Research and Development Center "Teploenergetika," LLC v. EP International, LLC et al

Filing 44

OPINION AND ORDER: The Petition for Confirmation of Arbitral Awards and Entry of Judgment, ECF No. 1, is GRANTED. The ICAC arbitration awards dated September 25, 2014, September 26, 2014, and October 3, 2014 are CONFIRMED. Signed by District Judge Mark S. Davis and filed on 4/26/16. (tbro)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division
RESEARCH AND DEVELOPMENT CENTER

"TEPLOENERGETIKA,"

LLC,

Petitioner,

v.

Civil No.

EP INTERNATIONAL,

LLC and

WORLDWIDE VISION,

2:15cv362

LLC,

Respondents.
OPINION AND

ORDER

This matter comes before the Court on Research and Development

Center, "Teploenergetika," LLC's ("Petitioner" or "R&D") Petition
for Confirmation of Arbitral Awards and Entry of Judgment.

1

[hereinafter "Petition"].

ECF No.

Petitioner requests that the Court

confirm and enforce three arbitration awards from the International

Commercial Arbitration Court at The Chamber of Commerce and Industry

of

the

Russian

$15,596,815.42,

Federation

("ICAC"):

two

of

the

awards

equal

and are against Respondent EP International,

LLC

("EP"); and one of the awards is for $1,084,471.80, and is against
Respondent Worldwide Vision,

"Respondents") .
completed,

LLC

("Worldwide"

or,

collectively,

With the Petition fully briefed, and oral argument

this matter is ripe for consideration.
I.

FACTUAL

AND

PROCEDURAL

BACKGROUND

The relationship between the parties began during construction

of two natural gas power plants outside of Moscow in Tereshkovo and

Kuzhukovo.

Opp'n to Petition, 2, ECF No. 9 [hereinafter "Opp'n"].

The power plants were owned by ICFS International, LLC ("ICFS").
Decl. of Alexander Razinski, H 10, ECF No. 10 [hereinafter "First

Razinski Decl."].

Zorlu Enerji Elektrik Uretim Anonim Sirketi

("Zorlu Enerji") owned a 51% share of ICFS and was the majority
shareholder.

Holding

Id. f 11.

Anonim

International,

Sirketi

Inc.

Zorlu Enerji is a subsidiary of Zorlu

("Zorlu

("Invar")

Holding").

Id.

Invar

owned a 24.5% portion of ICFS,

Alexander Razinski ("Mr. Razinski")

is Invar's president.1

and

Id.

11 10.

Power plant construction derailed and a dispute arose between
Zorlu Enerji, Zorlu Holding, Invar, and Mr. Razinski in 2011 and 2012 .
Id. H 17 .

This dispute resulted in multiple suits in various venues,

but all suits were resolved during a 2012 arbitration before a panel

at the Chamber of Commerce and Industry in Geneva, Switzerland ("2012
Geneva arbitration").

During this 2012 arbitration, Zorlu Enerji

and Zorlu Holding alleged counterclaims of fraud, conspiracy, and
breach of fiduciary duty against Invar and Mr. Razinski, including
allegations that R&D' s loans to EP and Worldwide were a means by which
Mr.

Razinski perpetrated the alleged fraud scheme.

Statement of Counterclaim, ^| 103, ECF No. 10-1.

Id.

Ex.

A,

The dispute between

1 The parties represented to the Court during the December 16, 2015 hearing
that the remaining 24.5% of ICFS was held by Talex International, LLC
("Talex").
Talex is not named as a party in the ICAC arbitration, or in
this

suit.

the four parties was settled on November 26, 2012.
Ex.

A,

Settlement

Agreement,

Settlement Agreement"].2

ECF

No.

9-1

Opp'n at 2; id.

[hereinafter

The 2012 Settlement Agreement included a

comprehensive release of all claims between Zorlu Enerji,
Holding,

Invar,

arbitration,

and

"2012

Mr.

then-pending

Razinski

related

litigation

in

to

New

the

York,

2012

and

Zorlu
Geneva

other

potential claims "relating to those matters or their underlying
disputes."

2012 Settlement Agreement at 1.

The parties also agreed

that Invar and Mr. Razinski were to receive a settlement payment of

"US$ 15 million."

Id.

§ 2.11;

Opp'n at 3.

The 2012 Settlement

Agreement further included a provision prohibiting any party from
"aiding and abetting" others in prosecuting claims against the other

parties to the 2012 Settlement Agreement or their "related entities."
Opp'n at 3; 2012 Settlement Agreement §§ 5.1-5.2.

"Related entity, "

as defined by the 2012 Settlement Agreement, includes "related or

2 On October 27, 2015, Magistrate Judge Robert Krask ordered that the 2012
Settlement Agreement (ECF No. 9-1) and the Statement of Counterclaim from
the

2012

Geneva

arbitration

(ECF

No.

10-1)

be

sealed.

ECF

No.

17.

Further, due to the confidentiality provision contained within the 2012
Settlement Agreement, Magistrate Judge Krask ordered sealed Respondents'
Opposition to the Petition for Confirmation of Arbitral Awards and Entry
of Judgment (ECF No. 9), Respondents' Response to Petitioner's Brief in
Support of Petition for Confirmation of Arbitral Awards and Entry of
Judgment (ECF No. 20), Respondents' Supplemental Memorandum of Law (ECF
No. 31), and Respondents' Rebuttal to Petitioner's Opposition to their
Supplemental Memorandum of Law (ECF No. 38) . See ECF Nos. 17, 28, 37, 43.
Respondents, however, have referred to the contents of the 2012 Settlement

Agreement and the Statement of Counterclaim throughout the unredacted
portions of their briefs and in open court during oral argument on December
16, 2 015.
Therefore, to the extent that Respondents have discussed the
contents of these sealed documents in their briefs, and in open court, the
Court considers Respondents' arguments regarding the need for such
information to be sealed to have been waived.

affiliated Persons, any other Person over which a Party has control

through a direct or indirect interest, any trust of which a Party
is a settler or beneficiary, and the administrators ... of the

foregoing."

