ecognition and

enforcement is sought finds that:

(a) The subject matter of th e difference is not

capable of settlement by arbitration under the law

of that country; or

(b) The recognition or enfo rcement of the award

would be contrary to the public policy of that country.

9 U.S.C. § 201, Art. V(1)-(2). S ee generally Alghanim

, 126 F.3d at 23;

Susan Choi, Judicial Enforcement of Arbitration Awards Under the ICSID

and New York Conventions , 28 N.Y.U. J. Int’l L. & Pol. 175 (1996).

17 limited a uthority of secondary-jurisdiction courts to review an

arbitral award, courts of primary jurisdiction, usually the courts

of the country of the arbitral situs, have much broader discretion

to set aside an award. While courts of a primary jurisdiction

country may apply their own domestic law in evaluating a request

to annul or set aside an arbitral a ward, courts in countries of17 Alghanim , 126 F.3d at 23 (cited in Karaha Bodas Co. , 335 F.3d

at 368).

18 9 U.S.C. § 207.

19 E uropcar Italia, S.p.A. v. Maiellano Tours, Inc.

, 156 F.3d 310,

315 (2d Cir. 1998); Nat’l Wrecking Co. v. Int’l Bhd. of Teamsters

, 990

F.2d 957, 960 (7th Cir. 1993).

20 Europcar Italia , 156 F.3d at 315.

21 I mperial Ethiopian Gov’t v. Baruch-Foster Corp.

, 535 F.2d 334,

336 (5th Cir. 1976); see Czarina, L.L.C. v. W.F. Poe Syndicate

, 2004 WL

205611, at *6 n.3 (11th Cir. Feb. 4, 2004).

18 secondary jurisdiction may refuse enforcement only on the grounds

specified in Article V. 17

The New York Convention and the implementing legislation,

Chapter 2 of the Federal Arbitration Act (“FAA”), provide that a

secondary jurisdiction court must enforce an arbitration award

unless it finds one of the grounds for refusal or deferral of

recognition or enforcement specified in the Convention. 18 The court

may not refuse to enforce an arbitral award solely on the ground

that the arbitrator may have made a mistake of law or fact. 19

“Absent extraordinary circumstances, a confirming court is not to

reconsider an arbitrator’s findings.” 20 T he party defending against

enforce ment of the arbitral award bears the burden of proof. 2 1

Defenses to enforcement under the New York Convention are construed

narrowly, “to encourage the recognition and enforcement of22 I mperial Ethiopian Gov’t

, 535 F.2d at 335; Parsons & Whittemore

Overseas Co., Inc. v. Societe Generale de L’Industrie du Papier , 508

F.2d 969, 974, 976 (2d Cir. 1974).

23 The Tribunal specifically cited Swiss procedural law in its

Preliminary Award. The Tribunal first cited Swiss law regarding the

intentions of parties to a contract to help gu ide its determination

whether the government of Indonesia was a party to the JOC and ESC. The

Tribunal cited the Swiss concept of “connexity” in concluding that KBC

could consolidate its claims unde r the contracts into a single

arbitration proceeding. Finally, the Tribunal referred to Swiss common

law suggesting that arbitrators are not agents in determining that the

selection of Tribunal arbitrators was appropriate under the agreements.

The Final Award stated that it was “[m]ade in Geneva.”

24 S ee, e.g.

, Prelim. Award, § B(1) (“The Respondents support this

conclusion by making reference to Swiss law as the JOC and the ESC

provide for UNCITRAL Arbitration in Geneva between the parties which are

neither Swiss nor Swiss resident. As a result, and under both

contracts, the arbitration proceedings are governed by Chapter 12 of the

Swiss Private International Law Statutes. Under Swiss law, [Respondent

contends] the Arbitral Tribunal is lacking ju risdiction because KBC

failed to comply with the contractual prerequisites to arbitration.”);

id. at § C(1) (“The Respondents also state that, under the arbitration

agreements and Swiss law, the arbitrators have no power to consolidate

. . . .”); i d. at § C(3) (citing a Swiss federal tribunal case in

support of its decision that a consolidated arbitration was

appropriate); id. at § D(1) (Respondents contend that “[s]uch solution

is not acceptable under the applicable Swiss law”).

The district court found that Pertamina “specifically, repeatedly

19 commercial arbitration agreements in international

contracts . . . .” 22

B. The Choice-of-Law Issues

In the JOC and ESC, the parties stipulated that “the site of

the arbitration shall be Geneva.” The Tribunal concluded that

under the arbitration agreements, Swiss procedural law applied as

the law of the arbitral forum. 23 From 1998 to April 2002, Pertamina

consistently and repeatedly took the position before the Tribunal,

the Swiss courts, and the United States district court, that Swiss

procedural law applied to the arbitration. 24 In April 2002, afterand unequivocally” argued that Swiss arbitration law applied in the

arbitration. Pertamina opened its motion to stay the district court

proceedings pending appeal to the Swiss judiciary by stating: “The

arbitration award

. . . was conducted subject to the arbitration laws

of Switzerlan d, and the Swiss court is empowered to vacate an award

rendered in Sw itzerland. . . . KBC is asking this Court to act

prematurely to confirm an award that might be overturned in the country

whose law governed the arbitration.” Pertamina added that “it is

fundamental that the courts of the originating nation are in the best

position to pass on issues under their own law.

. . . Here, Pertamina’s

appeal encompasses questions of Swiss l aw.” Pertamina made similar

arguments under Swiss procedural law in its responses to KBC’s motion

for summary judgment.

25 9 U.S.C. § 201, Art. V(1)(e).

20 the Swiss court had rejected Pertamina’s annulment proceeding and

the district court had held the Award enforceable in the United

States, Pertamina moved in the d istrict court for a stay of the

Award pending the outcome of the annulment proceeding Pertamina had

filed in Indonesia. For the first time, Pertamina raised in the

district court the argument that Indonesian, not Swiss, procedural

law had applied to the arbitration. Pertamina took this position

in the district court as part of its argument that Indonesia had

primary jurisdiction over the Award and therefore had the authority

to set it aside rather than merely decline to enforce it.

Article V(1)(e) o f the Convention provides that a court of

secondary jurisdiction may refuse to enforce an arbitral award if

it “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.” 25

Courts have held that the language, “‘the competent authority of

the country . . . under the law of which, that award was made’

refers exclusively to procedural and not substantive law, and more26 I nt’l Standard Elec. Corp. v. Bridas Sociedad Anoni m a

Petrolera, Indus. y Comercial , 745 F. Supp. 172, 178 (S.D.N.Y. 1990);

see Alghanim

, 126 F.3d at 21; M & C Corp. v. Erwin Behr GmbH & Co., KG

, 87 F.3d 844, 848 (6th Cir. 1996).

27 E uropcar Italia

, 156 F.3d at 315 ; Nat’l Wrecking Co.

, 990 F.2d

at 960; see James Ford Inc. v. Ford Dealer Computer Serv. Inc.

, 56 Fed.

Appx. 324, 325 (9th Cir. 2003) (giving broad deference to an

arbitrator’s choice-of-law decision).

21 precisely, to the regimen or scheme of arbitral procedural law

under which the arbitration was conducted, and not the substantive

law

. . . applied in the case.” 26 In this appeal, Pertamina and the

Republic of Indonesia (the “Republic”), as amicus, argue that the

Tribunal and the district court erred in finding that Swiss

procedural law, rather than Indones ian procedural law, applied.

Pertamina and the Republic argue that in th e arbitration

agreements, the parties chose Indonesian procedural, as we ll as

substantive, law to govern the arbitration. Pertamina and the

Republic assert th at, as a result: (1) the arbitration must be

examined for compliance with Indonesian procedural law; and (2) the

Indonesian court had primary jurisdiction to annul the Award,

providing a defense to enforcement in the United States. KBC

responds that the Tribunal properly i nterpreted the parties’

contracts in deciding that Swiss procedural law applied and the

district court properly a pplied the New York Convention in

affirming that decision. This court agrees with KBC.

Under the New York Convention, the rulings of the Tribunal

interpreting the parties’ contract are entitled to deference. 2728 E uropcar Italia

, 156 F.3d at 315; Nat’l Wrecking Co.

, 990 F.2d

at 960.

29 UNCITRAL Arbitration Rules , G.A. Res. 31/98, U.N. GAOR Comm’n

Int’l Trade L., at Art. 33(1) (1976),

http://www.uncitral.org/english/texts/arbitration/arb-rules.htm.

30 Article 20 of the JOC and Section 12.1 of the ESC each

provided: “This Contract shall be governed by the laws and regulations

of [the] Republic of Indonesia.”

31 Pertamina and the Republic rely on the following contractual

provisions for their position:

The parties expressly agree to waive the

applicability of (a) Article 650.2 of the

Indonesian Code of Civ il Procedure so that the

appointment of the arbitrators shall not terminate

as of the sixth (6th) Month after the date(s) of

their appointments and (b) the second sentence of

Article 620.1 of th e Indonesian Code of Civil

22 Unless the Tribunal manifestly disregarded the parties’ agreement

or the law, there is no basis to set aside the determination that

Swiss procedural law applied. 28 The parties’ arbitration agreements

specified that the site of the arbitration was Geneva, Switzerland

and that the arbitration would proceed under the UNCITRAL rules.

Those rules specify that the “arbitral tribunal shall apply the law

designated by the parties as applicable to the substance of the

dispute.” 29 It is undisputed that the parties specified that

Indonesian substantive law would apply. 30 It is also undisputed

that the contracts specified the site of the arbitration as

Switzerland. The contracts did not otherwise expressly identify

the procedural law that would apply to the arbitration. The

parties did refer to certain Indonesian Civil Procedure Rules in

the contracts. 31 Pertamina and the Republic argue that theseP rocedure so that the arbitration need not be

completed within the specific time.

