NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

BAYER CROPSCIENCE AG, BAYER 

CROPSCIENCE NV,

Plaintiffs-Appellees

v.

DOW AGROSCIENCES LLC, MYCOGEN PLANT 

SCIENCE, INC., AGRIGENETICS, INC., DBA 

MYCOGEN SEEDS, LLC, PHYTOGEN SEED 

COMPANY, LLC,

Defendants-Appellants

______________________ 

2016-1530, 2016-1623

______________________ 

Appeals from the United States District Court for the 

Eastern District of Virginia in No. 2:12-cv-00047-RAJRJK, Judge Raymond Alvin Jackson.

______________________ 

Decided: March 1, 2017

______________________ 

CHRISTOPHER JAMES GASPAR, Milbank, Tweed, Hadley 

& McCloy LLP, New York, NY, argued for plaintiffsappellees. Also represented by RYAN HAGGLUND; ROBERT 

J. KOCH, MICHAEL D. NOLAN, STEPHANIE R. AMOROSO,

EDWARD JOHN MAYLE, Washington, DC.
2 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

DAVID JASON LENDER, Weil, Gotshal & Manges LLP, 

New York, NY, argued for defendants-appellants. Also 

represented by ELIZABETH WEISWASSER, DAVID 

FITZMAURICE, ADAM BANKS; ALEX V. CHACHKES, PETER A.

BICKS, ROBERT L. SILLS, JAMES STENGEL, Orrick, Herrington & Sutcliffe LLP, New York, NY; MARK S. DAVIES,

KATHERINE M. KOPP, JEFFREY M. PROKOP, MELANIE L.

BOSTWICK, Washington, DC; ELIZABETH MOULTON, Menlo 

Park, CA.

LLOYD LEE DAVIS, III, Andrews Kurth Kenyon LLP, 

Houston, TX, for amicus curiae Jeff C. Dodd. 

______________________ 

Before MOORE, TARANTO, and CHEN, Circuit Judges.

TARANTO, Circuit Judge.

This case involves an international arbitration tribunal’s decision on a contract claim, under French law, and 

patent-infringement claims, under U.S. law, in a dispute 

between Bayer CropScience NV and Bayer CropScience 

AG (sometimes collectively, Bayer), on one side, and Dow 

Agrosciences LLC, Mycogen Plant Science, Inc., Agrigenetics, Inc., and Phytogen Seed Co. (collectively, Dow), 

on the other. Bayer initially sued Dow for patent infringement, but the district court stayed the action pending arbitration. The arbitral tribunal awarded Bayer 

approximately $455 million, including damages for breach 

of contract and patent infringement, and set a rate for 

post-award interest. The district court, in the patentinfringement case, confirmed the arbitral award. The 

court rejected Dow’s arguments against the award and

also denied Dow’s motion to clarify that interest from the 

date of the district court’s judgment would accrue at the 

statutory rate for post-judgment interest rather than the 

tribunal’s higher post-award rate. Dow appeals. 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 3

We conclude that the district court correctly confirmed the award, but abused its discretion regarding 

post-judgment interest. We modify the judgment to state 

that interest from the date of the district court’s judgment 

accrues at the federal statutory rate. We affirm the 

judgment as modified.

I 

A 

Bayer CropScience NV, a successor of Plant Genetic 

Systems NV, owns or co-owns the Leemans patent family, 

which includes U.S. Patent Nos. 5,561,236, 5,646,024, 

5,648,477, 7,112,665, and RE44,962. The patents describe 

and claim various technologies related to the pat gene, 

which confers resistance to the herbicide glufosinate. The 

Leemans patents issued from continuations of U.S. Patent 

Application No. 07/131,140 and have similar specifications.

Bayer CropScience AG, a successor of Hoechst AG,

owns the Strauch patent family, including U.S. Patent 

Nos. 5,273,894 and 5,276,268 (Strauch ’268). Although 

not asserted by Bayer CropScience AG, the Strauch 

patents are indirectly at issue, as the basis for Dow’s 

double-patenting challenge to the Leemans patents. 

Bayer CropScience AG and Bayer CropScience NV are 

wholly owned subsidiaries of non-party Bayer AG. 

Dow AgroSciences LLC produces the Enlist E3, Enlist 

E3+IR, Enlist Soybean, Enlist Cotton, Widestrike, and 

Widestrike 3 products through its subsidiaries, Mycogen 

Plant Science, Inc., Agrigenetics, Inc., and Phytogen Seed 

Co. Each of those products contains the pat gene. The

Enlist E3 products also contain a molecular stack of the 

aad-12 and dmmg genes. Like the pat gene, the aad-12 

and dmmg genes confer resistances to herbicides.

In June 1992, Hoechst AG and Lubrizol Genetics, Inc., 

Dow’s predecessor, agreed to cross-license certain technol-
4 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

ogies to which they had rights. That agreement (the 1992 

Agreement) granted Lubrizol licenses to certain patents, 

including the Strauch and the Leemans patents. At the 

time of the agreement, Hoechst owned the Strauch patents and exclusively licensed the Leemans patents from 

Plant Genetic Systems NV.

Article 4 of the 1992 Agreement restricts the parties’ 

use of the licensed technology: 

No right or license is hereby granted, to either 

party, either expressly or by implication, to use 

any other proprietary technology owned by or 

available to the other in connection with the licenses granted hereunder.

Both parties are entitled to grant sublicences or 

distribution rights for their Transformants. 

Hoechst is furthermore entitled to grant sublicences for gene promoter constructs containing a 

Promoter in conjunction with any gene of which 

Hoechst can dispose.

J.A. 886, 4147. Article 12 states that the agreement is to 

be governed by and construed in accordance with French 

law and that all controversies or disputes are to be “decided by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of 

Commerce.” J.A. 889, 4150.

Between 2007 and 2008, Dow and non-party MS 

Technologies, LLC entered into a series of agreements 

regarding the pat and dmmg genes. In September 2007, 

MS Tech granted Dow access to the dmmg gene, to which 

MS Tech had a license under a 2004 agreement with 

Bayer CropScience AG. In April 2008, Dow transferred 

soybean seed transformants containing the aad-12, pat, 

and dmmg genes to MS-Tech. Dow and MS Tech’s collaboration resulted in the creation of the Enlist E3 products.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 5

In November 2007, Bayer CropScience AG and MS 

Tech entered into a new agreement, which involved the 

dmmg gene and which transferred ownership of Event 

FG72 to MS Tech. The agreement required MS Tech to 

pay Bayer CropScience AG a percentage—in this case, 

determined to be 50%—of the net trait revenues associated with Event FG72 until 2030.

