UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-2064

AO TECHSNABEXPORT, a legal entity organized and existing 

under the laws of the Russian Federation,

Plaintiff - Appellee,

v.

GLOBE NUCLEAR SERVICES AND SUPPLY GNSS, LIMITED, d/b/a 

Global Nuclear Services and Supply, Limited, a Delaware 

corporation,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Alexander Williams, Jr., District 

Judge. (8:08-cv-01521-AW)

Argued: September 22, 2010 Decided: December 15, 2010

Before TRAXLER, Chief Judge, and DAVIS and KEENAN, Circuit 

Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the 

opinion, in which Chief Judge Traxler and Judge Davis joined.

ARGUED: Andrew K. Fletcher, PEPPER & HAMILTON, LLP, Pittsburgh, 

Pennsylvania, for Appellant. Kevin McNulty, GIBBONS PC, Newark, 

New Jersey, for Appellee. ON BRIEF: Richard M. Weibley, PEPPER 

& HAMILTON, LLP, Pittsburgh, Pennsylvania; Matthew H. Adler, 

PEPPER & HAMILTON, LLP, Philadelphia, Pennsylvania, for 

Appellant. Craig M. Palik, MCNAMEE, HOSEA, JERNIGAN, KIM, 
2

GREENAN & LYNCH, PA, Greenbelt, Maryland; David E. De Lorenzi, 

GIBBONS PC, Newark, New Jersey, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

KEENAN, Circuit Judge:

Globe Nuclear Services and Supply, Limited (Globe) 

challenges the district court’s judgment confirming the final 

award of a Swedish arbitration tribunal in favor of AO 

Techsnabexport (Tenex). Globe’s appeal presents three issues: 

1) whether the arbitration tribunal improperly considered 

“witness statements” of individuals who were not available for 

cross-examination; 2) whether the tribunal exceeded its 

permissible scope of review by considering matters related to 

Russian criminal law; and 3) whether the tribunal lacked 

authority to enter the final award after previously deciding 

certain questions in the partial award. Upon consideration of 

these issues, we affirm the district court’s judgment confirming 

the final award.

I.

Tenex is a joint stock company organized under the laws of 

the Russian Federation, and was appointed by an agency of the 

Russian Federation to direct the management of Russian nuclear 

materials. Globe is a corporation established under Delaware 

law that maintains its headquarters in Maryland. Globe buys, 

sells, and trades various forms of uranium used in the 

production of nuclear fuel.
4

In January 2000, Tenex and Globe entered into a contract 

for the sale of uranium hexafluoride (uranium), in which Globe 

agreed to purchase uranium from Tenex from 2001 through 2013 

(the contract). The contract contained an arbitration clause, 

which provided that “any [] dispute, controversy or claim 

arising out of or relating to [the contract] or the breach, 

termination or invalidity thereof” shall be settled by 

arbitration, and that the contract shall be governed by the laws 

of Sweden.

In November 2003, Tenex informed Globe that Tenex would no 

longer sell uranium to Globe, effective January 2004, because 

further sales were “inimical to the interests of the Russian 

Federation.” After Tenex’s announcement, Globe submitted a 

request for arbitration. A panel of three arbitrators (the 

tribunal) was appointed to conduct the proceedings in Sweden.

In its amended claim for relief, Globe asserted that Tenex 

breached the contract, and that Globe was entitled to more than 

$944 million in damages plus costs. The parties held a prehearing conference in Arlanda, Sweden, and agreed upon a set of 

procedural rules to govern the arbitration proceedings (the 

Arlanda Rules). The Arlanda Rules provided, in part, that each 

witness must submit a written statement, and must testify before 

the tribunal and be available for cross-examination.
5

Before the arbitration hearings began, Tenex informed the 

tribunal that indictments had been filed in the United States 

charging a former Russian Federation government official and a 

Globe executive with using money stolen from the United States 

government to purchase shares of Globe. The General 

Prosecutor’s Office of the Russian Federation (the Russian 

Prosecutor General) began a related criminal investigation (the 

Russian criminal investigation) of several individuals allegedly 

involved in a conspiracy to gain control of Globe and to defraud 

the Russian Federation. Tenex informed the tribunal that the 

Russian criminal investigation might affect Tenex’s defense in 

the arbitration proceedings and requested that the record remain 

open to receive new evidence that may be revealed by the Russian 

criminal investigation. Globe opposed this request for several 

reasons, including that the Russian criminal investigation was 

irrelevant to the issues before the tribunal.