JOC at Art. 13.2(a); ESC at § 8.2(a).

In accordance with Section 631 of the Indonesian

Code of Civil Procedure, the Partie s agree that

the Tribunal need not be bound by strict rules of

law where they consider the application thereof to

particular matters to be inconsistent with the

spirit of this Contract and the underlying intent

of t he Parties, and as to such matters their

c onclusion shall reflect their judgment of the

correct interp retation of all relevant terms

hereof and the correct and just enforcement of

this Contract in accordance with such terms.

JOC at Art. 13.2(b); ESC at § 8.2(b).

The parties hereby renounce their right to appeal

from the decision of the arbitral panel and agree

that in accordance with Section 641 of the

Indonesian Code of Civil Procedure neither Party

shall appeal to any co urt . . . and accordingly

the Parties hereby waive the applicability of

Articles 15 and 108 of the Law No. 1 of 1950 and

any other provision of In donesian law and

regulations that would otherwise give the right to

appeal the decisions of the arbitral panel.

JOC at Art. 13.2(d); ESC at § 8.2(d).

32 Albert Jan van den Berg, “The Application of the New York

Convention by t he Courts,” I CCA Congress Series No. 9 25, 26 (Kluwer

1999); Sir Michael J. Mustill & Stewart C. Boyd, T he Law and Practice

of Commercial Arbitrat ion in England 64 (Butterworths 2d ed. 1989);

Alain Hirsch, The Place of the Arbitration and the Lex Arbitri, 34 Arb.

J. 43, 46 (1979); Alan Scott R au, The New York Convention in American

Courts

, 7 Am. Rev. Int’l Arb. 213, 224 (1996). In their reports filed

23 references evidence an intent that while Switzerland would be the

place of the arbitration, Indonesian procedural law would apply as

the lex arbitri

.

Under the New York Convention , an agreement specifying the

place of the arbitration creates a presumption that the procedural

law of that place applies to the ar bitration. 3 2 Authorities onin the di strict court, recognized authorities on international

arbitration retained by both Pertamina and KBC, including Albert Jan van

den Berg, Sudargo Guatama, Alan Scott Rau, and Eric A. Schwartz, agreed

that under the Convention, arbitration clauses designating the site of

the arbitration presumptively designate that site as the source of the

applicable procedural law.

33 Mustill and Boyd, Commercial Arbitration at 64.

34 Van den Berg, T he Application of the New York Convention at 26.

35 Id.

36 Martin Hunter, C ase and Comment: International Arbitration

, [1988] Lloyd’s Mar. & Comm. L. Q. 23, 26.

37 S ee, e.g.

, Gary B. Born, International Commercial Arbitration:

Commentary and Materials 761 (2d ed. 2001). Few reported cases involve

arbitration clauses that separate the law of the forum state and the lex

arbitri

. In two such English cases, N aviera Amazonica Peruana S.A. v.

Compania Internacional de Seguros del Peru

, [1988] 1 Lloyd’s L. Rep. 116

(C.A. 1987), and Union of India v. McDonnell Douglas Corp. , [1993] 2

Lloyd’s Rep. 48 (Q.B. 1992), the courts applied the presumption that the

procedural law of the place specified as the forum for the arbitration

would govern. N avier a Amazonica Peruana , [1988] 1 Lloyd’s L. Rep. at

119; Union of India

, [1993] 2 Lloyd’s Rep. at 50. The Hong Kong court

also relied upon this presumption in determining that Swiss procedural

law gov erned the arbitration proceeding at issue in this case. Hong

Kong decision at 7-8.

24 international arbitration describe an agreement providing that one

country will be the site of the arbitration but the proceedings

will be held under the arbitration law of another country by terms

such as “exceptional”; “almost unknown”; 33 a “purely academic

invention”; 34 “almost never used in practice”; 35 a possibility “more

theoretical than real”; and a “once-in-a-blue-moon set of

circumstances.” 36 Commentators note that such an agreement would

be complex, inconvenient, and inconsistent with the selection of a

neutral forum as the arbitral forum. 3738 9 U.S.C. § 201, Art. V(1)(e).

39 S ee Jacomijn J. van Hof, Commentary on the UNCITRAL Arbitral

Rules: The Application by the Iran-U.S. Claims Tribunal 109-10 (Kluwer

1991); see also UNCITRAL Arbitration Rules at Art. 16(1). Rules 16(2)

and (3) expressly permit proceedin gs to be conducted at a location

different from the designated “place” o f the arbitration. U NCITRAL

Arbitration Rules at Art. 16 (2)-(3). Rule 16(4) provides that “[t]he

award shall be made at the place of arbitration.” Id. at Art. 16(4).

40 Van Hof, C ommentary on the UNCITRAL Arbitral Rules at 109-110.

25 In the JOC and ESC, the parties expressly agreed that

Switzerland would be the site for the arbitration. This agreement

presumptively selected Sw iss procedural law to apply to the

arbitration. There is no express agreement in the JOC or ESC that

Indonesia would be the country “under the law of which” the

arbitration was to be conducted and the Award was to be made. 38 The

Tribunal recogn ized the parties’ selection of Switzerland by

issuing the Award as “[m]ade in Geneva.” In selecting Switzerland

as the site of the arbitration, the pa rties were not choosing a

physical place for the arbitration to occur, but rather the place

where the award wou ld be “made.” Under Article 16(1) of the

UNCITRAL rule s, the “place” designated for an arbitration is the

legal rather than physical location of the forum. 39 The arbitration

proceeding in this case physically occurred in Paris, but the Award

was “made in” Geneva, the place of the arbit ration in the legal

sense and the presumptive source of the applicable procedural law. 40

The references in the contracts to certain Indonesian civil

procedure rules do not rebut the strong presumption that Swiss41 Robert N. Hornick, one of the authorities on international

arbitration and Indonesian law who submitted an affidavit and report in

the district court, provided an explanation for the references to the

Indonesian laws in the arbitration clauses unrelated to any intent to

designate Indonesia as the country under the law of which the Award

would be mad e. Hornick explained that each article of Indonesian law

cited in the contracts imposes a requirement inconsi stent with the

contemplated ar b itration. (Hornick Decl. ¶¶ 28-32). These articles

could have been invoked to oppose later enforcement of the Award in

I ndonesia unless waived. By waiving in advance provisions that could

late r be invoked to block enforcement of the Award in an Indonesian

court, the parties facilitated future enforcement efforts in Indonesia.

( Id. ).

26 procedural law applied to the arbitration. 41 These references fall

far short of an express designation of In donesian procedural law

necessary to rebut the strong presumption tha t designating the

place of the arbitration also designates the law under which the

award is made.

Pertamina and the Republic have belatedly assert ed that the

district court should have conducted a choice-of-law analysis to

determine the law that would apply to the interpretation of the

parties’ contracts, rather than analyze the contracts under the New

York Convention. Pertamina and the Republic assert that the result

of such an analysis would have been to identify Indonesian law as

the decisional law under which to interpret the contracts. This

argument is inconsistent with the position Pertamina

– and its

experts on interpreting international commercial arbitration

agreements

– took earlier in this case, that the district court

should review the Tribunal’s interpretation of the contracts under

the New York Convention. A court conducts the multifactor choiceof-law analysis Pertamina now advocates i n the absence of an42 R EST

. (2 D ) C ONFL . §§ 187, 188, & 218 (1971).

43 Certain sections and comments of the Restatement also support

a determination that Swiss law app l ied to the arbitration agreement.

See, e.g. id. at § 188 (incorporating R E ST

. (2 D ) C ONFL

. § 6, which

requires consideration of the rele vant policies of the forum); i d. at

§ 218 cmt. b ( suggesting that the arbitration forum may have the most

significant relationship to the arbitration and that a contractual

provision requiring arbitration to occur in a certain forum may evidence

an intention by the pa rties that the local law of this forum should

govern).

44 Karaha Bodas Co. , 335 F.3d at 371; Hong Kong decision at 12.

45 S ee, e.g.

, Prelim. Award, § B(1) (“The Respondents support this

conclusion by making r eference to Swiss law as the JOC and the ESC

provide for UNCITRAL Arbitration in Geneva between the parties which are

neither Swiss nor Swiss resi dent. As a result, and under both

contracts, the arbitration proceedings are governed by Chapter 12 of the

Swiss Private International Law Statutes. Under Swiss law, [Respondent

contends] the Arbitral Trib unal is lacking jurisdiction because KBC

failed to comply with the contractual prerequisites to arbitration.”);

id. at § C(1) (“The Respondents also state that, under the arbitration

agreements and Swiss law, the arbitrators have no power to consolidate

. . . .”); id. at § C(3) (citing a Swiss federa l tribunal case in

support of its dec ision that a consolidated arbitration was

appropriate); id. at § D(1) (Respondents contend that “[s]uch solution

is not acceptable under the applicable Swiss law”).

27 effective choice of law by the parties to an arbitration

agreement. 42 In the JOC and ESC, the parties presumptively chose

Swiss proce dural law as the l ex arbitri when they designated

Switzerland as the site of the arbitration, and that presumption is

unrebutted. 43

As the district court, another panel of this court, and the

Hong Kong Court of First Instance have all recognized, Pertamina’s

previous arguments that Swiss arbitral law applied strongly

evidence the parties’ contractual intent. 44 Pertamina represented

to the Tribunal that Swiss procedural law applied. 4 5 As but one

example, Pertamina cited Swiss procedural law in arguing that the46 In the district court, Pertamina presented an affidavit and

report from an expert on international commercial arbitration that

weakly attempted to explain the appeal to the Swiss court as a mistake.