Opp'n at 6-7; 2012 Settlement Agreement § 2.10.

Petitioner

R&D

is

a

Russian

limited

liability

company,

headquartered in Belgorod, Russia, and currently owned by Stramol
Finance Limited.

Petition K 1; Pet'r's Reply in Support of Pet. for

Confirmation, 4n.l, ECF No. 26 [hereinafter "Pet'r's Second Reply"] .

Petitioner was engaged as a consultant and subcontractor during the

power plant construction by Zorlu Industrial ve Energy Tesisleri
Inshaat Tijaret ("Zorlu Industrial"), a wholly-owned subsidiary of

Zorlu Holding. 3

Opp'n at 4;

First Razinski Decl.

HH 9,

13.

Petitioner's only sources of revenue were contracts related to the

power plant construction.

First Razinski Decl. H 9.

R&D's power

plant contracts with Zorlu Industrial were terminated in early 2011,
and, shortly thereafter,

Zorlu Industrial sued R&D for return of

money it had paid R&D pursuant to the contracts.
Zorlu Industrial prevailed in its lawsuit.

Id. Hf 13, 15.

Id. H 15.

Following the

lawsuit, R&D was placed in receivership because it no longer had any

revenue from its power plant contracts.

Id. H 16.

engaged in bankruptcy proceedings in Russia.
Ex. A, Vershinin Decl.

H 1, ECF No. 26-1

R&D is currently

Pet'r's Second Reply,
[hereinafter "Vershinin

3 During oral argument, Zorlu Industrial was described as a construction
manager on the power plant project.

Decl."].

Zorlu Industrial

is R&D's majority creditor,

holding

59.55% of R&D's debt, and it appears that R&D also has five minority
bankruptcy creditors.

Respondents

EP

liability companies.

Id.

and

Worldwide

Petition H1| 2, 3.

majority member of both Respondents.
From 2006 to 2009,

H 8.

are

both

Virginia

limited

Alexander Razinski is the

First Razinski Decl. fH 6, 7.

Worldwide was the majority member of R&D.

Id.

Worldwide transferred its ownership of R&D to Stramol Finance

Limited in 2009.4

Opp'n at 4.

During the period in which Worldwide

was R&D's majority member, R&D made two loans to EP: a loan in 2007
for $8 million,
additional

reflecting an initial loan of $7 million and an

$1 million loan,

and a loan in 2008

for $5 million.

Petition K 7; id. Ex. A, 2007 Loan Agreement, ECF No. 1-1; id. Ex.
B, 2008 Loan Agreement, ECF No. 1-2.

During that same period, R&D

also made one loan to Worldwide in 2009 for $1.8 million, reflecting
an initial loan amount of $300,000 and an additional $1.5 million

in loans.

Id. H 7; id. Ex. C, 2009 Loan Agreement, ECF No. 1-3.

loan document dictated that,

should a dispute arise,

would be submitted to arbitration at the ICAC.
Worldwide defaulted on each of these loans.

Each

the dispute

Id. H 8.

EP and

Id. H 9.

The defaulted loans to EP and Worldwide were addressed by a

4 The ownership interests in Stramol Finance Limited are not part of the
record before this Court.

See Pet'r's Resp. to Resp'ts' Suppl. Br., 8-9,

ECF No. 36; Resp'ts' Rebuttal to Pet'r's Opp'n to their Suppl. Mem. of Law,
4-5.

ECF No.

38.

meeting of Petitioner R&D's bankruptcy creditors on February 19,
2013.

During that meeting,

two resolutions were adopted,

by a

majority vote of R&D's bankruptcy creditors, not to file claims on
the defaulted loans against EP and Worldwide in the ICAC arbitration

and not to pay duties, fees, or expenses for representation in the

ICAC arbitration regarding such claims.

Vershinin Decl. % 2.

resolutions were proposed by Zorlu Industrial

The

and adopted by a

majority of creditor votes, largely due to Zorlu Industrial's 59.55%

share.

Id.

creditors) .

H 1

(describing

the

voting

percentages

of

R&D's

However, R&D's minority creditors objected and applied

to the Arbitration Court of Belgorod to annul the resolutions.

H 2.

Id.

The resolutions were annulled by Judgment of the Arbitration

Court of Belgorod on August 23, 2013, finding that the resolutions
violated the minority creditors' rights and impeded the exercise of

the bankruptcy manager's power.

Id.

Stramol Finance Limited,

R&D's majority member, appealed the Arbitration Court's Judgment,
and the Judgment was affirmed by the Ninth Court of Appeal on November

28,

2013.

Judgment

Id.

The Ninth Court of Appeal's affirmation of

the

"enabled the Bankruptcy Manager to pay the arbitration

charge," and R&D's Bankruptcy Manager filed claims on its behalf
against EP and Worldwide at the ICAC arbitration in December 2013 .

Id. ; Petition % 9; Opp'n at 4.
2 014,

R&D's

bankruptcy

Translation, ECF No.

27-1.

Shortly thereafter, on February 20,

creditors

met

again.

Opp'n,

Ex

B.

Following the legal proceedings noted

above, and after the Bankruptcy Manager filed claims against EP and
Worldwide in the ICAC arbitration,

Zorlu Industrial proposed that

the filing fee should be paid to ICAC and certain funds should be

paid to legal counsel for the ICAC proceedings.

Id.

The creditors

present at the February 20th meeting unanimously adopted Zorlu

Industrial's proposal,

again, largely due to Zorlu Industrial's

large percentage of the votes available.

The

ICAC

notice

of

proceedings

Id.

was

timely

delivered

to

Respondents via DHL, pursuant to ICAC Rule § 16.5, which permits

notification "by courier against receipt."