B 

In January 2012, Bayer CropScience AG terminated

the 1992 Agreement after accusing Dow of materially 

breaching Article 4. The same month, Bayer CropScience 

AG and Bayer CropScience NV sued Dow in the Eastern 

District of Virginia for infringement of the ’236, ’024, ’477, 

and ’665 patents. Dow moved to dismiss or stay the 

action based on the agreement’s arbitration clause. The

district court stayed the action. See 9 U.S.C. § 3.

In September 2013, Bayer CropScience NV filed a reissue application for the ’665 patent. See 35 U.S.C. § 251. 

In its application, Bayer CropScience NV stated that 

reissuance was appropriate in view of the Supreme 

Court’s decision in Association for Molecular Pathology v. 

Myriad Genetics, Inc., 133 S. Ct. 2107 (2013). The ’665 

patent reissued as the RE’962 patent, which expires in 

2023. The other patents at issue expired no later than 

July 2014.

Between November 2014 and August 2015, Dow filed 

six requests for inter partes reexamination of the ’236, 

’024, ’447, and RE’962 patents. See Ex Parte Leemans, 

Control Nos. 90/013,394, 90/013,449, 90/013,452, 

90/013,453, 90/013,515, 90/013,563. Dow alleged that 

claims 8, 9, 12, 15, 18, and 19 of the ’236 patent; 1, 15, 

and 16 of the ’024 patent; 1, 2, 15–17, and 19 of the ’477 

patent; and 1 and 2 of the RE’962 patent were invalid for 

obviousness-type double patenting over Strauch ’268 and 

’894 and U.S. Patent No. 5,633,434. See Control Nos. -

394, -449, -452, -453, -515. Dow also alleged that claim 2 
6 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

of the RE’962 patent would have been obvious over certain prior-art references. Control No. -563. At the examiner level, the Office has issued final rejections in four 

proceedings, Control Nos. -394, -449, -515, -563, and nonfinal rejections in the others, Control Nos. -452, -453. 

Those proceedings remain pending in the Office and do 

not alter our resolution of this appeal. See 35 U.S.C. 

§ 294; Fresenius USA, Inc. v. Baxter Int’l, Inc., 721 F.3d 

1330 (Fed. Cir. 2013).

In October 2015, an arbitral tribunal entered an 

award, finding, in relevant part, that (1) Dow breached 

the 1992 Agreement by effectively sublicensing the pat

gene to MS Tech; (2) Dow infringed various claims of the 

Leemans patents by its creation and other activities

involving the identified Enlist and Widestrike product—

specifically, claims 8, 9, 12, and 15 of the ’236 patent; 

claims 15 and 16 of the ’024 patent; claims 15, 16, and 19 

of the ’447 patent; and claim 1 of the RE’962 patent; (3) 

the asserted claims of the ’024, ’236, ’447, ’665, and 

RE’962 patents were not invalid for inadequate written 

description or lack of enablement; and (4) the ’236, ’024, 

’447, and RE’962 patents were not invalid for obviousnesstype double patenting over Strauch ’268. The tribunal 

awarded Bayer $455,459,187 in damages, including 

$374,731,000 in lost-opportunity damages under French 

law for breach of contract and $67,837,000 in reasonableroyalty damages under U.S. law for patent infringement. 

The tribunal also awarded Bayer pre-award interest 

using a rate of 8% and declared that the same rate would 

apply to “post-award interest.” J.A. 560, 563. Arbitrator 

George Berman dissented in part, disagreeing with the 

tribunal’s conclusion of no double patenting.

Bayer moved the district court to confirm the arbitral 

award. See 9 U.S.C. § 207. Dow cross-moved to vacate 

the award. The court confirmed the award. The court 

also denied Dow’s motion to amend the judgment to 

clarify that any interest for a period after the district 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 7

court’s judgment would accrue at the rate specified by 28 

U.S.C. § 1961(a), not at the tribunal’s 8% rate for “postaward interest.” Dow appeals. We conclude that we have 

jurisdiction, and we affirm the judgment as modified.

II

We have jurisdiction under 28 U.S.C. § 1295(a)(1), 

which gives us jurisdiction over any “appeal from a final 

decision of a district court . . . in any civil action arising 

under, or in any civil action in which a party has asserted 

a compulsory counterclaim arising under, any Act of 

Congress relating to patents.” An action arises under the 

patent laws if the complaint includes a claim asserting a 

cause of action created by federal patent law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808–09 

(1988). It also arises under the patent laws in certain 

circumstances where there is no federal cause of action. 

In Christianson, the Court stated that a state-law cause of 

action arises under federal patent law if “the plaintiff’s 

right to relief necessarily depends on resolution of a 

substantial question of federal patent law, in that patent 

law is a necessary element of one of the well-pleaded 

claims.” Id. More recently, in Gunn v. Minton, 133 S. Ct. 

1059 (2013), which concerned patent-law issues involved 

in a state-law malpractice claim, the Court explained that 

“federal jurisdiction over a state law claim will lie if a 

federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal 

court without disrupting the federal-state balance approved by Congress.” Id. at 1065; see also Grable & Sons 

Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 

314 (2005). In 2011, before the present suit was filed, 

Congress amended § 1295(a)(1) to extend our jurisdiction 

to actions that involve compulsory counterclaims arising 

under the patent laws. 28 U.S.C. § 1295(a)(1); LeahySmith America Invents Act, Pub. L. No. 112–29, § 19(b), 

125 Stat. 284, 331–32 (2011). That amendment became 

effective with respect to any civil action filed before Sep-
8 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

tember 16, 2011. Leahy-Smith America Invents Act 

§ 19(e), 125 Stat. at 333; Wawrzynski v. H.J. Heinz Co., 

728 F.3d 1374, 1378 (Fed. Cir. 2013).

In this case, Bayer’s complaint arises under the patent laws. The complaint expressly alleges multiple 

counts of patent infringement. The district court stayed 

adjudication of those claims pending arbitration, but did 

not dismiss the case or the patent claims. After the 

tribunal entered its award, the court resolved the parties’ 

post-award motions in the same action. Bayer cites, and 

we are aware of, no authority establishing that the tribunal’s adjudication of the patent-infringement claims 

altered the court’s basis for jurisdiction. 