The theory that Pertamina’s lawyers erred and applied to the wrong court

for annulment

– and then moved for re consideration when that court

dismissed the appeal – is utterly without support in the record.

47 S ee Major League Baseball Players Ass’n v. Garvey , 532 U.S.

504, 509 (20 01) (citations omitted) (“[I]f an ‘arbitrator is even

arguably construing or applying [a] contract and acting within the scope

of his authority,’ the fac t that ‘a court is convinced he committed

serious error does not suffice to overturn his decision.’”).

48 E uropcar Italia

, 156 F.3d at 315; Nat’l Wrecking Co.

, 990 F.2d

a t 960; s ee Garvey

, 532 U.S. at 509 (“Courts are not authorized to

review [an] arbitrator’s decision on the merits despite allegations that

the decision rests on factual err ors or misinterprets the parties’

agreement.”).

28 Tribunal could not consolidate the claims under the JOC and ESC

into one proceeding. Pertamina at no point argued to the Tribunal

that Indonesian procedural law applied. Pertamina initially sought

to set aside the Award in a Swiss court. 46 Pertamina asked the

Texas district court to stay its enforcement proceeding until

Pertamina’s appeal in Switzerland w as resolved. In making this

argument, Perta mina stated that “[t]he arbitration . . . was

conducted according to the laws of Switzerland, and the Swiss court

is empowered to vacate an award rendered in Switzerland

. . . .

KBC is asking this Court to act prematurely to confirm an award

that might be overturned in the country whose law governed the

arbitration.” 47

The Tribunal’s decision that Swiss arbitral law applied does

not make the Award unenforceable. 48 The combination of the parties’

selection of Switzerlan d as the site of the arbitration; the49 Hall v. GE Plastic Pac. PTE Ltd. , 327 F.3d 391, 396 (5th Cir.

2003); see In re Coastal Plains, Inc.

, 179 F.3d 197, 205 (5th Cir. 1999)

(quoting Brandon v. Interfirst Corp.

, 858 F.2d 266, 268 (5th Cir. 1988))

(describing judicial estoppel as “a common law doctrine by which a party

who has assumed one position in hi s pleadings may be estopped from

assuming an incon sistent position”); s ee also Ahrens v. Perot Sys.

Corp.

, 205 F.3d 831, 833 (5th Cir. 2000); Ergo Sci., Inc. v. Martin

, 73

F.3d 595, 598-600 (5th Cir. 1996)

.

50 United States v. McCaskey , 9 F.3d 368, 378 (5th Cir. 1993).

29 failure clearly or expressly to choose Indonesian arbitral law in

their agreements, as required to select arbitral law other than

that of the place of the arbitration; and the clear evidence

provided by the parties’ own conduct that they intended Swiss law

to apply to the arbitration, amply supp orts the district court’s

determination that the Tribunal properly applied Swiss procedural

law.

The district court also found that un der the doctrine of

judicial estoppel, Pertamina’s prior conduct precluded it from

arguing against the application of Swiss procedural law. The

doctrine prevents a party from asserting a position in a legal

proceeding that is contrary to a position previously taken in the

same or earlier proceedings. 49 “The policies underlying the

doctrine include preventing internal inconsistency, precluding

litigants from ‘playing fast and loose’ with the courts, and

prohibiting parties from deliberately changing positions according

to the exigencies of the moment.” 50 Fifth Circuit courts have

identified two limitations on judicial estoppel: (1) the position

of the party to be estopped must be clearly inconsistent with its51 H all

, 327 F.3d at 396; Ahrens

, 205 F.3d at 833; Coastal Plains

,

179 F.3d at 206.

52 Coastal Plains , 179 F.3d at 206.

53 See note 24.

54 S ee Coastal Plains

, 179 F.3d at 206 (noting that the acceptance

prong of judicial estoppel can be satisfied by a court’s acceptance of

a party’s position “as a preliminary matter”).

55 S ee Hall

, 327 F.3d at 396 ; Ahrens

, 205 F.3d at 833; C oastal

Plains , 179 F.3d at 206.

30 prior position; and (2) the court must have accepted that prior

position. 51 Judicial acceptance requires that the court adopted the

position previously urged by a party, whether as a preliminary

matter or as part of a final disposition. 52

T he district court did not abuse its discretion in imposing

judicial estoppel to preclude Pertamina from arguing against the

application of Swiss procedural law. Pertamina repeatedly

represented to the Tribunal and to the district court that Swiss

procedural law controlled the arbitration. 53 Both the Tribunal and

the district court relied on these representations in their

decisionmaking. In the Award, the Tribunal accepted Pertamina’s

argument that Swiss procedural law applie d. The district court

adopted Pertamina’s position that Swiss law applied in delaying the

enforcement proceedings pending the Swiss court’s resolution of the

appeal. 54 Pertamina’s argument that Indonesian procedural law

governed the arbitration is clearly inconsistent with its prior

position that Swiss procedural law controlled. 55 Pertamina

belatedly suggests that its positions are not inconsistent because56 S ee Hall

, 327 F.3d at 396; Coastal Plains

, 179 F.3d at 206;

Ahrens

, 205 F.3d at 83 3. The High Court of Hong Kong Court estopped

Pertamina from asserting applic ation of Indonesian procedural law for

the same reasons. H ong Ko ng decision at 9-12. The High Court also

emphasized the dilatoriness of Pertamina’s argument : “Pertamina’s

position on the [applicable procedural law] only changed 30 months after

the preliminary award was published, 15 months after the Final award

(December 2000) and seven months after the S wiss Court dismissed the

petition for revision (August 2001).” Id. at 11.

57 9 U.S.C. § 201, Art. V(1)(d).

31 the New York Convention permits multiple primary jurisdictions. As

addressed more fully below, this record makes it clear that only

the Swiss courts had primary jurisdicti on over this Award.

Judicial estoppel provides an additional ground for concluding that

Swiss procedural law applied to the arbitration proceeding. 56

C. The Procedural Challenges to the Arbitral Award

1. Consolidation of the Claims under the JOC and ESC into

One Arbitration Proceeding

Under Article V(1)(d) of the New York Convention, a court may

refuse to enforce an arbitration award if “[t]he 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.” 57 Pertamina argues that because the JOC and ESC were

separate contracts with separate arbitration clauses, and because

neither contract expressly allowed the consolidation of claims, the

Tribunal improperly consolidated the claims into one arbi tration

proceeding. Pertamina also contends on appeal that because

Indonesian rather than Swiss procedural law g overned the58 Article 15.3 of the ESC provided that “the terms of [the ESC]

and the Joint Operation Contract constitute the entire agreement between

the parties hereto.” Article 1.2 of the JOC stated that “[e]ach such

Energy Sales Contract shall be an integra l part of this contract, and

to the extent the provisions of the Energy Sales Contract obligate the

parties hereto, shall be deemed incorporated into this contract for all

purposes.” Pertamina and KBC entered into the JOC and ESC on the same

day. The JOC and the ESC contained virtually identical arbitration

provisions.

32 arbitrati on, the Tribunal’s reliance on Swiss procedural law to

consolidate the claims was erroneous.

The Tribunal carefully analyzed the parties’ contracts in

concluding that a consolidated arbitration of KBC’s claims against

Pertamina and PLN under the JOC and ESC was appropriate. In

factual findings set out in the Preliminary Award, the Tribunal set

out the basis for concluding that the two contracts were integrated

such that “the parties did not contemplate the performance of two

independent contracts but the performance of a single project

consisting of two closely related parties.” 5 8 The Tribunal

continued:

In such circumstances, the conclusion of this

Arbitral Tribunal is that KBC’s single action

should be admitted, provided it is

appropriate. The Arbitral Tribunal has not

the slightest doubt in this r espect. Due to

the integration of the two contracts a nd the

fact that the Presidential Decrees, the

consequences of which are at the origin of the

dispute, affected both of them, the initiation

of two separate arbitrations would be

artificial and would generate the risk of

contradictory decisions. Moreover, it would

increase the costs of all the parties

involved, an element of special weight in the

light of difficulties faced by the Indonesian

economy, to which counsel for [Pertamina]59 S ee, e.g.

, Co nn. Gen. Life Ins. Co. v. SunLife Assur. Co. of

Canada , 210 F.3d 771, 774 (7th Cir. 2000); Maxum Found., Inc. v. Salus

Corp. , 817 F.2d 1086, 1087-88 (4th Cir. 1987). Pertamina cites cases

decided under the FAA and the law of differ ent American jurisdictions

for t he proposition that courts do not have the authority to order

arbitrations w ithout the parties’ approval. S ee, e.g.

, Dean Witter

Reynolds, Inc. v. Byrd

, 470 U.S. 213, 221 (1985) (“The preeminent

concern of Congress in passing the [FAA] was to enforce private

agreements into which parties had entered, and that c o ncern requires

that we rigorously enforce agreements to arbitrate, even if the result

is ‘piecemeal’ litigation

. . . .”); Gov’t of the United Kingdom and N.

Ireland v. Boeing Co.

, 998 F.2d 68, 74 (2d Cir. 1993); Protective Life

Ins. Co. v. Lincoln Nat. Life Ins. Corp. , 873 F.2d 281, 282 (11th Cir.