Petition f 10; Rules of

the ICAC § 16.5, available at https://mkas.tpprf.ru/en/documents/.
Despite receiving notice, Respondents EP and Worldwide did not
participate in the ICAC arbitration proceedings in any way.
1) 11.

Pursuant to ICAC rules and procedures,

Id.

three awards were

rendered in favor of Petitioner R&D against EP and Worldwide.

Id.

On September 25, 2014, ICAC arbitrators entered judgment against EP,
in favor of R&D,

Id.

H 12; id^ Ex. E, Sept. 25,

September
Worldwide,

and costs.
1-7.

for $6,512,462.79,

26,

2014,

ICAC

in favor of R&D,

including interest and costs.

2014 Judgment,

arbitrators

entered

for $1,084,471.80,

ECF No. 1-5.
judgment

On

against

including interest

Id, % 13; id. Ex. G, Sept. 26, 2014 Judgment, ECF No.

Finally, on October 3, 2014, ICAC arbitrators entered judgment

against EP, in favor of R&D, for $9,084,352.63, including interest
and costs.

Id. H 14; id. Ex. I, Oct. 3, 2014 Judgment, ECF No. 1-9.

On August 13, 2015, Petitioner R&D timely filed in this Court
its

Petition

for

Confirmation

of

Arbitral

Judgment to enforce the three ICAC awards.

Awards

ECF No. 1.

and

Entry of

Respondents

EP and Worldwide filed their Opposition to Confirmation of Arbitral
Awards on September 25, 2015, arguing that enforcement of the ICAC
arbitral awards should be refused because 1) EP and Worldwide were

unable to present their case at arbitration, and 2) enforcement of
the three arbitral awards would be contrary to the public policy of
the United States.
Petition

for

ECF No.

9.

R&D filed its Brief in Support of

Confirmation

on

November

[hereinafter Pet'r's First Reply].
that

there

were

alternatives

3,

2015.

ECF

No.

18

First, R&D argues in response,

available

that

would

have

allowed

Respondents to participate in the ICAC arbitrations and, to the
extent that such alternatives were insufficient to allow Respondents

to participate in the arbitrations, Respondents waived such argument
because they did not raise such defense during the arbitrations.
at 8-9.

Id.

Second, with respect to Respondents' public policy defense,

R&D primarily argues that Respondents waived their public policy
defense due to their failure to raise such arguments at the ICAC

arbitration.
submitted,

Id.

at

5.

The

parties

additional briefing on the

issue of

enforcement of the ICAC arbitral awards.

Reply,

further

Resp.

agreed

to,

and

confirmation and
to Pet'r's First

ECF No. 20; Pet'r's Second Reply, ECF No. 26.

The parties

then appeared before the Court for oral argument on December 16, 2015 .

At the December 16th hearing, the Court ordered further briefing from

the parties regarding Respondents' newly raised res judicata public
policy argument.
on December 31,

Petitioner

Respondents filed their Supplemental Memorandum
2015.

filed

Resp'ts'

its

Response

Memorandum on January 12, 2016.

Suppl.

to

Mem.

of Law,

Respondents'

ECF No.

31.

Supplemental

Pet'r's Resp. to Resp'ts' Suppl.

Br., ECF No. 36.

Respondents filed their final Rebuttal Brief on

January 19, 2016.

Resp'ts' Rebuttal to Pet'r's Opp'n to their Suppl.

Mem.

of Law,

ECF No.

38.
II.

LEGAL

STANDARD

Petitioner seeks recognition and enforcement of the three ICAC

arbitration awards under a portion of the Federal Arbitration Act
("FAA"), 9U.S.C. §§ 201-208, which implements the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards of June 10,
1958,

21

U.S.T.

Convention"].

2517,

330

U.N.T.S.

38

[hereinafter

"New York

The FAA allows for recognition and enforcement of

foreign arbitral awards in district courts.

9 U.S.C. § 203.

("An

action or proceeding falling under the [New York] Convention shall
be deemed to arise under the laws and treaties of the United States.

The district courts of the United States . . . shall have original

jurisdiction over such action or proceeding . . . .").
The FAA provides that:

Within three years after an arbitral award falling under
the

[New York]

Convention

is

made,

any party

to

the

arbitration may apply to any court having jurisdiction

under this chapter for an order confirming the award as
against any other party to the arbitration. The court shall
confirm the award unless it finds one of the grounds for
refusal or deferral of recognition or enforcement of the
award specified in the said Convention.
9 U.S.C. § 207 .

The New York Convention broadly applies to "arbitral

awards made in the territory of a State other than the State where

the recognition and enforcement of such awards are sought and arising
out of differences between persons, whether physical or legal.

It

shall also apply to arbitral awards not considered as domestic awards
in the State where their recognition and enforcement are sought."
New York Convention,

Art.

1.1.

Both the United States and the

Russian Federation are signatories to the New York Convention.5
The New York Convention allows for recognition and enforcement

of an arbitral award to be refused if the party against whom the award
is invoked demonstrates that:

(a) The parties[*s arbitration agreement] ... 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 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

(d)

The composition of the arbitral authority or the

5 A list of signatories to the New York Convention is available at

http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConve
ntion status.html.

10

arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the
arbitration took place; or

(e) The award has not yet become binding on the parties,
or has been set aside or suspended by a competent authority
of the country in which, or under the law of which, that
award was

made.

New York Convention, Art. V.l.

Recognition and enforcement may also

be refused if the authority reviewing a petition for recognition and
enforcement of an arbitral award finds that: "(a) The subject matter

of the difference is not capable of settlement by arbitration under
the law of that country; or (b) The recognition or enforcement of
the award would be contrary to the public policy of that country."

Id. Art. V. 2 .

Recognition and enforcement of an arbitral award under

the New York Convention may also be deferred if an application to

set aside or suspend an arbitral award has been made to the competent

authority of the country in which, or under the law of which, that
award was made.

Id. Art. VI.