The conclusion would not change even if one looked 

beyond the original complaint to the post-arbitral-award 

proceedings in the district court. When Dow turned to the 

court to challenge the arbitral award by way of a motion 

to vacate, it asserted patent law as a necessary basis for 

certain challenges to parts of the tribunal’s award. See 

Gunn, 133 S. Ct. at 1065. In particular, Dow argued that 

the Convention on the Recognition and Enforcement of 

Foreign Arbitral Awards (New York Convention), June 

10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, required the 

court to decide, among other issues, whether enforcement 

of the award would violate a host of patent-law requirements and policies. See New York Convention art. 

V(2)(b). Those questions were not only “necessarily 

raised,” but also “substantial” and “disputed.” Gunn, 133 

S. Ct. at 1065. Moreover, because French law governed 

the contract claim, there was no basis for concern that the 

federal court’s determination of the patent-law issues, 

within the strict limits of arbitral-award review, would 

“disrupt[] the federal-state balance.” Id. Thus, whether 

viewed as a new claim or as a compulsory counterclaim to 

Bayer’s claim for confirmation of the arbitral award, 

Dow’s challenge comes within the Gunn standard.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 9

Precedent reinforces the conclusion that we have jurisdiction over this appeal. In Flex-Foot, Inc. v. CRP, Inc., 

238 F.3d 1362 (Fed. Cir. 2001), we exercised jurisdiction 

over a final district-court decision confirming an arbitral 

award for patent infringement. Id. at 1364. Additionally, 

in Microchip Technology Inc. v. U.S. Philips Corp., 367 

F.3d 1350 (Fed. Cir. 2004), we held that we had jurisdiction under § 1292(a)(1) over interlocutory orders denying 

motions to compel arbitration. Id. at 1354–55. The Third 

and Eighth Circuits have reached the opposite conclusion 

regarding our jurisdiction over interlocutory appeals, but 

neither has questioned our jurisdiction over final appeals. 

Indus. Wire Prods., Inc. v. Costco Wholesale Corp., 576 

F.3d 516, 518–20 (8th Cir. 2009); Medtronic AVE, Inc. v. 

Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 51–53 

(3d Cir. 2001). To the contrary, the Third Circuit has 

concluded that we have jurisdiction in situations such as 

this. Medtronic AVE, 247 F.3d at 53.

We are unaware of any instance in which the regional 

circuits have decided an appeal involving the confirmation 

or vacatur of an arbitral award for patent infringement. 

In DeRosa v. J.P. Walsh & J.L. Marmo Enterprises, Inc., 

541 F. App’x 250 (4th Cir. 2013), and Rocket Jewelry Box, 

Inc. v. Noble Gift Packaging, Inc., 157 F.3d 174 (2d Cir. 

1998), the parties excluded the patent-related issues from 

arbitration. DeRosa also involved only a counterclaim for 

patent infringement, which did not suffice to create 

jurisdiction in cases, like DeRosa, filed before September 

16, 2011. See Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826 (2002); DeRosa v. J.P. Walsh 

& J.R. Marmo Enters., Inc., 471 F. App’x 902 (Fed. Cir. 

2012). Although Golden v. Lim, No. 2:15-cv-10795, 2016 

WL 520302 (E.D. Mich. Feb. 10, 2016), which is discussed 

in Bayer’s filings, might not have been distinguishable on 

the same grounds, the Sixth Circuit has since dismissed 

the appeal in that case. See Golden v. Lim, No. 16-1313 

(6th Cir. dismissed Apr. 14, 2016).
10 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

III 

On the merits, we follow the Supreme Court’s and relevant regional circuit’s law on issues not unique to patent 

law. Flex-Foot, Inc., 238 F.3d at 1365–66. Nevertheless,

we have been shown no reason to think that our conclusions would change under any other circuit’s law on 

matters not squarely controlled by Supreme Court precedent. We review the district court’s denial of the motion 

to vacate the arbitral award without deference and any 

underlying factual findings for clear error. Raymond 

James Fin. Servs., Inc. v. Bishop, 596 F.3d 183, 190 (4th 

Cir. 2010). We review the denial of the motion to amend 

the judgment for abuse of discretion. Wilkins v. Montgomery, 751 F.3d 214, 220 (4th Cir. 2014). A court necessarily abuses its discretion if it commits legal error. 

Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. 

Ct. 1744, 1748 n.2 (2014). The award of post-judgment 

interest is a legal question, reviewed without deference. 

Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 

632–33 (4th Cir. 1999). To the extent that the parties 

raise issues unique to patent law, we review those issues 

under our law. Flex-Foot, Inc., 238 F.3d at 1365–66.

A 

Judicial review of the arbitral award at issue here is 

very limited even if, as we assume for present purposes, 

the standards governing both international and domestic 

arbitration apply. In numerous ways, the relevant federal 

statutes and precedents make clear that ordinary legal or 

factual error is not a ground for disturbing an arbitral 

award like the one at issue here. 

The New York Convention and its enabling statute, 9 

U.S.C. §§ 201–208, require that a district court confirm an 

award “unless it finds one of the grounds for refusal or 

deferral of recognition or enforcement of the award specified in the said Convention.” 9 U.S.C. § 207. One ground 

invoked here requires a finding that “the award deals 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 11

with a difference [i.e., issue] not contemplated by or not 

falling within the terms of the submission to arbitration, 

or contains decisions on matters beyond the scope of the 

submission to arbitration.” New York Convention art. 

V(1)(c). Another requires a finding that “recognition or 

enforcement of the award would be contrary to the public 

policy” of “the country where recognition or enforcement is 

sought.” New York Convention art. V(2)(b).