1989). These cases do not involve contracts so closely related as to

manifest the parties’ agreement to be joined in arbitration proceedings

involving parties and claims under those integrated contracts.

33 legitimately drew the Arbitral Tribunal’s

attention.

The record provides ample support for the Tribunal’s findings and

conclusion that the tw o contracts were integrated such that the

parties contemplated a single arbitration.

The Tribunal c ited the Swiss law concept of “connexity” in

analyzing the legal relations among KBC and Pertamina under the JOC

and KBC, Pertamina, and PLN under the ESC as one of the factors

justifying the consolidation of claims under the two contracts into

one arbitration proceeding. The Tribunal concluded that the

relationship of the JOC and ESC exceeded the standard of

“connexity” under Swiss law. “The use of the word ‘connexity’ to

describe the relationship between the JOC and the ESC would be an

understatem ent. In reality, the two contracts are integrated.”

Courts and arbitration tribuna ls have recognized that claims

arising under integrated contracts may be consolidated into single

arbitrations. 59 The Tribunal cited one other factor that supported60 UNCITRAL Arbitration Rules at Art. 15(1).

61 S ee, e.g.

, China Minmetals Materials Imp. and Exp. Co., Ltd. v.

Chi Mei Corp.

, 334 F.3d 274, 282-83 (3d Cir. 2003); Glencore Grain

Rotterdam B.V. v. Shivnath Rai Harnarain Co.

, 284 F.3d 1114, 1120 (9th

Cir. 2000); Alghanim

, 126 F.3d at 20; Parsons & Whittemore Overseas

, 508

F.2d at 973; Compagnie des Bauxites de Guinee v. Hammermills, Inc.

, 1992

WL 122712, at *5 (D.D.C. May 29, 1992); Am. Constr. Mach. & Equip. Corp.

Ltd. v. Mechanised Constr. of Pakistan, Ltd.

, 659 F. Supp. 426, 428

(S.D.N.Y. 1987).

34 consolidation: “appropriateness.” The parties agreed to the

application o f the UNCITRAL Rules, which permit a tribunal to

conduct an arbitration “in such manner as it considers

appropriate.” 60 Pertamina does not dispute the application of the

UNCITRAL Rules to the arbitration proceeding.

Courts are reluctant to set aside arbitral award s under the

New York Convention based on procedural violations, reflected in

cases holding that the Convention embodies a proenforcement bias. 61

The Tribunal emphasized in its Preliminary Award that although the

claims would be consolidated, “the position of each party has to be

considered independently when discussing the substance of the case,

on the basis of their respective legal and contractual situations.”

The record reflects that the Tribunal kept this promise. There is

no prejudice arising from the con solidation that would justify a

refusal to enforce the Award.

2. The Composition of The Tribunal

Under Article V(1)(d), a court may refus e enforcement of an

arbitral award if the composition of the tribunal is not in62 9 U.S.C. § 201, Art. V(1)(d).

35 accordance with the parties’ agreement. 62 The JOC provided for the

appointment of arbitrators, as follows:

Each Party [KBC and Pertamina] will appoint an

arbitrator within thirty (30) days after the

date of a request to initiate arbitration, who

will then jointly appoint a third arbitrator

within thirty (30) days of the date of the

appointment of the second arbitrator, to act

as Chairman of the Tribunal. Arbitrators not

appointed within the time limits set forth in

the preceding sentence shall be appointed by

the Secretary General of the International

Center for Settlement of Investment Disputes.

The ESC proc edure for arbitrators’ appointment was slightly

different:

PLN on one hand, an d [KBC] and PERTAMINA, on

the other hand, will each appoint one

arbitrator, in each case within thirty (30)

da ys after the date of a request to initiate

arbitration, who will then jointly appoint a

third arbitrator within thirty (30) days of

the date of the appoi n tment of the second

arbitrator, to act as Chairman of the

Tribunal. Arbitrators not appointed within

the time limits set forth in the preceding

sentence shall be appointed by the Secretary

General of the International Center for

Settlement of Investment Disputes, upon the

request of any Party.

Each contract required the appointment of arbitrators within thirty

days of the notice of arbitration and provided for appointment by

the ICSID in the event that a party did not do so.

In its notice of arbitration sent to Pertamina, KBC appointed

Professor Piero Bernardini to serve as an arbitrator. Pertamina

did not designate an arbitrator within thirty days, nor did it36

object to KBC’s selection at that time. By letter dated June 2,

1998, KBC notified the ICSID of Pertamina’s inaction and requested

the appoint ment of a second arbitrator under the default

appointment provisions of the contracts. Pertamina did not respond

to this letter. The ICSID questioned KBC about the consolidation

of claims under the JOC and the ESC and KBC’s unilateral

appointment of an arbitrator. KBC responded by letter dated June

22, 1998. The ICSID confirmed receipt of KBC’s letters and in a

Ju ne 29, 1998 letter to all parties, recapped the prior

correspondence, noted Pertamina’s failure to respond, and expressed

its intent to grant KBC’s request to appoint the second arbitrator.

The ICSID Secretary-General identified Dr. Ahmed El-Kosheri as its

candidate and asked for any objections by July 13, 1998. The ICSID

sent all the preceding correspondence to PLN by courier and to

Pertamina by fa x and courier. D espite the Secretary-General’s

invitation to do so, neither Pertamina nor PLN lodged objections or

responses to the proposed appointment. On July 13, 1998, having

r e ceived no communications from Pertamina, the ICSID notified

Pertamina and PLN of its intent to appoint Dr. El-Kosheri and made

the appointment on July 15, 1998. Under the JOC and ESC, Professor

Bernardini and Dr. El-Kosheri then selected the ch airman of the

arbitration panel, Yves Derains.

In its Preliminary Aw ard, the Tribunal rejected Pertamina’s

argument that KBC’s selection of an arbitrator violated the ESC’s

requirement that KBC and Pertamin a jointly make the nomination.37

T he Tribunal found that the parties intended to limit that

requirement to disputes in which PLN was opposed to KBC and

Pertamina. Because the ESC did not expressly address the method

for appointing arbitrators when KBC and Pertamina opposed each

other, the Tribunal found that UNCITRAL Arbitration Rules for

appointment applied. The Tribunal ruled that the appointment

procedures used did not violate these rules or create an inequality

of treatment. The Tribunal emphasized Pertamina’s failure to

nominate an arbitrator or object to those nominated. The district

court agreed with the Tribunal’s reasoning and added that Pertamina

had failed to demon strate any prejudice from the appointment

proceedings.

On appeal, Pertamina reasserts its argument that KBC’s

u nilateral selection of an arbitrator violated the ESC’s

requirement that “PLN on the one hand and [KBC] and Pertamina, on

the other hand, will each appoint one arbitrator.” Pertamina

contends that its interests would always be aligned with KBC under

the E SC, which required PLN to purchase from Pertamina the

electricity that KBC provided, and that this explains the

contractual requirement that KBC and Pertam ina agree on an

arbitrator in a dispute arising under that contract. In response,

KBC argues that the Tribunal correctly found that a dispute between

KBC and Pertamina was possible under the ESC, but in the event of

such a dispute, the ESC did not provide a procedure for choosing an

arbitrator. KBC asserts that the Tribunal correctly found that the38

general U NCITRAL rules for selecting an arbitrator would apply,

unde r which KBC, Pertamina, and PLN would each appoint an

arbitrator. In addition, KBC argues that the district court

correctly found that Pertamina had failed to object to KBC’s

selection of Professor Bernardini as an arbitrator and failed to

nominate an arbitrator despite the ICSID’s requests. Finally, KBC

argues that Per tamina cannot show prejudice that would make the

Award unenforceable.

The ESC arbitration clause refers to “any dispute or

difference of any kind whatsoever” arising among “the Parties.”

Section 2 of the ESC defines “parties” to include PLN, Pertamina,

and KBC. By its terms, the arbitration clause covers a dispute

between KBC and Pert amina arising under the ESC, as well as a

dispute in which the interests of KBC and Pertamina are aligned.

If the ESC required KBC and Pertamina jointly to select an

arbitrator for disputes in which KBC and Pertamina were opposed, as

Pertamina contends, Pertamina could effectively block arbitration

under the ESC simply by refusing to agree with KBC to the selection

of an arbitrator. Such an interpretation would make the ESC

arbitration clause illusory. In addition, Pertamina had numerous

opportunities early in the proceedings to object to KBC’s selection

of Professor Bernardini as an arbitrator and to nominate its own

arbitrator . Pertamina did not challenge the composition of the

arbitral panel until after the entire panel had been selected and

seated. Pertamina’s failure timely to object to Professor63 Pertamina apparently argued to the Tribunal that it did not

name an arbitrator because it was c ontesting the legitimacy of the

arbitration and further contended that it did not receive certain

correspondence from ICSID regarding KBC’s request that the ICSID appoint

a second arbitrator. Pertamina, however, did not make these arguments

before the district court.

64 9 U.S.C. § 201, Art. V(1)(b).

39 Bernardini’s selection and to nominate its own arbitrator was, as

the district court noted, a strategic decision that Pertamina

should not now be able to assert as a defense to enforcing the

Award. 63

Pertamina has failed to meet its burden of showing that the

Tribunal w a s improperly constituted. The Tribunal reasonably

interpreted the ESC’s arbitration provisions and reasonably applied

the UNCITRAL arbitration rules. Despite numerous opportunities,

Pertamina failed to challenge the Tribunal’s composition until

after the arbitrators were selected. The procedural infirmities

Pertamina alleges do not provide grounds for denying enforcement of

the Award.