In October 2005, the tribunal conducted a procedural 

hearing to determine to what extent the Russian criminal 

investigation should affect the arbitration proceedings. At 

that hearing, Tenex asserted that the Russian criminal 

investigation revealed that before Tenex and Globe entered into 

the contract, a group of individuals, including a Globe 

executive, engaged in a fraudulent scheme to obtain a 

controlling interest in Globe in the corporate name of TKST, 
6

Inc. (TKST). Tenex asserted that these individuals (the alleged 

TKST conspirators) misrepresented to Tenex that TKST was acting 

in the interests of Tenex and the Russian Federation, when TKST 

actually served to benefit the alleged TKST conspirators. Tenex 

asserted that these facts rendered the contract inequitable and 

therefore invalid under Section 33 of the Swedish Contracts Act. 

As applicable to this case, Section 33 of the Swedish Contracts

Act provides that an otherwise valid contract will not be 

enforced when one party has knowledge that the circumstances 

leading to the contract’s formation are inequitable.

In November 2005, the tribunal issued a schedule of 

hearings. That schedule reflected the tribunal’s decision to 

consider the breach of contract issue in the initial phase of 

hearings, and to determine damages, if necessary, in a second 

phase of hearings. The tribunal stated that it would “later 

decide whether and, if so, to what extent new evidence, which 

may come up in the ongoing criminal investigations” would be 

allowed. The tribunal concluded that if it decided to allow 

such new evidence, then the tribunal would conduct a third phase 

of hearings to consider the validity of the contract.

In August 2006, after conducting the first phase of 

hearings, the tribunal issued a partial award in favor of Globe, 

based on the tribunal’s conclusion that Tenex breached the 

contract. In that award, the tribunal rejected four independent 
7

grounds of defense asserted by Tenex. The tribunal proceeded to 

conduct the second phase of hearings to determine damages, but 

deferred its ruling on that issue.

In December 2006, Tenex submitted 460 new exhibits and a 

brief addressing the validity of the contract. Those 460 

exhibits included transcripts documenting interviews between the 

Russian Prosecutor General and several individuals regarding, in 

part, TKST’s purchase of Globe shares. Globe objected to the 

tribunal’s consideration of those 460 exhibits on the basis that 

the tribunal did not have authority to review matters involving 

Russian criminal law. Globe reasserted this objection several 

times throughout the arbitration proceedings but raised no other 

objections regarding the transcripts from the Russian Prosecutor 

General.

The tribunal accepted the new evidence and proceeded to 

conduct the third phase of hearings to consider the validity of 

the contract. At the close of those hearings, Globe renewed its 

objection to the tribunal’s consideration of criminal matters.

In its final award, the tribunal ruled in favor of Tenex, 

holding that the contract was invalid under § 33 of the Swedish 

Contracts Act. The tribunal awarded Tenex $5 million plus 

interest to compensate Tenex for its attorneys’ fees and costs, 

and dismissed Globe’s claims.
8

The tribunal concluded in the final award that Tenex 

assisted TKST in acquiring a majority share of Globe because 

Tenex was led to believe that the Russian Federation owned and 

controlled TKST. The tribunal determined, however, that TKST 

actually was acting in the interests of the alleged TKST

conspirators. The tribunal concluded that Globe was aware of 

this circumstance when the parties entered the contract and 

that, therefore, the contract could not be enforced equitably.