"xThe party opposing enforcement of

an arbitral award has the burden to prove that one of the seven

defenses under the New York Convention applies.'"
Commc'ns

AS,

2009)(quoting
Britannica,

LLC

v.

Storm

Encyclopaedia

LLC,

584

F.3d

Universalis

Inc., 403 F.3d 85,

Telenor Mobile

396,

S.A.

v.

90 (2d Cir. 2005));

405

(2d

Cir.

Encyclopaedia
see Imperial

Ethiopian Gov't v. Baruch-Foster Corp., 535 F.2d 334, 336 (5th Cir.

1976)

("The burden of proof

enforcement."

is on the party defending against

(internal citations omitted)).

11

The

"process

and

arbitration award are

extent

of

federal

judicial

review of

substantially circumscribed."

an

Patten v.

Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir. 2006) .

The

scope of judicial review for an arbitrator's decision "is among the
narrowest known at law because to allow full scrutiny of such awards

would frustrate the purpose of having arbitration at all."
Plumbing Supply, Inc. v. U.S. Supply Co., Inc.,
(4th Cir. 1998) .

Apex

142 F.3d 188, 193

The Court of Appeals for our Circuit has noted that,

in reviewing an arbitral award, "xa district or appellate court is
limited to determining whether the arbitrators did the job they were
told to do-not whether they did it well, or correctly, or reasonably,

but simply whether they did it.'"

Three S Delaware,

Inc.

v.

DataQuick Info. Sys ., Inc ., 492 F.3d 520, 527 (4th Cir. 2007) (quoting

Remmey v. PaineWebber,
Thus,

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

"x[t]he confirmation of an arbitration award is a summary

proceeding that merely makes what is already a final arbitration
award a judgment of the court. '"

RZS Holdings AW v. PDVSA Petroleos

S.A. , 598 F. Supp. 2d 762, 765 (E.D. Va. 2009) (quoting Florasynth,
Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)).

As noted above,

Respondents bear the burden to demonstrate that a defense to
recognition and enforcement applies.

"xThe burden is a heavy one,

as the showing required to avoid summary confirmance is high.'"
Telenor Mobile Commcn's,
Universalis,

584 F.3d at 405

403 F.3d at 90).

12

(quoting Encyclopaedia

A. Respondents' Participation Defense

" [T]he
arbitration
district

strong
and

court]

federal

enforcing

policy

in

arbitration

narrowly construe

'unable to present its case.'"

support
awards

the defense

of

encouraging

dictates

that

[a

that a party was

Parsons & Whittemore Overseas Co.

v. Societe Generale de L'Industrie du Papier, 508 F.2d 969, 975 (2d

Cir. 1974); see Ministry of Def. & Support for the Armed Forces of
the Islamic Republic of Iran v. Cubic Def. Sys. , Inc. , 665 F.3d 1091,
1095-96

(9th Cir.

2011)[hereinafter "Ministry of Def.

of Iran"]

(noting that defenses to enforcement of arbitral awards are to be
construed narrowly).

A participation defense corresponds to a

constitutional due process defense.
Inc. , 125 F.3d 1123,

Eldridge,

424 U.S.

GenericaLtd. v. Pharm. Basics,

1129-30 (7th Cir.

319,

333 (1976));

1997)

(citing Mathews v.

see Karaha Bodas Co.

v.

Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274,

298 (5th Cir. 2004) ("Article V(l)(b)

xessentially sanctions the

application of the forum state's standards of due process . . . ."
(internal citation omitted)); Iran Aircraft Indus, v. Avco Corp.,

980 F.2d 141, 146 (2d Cir. 1992)

(finding that enforcement of an

arbitral award should be refused if a party was denied due process) .
An

arbitral

award

"should

be

denied

or

vacated

if

the

party

challenging the award proves that he was not given a meaningful

opportunity to be heard as our due process jurisprudence defines it."

13

Generica Ltd. , 125 F. 3d at 1129-30 (citing Iran Aircraft Indus. , 980
F.2d at 145) .

Refusal to recognize and enforce an arbitral award because a

party is "unable to present [its] case" at arbitration is uncommon,

particularly when there are alternatives to physical presence at
arbitration included in the rules of the arbitral body.
Rules

of

the

ICAC,

https://mkas.tpprf.ru/en/documents/.

colloquially

identified

by

See, e.g. ,

available

However,

Petitioner

as

the

this

at

defense,

"participation

defense," may be successful when a party can show that the arbitral

panel denied the party a meaningful hearing.

For example, the Court

of Appeals for the Second Circuit refused enforcement of an arbitral
award, because a party was "unable to present [its] case," where an
arbitral judge misadvised the party against whom enforcement was

sought regarding presentation of crucial evidence and that party was
faulted for not presenting such evidence.
F.2d at 146.

Iran Aircraft Indus ., 980

Additionally, arbitral awards have been vacated on the

basis of due process, under a separate section of the FAA,

in

circumstances where an arbitral panel refuses to accept or give

weight to crucial, and otherwise acceptable, evidence.

See Generica

Ltd. ,125 F.3d at 1131 (reviewing cases in which an arbitrator denied

a party the opportunity for a meaningful hearing); Tempo Shain Corp.
v. Bertek, Inc. , 120 F.3d 16, 21 (2d Cir. 1997) (vacating an arbitral

award because an arbitration "panel's refusal to continue hearings

14

to allow [a crucial and non-cumulative witness] to testify amount [ed]
to fundamental unfairness and misconduct"); Hoteles Condado Beach

v. Union De Tronquistas Local 901, 763 F.2d 34, 42 (1st Cir. 1985)

(affirming vacation of arbitral award because

"[t]he arbitrator

refused to consider relevant evidence in making his award,

. . .

[and] the arbitrator ignored the clear language of the collective

bargaining agreement . . . [denying] the parties a full and fair
hearing on the dispute . . .").