D. The Due Process Challenges to the Arbitral Award

Under Article V(1)(b), enforcement of a foreign arbitral award

may be denied if the party challenging the award w as “not given

proper notice of the appointment of the arbitrator or of the

arbitration proceedings or was otherw ise unable to present [its]

case.” 64 Article V(1)(b) “essentially sanctions the application of

the forum state’s standards of due process,” in this case, United65 I ran Aircraft Indus. v. Avco Corp.

, 980 F.2d 141, 145 (2d Cir.

1992) (quoting Parsons & Whittemore Overseas , 508 F.2d at 975).

66 S laney v. Int’l Amateur Athletic Fed’n

, 244 F.3d 580, 592 (7th

Cir. 2001); Generica, Ltd. v. Pharm. Basics, Inc. , 125 F.3d 1123, 1130

(7th Cir. 1997).

67 S laney

, 244 F.3d at 592 (quoting Sunshine Mining Co. v. United

Steelworkers

, 823 F.2d 1289, 1295 (9th Cir. 1987)); Generica

, 125 F.3d

at 1130 (quoting same).

68 Iran Aircraft Indus. , 980 F.2d at 146 (citations omitted).

69 Matter of Arbitration Between Trans Chem. Ltd. and China Nat.

Mach. Imp. & Exp. Corp.

, 978 F. Supp. 266, 310 (S.D. Tex. 1997), aff’d

, 161 F.3d 314 (5th Cir. 1998).

40 States standards of due process. 65 A fundamentally fair hearing

requires that a party to a foreign arbitration be able to present

its ca se. 6 6 A fundamentally fair hearing is one that “meets ‘the

minimal requirements of fairness’ – adequate notice, a hearing on

the evidence, and an impartial decision by the arbitrator.” 67 The

parties must have an opportunity to be heard “at a meaningful time

and in a meaningful manner.” 68 “The right to due process does not

include the complete set of procedural rights guaranteed by the

Federal Rules of Civil Procedure.” 69

1. The Claim that the Final Award “Reversed” the Preliminary

Award

Pertamina first contends that the Tribunal reversed the

Prel iminary Award in the Final Award without notice, denying

Pertamina the opportunity to be “meaningfully hear d.” Pertamina

emphasizes the Tribunal’s ruli ng that “a governmental decision

which prevents KBC [from] perform[ing] its obligations is not

deemed to be a breach of contract by Pertamina or PLN but a Force41

Majeure event excusing KBC’s nonperformance.”

The Tribunal stated in the Preliminar y Award that the force

majeure clause in the JOC and ESC made a “government-related event”

an event of force majeure only with respect to KBC. The Tribunal

stated that Pertamina and PLN were so closely related to the

Indonesian government that a decision by the Indonesian government

was not a force majeure event as to them. In its briefing before

the Tribunal made its Final Award, KBC argued that under the

contract language and given the close relationship between

Pertamina and the Indonesian government, Pertamina bore the risk of

loss from a force majeure event under the JOC and ESC. Pertamina

responded that in the Preliminary Award, the Tribunal had ruled

that acts of force majeure by the Indonesian government are not

breaches of the JOC and ESC and that to award KBC damages would be

incompatible with that ruling. In the Final Award, the Tribunal

found that the Indonesia n government’s actions were an event of

force majeure that excused KBC’s failure to perform under the JOC

and ESC. The Tribunal stated that this finding did not contradict

its ruling in the Preliminary Award that the Indonesian government

was not a party to the JOC or ESC, because that ruling “was not

meant to express any view as to the consequences to

Pertamina

. . . of a Governmental decision which prevents the

performance of the Contracts.”

The record shows that Pertamina knew it could be found liable

for nonperformance after the Preliminary Award had issued. After70 S ee Europcar Italia

, 156 F.3d at 315 (“Absent extraordinary

circumstances, a confirming court is not to reconsider the arbitrator’s

findings.”).

42 the Preliminary Award issued, KBC argued to the Tribunal that

Pertamina bore the risk of nonperformance under the JOC and ESC in

the event of force majeure. KBC’s argument clearly assumed that

the Preliminary Award allowed the Tribunal to find that the

contracts placed the risk of, and liability for, such

nonperformance on Pertamina. In response to that argument,

Pertamina had, and took, the opportunity fully to prese nt its

arguments against KBC’s theory of liability.

The Final Award shows that th e Tribunal considered and

rejected Pertamina ’s argument in making its liability decision.

The Tribunal concluded that the JOC and ESC allocated the risk of

government in terference with the project solely to Pertamina and

PLN. In this enforcement proceeding, Pertamina is essentially

r epeating the arguments it made to the Tribunal. The fact that

those arguments were presented to and considered by the Tribunal is

inconsistent with Pertamina’s claim that it had no notice of the

need to make the argument to that Tribunal or the opportunity to do

so. Pertamina did not suffer the fundamental unfairness it claims,

so as to support a refusal to enforce the Award. 70

2. The Tribun al’s Denial of a Continuance and Request for

Additional Discovery

To challenge KBC’s contention that FPL was willing to finance

the project, Pertamina sought in the arbitration proceeding a43

continuance and discovery of the following documents from KBC, FPL,

and Caithness regarding the financing of the KBC project:

(1) All documents relating to efforts to

obtain financing for t he Karaha-Bodas

project during the period September 1997

through June 1998.

(2) All document s showing any consideration

of providing direct financing (whether

through bridge financing, a loan

guarantee , or direct equity investment)

for the Karaha-Bodas project during the

period September 1997 through June 1998.

(3) All documents relating to FPL’s, its

subsidiaries’, or its predecessors’

consideration of whether to invest in the

Karaha-Bodas project.

(4) All documents relating to FPL’s, its

subsidiaries’, or its predecessors’

decision to invest in the Karaha-Bodas

project, stated va riously to have

occurred in mid-1996 or mid-1997.

(5) Al l documents sent by KBC to FPL, its

subsidiaries, or its predecessors

following the investment identified in

¶ 4 and concerning geothermal exploration

an d development in the Karaha-Bodas

concession area (whether such exploration

occurred before or after the investment).

(6) All documents relating to evaluation by

each, any and all of KBC, FPL (or

subsidiaries or predecessors), and

Caithness whether to proceed with the

Karaha-Bodas project during the period

September 1997 through June 1998.

The Tribunal denied Pertamina’s request.

After Pertamina discovered that FPL and certain other

investors in KBC owned a political risk insurance policy

underwritten by Lloyd’s of London, which had paid $75 million after71 Generica , 125 F.3d at 1130 (quoting Hoteles Condado Beach, La

Concha and Convention Ctr. v. Union de Tronquistas Local 901

, 763 F.2d

34, 39 (1st Cir. 1985)); s ee Slaney

, 244 F.3d at 592 (cautioning that

“parties that have chosen to remedy their disputes through arbitration

rather than litigation should not expect the same procedures they would

find in the judicial arena”).

72 Generica , 125 F.3d at 1130; Slaney , 244 F.3d at 592.

73 H oteles C ondado Beach , 763 F.2d at 40 (internal citations

omitted).

44 the proje ct suspension, Pertamina sought reconsideration of the

district court’s summary judgment enforci ng the Award under Rule

60(b). The district court found that Pertamina’s inability to

introduce evidence of the insurance policy at the arbitration did

not preve nt the presentation of its case to the Tribunal. The

district court also held that KBC’s failure to bring the insurance

policy to the Tribunal’s attention did not make enforcing the Award

a violation of public policy. We agree.

“An ‘arbitrator is not bound to hear all of the evidence

tendered by the parties

. . . . [He] must give each of the parties

to the dispute an adequate opportunity to present its evidence and

arguments.’” 71 It is appropriate to vacate an arbitral award if the

exclusion of relevant evidence deprives a party of a fair hearing. 72

“Every failure of an arbitrator to receive relevant evidence does

not constitute misconduct requiring vacatur of an arbitrator’s

award. A federal court may vacate an arbitrator’s award only if

the arbitrator’s refusal to hea r pertinent and material evidence

prejudices the rights of the parties to the arbitration

proceedings.” 7345

Although the Tribunal denied Pertamina the specific discovery

i t sought on the issue of FPL financing, Pertamina was able to

cross-examine the KBC witnesses who testified that FPL was willing

to provide financing for the project, Leslie Gelber and Robert

McGrath. Before those witnesses testified, Pertamina had already

presented substantial evidence in its response to KBC’s Statement

of Claim as to why KBC would not have been able to secure financing

for the project, emphasizing the depressed state of the Indonesian

economy and its unattractiveness to investors. Pertamina argued to

the Tribunal that KBC had presented no documentary evidence of

FPL’s willingness to finance the project and asserted that FPL

would have required such a high rate of i nterest because of the

risk involved as to make the KBC venture unprofitable.

The Tribunal found that “the issue remained open in 1998 of

the terms and conditions upon which financing cou ld have been

obtained for the Project development.” The Tribunal noted that

“the worsening of the economic and political situation in Indonesia

at the time has to be taken into account as regards both the

conditions at which financing could have been obtained and possible

delays in arranging the same.” The Tribunal, however, noted that

the par ties contemplated the possibility of a delay in arranging

financing, because the ESC provided that the contract could be

suspended for up to two years if KBC was unable to arrange

financing for the project. The Tribunal also noted KBC’s efforts

to reinstate the project after the initial gove rnment suspension74 125 F.3d 1123 (7th Cir. 1997).