The Federal Arbitration Act likewise strictly limits 

the grounds for disturbing an arbitral award. See 9 

U.S.C. §§ 10–11; Hall Street Assocs., L.L.C. v. Mattel, Inc., 

552 U.S. 576, 584–89 (2008). For example, the Act permits vacatur “where the arbitrators exceeded their powers.” 9 U.S.C. § 10(a)(4). But as the Supreme Court has 

explained, the Act authorizes only “the limited review 

needed to maintain arbitration’s essential virtue of resolving disputes straightaway,” thus ensuring that arbitration not become “merely a prelude to a more cumbersome 

and time-consuming judicial review process.” Hall Street 

Assocs., 552 U.S. at 588 (quoting Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 998 (9th Cir. 

2008)). The Court adhered to those principles in reviewing international arbitral awards under the Act. BG Grp., 

PLC v. Republic of Argentina, 134 S. Ct. 1198, 1206 

(2014).

The Fourth Circuit has stated that an award may be 

vacated if the arbitrators “manifestly disregarded” the 

applicable law. Wachovia Sec., LLC v. Brand, 671 F.3d 

472, 480 (4th Cir. 2012). The court has explained that the 

manifest-disregard ground exists either “as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. § 10.” 

Id. at 483 (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l 

Corp., 559 U.S. 662, 672 n.3 (2010)). In one formulation, 

the ground applies only if the tribunal was “aware of the 

law, understood it correctly, found it applicable to the case 

before them, and yet chose to ignore it in propounding 
12 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

their decision.” Three S Del., Inc. v. DataQuick Info. Sys., 

Inc., 492 F.3d 520, 529 (4th Cir. 2007) (quoting Remmey v. 

PaineWebber, Inc., 32 F.3d 143, 149 (4th Cir. 1994)). In 

another, it applies only if “(1) the applicable legal principle is clearly defined and not subject to reasonable debate; 

and (2) the arbitrator[s] refused to heed that legal principle.” Long John Silver’s Rests., Inc. v. Cole, 514 F.3d 345, 

349–50 (4th Cir. 2008) (quoting Merrill Lynch, Pierce, 

Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir.

1995)); Wachovia, 671 F.3d at 483. That “carefully circumscribed standard,” the Fourth Circuit has said, “is not 

an invitation to review the merits of the underlying 

arbitration.” Id. Instead, the standard has “for decades 

guaranteed that review for manifest disregard not grow 

into the kind of probing merits review that would undermine the efficiency of arbitration.” Id. 

Additionally, although an award may be disturbed if 

it “fails to draw its essence” from the relevant contractual 

provisions, MCI Constructors, LLC v. City of Greensboro, 

610 F.3d 849, 857 (4th Cir. 2010) (quoting Patton v. 

Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir. 

2006)), it does not fail to draw its essence from those 

provisions merely because the arbitrators misread them,

see Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 

2068 (2013); Stolt-Nielsen, 559 U.S. at 671; United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 

(1987); Choice Hotels Int’l, Inc. v. SM Prop. Mgmt., LLC, 

519 F.3d 200, 207 (4th Cir. 2008); Three S Del., 492 F.3d 

at 527–28. Rather, “as long as the arbitrator is even 

arguably construing or applying the contract and acting 

within the scope of his authority, that a court is convinced 

he committed serious error does not suffice to overturn his 

decision.” United Paperworkers Int’l Union, 484 U.S. at 

38; Choice Hotels Int’l, 519 F.3d at 207 (quoting U.S. 

Postal Serv. v. Am. Postal Workers Union, AFL-CIO, 204 

F.3d 523, 527 (4th Cir. 2000)). 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 13

A challenger must meet related, and similarly high, 

standards to support a refusal to confirm an award as 

contrary to public policy. In the domestic laborarbitration context, the Supreme Court has said that, to 

justify non-enforcement, an asserted public policy “must 

be well defined and dominant, and is to be ascertained ‘by 

reference to the laws and legal precedents and not from 

general considerations of supposed public interests.’” 

W.R. Grace & Co. v. Local Union 759, Int’l Union of 

United Rubber, Cork, Linoleum & Plastic Workers, 461 

U.S. 757, 766 (1983) (quoting Muschany v. United States, 

324 U.S. 49, 66 (1945)). Relatedly, the Court has recognized the strong policy considerations that favor allowing 

parties to enter into international arbitral agreements. 

See Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 

515 U.S. 528, 537–39 (1995); Mitsubishi Motors Corp. v. 

Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631–40 

(1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 517–18 

(1974). Guided by those considerations, the Court has 

enforced an agreement to arbitrate, over a “public policy” 

objection that the arbitrators would not permit assertion 

of a U.S. statutory right, where it was not clear that such 

a “prospective waiver of a party’s right to pursue statutory remedies” would occur. Vimar Seguros, 515 U.S. at 

540; see also Mitsubishi, 473 U.S. at 637 & n.19. 

Courts of appeals have construed the New York Convention’s public-policy exception narrowly. In Parsons & 

Whittemore Overseas Co. v. Société Generale De 

L’Industrie du Papier (RAKTA), 508 F.2d 969 (2d Cir. 

1974), the Second Circuit stated that, in accordance with 

general international choice-of-law principles, the exception applies “only where enforcement would violate the 

forum state’s most basic notions of morality and justice.” 

Id. at 974 (citing 1 Restatement (Second) of the Conflict of 

Laws § 117 cmt. c, at 340 (Am. Law Inst. 1971)). Most 

circuits follow that approach. See Ministry of Def. & 

Support for the Armed Forces of the Islamic Republic of 
14 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

Iran v. Cubic Def. Sys., Inc., 665 F.3d 1091, 1097 (9th Cir. 

2011); TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 

928, 938 (D.C. Cir. 2007); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 

F.3d 274, 306 (5th Cir. 2004); Slaney v. Int’l. Amateur 

Athletic Fed’n, 244 F.3d 580, 593 (7th Cir. 2001); M & C 

Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 

n.2 (6th Cir. 1996). The Eleventh Circuit has applied the 

Supreme Court’s labor-relations standard to the review of 

arbitral awards entered under the New York Convention, 

stressing the standard’s strictness. Indus. Risk Ins. v. 

M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1445 

(11th Cir. 1998). For the purposes of this appeal, any 

differences between the various approaches are immaterial: under any approach, an asserted policy must be 

clearly established to justify non-enforcement of an arbitral award. See W.R. Grace & Co., 461 U.S. at 766; Indus. 

Risk Ins., 141 F.3d at 1445; Parsons & Whittemore Overseas Co., 508 F.2d at 974.