Also in its final award, the tribunal addressed Globe’s 

objection to the tribunal’s consideration of the evidence 

obtained from the Russian criminal investigation. The tribunal 

stated that it permissibly could “take into account such facts 

that also may constitute a criminal offence or, as an incidental 

question, decide whether a certain act or omission constitutes 

an offence, and consider the civil aspects thereof.”

Tenex filed a complaint in the district court seeking 

confirmation of the final award. The district court had 

jurisdiction to consider the complaint under the Federal 

Arbitration Act, which incorporates the Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards, June 10, 

1958, 21 U.S.T. 2517 (the Convention). See 9 U.S.C. §§ 203, 

207. Globe filed pleadings opposing Tenex’s requested relief 

and also filed a motion to confirm the tribunal’s partial award.
9

After conducting a hearing, the district court entered an 

order confirming the final award in favor of Tenex and denying 

Globe’s motion to confirm the partial award. On appeal, Globe 

asserts that because the tribunal committed several errors 

relating to its final award, the district court should have 

confirmed the partial award instead.

II.

The scope of judicial review of an arbitration award is 

“among the narrowest known at law.” Three S. Del., Inc. v. 

Dataquick Info. Sys., Inc., 492 F.3d 520, 527 (4th Cir. 

2007)(quoting Apex Plumbing Supply, Inc. v. U.S. Supply Co., 

Inc., 142 F.3d 188, 193 (4th Cir. 1998)). We have explained 

that expansive judicial scrutiny of such awards would undermine 

important benefits of arbitration, such as avoiding the delay 

and expense associated with litigation. Id. Therefore, a court 

considering a complaint seeking confirmation of an arbitration 

award may determine only whether the arbitrators acted within 

the scope of their authority, and may not consider whether the 

arbitrators acted correctly or reasonably. Id. (citing Remmey 

v. PaineWebber, Inc.

We review a district court’s confirmation of an arbitration 

award de novo. 

, 32 F.3d 143, 146 (4th Cir. 1994)).

Raymond James Fin. Servs., Inc. v. Bishop, 596 
10

F.3d 183, 190 (4th Cir. 2010). The district court’s findings of 

fact are reviewed for clear error. 

In order for a reviewing court to vacate a foreign 

arbitration award, the moving party must establish one of the 

grounds for refusal specified in the Convention. 9 U.S.C. 

§ 207; 

Id.

see Three S. Del.

(1)(b) The party against whom the award is invoked was 

not given proper notice of the appointment of the 

arbitrator . . . or was otherwise unable to present 

his case; or

, 492 F.3d at 527. Article V of the 

Convention sets forth several bases for refusal, including the 

following grounds relevant to this appeal:

(1)(c) The award deals with a difference not 

contemplated by or not falling within the terms of the 

submission to arbitration, or it contains decisions on 

matters beyond the scope of the submission to 

arbitration. . . ; or

(1)(d) The composition of the arbitral authority or 

the arbitral procedure was not in accordance with the 

agreement of the parties, or, failing such agreement, 

was not in accordance with the law of the country 

where the arbitration took place. . . ; or

(2)(b) The recognition or enforcement of the award 

would be contrary to the public policy of that 

country.

21 U.S.T. at 2520.

A.

Globe argues that the district court erred in confirming 

the final award, because the tribunal improperly considered 

transcripts from the Russian Prosecutor General documenting 

interviews conducted with various individuals. Globe contends 
11

that these transcripts constituted “witness statements” under 

the Arlanda Rules and, thus, that Tenex was required to make the 

individuals referenced in the transcripts available for crossexamination. Globe asserts that by considering these 

transcripts, the tribunal violated the governing procedural 

rules established by the parties, a ground for refusal of an 

arbitration award in Article V(1)(d) of the Convention, and 

denied Globe the opportunity to “present its case” and crossexamine witnesses, a separate ground for refusal in Article 

V(1)(b) of the Convention.