When a party asserts that its physical presence at arbitration
is prevented, it is generally unable to prevail on such a defense
if there are available alternative means of presenting its case.

See

Rive v. Briggs of Cancun, Inc., 82 F. App'x 359, 364 (5th Cir. 2003)

(unpublished); Empresa Constructora Contex Limitada v. Iseki, Inc. ,
106 F. Supp. 2d 1020, 1026 (S.D. Cal. 2000) .

For example, the Court

of Appeals for the Fifth Circuit found, in an unpublished opinion,
that a party had sufficient opportunity to present its case, even
if unable to be physically present,

corporate

representative

or

attorney

if the party could send a

to

represent

it

arbitration or if the party could participate via telephone.

at

the

Rive,

82 F. App'x at 364; see China Nat. Bldg. Material Inv. Co. v. BNK
Int'l LLC, No. 09-CA-488-SS, 2009 WL 4730578, at *7 (W.D. Tex. Dec.

4, 2009) (unpublished) (noting that the defendant's "inconvenience

in attending hearings held in [Hong Kong] does not amount to a denial
of [d]efendant's due process rights," when the defendant had the

15

opportunity to appear in person, via videoconferencing, or through
its Hong Kong attorneys).

Further, a respondent's decision not to

attend an arbitration proceeding due to fear of being taken into

custody or

being

subject

to

other

legal

proceedings

does

not

constitute an inability to attend the proceedings where there are
other alternatives available.

See Rive, 82 F. App'x at 364 (finding

that respondent was not "unable to present its case" in Mexico due
to "fear of being detained" because he could have participated in
arbitration

via

a

company

representative,

an

attorney,

or

teleconference); Empresa Construetora Contex Limitada, 106 F. Supp.

2d at 1025 (finding that corporate respondent was not "denied an

adequate opportunity to defend itself in the underlying arbitration
proceedings" because, although no corporate representative could be
present during proceedings for fear of detention in Chile on criminal
charges,

the respondent was

"otherwise able

to present

[its]

defense"); see also Nat'l Dev. Co. v. Khashoggi, 781 F. Supp. 959,

962

(S.D.N.Y.

1992)

("Khashoggi's

decision

not

to

attend

the

arbitration proceeding in England because he was afraid of being
taken into custody for extradition to face criminal charges in the
United

States

does

not

constitute

an

inability

to

attend

the

proceedings.").
B.

Waiver of Enforcement Defenses

As a consequence of failing to raise a defense that could have

been presented to an arbitral panel, a party may be precluded from

16

raising such arguments at a later proceeding to enforce the arbitral
award.

Generally, in proceedings to enforce domestic arbitration

awards, "[f]ailure to present an issue before an arbitrator waives

the issue in an enforcement proceeding. "

Nat'1 Wrecking Co. v. Int'l

Bhd. of Teamsters, Local 731, 990 F.2d 957, 960-61 (7th Cir. 1993)

(citing Local 100A v. John Hofmeister and Son, Inc., 950 F.2d 1340,
1343-44

(7th Cir.

10-CV-701S,

2016

1991));

WL

see

231399,

Van Buren v.

at

*5

Cargill,

(W.D.N.Y.

Jan.

Inc.,

19,

No.

2016)

(unpublished)("Plaintiffs' contentions not previously raised are
therefore considered waived." (citing Rai v. Barclays Capital Inc.,

739 F. Supp. 2d 364, 374 (S.D.N.Y. 2010) ; Vigorito v. UBS PaineWebber,
Inc. , 477 F. Supp. 2d 481, 487 (D. Conn. 2007)).

Such maxim has been

applied in proceedings to enforce international arbitration awards
as well: an issue is forfeited if a party could have raised such issue
at

arbitration

but

failed

to

do

so,

and

such

issue

cannot

be

re-litigated before the district court considering enforcement of
the arbitration award.

Europcar Italia, S.p.A. v. Maiellano Tours,

Inc. , 156 F.3d 310, 315 (2d Cir. 1998) (citing National Wrecking Co. ,
990 F.2d at 960) ; see AAOT Foreign Econ. Ass'n (VO) Technostroyexport
v. Int'l Dev. & Trade Servs. , Inc., 139 F.3d 980, 982 (2d Cir. 1998)

[hereinafter "AAOT Foreign Econ. Ass'n"]

("The settled law of this

circuit precludes attacks on the qualifications of arbitrators on

grounds previously known but not raised until after an award has been
rendered."); Four Seasons Hotels & Resorts B.V. v. Consorcio Barr,

17

S.A. , 613 F. Supp.
respondent's

2d 1362,

refusal

to

1370

(S.D.

participate

in

Fla.

2009)

(finding that

arbitration

evidentiary

hearing, even if based on good faith desire to maintain right to

appeal,

did not make respondent "unable to present his case" at

arbitration and respondent's objections were waived).
Further,

failure to attend an arbitration proceeding, and to

raise any defense, may result in waiver of a public policy defense
at a later proceeding to enforce the arbitration award, to the extent

that such public policy defense is essentially a claim or defense
that could have been, but was not, raised at arbitration.

Thus, if

a party claims that the underlying contract or agreement violates
public policy, "that claim is xto be determined exclusively by the
arbitrators,' and a party forfeits the claim if it fails to raise

it during arbitration."

Yukos Capital S.A.R.L. v. Samaraneftegaz,

592 F. App'x 8, 11-12 (2d Cir. 2014)(unpublished) (citing Europcar
Italia, 156 F.3d at 315) ; see Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440, 449 (2006) (" [R] egardless of whether the challenge is

brought in federal or state court, a challenge to the validity of
the contract as a whole,

and not specifically to the arbitration

clause, must go to the arbitrator."); Europcar Italia, 156 F.3d at
315-16

(rejecting a public policy defense as waived because "the

issue

whether

the

underlying

contract . . .

was

forged

or

fraudulently induced [is] a matter to be determined exclusively by
the arbitrators" and such issue was not raised during arbitration).