75 Id. at 1129-31.

76 Id. at 1131.

77 Id.

78 Id.

46 order, finding that KBC was ready and willing to secure financing

for the project. The Tribunal found the testimony of KBC’s

witnesses o n financing credible, stating that it had “no

reason

. . . to cast doubts about KBC’s readiness, directly and/or

through its shareholders, to make provision thereof.” In

determining the lost profits, the Tribunal considered all the risks

of the project, including the potential difficulties in arranging

financing that Pertamina cited, and “significantly reduc[ed]” the

amount of lost profits claimed by KBC.

In Generica, Ltd. v. Pharmaceutical Basics, Inc.

, 74 the party

opposing enforcement of an international arbitration award argued

that th e tribunal curtailed cross-examination of a witness, in

violation of the party’s d ue process right to present its case. 7 5

The tribunal, recognizing that it had curtail ed the crossexamination, placed diminished reliance on the witness’s

testimony. 76 The court found that by limiting the reliance on the

witness’s testimony, the arbitrators eliminated the possibility of

prejudice to the party claiming a due process v iolation. 7 7 The

court confirmed the award. 78 As in Generica

, the Tribunal appears

to have given all the evidence as to damages, including the79 120 F.3d 16 (2d Cir. 1997).

80 Id. at 20.

81 Id. at 21.

82 Id. at 20.

83 763 F.2d 34 (1st Cir. 1985).

84 Id. at 40.

47 availability of financing, appropriate weight in determining

liability and damages.

In Tempo Shain Corp. v. Bertek, Inc.

, 79 the arbitral panel did

not allow a potential witne ss to testify on the basis that the

witness’s testimony was cumulative. 80 The court vacated the

arbitral award. 81 The record showed that the witness would have

testified to facts that only he could have known, making his

testimony essential. 82 Similarly, in H oteles Condado Beac h, La

Concha and Convention Center v. Union de Tronquistas Loca l 901

, 83

the court vacated an award because the arbitral panel refused to

give any weight to the only evidence available to the losing

party. 84 In the present case, by contrast, the Tribunal’s language

in the Final Award an d the record show that the testimony about

FPL’s willingness to provide financing was only one factor relevant

to damages. KBC raised the possibility of FPL’s direct financing

only in response to Pertamina’s affirmative defense that KBC could

not have financed the project. Pertamina did not seek discovery on

KBC’s efforts to finance the project in the arbitration proceeding

until after KBC filed its rebuttal to the response to the Statement85 N ewark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co.

,

397 F.2d 594, 599 (3d Cir. 1968)

.

86 Pertamina acknowledges that it specifically examined Gelber and

McGrath about the existence of documents regarding FPL’s willingness to

finance the project. Pertamina states that the Tribunal had to instruct

McGrath to answer the question directly, demonstrating that McGrath was

an “evasive” witness. The Tribunal observed McGrath testify and was

a ble to make the credibility judgment that he either lacked k nowledge

of such documents or was unwilling to discuss them. Cf. United States

v. Garza

, 118 F.3d 278, 283 (5th Cir. 19 97) (noting that a district

court is in the best position to judge the credibility of witnesses and

refusing to “second-guess” the lower court’s judgment on the issue).

87 C f. Hoteles Condado Beach

, 763 F.2d at 40 (de nial of party’s

only evidence was ground for vacating award).

48 of Claim, despite the fact that Pertamina raised the issue as an

affirmative defense.

The record shows that the Tribunal’s refusal to grant a

continuance and additional prehearing discovery did not “so affect

t he rights of [Pertamina] that it may be said that [it] was

deprived o f a fair hearing.” 8 5 Pertamina was able to present

comprehensive evidence of investment conditions in Indonesi a and

expert opinions on the availability of financing, as well as crossexamine Gelber and McGrath on FPL’s asserted wi llingness and

ability to provide financing. 86

Pertamina contends that the late revelation of the political

risk insurance policy refutes KBC’s contention in the arbitration

that FPL was willing to finance KBC to protect the $40 million it

had previously invested in KBC. The existence of the political

insurance policy was not “central or decisive” to Pertamina’s

case. 87 In order to show damages, KBC had to show that if the

project had not been suspended, KBC could have proceeded to perform88 S ee, e.g.

, Talman Home Fed. Sav. & Loan Ass’n of Ill. v. Am.

Bankers In s. , 924 F.2d 1347, 1351 (5th Cir. 1991) (quoting R epublic

Nat’l Bank of Dallas v. Nat’l Bankers Life Ins. Co.

, 427 S.W.2d 76, 79

(Tex. App. – Dallas 1968, writ ref’d)) (“The cardinal rule of

construction as applied to all contracts is to ascertain the intention

of the parties as expressed in the language used in the instrument

itself. It is the intention and purpose of contracting parties, as

disclosed within the four corners on the instrume nt which should

control.”).

49 by obtaining financing. The record amply supports KBC’s position

that KBC and FPL had already invested substantial money before the

Indonesian government issued its suspension order. The existence

of the political risk insurance policy is not inconsistent with the

testimony of Gelber and McGrath that FPL intended to finance the

project and would have done so but for the suspension decreed by

the government of Indonesia. The existence of political risk

insurance for the project is not inco nsistent with FPL’s

willingness to invest had the project not been suspended, that is,

if the risk insured against had not occurred. The Tribunal’s

damages analysis and the lost profits award depended on the

assumption that the project continued, that is, that the suspension

had not taken place.

Pertamina’s argument that KBC’s political risk insurance

policy undermines the Tribunal’s finding that the JOC and ESC

placed the risk of a government-related event on Pertamina is also

unavailing. The Tribunal determined that the JOC and ESC placed

the risk of nonperformance due to a government- related event on

Pertamina based on a well-r easoned, detailed analysis of the

contract terms. 88 The existence of a political risk policy does not89 This subrogation provision undermines Pertamina’s additional

argument that, in the alternative, it is entitled to a $75 million

offset from the political risk insurance payout. Pertamina argues that

enforcement of the judgment, in combination with the insurance proceeds,

will permit KBC double recovery in violation of the single-satisfaction

rule. See Tompkins v. Cyr

, 202 F.3d 770, 785 (5th Cir. 2000). The

subrogation provision of the political risk insurance policy, however,

requires that to the extent the insure d obtains any recovery from a

judgment against Pertamina, the insured is ob ligated to repay the

insurer. In addition, payment by a collateral source does not typically

diminish a judgment debt. S ee Glo bal Petrotech, Inc. v. Engelhard

Corp.

, 58 F.3d 198, 202 (5th Cir. 1995). There will be no double

recovery, and Pertamina is not entitled to a credit.

50 undermine this result. Moreover, the political risk policy

contained a subrogation provision that re quired KBC to reimburse

the insurer if KBC recovered its losses from another source. 89 The

existence of the political risk policy is not inconsistent with the

contractual allocation of risk.

The Tribu nal asked McGrath whether FPL had purchased “OPIC

insurance,” a form of political risk insurance. McGrath responded

that he did not know the answer to the question. Pertamina’s

counsel did not follow up on the Tribunal’s questioning. At the

conclusion of the hearing, the Tribunal chair asked the parties

whether the discovery requests were “maintained, all of them, part

of them, because we would like to know on what we have to decide.”

The response from counsel for Pertamina was as follows:

[T]he purpose of discovery is to prepare for

the hearin g, it is not to supplement the

record after the hearing. So I think the

discovery requests are moot, and if discovery

is now permitted, then you have to re-open the

proceedings and so on. So I treated,

notwithstanding the fact that it was

theoretically open, I treated this request as

effectively being denied, and we went forward.90 S ee, e.g.

, UNCITRAL Arbitration Rules at Art. 15(2), 29(2)

(stating that a party may request at any stage of the p roceeding a

hearing for presentation of evidence and that a tribunal may reopen

hearings at any time upon request of a party); Jay E. Grenig,

Alterna tive Dispute Resolution with Forms , § 5.76 (2d ed. 1997)

(including in a description of the customary order of arbitration

proceedings the “submission of post-hearing briefs”). S ee also Lincoln

Nat’l Life Ins. Co. v. Payne

, 286 F.Supp.2d 1023, 1026 (S.D. Ia. 2003);

Techcapital Corp. v. Amoco Corp.

, 2001 WL 267010, at * 2 (S.D.N.Y. March

19, 2 001); M ays v. Lanier Worldwide, Inc.

, 115 F.Supp.2d 1330, 1342

(M.D. Al a. 2000); I

. Appel Corp. v. Katz

, 1999 WL 287370, at * 3 n.2

(S.D.N.Y. May 6, 1999); United Foods, Inc. v. W. Conference of Teamsters

Pension Trust Fund , 816 F. Supp. 602, 607 (N.D. Ca. 1993).

51 Our request went to the purported financial

ability, the purported financing that would

have been made available and other things, and

I think the record on that has been fully

made. I am prepared to rest on that record,

and so I think t he discovery requests should

no longer be in the picture.

The parties submitted extensive posttrial briefs. In the Final

Award, issued in December 200 0, the Tribunal stated that all

parties had “waived their respective requests for discovery” at the

conclusion of the hearing.

Pertamina asserts that it did n ot waive its requests for

discovery because the Tribunal de nied the request before the

hearing, when the discovery could have been of use. Pertamina

ignores the fact that in international commercial arbitration, it

is not uncommon to ask for additional discovery or information

after a hearing, to request additional sessions of a hearing to

submit more evidence, or to file posthearing submissions. 90 Rather

than renew its requests for discovery into FPL’s willingness to

finance the project or to assert a request for discovery into FPL’s

political risk insurance, Pertamina’s counsel expressly stated that91 KBC sought $512.5 million in lost profits. The Tribunal

awarded KBC $150 million in lost profits. The Tribunal also awarded KBC

$111.1 million in lost expenditures.