We conclude that Globe waived this argument by failing to 

raise it during the arbitration proceedings. The district court 

found that Globe did not object during the arbitration 

proceedings to the tribunal’s consideration of the transcripts 

on the ground that they constituted “witness statements” under 

the Arlanda Rules. The record before us supports the district 

court’s finding and shows that Globe posed only “blanket” 

objections to the tribunal’s consideration of the 460 exhibits 

at issue. Globe objected to those exhibits numerous times 

during the proceedings on the grounds that the Russian criminal 

investigation was irrelevant to the arbitration proceedings, and 

that the tribunal lacked authority to consider criminal matters. 

Globe did not raise any objection during the arbitration 

proceedings about its inability to cross-examine the individuals 
12

who made the alleged “witness statements,” or argue that the 

tribunal’s consideration of the transcripts would violate the 

Arlanda Rules. Therefore, we will not consider the merits of 

Globe’s argument on this issue, because it was raised for the 

first time in the district court. See Kreiter v. Lufthansa 

German Airlines, Inc., 558 F.2d 966, 968 (9th Cir. 1977)(defects 

in proceedings prior to or during arbitration may be waived by 

party’s acquiescence); Order of Ry. Conductors v. Clinchfield 

R.R. Co.

B.

, 407 F.2d 985, 988 (6th Cir. 1969)(same).

Globe next argues that the district court erred in 

confirming the final award because, in that award, the tribunal 

improperly engaged in an assessment of Russian criminal law and 

“considered the rights and interests” of individuals other than 

the parties to the contract. According to Globe, the tribunal 

reached conclusions in its final award regarding the question 

whether the alleged TKST conspirators held stock in Globe 

through a “secret joint venture” and deceived Russian officials 

about the existence of this venture, and whether the contract 

was executed to “funnel profits” from Tenex to Globe and 

ultimately to the alleged TKST conspirators. Globe argues that 

in reaching these conclusions, the tribunal exceeded the scope 

of its review permitted under the arbitration clause, a ground 

for refusal set forth in Article V(1)(c) of the Convention. 
13

Globe maintains that this scope of review was limited to an 

application of Swedish law to the rights of the parties to the 

contract.

Globe also argues that because the final award contained 

“criminal findings,” the tribunal “mimicked” a Russian criminal 

court in violation of the public policy interest in protecting 

the integrity of international arbitration, a ground for refusal 

of an arbitration award set forth in Article V(2)(b) of the 

Convention. We disagree with Globe’s arguments.

The tribunal’s authority under the plain language of the 

arbitration clause broadly provides that “any [] dispute, 

controversy or claim arising out of or relating to

The tribunal determined in its final award, based in part 

on evidence obtained from the Russian criminal investigation,

that the alleged TKST conspirators knowingly concealed from 

Tenex the true nature of TKST’s ownership and interests. This 

conclusion served as the basis for the tribunal’s ruling that 

the contract was inequitable and, therefore, was invalid.

[the

contract] or the breach, termination or invalidity thereof” 

shall be settled by arbitration (emphasis added). Therefore, 

the tribunal was permitted to consider the alleged criminal acts 

of various individuals to the extent that those acts related to 

the issue of the contract’s validity under § 33 of the Swedish 

Contracts Act, a defense asserted by Tenex.
14

The tribunal’s conclusion, however, did not constitute an 

“assessment” of criminal law, nor did the tribunal attempt to 

hold any individual or entity criminally liable in any respect. 

Additionally, the final award does not contain citation to any 

principles of Russian criminal law nor does it include any 

application of such legal principles. Therefore, we hold that 

the tribunal, in considering evidence from the Russian criminal 

investigation, did not exceed the scope of its authority in the 

arbitration clause, within the meaning of Article V(1)(c) of the 

Convention, and did not violate the public policy interest in 

protecting the integrity of international arbitration, within 

the meaning of Article V(2)(b) of the Convention.

C.

Finally, Globe argues that the district court erred in 

confirming the final award because, in that award, the tribunal 

reconsidered matters already resolved conclusively in the 

partial award. Globe contends that during the first phase of 

the hearings, Tenex presented evidence and argument addressing 

whether the alleged TKST conspirators engaged in unethical and 

fraudulent conduct affecting the negotiation of the contract. 