18

As discussed below, the public policy defense, which may be raised

at

a

proceeding

to

enforce

an

arbitral

award,

is

"tightly

restricted," applying "only where enforcement of the arbitration
award, as opposed to enforcement of the underlying contract, would

violate public policy."

Yukos Capital, 592 F. App'x at 11 (emphasis

added) (citing Saint Mary Home, Inc. v. Serv. Emps. Int'l Union, Dist.
1199, 116 F.3d 41, 46 (2d Cir. 1997)).

No matter the basis for a party's defense at arbitration, he
"cannot remain silent, raising no objection during the course of the

arbitration proceeding, and when an award adverse to him has been
handed down complain of a situation of which he had knowledge from
the first."

Cook Indus., Inc. v. C. Itoh & Co. (Am.) Inc., 449 F.2d

106, 107-08 (2d Cir. 1971); see Slaney v. The Int'l Amateur Athletic
Fed'n, 244 F.3d 580, 591 (7th Cir. 2001) ("If a party willingly and
without reservation allows an issue to be submitted to arbitration,
he cannot await the outcome and then later argue that the arbitrator

lacked authority to decide the matter." (citing AGCO Corp. v. Anglin,
216 F.3d 589, 593 (7th Cir. 2000))).

silent during arbitration and

"Permitting parties to keep

raise arguments

in enforcement

proceedings would 'undermine the purpose of arbitration' which is
to provide a fast and inexpensive method" for resolution of disputes.
Nat' 1 Wrecking Co. , 950 F.2dat 960-61 (quoting John Hofmeister, 950
F.2d at 1344-45).

19

C. Respondents' Public Policy Defense

When a public policy defense is properly before a court, Article
V.2(b) of the New York Convention provides that, " [r] ecognition and
enforcement of an Arbitral Award may also be refused if . . . the

recognition or enforcement of the award would be contrary to public

policy of that country."
defense

is

to

be

The New York Convention's "public policy

'construed narrowly to

be applied only where

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

morality

and

justice.'"

Asignacion

v.

Rickmers

Genoa

Schiffahrtsgesellschaft mbH & Cie KG, 783 F. 3d 1010, 1016 (5th Cir.

2015) (quoting M&C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844,
851 n.2 (6th Cir. 1996) ) ; Ministry of Def. of Iran, 665 F.3d at 1097

(9th Cir. 2011) (citing cases in support); Slaney, 244 F.3d at 593

(same).

A respondent opposing a petition to confirm and enforce a

foreign arbitral award must demonstrate

that such recognition

violates "some explicit public policy that is 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."

GmbH,

Indus.

Risk

Insurers

v.

M.A.N.

141 F. 3d 1434, 1445 (11th Cir. 1998)

Gutehoffnungshiitte

(quoting W.R. Grace & Co.

v. Rubber Workers, 461 U.S. 757, 766 (1983) ) ; see United Paperworkers

Int'l

Union,

AFL-CIO

v.

Misco,

Inc.,

484

U.S.

29,

43

(1987)

(establishing the same principle regarding refusal to recognize a
domestic arbitral award).

20

"The [public policy] defense is frequently invoked but rarely
successful, particularly in view of the strong United States policy

favoring arbitration."

Agility Pub. Warehousing Co. K.S.C., Prof'l

Contract Administrators v. Supreme Foodservice GmbH, 495 F. App'x

149,

151-52

(2d Cir.

2012)

(unpublished)

(citing Telenor Mobile

Common's, 584 F.3d at 410; Ministry of Def. of Iran, 665 F.3d at 1097) .

For example,

the Court of Appeals for the Third Circuit,

unpublished case,
violate

public

in an

rejected respondent's argument that it would

policy

to

enforce

an

arbitral

award

that

was

simultaneously the subject of a motion to vacate in the jurisdiction
of issuance.

Steel Corp. of Philippines v. Int'l Steel Servs. , Inc. ,

354 F. App'x 68 9,

694 (3d Cir.

2009)

(unpublished) .

The Third

Circuit determined that the "principal purpose for acceding to the

[New York]

Convention

was

to

encourage

the

recognition

and

enforcement of commercial arbitration agreements in international
contracts."

Id. (quoting Admart AG v. Stephen and Mary Birch Found. ,

457 F.3d 302, 307 (3d Cir. 2006) .

Thus, "parties may bring suit to

enforce awards notwithstanding the existence of ongoing proceedings
elsewhere."

Id. (citing Karaha Bodas Co. v. Perusahaan Pertambangan

Minyak Dan Gas Bumi, 335 F.3d 357, 366-67 (5th Cir. 2003) ; Yusuf Ahmed
Alghanim & Sons v. Toys "R" Us, Inc. , 126 F.3d 15, 22 (2d Cir. 1997) ).
Further,

the Court of Appeals for the Ninth Circuit found that

enforcement of an arbitral award in favor of Iran was appropriate,

even though the United States had a national policy that placed

21

restrictive

trade

and

economic

limitations

against

Iran,

and

confirmation of such award would require monetary payment, subject

to appropriate licensing, to Iran.
F.3d at 1098.

Ministry of Def. of Iran, 665

The Ninth Circuit determined that respondent had not

"identified a public policy sufficient to overcome the strong federal

policy in favor of recognizing foreign arbitration awards."

Id. at

1099-1100 (citing Parsons & Whittemore Overseas Co., 508 F.2d at
974) .
III.

DISCUSSION

Petitioner R&D seeks timely confirmation of three arbitral

awards

and entry of judgment from this Court.

The Federal

Arbitration Act provides that the Court "shall confirm the award[s]
unless it finds grounds for refusal or deferral of recognition or
enforcement of the award specified in the [New York] Convention."

9 U.S.C.

§ 207

(emphasis added).

Deferral of recognition or

enforcement is not at issue in this matter.