B 

Dow’s first set of arguments attack parts of the arbitral award as counter to U.S. law or policies governing 

double patenting and post-patent-expiration royalties. 

We reject Dow’s arguments.

1 

The tribunal’s rejection of Dow’s double-patenting defense to patent infringement does not justify nonenforcement of the award. Dow argued to the tribunal 

that the Leemans patents were invalid for obviousnesstype double patenting in light of Strauch ’268, contending 

that the patents were commonly owned by Bayer AG, the 

parent company of Bayer CropScience AG (owner of the 

Strauch patents) and Bayer CropScience NV (owner or coowner of the Leemans patents). The tribunal carefully 

scrutinized Dow’s argument, accepted the premise that 

the Leemans and Strauch patents did not claim patenta-
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 15

bly distinct inventions, but nevertheless rejected the 

challenge. It concluded that the patents were not commonly owned because Bayer CropScience AG and Bayer 

CropScience NV were different entities and Dow had not 

provided sufficient evidence to pierce the corporate veil 

separating them. We cannot say that the tribunal’s 

conclusion is contrary to public policy or reflects a manifest disregard of the law under the strict standards governing such challenges.1

It suffices to say that the tribunal’s conclusion did not 

contravene any well-defined, established law applicable to 

the situation presented here. Dow does not challenge the 

tribunal’s conclusion that, with no common inventors, 

common ownership of the patents was required for the 

double-patenting bar to apply. To support its position on 

common ownership, Dow relies on Manual of Patent 

Examining Practice (MPEP) § 706.02, which states that 

patents owned by wholly owned subsidiaries of the same 

parent company are commonly owned for purposes of 

deciding what qualifies as prior art under 35 U.S.C. 

§ 103(c). See MPEP § 706.02(l)(2)(I), at 700-74. But the 

MPEP does not have the force of law. See Ethicon, Inc. v. 

Quigg, 849 F.2d 1422, 1425 (Fed. Cir. 1988). And in any 

event, the MPEP passage is not addressed to doublepatenting doctrine. 

As we have explained, obviousness-type (or “nonstatutory”) double patenting is a judicially-created corollary to “statutory” double patenting, which is itself a 

judicial gloss on § 101. See Geneva Pharm., Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1377–78 (Fed. Cir. 

2003). The authoritative source of law in this area is

therefore judicial precedent. But while the courts may 

1 The tribunal separately found no common ownership on the ground that Biogen is a co-owner of the Leemans patents. We need not address that ground.

 
16 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

someday reach the present situation, they have not yet 

done so.2 The Leemans and Strauch patents, having 

originated from separate inventors and unrelated companies (Hoechst AG and Plant Genetic Systems), are now 

held by sibling companies. The tribunal concluded that 

Dow had not established that the corporate veil separating the companies could be pierced. No precedent cited to 

the tribunal, or to us, considers and resolves in Dow’s 

favor the doctrinal questions presented by this situation, 

including those addressed to the policies that underlie the 

doctrine—the unjustified extension of exclusivity rights 

against the public and the potential for separate assignee 

suits enforcing the same rights. See id. at 1378; In re 

Hubbell, 709 F.3d 1140, 1145 (Fed. Cir. 2013). With the 

doctrinal question as unsettled as it is for the present 

circumstances, the tribunal’s rejection of Dow’s doublepatenting challenge cannot be declared a manifest disregard of law or contrary to public policy.

2 

We reach the same conclusion with respect to Dow’s 

argument that the tribunal’s contract-damages award is 

partially unenforceable because it violates U.S. patentlaw limits on the recovery of post-expiration royalties for 

practicing a patent. In Brulotte v. Thys Co., 379 U.S. 29 

(1964), the Supreme Court held unenforceable a licensing 

agreement that required the licensee to pay royalties after 

the expiration of the patent. Recently, the Court declined 

to overrule that precedent. See Kimble v. Marvel Entm’t., 

LLC, 135 S. Ct. 2401 (2015). Under the standards for 

public-policy and manifest-disregard challenges, we 

2 A district-court decision concerning terminaldisclaimer law supports Bayer, not Dow, on this issue. 

Email Link Corp. v. Treasure Island, LLC, No. 2:11-cv1433-ECR-GWF, 2012 WL 4482576 (D. Nev. Sept. 25, 

2012).

 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 17

conclude, Dow has not established that the contract 

award—more precisely, the portion of the award reaching 

past the 2023 expiration of the RE’962 reissue patent—

must be vacated based on Brulotte. 

The tribunal awarded contract damages to compensate Bayer CropScience AG for certain revenues that it 

would have earned had Dow not breached the 1992 

Agreement’s restriction on sublicensing certain rights it 

obtained from Bayer. At the time of the breach, Dow and 

MS Tech were considering two alternatives, which the 

parties refer to as “Option B” and “Option C.” Although 

Dow and MS Tech chose Option C, which resulted in the 

Enlist E3 products, the tribunal found that, in the absence of breach, Option C would have been unavailable, 

and Dow and MS Tech would have chosen Option B. That 

option would have required MS Tech to pay licensing 

revenues to Bayer CropScience AG under the 2007 BayerMS Tech agreement, which the tribunal determined to be

50% of net trait revenues associated with Event FG72. 

The tribunal calculated contract damages based on the 

revenues that Bayer CropScience AG would have received 

under that agreement until it expired, in 2030. Although 

Dow argues that the tribunal misconstrued the amount 

that Bayer CropScience AG would have received under 

the 2007 Bayer-MS Tech agreement, see infra pp. 22–23, 

it does not dispute the tribunal’s conclusion that the 

agreement entitled Bayer CropScience AG to at least 

some revenues. 

No established law declares that result prohibited under the Brulotte rule. The 1992 Agreement established 

obligations entirely within the patent period: unless 

breached earlier, the agreement was to terminate upon 

expiration of the last covered patent—2023, as relevant 

here. The pertinent condition set by the Agreement on 

Dow’s use of the pat gene—namely, the restriction on 

sublicensing it to others—neither extends beyond the 

patent period nor violates any other identified law or 
18 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

policy. If Dow’s predecessor had simply refused to accept 

the no-sublicensing condition, instead of accepting and 

then breaching it, Bayer’s predecessor could have refused 

to grant the patent license. In that scenario, according to 

the tribunal’s findings, Dow and MS Tech would have 

turned to Option B. If they had done so Bayer then would 

have earned the licensing revenues under the 2007 BayerMS Tech agreement that the tribunal awarded here as 

contract damages under French law. Dow does not allege 

that the 2007 Bayer-MS Tech agreement, to which Dow is 

not a party, violates Brulotte. 