Globe further contends that the tribunal dismissed these 

allegations in the partial award, stating that the grounds 

“which Tenex has invoked as its defense. . . do not relieve 

Tenex from its contractual liability.” Accordingly, Globe 
15

asserts that the tribunal exceeded the scope of its authority, 

within the meaning of Article V(1)(c), when the tribunal 

reconsidered Tenex’s previously-asserted defense in determining

the final award. Globe thus maintains that the partial award 

completely disposed of all claims submitted to the tribunal by 

the parties, and requests that we direct the district court to 

confirm the partial award. We disagree with Globe’s arguments, 

and decline to order confirmation of the partial award.

Arbitrators complete their function and lose their 

authority to act after making a final determination on a matter. 

Trade & Transport, Inc. v. Natural Petroleum Charterers, Inc., 

931 F.2d 191, 195 (2d Cir. 1991); Colonial Penn Ins. Co. v. 

Omaha Indem. Co., 943 F.2d 327, 331 (3d Cir. 1991). This 

principle, known as the doctrine of functus officio, prevents an 

arbitrator from reexamining the merits of a final award. Trade 

& Transport, 931 F.3d at 195; Colonial Penn Ins.

An award is final in nature when the arbitrators intend to 

include in the award their complete determination of all claims 

submitted for arbitration. 

, 943 F.2d at 

331-32.

Hart Surgical, Inc. v. UltraCision, 

Inc., 244 F.3d 231, 233 (1st Cir. 2001); Anderson v. Norfolk & 

Western Ry. Co., 773 F.2d 880, 883 (7th Cir. 1985); Michaels v. 

Mariforum Shipping, S.A., 624 F.2d 411, 413-14 (2d Cir. 1980). 

Nevertheless, an interim arbitration award that finally and 
16

definitively disposes of a separate, independent claim may be 

confirmed in the absence of a final award. Island Creek Coal 

Sales Co. v. City of Gainesville

In the present case, the tribunal issued a schedule of 

hearings, which provided that the issues of breach of contract 

and potential damages would be addressed during the first two 

phases of hearings. The schedule also established that if the 

tribunal later decided to allow additional evidence, the 

tribunal would consider the issue of contract validity in a 

third phase of hearings.

, 729 F.2d 1046, 1049 (6th Cir. 

1984).

While a court ordinarily might consider the validity of a 

contract before considering whether a party breached that 

contract, the district court correctly observed that the unusual 

procedure in this case was warranted based on the potentiallyrelevant Russian criminal investigation. Moreover, the 

tribunal’s schedule of hearings explained that the tribunal

explicitly reserved consideration of the issue of the contract’s 

validity for the third phase of hearings.

The record demonstrates that the tribunal followed its 

announced schedule, and did not address in the partial award 

Tenex’s defense that the contract was invalid under § 33 of the 

Swedish Contracts Act. The tribunal considered and rejected in 

the partial award other independent grounds of defense raised by 
17

Tenex as reasons for its termination of the contract. Because 

the partial and the final awards resolved different legal 

issues, the tribunal was not prohibited in the third phase of 

hearings from considering the same facts it previously had 

considered in determining its partial award.

We conclude that the partial award did not definitively 

dispose of any severable claim or constitute a final 

determination of the issues presented by the parties. Thus, the 

partial award was rendered moot by the tribunal’s conclusion in 

the final award that the contract was not enforceable. See Hart 

Surgical, 244 F.3d at 233; Anderson, 773 F.2d at 883; Michaels, 

624 F.2d at 413-14. Accordingly, we hold that the tribunal did 

not violate the doctrine of functus officio, and that the 

district court did not err in declining to affirm the partial 

award. See Trade & Transport, 931 F.3d at 195; Colonial Penn 

Ins.

For these reasons, we affirm the district court’s judgment 

confirming the final arbitration award.

, 943 F.2d at 331-32.

AFFIRMED