52 the record had been “fully made” and that he was “prepared to rest

on the record.” The record supports the Tribunal’s conclusion that

the discovery requests made befo re the hearing had been waived.

Pertamina did not ask for discovery into political risk insurance

until it filed its Rule 60(b) motion in the district court.

The Tribunal’s denial of a continuance and additional

discovery did not prevent Pertamina from presenting its case, so as

to deprive it of a fair hearing. Pertamina presented ample

evidence in support of its position th at KBC would be unable to

find financing. The Tribunal considered Pertamina’s evidence and

gave it considerable weight, awarding KBC damages substantially

lower than the amount it sought. 91 Pertamina has failed to show the

prejudice required to decline enforcement of the Award on this

ground.

3. The Di strict Court’s Denial of Pertamina’s Rule 56(f)

Discovery Request

In the district court, after KBC moved for summary judgment on

its application to enforce the Award, Pertamina moved for a

co ntinuance under Rule 56(f) and sought the same discovery on

FPL’s willingness and ability to provide project financing that it

had sought in the arbitration. The district court denied the Rule

56(f) motion.92 R esolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp.

, 992

F.2d 1398, 1401 (5th Cir. 1993).

93 Int’l Shortstop v. Rally’s, Inc.

, 939 F.2d 1257, 1267 (5th Cir.

1991).

94 K rim v. BancTexas Group, Inc. , 989 F.2d 1435, 1442 (5th Cir.

1993).

95 L ummus Global Amazonas S.A. v. Aguaytia Energ y del Peru S.R.

Ltda. , 256 F.Supp.2d 594, 626 (S.D. Tex. 2002) (citations omitted).

53 The denial of a Rule 56(f) discovery request is reviewed for

abuse of discretion. 92 The district court may not simply rely on

vague assertions that additional discovery will produce needed, but

unspecified, facts. 93 “If it appears that further discovery will

not produce evidence creating a genuine issue of material fact, the

district court may, in the ex ercise of its discretion, grant

summary judgment.” 94 As one court has explained:

In judging discovery requests in this context

[of an arbitration award confirmation

proceeding], the court must weigh the asserted

need for hitherto undisclosed information and

assess the impact of granting such discovery

on the arbi tral process. The inquiry is an

entirely practical one, and is necessarily

k eyed to the specific issues raised by the

party challenging the award and the degree to

which those issues implicated factual

questions that cannot be reliably resolved

without some further disclosure. 95

The record shows that in the arbitration, Pertamina was able

to present substantial evidence regarding the Indonesian economy,

the problems in securing financing for projects in Indonesia, and

the projected electrical generating capacity of the project. The

Tribunal took Pertamina’s argument s into account in awarding96 See Krim , 989 F.2d at 1442.

97 S ee Lummus Global Amazonas

, 256 F.Supp.2d at 626; Resolution

Trust Corp.

, 992 F.2d at 1401. For the same reasons, the district court

did not err by refusing to permit additional discovery or host an

evidentiary hearing before ruling on Pertamina’s Rule 60(b) motion. S ee

Provident Life and Accident Ins. Co. v. Goel , 274 F.3d 984, 999 (5th

Cir. 200 1) (noting that the only issues on an appeal of a Rule 60(b)

motion are the propriety of the denial of relief and whether the

district court abused its discretion in denying relief).

54 significantly less in lost profits than KBC had sought. The

Tribunal did not solely rely on FPL’s willingness to finance the

project in determining that KBC was ready to “directly, and/or

through its shareholders,” finance the project. The Tribunal also

looked to KBC’s efforts to convince the Indonesian government to

restart the project in making this finding. The record supports

the district court’s denial of a continuance to permit further

discovery on KBC’s ability to finance the project.

The district court also noted Pertamina’s counsel’s statement

at the conclusion of the arbitration hearing that “the record on

[the financing issue] ha[d] been fully made.” Pertamina has failed

to show that the discovery it sought in the district court would

have created disputed fact issues material to determining whether

Pertamina received a fundamentally fair hearing before the

Tribunal. 96 Because the issue of financing could be reliably

resolved without the requested discovery, the distric t court did

not abuse its discretion in denying Pertamina’s Rule 56(f) motion. 9798 9 U.S.C. § 201, Art. V(2)(b).

99 M & C Corp. , 87 F.3d at 851 n.2 (quoting F otochrome, Inc. v.

Copal Co., Lt d. , 517 F.2d 512, 516 (2d Cir. 1975)); s ee Parsons &

Whittemore Overseas , 508 F.2d at 974; Slaney , 244 F.3d at 593.

100 Parsons & Whittemore Overseas , 508 F.2d at 973.

101 C outinho Caro & Co. U.S.A., Inc. v. Marcus Trading, Inc.

, 2000

WL 435566, at *12 (D. Conn. March 14, 2000).

55 E. The Public Policy Challenge to the Arbitral Award

Pertamina asserts that the Award vio lated public policy

because it violated the international law doctrine of abuse of

rights. Pertamina contends that the Award imposes punishment for

obeying a government decree. Pertamina also asserts that KBC’s

failure to disclose the political risk insurance policy during the

a rbitration makes enforcement of the Award a violation of public

policy.

Under Article V(2)(b) of the New York Convention, a court may

refuse to recognize or enforce an arbitral award if it “would be

contrary to the public policy of that country.” 98 The public policy

defense is to be “construed narrowly to be applied only where

enforcement would violate the forum state’s most basic notions of

morality and just i ce.” 99 “The general pro-enforcement bias

informing the con vention . . . points to a narrow reading of the

p ublic policy defense.” 100 Erroneous legal reasoning or

misapplication of law is generally not a violation of public policy

within the meaning of the New York Convention. 101102 Joseph M. Perillo, A buse of Rights: A Pervasive Legal Concept

,

27 Pac. L. J. 37, 47 (Fall 1995).

103 The abuse of rights doctrine is not even fully established in

Louisiana, the American jurisdiction that has invoked it. S ee Lloyd v.

Georgia Gulf Corp. , 961 F.2d 1190, 1193 n.4 (5th Cir. 1992).

104 See Perillo, 27 Pac. L. J. at 47.

105 Slaney , 244 F.3d at 593.

56 An action violates the abuse of rights doctrine if one of the

following three factors is present: (1) the predominant motive for

the action is to cause harm; (2) the action is totally unreasonable

given the lack of any legitimate interest in the exercise of the

right and its exercise harms another; and (3) the right is

exercised for a purpose other than that for which it exists. 102 The

abuse of rights doctrine is not established in American law 103 and

KBC’s actions do not meet the factors required to trigger its

application. The evidence in the record is that KBC pursued the

arbitration to recover its costs, expenses, and lost profits from

the nonperformance of the JOC and ESC. 1 04 The record does not

support Pertamina’s argument that enforci ng the Award penalizes

obedience to a governmental decree. The Tribunal explained in the

Final Award that the JOC and ESC shifted the risk of loss resulting

from a government-order ed suspension onto Pertamina and PLN.

Pertamina is challenging the substance of the Tribunal’s

interpretation of the JOC and ESC. An arbitration tribunal’s

contract interpretation does not violate public policy unless it

“violates the most basic notions of morality and justice.” 105 The106 K arppinen v. Karl Kiefer Mach. Co.

, 187 F.2d 32, 34 (2d Cir.

1951).

107 B onar v. Dean Witter Reynolds, Inc.

, 835 F.2d 1378, 1383 (11th

Cir. 1988).

108 Id

.

109 S ee Biotronik Mess-Und Therapiegeraete GmbH & Co. v. Medford

Med. Instrument Co. , 415 F. Supp. 133, 137-38 (D.N.J. 1976).

57 Tribunal’s interpretation of the JOC and ESC does not approach this

steep threshold.

KBC’s failure to disclose the political risk insurance policy

does not provide a basis for refusing to enforce the Award.

Enforcement of an arbitration award m ay be refused if the

prevailing party furnished perjured evidence to the tribunal or if

the award was procured by fraud. 106 Courts apply a three-prong test

to determine whether an arbitration award is so affected by fraud:

(1) the movant must establish the fraud by clear and convincing

evidence; (2) the fraud must not have been discoverable upon the

exercise of due diligence before or during the arbitration; and (3)

the person challenging the award must show that the fraud

materially related to an issue in the arbitration. 107 It is not

n ecessary to establish that the result of the arbitration would

have been diffe rent if the fraud had not occurred. 1 08 Courts,

however, have held that an arbitration award is not f raudulently

obtained when the protesting party had an opportunity to rebut his

opponent’s claims at the hearing. 109110 415 F. Supp. 133 (D.N.J. 1976).

111 Id. at 137.

112 Id. at 138.

113 Id.

114 292 F. Supp. 549 (S.D.N.Y. 1968).

115 Id. at 553.

116 Id.

117 Id.

58 In Biotronik Mess-Und Therapiegeraete GmbH & Co. v. Medford

Medical Instrument Co.

, 110 the party oppo sing enforcement of the

award argued that the prevailing party knowingly withheld evidence

of an agreement that undermined its case. 111 The court stated that

while the party opp osing enforcement urged fraud, the real

complaint was that the party prevailing in the arbitration should

have presented evidence favorable to its opponent’s case. 112 The

court rejected this argument, stating that “a party cannot complain

about the nonproduction of evidence when it failed to offer such

evidence itself.” 113 In C atz American Co. v. Pearl Grang e Fruit

Exchange Inc.