Bayer has not shown why the facts of the present case 

are materially different from the foregoing scenario. More 

generally, it has not shown why the contract-damages 

award is prohibited by sufficiently established legal 

authority, whether Brulotte or its successors, to make the 

award contrary to public policy or manifestly in disregard 

of the law. We therefore reject the Brulotte-based challenge without deciding whether the Brulotte rule involves 

the kind of public policy that would, where violated, 

undercut an arbitral award.3

C 

Dow presents a number of additional arguments for 

vacating the arbitral award. It argues that the tribunal 

exceeded its powers or manifestly disregarded applicable 

law (or committed some error that would justify vacatur) 

3 Dow’s invocation of the Constitution’s patent 

clause, U.S. Const. art. I, § 8, cl. 8, does not bolster its 

argument. If judicial precedent and statutory provisions 

do not forbid the contract-breach damages here under the 

limited standards of review of arbitral awards, neither 

does the Constitution’s “limited Times” language, which is 

no more self-defining, or fundamental, than the language 

limiting patents to “Inventors” and their “Discoveries.” 

 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 19

by (1) rejecting Dow’s written description and enablement 

defenses, (2) ruling on the RE’962 patent, (3) misconstruing the relevant contract provisions, and (4) imposing an 

8% rate for pre-award interest. We reject these contentions.

1 

Dow challenges the tribunal’s rejection of its writtendescription defense, J.A. 379–95, but its arguments 

amount to no more than allegations of ordinary legal 

error. For example, Dow accuses the tribunal of conducting its written-description analysis backwards, by first 

adopting a claim construction that, according to Dow,

improperly narrowed the relevant genus based on the 

specification’s disclosures and then asking whether the 

narrowed genus was sufficiently disclosed. Similarly, 

Dow argues invalidity on the ground that the specification 

directly disclosed only two of the four members of the 

relevant genus. Dow’s assertions do not meet the demanding standards for showing that arbitrators exceeded

their powers or manifestly disregard the law. See Oxford 

Health Plans, 133 S. Ct. at 2068; Stolt-Nielsen, 559 U.S. 

at 671; Hall Street, 552 U.S. at 584–85; Wachovia, 671 

F.3d at 481; Long John Silver’s Rests., 514 F.3d at 349–

50; Remmey, 32 F.3d at 149. 

The same is true of Dow’s challenge to the tribunal’s 

rejection of its enablement defense. J.A. 395–96. In its 

Phase II submissions, Dow argued to the tribunal that the 

asserted claims of the ’024 and ’447 patents were invalid 

because the specification did not enable monocots. The 

tribunal rejected that argument because it concluded that

the claims did not cover monocots. In doing so, the tribunal properly considered Plant Genetic Systems, N.V. v. 

DeKalb Genetics Corp., 315 F.3d 1335 (Fed. Cir. 2003), in 

which this court affirmed the district court’s conclusion 

that certain claims of the ’236 patent excluded monocots

because they were limited to plants “susceptible to infec-
20 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

tion and transformation by Agrobacterium and capable of 

regeneration thereafter.” Id. at 1345. After considering 

Plant Genetic Systems, the tribunal in the present matter 

concluded that the asserted claims were expressly or 

implicitly limited to Agrobacterium transformation. The 

tribunal’s analysis shows no manifest disregard of law or 

other error meeting the standards for rejection of arbitral 

determinations. 

2 

Dow’s argument that the tribunal exceeded the scope 

of its powers by including the RE’962 patent in the proceeding, see J.A. 325–31, is similarly without merit. The 

RE’962 patent is a reissue of the ’665 patent, which Bayer 

asserted earlier in the arbitration.4 In its opening Phase 

II Memorial—filed after the Office allowed the reissue 

application on April 25, 2014, but before the reissue 

patent issued on June 24, 2014—Bayer asserted claim 1 

of the RE’962 patent. In its Phase II Reply, Dow argued 

that Article 23(4) of the Rules of Arbitration of the International Chamber of Commerce prohibited parties from 

raising new claims outside the Terms of Reference without the tribunal’s authorization. The tribunal determined 

that Bayer’s RE’962 patent-infringement claim was not a 

“new claim” within the meaning of Article 23(4). J.A. 325, 

4 The ’665 and RE’962 patents recite only two 

claims: one specifying an amino-acid sequence; the other, 

a codon sequence. Where ’665 claim 1 states that amino 

acid X “is Met or Val,” RE’962 claim 1 limits X to Met and 

also requires the codon for X to be ATG. ’665 patent, col. 

51, lines 44–45; RE’962 patent, col. 51, lines 41–42. 

Where ’665 claim 2 allows ATG or GTG at a specified 

place in the codon sequence, RE’962 claim 2 limits that

codon to ATG. ’665 patent, col. 52, line 45; RE’962 patent, 

col. 52, line 41.

 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 21

330. We see no reason to vacate the arbitral award based 

on that determination.

The tribunal concluded that whether Bayer’s RE’962 

patent-infringement claim was a “new claim” under 

Article 23(4) depended on considerations of “procedural 

integrity and fairness.” J.A. 330. Dow presents no meaningful argument against that aspect of the tribunal’s 

determination: although Dow suggests that the “new 

claim” standard must mirror U.S. patent law’s standard 

for whether a reissue claim supports intervening rights, it 

provides no persuasive reason that Article 23(4), a procedural provision governing international arbitration, must 

follow that standard. Given those considerations, the 

tribunal determined that Bayer’s RE’962 patentinfringement claim was not a new claim because: (1) claim 

1 of the RE’962 patent was “fully included in the asserted 

claim of the ’665 patent”; (2) the RE’962 patent “was fully 

briefed”; and (3) if the RE’962 patent were excluded, it 

would need “to be dealt with in another proceeding.” J.A. 

330.

Dow has not presented any persuasive argument justifying judicial reversal of the tribunal’s conclusion. 