Respondents EP and

Worldwide assert that the Court should refuse to confirm and enforce

the arbitral awards based on two separate sections of the New York
Convention.

First, Respondents assert that recognition and enforcement of
the awards should be refused because they were "unable to present

[their] case" at arbitration.

New York Convention Article V.l(b).

Respondents argue that Mr. Razinski, whose presence at arbitration
was necessary for a successful defense,

22

was unable to attend

arbitration because he "feared that he could not fairly and safely

defend the arbitration proceedings should he return to Russia."

Opp'n at 8.

Mr. Razinski explains that he is "concerned for his

safety should [he]

ever travel to Russia" because, in 2011,

he

received threatening communications from Murat Sungur Bursa, the
chief executive officer of a Zorlu entity.

K 18; id. Ex B. , ECF No. 10-2.

First Razinski Decl.

Additionally, Mr. Razinski explains

that Russian tax authorities executed a raid of Petitioner' s business

in April 2011, and, due to that raid, Mr. Razinski was concerned that
he "could be detained under false pretenses should [he] ever travel

to Russia."

Id. f 19.

In response, Petitioner argues that there

were alternatives available (under the ICAC rules) to Respondents,

or

Mr.

Razinski,

physically

appearing

at

the

arbitration.

Petitioner claims that Respondents have failed to demonstrate that

they were unable to present their case, via these alternatives, or
that Mr. Razinski's physical presence was essential, particularly
because Respondents are corporate entities.
8; Pet'r's Second Reply at 2.

Pet'r's First Reply at

Further, Petitioner argues that, even

if these alternatives were insufficient, Respondents waived this

participation defense because they did not in any manner raise such
defense during arbitration.

Pet'r's First Reply at 9.

Second, Respondents assert that recognition and enforcement of
the awards should be refused because "recognition or enforcement of

the award[s] would be contrary to the public policy" of the United

23

States.

New York Convention Article V.2(b).

that

2012

the

Holding,

Settlement Agreement

Invar, and Mr. Razinski,

Respondents argue

between Zorlu Enerji,

Zorlu

resulting from the 2012 Geneva

arbitration, "fully and finally resolved" all disputes between the

four parties and their related entities, Opp'n at 4, and enforcement
of

the

three

Agreement,

arbitral

id.

three-fold.

awards

at 6-7.

First,

would unravel

Respondents'

the

2012

Settlement

public policy defense is

Respondents assert that

the

United States'

public policy favors settlement of legal disputes, and enforcement
of the instant arbitration awards would violate paragraphs 4.1 and

4.2 of the 2012 Settlement Agreement because enforcement would

effectively require Petitioner, a "related entity" of Zorlu Holding
and Zorlu Enerji, to pay Respondents, who are "related entities" of
Mr. Razinski.

Id. at 6-7; id. Ex. A.

Second,

Respondents assert

that enforcement of the instant arbitration awards would violate

public policy favoring settlement because Zorlu Industrial,

a

related entity of Zorlu Enerji and Zorlu Holding, violated paragraph
5.2 of the 2012 Settlement Agreement by "aiding and abetting" the

underlying
Finally,

claims against Respondents.

as

enforcement

Respondents
of

United States'

the

argued at

instant

the

Id.

at

December

arbitration awards

7;

id.

16th

Ex.

A.

hearing,

would violate

the

public policies embodied in the doctrine of res

judicata because Petitioner's current claims on the defaulted loans
were

included

and

settled

by

the

24

2012

Settlement

Agreement.

Resp'ts' Suppl. Mem. of Law at 4.

In response, Petitioner argues

that Respondents waived their public policy defenses due to their
failure

to

in any way raise,

regarding violation or

at

scope of

the

the

ICAC arbitrations,

2012 Settlement Agreement.

Pet'r's First Reply at 5; Pet'r's Resp.

10.

Petitioner

also argues

that,

issues

to Resp'ts' Suppl. Br. at

even

if such public policy

arguments are not waived, Respondents have not demonstrated that the

policies favoring settlement or res judicata are among the United
States' "most basic notions of morality and justice," much less that

such alleged public policies apply on these facts.

Pet'r's First

Reply at 4; Pet'r's Second Reply at 3-4; Pet'r's Resp. to Resp'ts'
Suppl. Br. at 2.
A. Participation Defense

A party is "unable to present [its] case" at arbitration if the

party lacks the "xopportunity to be heard at a meaningful time and
in a meaningful manner.'"

Generica Ltd.,

125 F.3d at 1129-30

(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ); Karaha Bodas
Co. , 364

F.3d

at

298;

Iran Aircraft

Indus.

980

F.2d

at

146.

Respondents have not demonstrated that they were "unable to present
[their] case" before the ICAC.

As explained below, the ICAC Rules

specifically provide that a party may appear, directly or through
their duly authorized representative(s),

and

provide written

statements on their behalf and/or seek to appear by videoconf erence.

Despite receiving notice of the ICAC arbitrations, Respondents did

25

not file any evidence or present any argument to the ICAC arbitral
panels.

Respondents had the opportunity to appear before the ICAC

"directly

or

through

their

duly

authorized

including foreign organizations and citizens,

parties in their discretion."

representatives,
appointed by

the

Rules of the ICAC § 27, available at

https://mkas.tpprf.ru/en/documents/.

Further, Respondents had the

opportunity to submit written statements and evidence "before the
oral hearing of the case."

Id. §§ 30, 31.

Respondents also had the

opportunity to "request to participate in the hearing by means of
videoconferencing."

Id. § 32.6.

The Rules of the ICAC note that

a request to participate via videoconferencing "is considered by the
arbitral tribunal bearing in mind the circumstances related to the

dispute, the position of the other party and technical feasibility."
Id.

In

this

arbitrations,

case,
the

Respondents
opportunity,

had

proper notice

either

directly

of
or

the

ICAC

through

a

representative, to file evidence or argument with the ICAC in person
or remotely, and Respondents had the opportunity to request oral
hearing via video or teleconference.
None

of

this

occurred.