, 114 the party opposin g enforcement did not ask the

arbitrators to bring certain witnesses before the panel, although

the prevailing party offered to make the witnesses avai lable. 1 15

The panel never called for the witnesses’ testimony. 116 The party

opposing enforcement of the award argued that the prevailing party

should nonetheless have produced the witnesses. 1 17 The court

rejected this argument, stating that “[a]rbitrators must be given118 Id.

119 Id.

120 C f. Biotronik

, 415 F. Supp. at 138; Catz American

, 292 F. Supp.

at 553; see Goel

, 274 F.3d at 999 (noting that the only issues on an

appeal of a Rule 60(b) motion are the propriety of the denial of relief

and whether the district court abused its discretion in denying relief).

59 discretion to determine whether additional evidence is necessary or

would simply prolong the proceedings.” 118 Because the witnesses

were not solely within the prevailing party’s control and there was

other evidence in the record supporting the other party’s position,

the court rejected the challenge to the award. 119

Pertamina argues that KBC’s failure to reveal it s political

risk insurance policy amounts to misconduct warranting a refusal to

enforce the Award. There is no evidence in the record that KBC

deliberately misled the Tribunal. When the question of political

risk insurance arose and was not clearly resolved, Pertam ina had

the opportunity to ask additional questions, which it chose not to

pursue. The Tribunal gave Pertamina an opportunity to pursue

discovery requests, which it declined. KBC’s failure to produce

evidence of political risk insurance, given Pertamina’s decisions

not to pursue the subject, does not violate public policy. The

district court did not err in refusing to deny enforcement of the

Award on the basis of a public policy violation or in refusing to

grant a new trial on the basis of Rule 60(b). 120

F. The E ffect of the Indonesian Court’s Annulment of the

Arbitral Award121 The language, “‘the competent authority of the country . . .

under the law of wh ich, that award was made’ refers exclusively to

procedural and not substantive law, and more precisely, to the regimen

or scheme of arbitral proce dural law under which the arbitration was

conducted, and not the substantive law . . . applied in the case.”

Int’l Standard Elec. Corp.

, 745 F. Supp. at 178; see Alghanim

, 126 F.3d

at 21; M & C Corp. , 87 F.3d at 848.

60 Pertamina filed an annulment action in the Centra l District

Court of Jakarta, Indonesia in March 2002. That court annulled the

Award on August 27, 2002. Pertamina now contends that the

Indonesian court’s annulment is a defense to enforcement under the

New York Convention. KBC responds that Indonesia cannot be a

proper forum for annulment because Switzerland is the country of

primary jurisdiction.

Pertamina argues that the New York Convention p ermits more

than one country to have primary jurisdiction over an arbitration

award. Pertamina contends that the Convention’s language

permitting annulment by a court in “the country in which, or under

the law of which, that award was made” al lows for two potential

primary jurisdiction co untries – the country who hosted the

arbitration proceeding, and the country whose arbitral procedural

law governed that proceeding. 121 Using this reasoning, Pertamina

suggests that both Switz erland (the host country) and Indonesia

(the country of governing law) have primary jurisdiction over the

arbitration in this case.

Pertamina correctly observes that the Convention provides two

tests for determining which country has primary jurisdiction over

an arbitration award: a country in which an award is made, and a122 9 U.S.C. § 201, Art. V(1)(e).

123 S ee, e.g.

, Int’l Standard Electric Corp.

, 745 F. Supp. at 177

(quoting Albert Jan van den Berg, The New York Arbitration Convention

of 1958 350 (Kluwer 1981)); Paul Sanders, The New York Convention on the

Re cognition and Enforcement of Foreign Arbitral Awards , 6 Netherlands

Int’l L. Rev. 43, 56 (1956).

124 Hamid G. Gharavi, T he Internat ional Effectiveness of the

Annulment of An Arbitral Award (2002).

125 “The reality, however, seems to be that the Article V(1)(e)

formula enables enforcement courts to refuse e n forcement of an award

annulled by the competent court of the country in w hich the award was

made even if (i) the award was rendered pursuant to the laws of a third

State and ( ii) annulment proceedings were pending before the court of

the country under the law of which the award was made.” Id.

61 country under the law of which an award is made. 122 The New York

Convention suggests the potential for more than one country of

primary jurisdiction. Courts and scholars have noted as much. 1 23

Pertamina cites one such scholar as support for its position:

[A]mbiguity is derived from the fact that the

formula does not indicate whether the party

seeking the annulment of the award must choose

between th e court at the seat of the

arbitration and the one located in the country

under the law of which the award is made – if

the two are distinct – or whether it may seek

annulment jointly or alternatively before both

courts. . . . Article V(1)(e) of the New York

Convention could [ ] be construed as referring

to the courts of only one country while giving

the party seeking the annulment the

possibility to choose between the two

countries should the two be distinct. 124

Al though an arbitration agreement may make more than one country

eligible for primary jurisdiction under the New York Convention,

the predominant view is that the Convention permits only one in any

given case. 125 “[M]any commentators and foreign courts have

concluded that an action to set aside an award can be brought only126 A lghanim

, 126 F.3d at 22 (citing commentary that the country

of origin of the award is the only country with primary jurisdiction).

127 Supplemental Expert Report of Albert Jan van den Berg, p. 20.

Others agree. Professor Paul Sanders concludes that regardless of any

ambiguity, Article V(1)(e) grants primary jurisdiction to the courts of

only a single country:

[T]he suspension must have been ordered by or the

application for suspension must have been made to

a “competent authority of the country in which, or

under the law of which, that award was mad e.”

Here only one competent authority is meant; either

the Court of the country where the award was made,

or the Court of the country under the law of which

the award was made. These last words were added

on a Russian proposal to cover the case that an

award has been made f.i. in Germany under French

procedural law. In that case the suspension . .

. according to the Convention should have to be

demanded in France and not in Germany.

Sanders, New York Convention at 56. In his expert report for KBC,

Professor Allen Scott Rau emphasized that “there is o nly one national

court system that has jurisdiction to consider an application for

annulment of an award .” Scholar Jan Paulsson submits “the fact is that

setting aside awards under the New York Convention can take place only

in the country in which the award was made.” T he Role of Swedish Courts

in Transnational Commercial Arbitration

, 21 Va. J. Int’l L. 211, 242

(1981).

62 under the domestic law of the arbitral forum.” 126 Pertamina’s

expert on international arbitration filed a report in the district

court, stating that “there can b e only one country in which the

courts have jurisdiction over an annulment.” 127 In its motion to

the district court to set aside judgment under Rule 60(b),

Pertamina conceded that “[a] primar y jurisdiction has exclusive

authority to nullify an award on the basis of its own arbitration

law.” Such “exclusive” primary jurisdiction in the courts of a

single count ry is consistent with the New York Convention’s

purpose; facilitates the “orderliness and predictability” necessary128 For example, “having a double test, i .e. that of the place of

arbitration and that of the law governing the arbitration, can give rise

to discrepancies.” Andreas Bucher and Pierre-Yves Tschanz,

International Arbitration in Switzerland 164 (1988). As one source has

explained:

For instance, the Federal Republic of Germany does

not define German awards as awards made in Germany

but as awards governed by German law wherever they

are made. As a result, an award purporting to be

made in Switzerland under German arbitration law

is considered as a Swiss award in Switzerland and

as a German award in Germany, with the result that

such award could be challenged in both countries.

In the reverse situation of an award made in

Germany purportedly under Swiss arbitration law,

such award is considered as Swiss in Germany and

as German in Switzerla nd (since the place of

arbitration is in Germany). As a result, such an

award cannot be challenged in either country, but

can only be recognized (o r denied recognition)

under the New York Convention.

Id.

129 See Alghanim , 126 F.3d at 21; M & C Corp. , 87 F.3d at 848.

63 to international commercial agreements; and implements the parties’

choice of a neutral forum. 128

In this case, both of the New York Convention criteria for the

country with primary jurisdiction point to Switzerland – and only

to Switzerland. 129 The Award was made in Switzerland and was made

under Swiss procedural law. The parties’ arbitration agreement

designated Switzerland as the site for the arbitration. This

designation presumptively designated Swiss procedural law as the

lex arbitri

, in the absence of any express statement making another

country’s procedural law applicable.

Pertamina’s own con d uct during and after the arbitration

evidences its intent to have Swiss procedural law apply and to have130 The district court found that Pertamina “specifically,

repeatedly and unequivocally” argued that Swiss arbitration law applied

in the arbitration. See note 24.

131 The Hong Kong court enforced the Award after the Indonesian

court issued its annulment ruling, stating that “the fact that the court

in Indonesia has now annulled the award under its own law is also a

matter whic h has no effect on this court’s task.” H ong Kong decision

at 12.

64 Switzerland be the country of primary jurisdiction over the Award.

During the arbitration, Pertamina asserte d that Swiss procedural

law applied. When it lost the arbitration, Pertamina asked the

Swiss court to set aside the Award, acknowledging that the Swiss

courts had primary jurisdiction. While that appeal was pending,

Pertamina urged t he district court in the enforcement proceeding

that the Swiss court had exclusive primary jurisdiction

– until the

Swiss courts rejected Pertamina’s appeal. 130

Un der the New York Convention, the parties’ arbitration

agreement, and this record, Switzerland had primary juris diction

over the Award. 13 1 Because Indonesia did not have primary

jurisdiction to set aside the Award, this court affirms the

district court’s conclusion that the Indonesian court’s annulment

ruling is not a defense to enforcement under the New York

Convention.

III. Conclusion

Pertamina’s challenges to the district court’s decision

affirming the Award are without merit. The summary judgment

enforcing the Award is AFFIRMED.