Significantly, although Dow broadly asserted to the 

tribunal that including the RE’962 patent in the arbitration would be fundamentally unfair, it did not present any 

evidence of concrete prejudice. As far as Dow has shown 

in this court, it did not identify to the tribunal any particular argument or evidence that it needed greater opportunity to develop and present or that it would have 

presented if it had known earlier that the RE’962 patent

(rather than the ’665 patent) would be at issue. See J.A.

3049–52. At a minimum, Dow did not identify such an 

argument in its opening brief in this court. See

SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 

1312, 1319 (Fed. Cir. 2006) (“Our law is well established 

that arguments not raised in the opening brief are 

waived.”). 
22 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

Dow suggests that we review the tribunal’s determination regarding inclusion of the RE’962 patent without 

deference. But Dow provides no convincing basis for our 

departing from the established approach to judicial review of whether domestic arbitrators have exceeded their 

powers in construing the scope of arbitration agreements. 

In those circumstances, the Supreme Court has applied 

the same deferential standard that it applies to their 

determination of other issues. See Oxford Health Plans, 

133 S. Ct. at 2068; Stolt-Nielsen, 559 U.S. at 671. In any 

event, for the reasons given above, we have been shown 

no error in the tribunal’s construction or application of the 

“new claim” standard of Article 23(4) to support inclusion 

of RE’962 in this arbitration.

3 

Dow also contends that the tribunal, in calculating 

lost-opportunity contract damages, misconstrued relevant 

contract provisions. In particular, Dow challenges the 

tribunal’s reliance on the 50%-revenue provision of 

§ 5.1.1(a)(i) of the 2007 Bayer-MS Tech Agreement instead of § 5.1.1(a)(x). See J.A. 448–68. But Dow forfeited 

this argument by not making it to the tribunal. In its 

Phase III submissions, Dow argued that Bayer’s evidence 

did not establish harm, causation, or foreseeability. Dow 

also objected to Bayer’s lost-profits theory on due-process 

grounds. Dow did not present the contract argument it 

now makes about Bayer’s prospective revenues under

Option B. We see no basis for excusing Dow’s failure to 

raise this argument and now requiring the arbitral panel 

to redo its application of contract provisions clearly within 

its authority to interpret.5 We conclude, therefore, that

5 Dow’s new argument involves the interpretation 

of contract provisions clearly within the arbitral tribunal’s 

authority to interpret. In this respect, Dow’s challenge is 

quite different from the challenge at issue in Stolt-

 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 23

Dow cannot raise the issue at this juncture. See Nat’l

Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731, 990 

F.2d 957, 960 (7th Cir. 1993) (“Failure to present an issue 

before an arbitrator waives the issue in an enforcement 

proceeding.”); United Food & Commercial Workers Local 

100A, AFL-CIO v. John Hofmeister & Son, Inc., 950 F.2d 

1340, 1343–45 (7th Cir. 1991).

4 

For similar reasons, the tribunal did not manifestly 

disregard Indiana law governing pre-judgment interest. 

Based on the evidence submitted by the parties, the 

tribunal found it highly likely that Dow and MS Tech 

would have pursued Option B if they had not breached 

the 1992 Hoechst-Lubrizol Agreement. J.A. 464–68, 515–

16. The tribunal calculated contract damages based on 

the amount that Bayer would have received under the 

2007 Bayer-MS Tech agreement and awarded pre-award 

interest based on that amount. The parties agree that 

Indiana law governs the pre-judgment interest award. 

Nielsen, in which the Supreme Court held that an arbitrator exceeded his powers, i.e., acted without a contractual basis, by concluding that the arbitration agreement 

authorized class arbitration when the parties had stipulated that the contract was silent on the issue. 559 U.S. 

at 665–65; see Oxford Health Plans, 133 S. Ct. at 2069. 

This case likewise differs from Bankers Life & Casualty 

Insurance Co. v. CBRE, Inc., 830 F.3d 729 (7th Cir. 2016), 

in which the Seventh Circuit disapproved the arbitration 

panel’s reliance on a disclaimer that was outside the scope 

of the agreement submitted to arbitration. Id. at 730–33. 

See also Dewan v. Walia, 544 F. App’x 240, 245–48 (4th 

Cir. 2013) (arbitrator found release clause enforceable, 

but nevertheless refused to enforce it).

 
24 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

Dow argues that Indiana law allows pre-judgment interest to be awarded only when “the amount of the claim 

rests upon a simple calculation and the terms of the 

contract make such a claim ascertainable.” Kummerer v. 

Marshall, 971 N.E.2d 198, 201 (Ind. Ct. App. 2012) (quoting Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 

N.E.2d 1063, 1078 (Ind. Ct. App. 2003)). Indiana practice 

may not be as uniform as Dow suggests. See James P. 

Nehf, Contract Damages as Substitute for Full Performance, 32 Ind. L. Rev. 765, 783, (1999) (“In practice, 

however, Indiana courts have awarded prejudgment 

interest even when the terms of the contract did not make 

the amount of the claim readily ascertainable by mere 

computation.”). But the tribunal carefully considered and 

applied Indiana law in evaluating the parties’ arguments 

regarding pre-award interest. Dow’s challenge amounts 

to no more than an assertion that the tribunal misapplied 

the law, which is not enough. See Long John Silver’s 

Rests., 514 F.3d at 349–50; Remmey, 32 F.3d at 149. We 

therefore decline to vacate the tribunal’s award of preaward interest. 

D 

Although we affirm the district court’s decision to confirm the arbitral award, we conclude that the court 

abused its discretion in denying Dow’s motion to amend 

the judgment to use the federal statutory rate for postjudgment interest for the period beginning with the entry 

of the district court’s judgment. 28 U.S.C. § 1961(a)

provides that “interest shall be calculated from the date of 

the entry of the judgment, at a rate equal to the weekly 

average 1-year constant maturity Treasury yield, as 

published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of 

the judgment.” Dow argues that the court was obligated 

to replace the tribunal’s “post-award” interest rate with 

the statutory post-judgment rate for time after the district 

court’s judgment. We agree on the facts of this case.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 25

Under the doctrine of merger, when “a valid and final 

judgment for the payment of money is rendered in favor of 

the plaintiff, the original claim of the plaintiff is extinguished and a new cause of action on the judgment is 

substituted for it.” Restatement (Second) of Judgments 

§ 47. Reflecting that notion, numerous circuits have 

concluded that once a federal court confirms an arbitral 

award, the award merges into the judgment and the 

federal rate for post-judgment interest presumptively 

applies. See Tricon Energy Ltd. v. Vinmar Int’l, Ltd., 718

F.3d 448, 456–460 (5th Cir. 2013); Newmont U.S.A. Ltd. 

v. Ins. Co. of N. Am., 615 F.3d 1268, 1275–77 (10th Cir. 

2010); Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 

1021, 1023–24 (9th Cir. 2004); Carte Blanche (Sing.) Pte., 

Ltd. v. Carte Blanche Int’l, Ltd., 888 F.2d 260, 268–70 (2d 

Cir. 1989); Parsons & Whittemore Ala. Mach. & Servs. 

Corp. v. Yeargin Constr. Co., 744 F.2d 1482, 1484 (11th 

Cir. 1984). To overcome this presumption, courts have 

required the parties or arbitrators to unambiguously 

express their intent to replace the federal rate for the 

post-judgment period. See Tricon Energy, 718 F.3d at 

456–60; Newmont U.S.A., 615 F.3d at 1275–77; Fid. Fed. 

Bank, 387 F.3d at 1023–24; Westinghouse Credit Corp. v. 

D’Urso, 371 F.3d 96, 101–02 (2d Cir. 2004).

We think that the Fourth Circuit would follow the approach taken by its sister circuits and apply the federal 

post-judgment interest rate in the absence of unambiguous evidence of the parties’ or arbitrators’ contrary intent. 

In a non-precedential opinion, the Fourth Circuit has 

applied the same rule to determine whether a contractual 

interest rate replaced the federal rate. See KanawhaGauley Coal & Coke Co. v. Pittston Minerals Grp., Inc., 

501 F. App’x 247, 254–55 (4th Cir. 2012) (per curiam). 

Bayer does not identify any reason that the Fourth Circuit would not apply the same rule to arbitral awards. 

We are also unaware of any instance in which a federal 
26 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

court has allowed an interest rate specified in an award to 

replace the federal rate based on less than clear evidence.

In this case, there is insufficiently clear evidence to 

displace the federal statutory rate. Here, the tribunal 

granted “post-award interest” “at the rate of 8% from the 

date of this Award until full payment.” J.A. 560, 563. 

And it is undisputed that the tribunal’s attention was not

called to the distinction between the time from award to 

confirmation judgment and the time after confirmation 

judgment. We see no basis on which to distinguish these 

circumstances from other grants found to be insufficiently 

clear to displace the statutory post-judgment rate. See 

Tricon Energy, 718 F.3d at 456–60; Fid. Fed. Bank, 387 

F.3d at 1023–24; Westinghouse Credit, 371 F.3d at 101–

02.

The Fifth Circuit’s decision in Tricon Energy is especially instructive. There, arbitrators awarded Tricon

contract damages and “post-award interest” “at the rate of 

8.5% per annum . . . [from] the date of th[e] award, until 

paid.” 718 F.3d at 459 (alterations in original). The 

district court awarded post-judgment interest at the 

statutory rate. Id. at 452. The Fifth Circuit affirmed, 

explaining that, because the “panel did not use the words 

‘postjudgment interest,’ it is far from clear that it meant 

to award postjudgment interest.” Id. at 459. The court 

also rejected Tricon’s contention that because the panel 

awarded interest “until paid,” the arbitrators meant to 

replace the federal rate. Id. We do not see how this case, 

in which the tribunal awarded 8% interest “until full 

payment,” is materially different from the Tricon Energy

arbitrators’ award of 8.5% interest “until paid.”

Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, No. 14 Civ. 8163 (PAE), 2015 WL 926011 

(S.D.N.Y. Mar. 4, 2015), is not to the contrary. There, the 

district court held that the federal post-judgment interest 

rate did not apply to post-judgment interest awarded 
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 27

under the Convention on the Settlement of Investment 

Disputes Between States and Nationals of Other States 

(ICSID Convention), Mar. 18, 1965, 17 U.S.T. 1271, 575 

U.N.T.S. 159. Id. at *1–3. In reaching that conclusion, 

however, the court relied on reasoning that applies to the 

ICSID Convention, but not the New York Convention. 

For example, the court noted that the Federal Arbitration 

Act’s enforcement provisions do not apply to the ICSID 

Convention. See 22 U.S.C. § 1650a. By contrast, the New 

York Convention’s enabling statute contains no such 

prohibition. See 9 U.S.C. § 208. The court also made 

specific factual findings regarding the language of the 

award.

Under 28 U.S.C. § 2106, a federal appellate court

“may affirm, modify, vacate, set aside or reverse any 

judgment, decree, or order of a court lawfully brought 

before it for review.” In exercising our discretion under 

that provision, we modify the district court’s judgment to 

include the relief requested by Dow’s motion to amend. 

See Bayer CropScience AG, No. 2:12-cv-47-RAJ-RJK (E.D. 

Va. Jan. 21, 2016), ECF Nos. 209–10. Specifically, we 

modify the district court’s judgment to provide that postaward interest, as set forth in the arbitral award, shall 

accrue through January 15, 2015, the date on which the 

court entered judgment, and post-judgment interest shall 

accrue thereafter at the rate established in § 1961. We 

affirm the judgment as modified. Like the Fourth Circuit, 

we believe that this approach is appropriate because the 

resolution of the parties’ dispute requires only the correction of the relevant interest rates. See Martin v. Harris, 

560 F.3d 210, 219–22 (4th Cir. 2009); First Fed. Sav. & 

Loan Ass’n of S.C. v. Chrysler Credit Corp., 981 F.2d 127, 

135–36 (4th Cir. 1992). Remand for further proceedings

would cause the parties to suffer additional delay and 

expense with no change in outcome. 
28 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC

IV

For the foregoing reasons, we affirm the district 

court’s decision to confirm the arbitral award. We vacate 

the court’s decision denying Dow’s motion to amend the 

judgment. We modify the court’s judgment to provide 

that post-award interest accrued at the tribunal-set rate

through January 15, 2015, and thereafter post-judgment 

interest shall accrue at the rate established in 28 U.S.C. 

§ 1961. We affirm the judgment as modified.

Costs awarded to Bayer.

AFFIRMED AS MODIFIED