Rules of the ICAC §§ 27, 30-32.

Additionally,

Respondents

have

not

demonstrated why these alternatives to direct physical appearance
were insufficient to allow Respondents to present their case or to
allow Mr. Razinski to participate in arbitration.

26

Moreover,

even

presuming

that

Mr.

Razinski's

fear

of

traveling

to

Russia

was

well-founded, such fear does not constitute an inability to present

Respondents' defense when there is a failure to utilize the suitable
alternatives described above.

See Rive, 82 F. App'x at 364; Empresa

Constructora Contex Limitada,

106 F. Supp. 2d at 1025; Nat'1 Dev.

Co., 781 F. Supp. at 962.

Therefore, Respondents have failed to

demonstrate that they were "unable to present [their] case," and the
Court will not refuse to recognize or enforce the arbitral awards
on this basis.6
B. Public Policy Defense
1.

Waiver

Due to Respondents' failure to participate in arbitration, or
to demonstrate some reason that would excuse them entirely from such

participation, Respondents are precluded from raising defenses that
could have been presented at the ICAC arbitrations and, to the extent

that a public policy defense is essentially a defense that could have
been raised at the ICAC arbitrations, Respondents are additionally

precluded from raising such public policy defense in the instant

6 Petitioner argues that Respondents failed to avail themselves of
alternatives to physical presence at the arbitration.
Moreover,
Petitioner appears to argue that Respondents waived their participation
defense by failing to in any way raise such defense during arbitration.
The Court has already addressed the Respondents' failure to avail
themselves of alternatives provided by the ICAC Rules.
With respect to
Petitioner's nuanced argument that, even if such alternatives were
insufficient,
Respondents
waived
their
right
to
challenge
the
insufficiency of the ICAC participation alternatives by failing to raise
such defense during arbitration, the Court need not address such argument
because it has determined above that the alternatives were sufficient.

27

enforcement proceeding.

See Nat'l Wrecking Co. , 990 F.2d at 960-61

("Failure to present an issue before an arbitrator waives the issue
in an enforcement proceeding." (citing Local 100A, 950 F.2d at 1343-

44) ) .

As noted above, an argument that the underlying contract, or

enforcement of the underlying contract, violates public policy is

"determined exclusively by the arbitrators" and "a party forfeits
the claim if it fails to raise it during arbitration."

S.A.R.L., 592 F. App'x at 11-12.

Yukos Capital

Respondents argue that the ICAC

arbitrators should not have rendered awards based on the defaulted

loan agreements between Petitioner and Respondents, because such
awards

violated

the

2012

Settlement

Agreement.

As

a

result,

Respondents argue, enforcement of the ICAC arbitration awards (which
allegedly constitute violations of the 2012 Settlement Agreement)
is contrary to United States public policy favoring settlement and
full and final resolution of legal disputes.

However, to accept

Respondents' public policy defense, the Court would be required to
make legal and factual determinations regarding the scope and meaning
of

terms within the

2012

Settlement Agreement

that were

to be

"determined exclusively by the arbitrators," thus converting to a

public policy violation a defense that should have been considered
by the arbitral panels.

See United Paperworkers Int'l Union, 484

U.S. at 45 ("The parties did not bargain for the facts to be found

by a court, but by an arbitrator chosen by them .... Nor does the
fact that it is inquiring into a possible violation of public policy

28

excuse a court

for doing the arbitrator's

task.").

Therefore,

Respondents forfeit such arguments because they failed to raise them
at arbitration.

The

District

Court

for

the

Southern District

of

New York,

considering an assertion in an enforcement proceeding that the

underlying contract violated public policy, rejected such defense,

finding that respondent had waived its public policy defense due to
its failure to participate in arbitration.

Yukos Capital S.A.R.L.

v. OAO Samaraneftegaz, 963 F. Supp. 2d 289 (S.D.N.Y. 2013), affirmed

592 F. App'x 8 (2d Cir. 2014) .

In Yukos, the respondent argued that

enforcement of the arbitral award would violate United States public

policy, by condoning a tax evasion scheme, because the underlying
loan agreements were "sham transactions" that had been invalidated
by a Russian court as part of a tax evasion scheme.

Id. at 293-94.

Similar to the present case, the Yukos respondent failed to raise

its argument regarding the underlying loan agreement at arbitration.
After determining that the respondent was not "unable to present
[its]

case," the district court rejected the respondent's public

policy argument, finding that respondent could not, after failing
to contest the validity of the loans at arbitration, re-litigate the

loan agreement's legality during enforcement of the arbitration
award.

Id. at 2 99 .

The Yukos court concluded that, " [respondent' s]

failure to contest the validity of the [l]oans before the ICC is a
result of its own choice; it cannot now rely on its own omissions

29

to support a public policy defense.

. . . [T]o refuse to enforce a

valid award in these circumstances would run counter to the strong

public policy in favor of arbitration."
Commcn's,

Id. (citing Telenor Mobile

584 F.3d at 410-11).

Like the loan agreement at issue in Yukos, determining in this
case whether the loan agreements between Respondents and Petitioner

were incorporated in the 2012 Settlement Agreement,

or whether

enforcement of the loan agreements breached the 2012 Settlement

Agreement, were matters to be resolved by the ICAC arbitrators.
However,

Respondents

arbitration.

did

Therefore,

not

raise

such

arguments

during

Respondents waived their right to here

argue on public policy grounds that the 2012 Settlement Agreement

precludes enforcement of the three ICAC arbitration awards.

See

Europcar Italia, 156 F.3d at 315 (rejecting the respondent's argument
that enforcement of an arbitral award would violate public policy

because the underlying agreement was forged, and finding that the

respondent forfeited such argument because it failed to raise it at
arbitration).

2. Substantive Public Policy Defense

Alternatively, even if the Court were to undertake a substantive
review of the arbitral awards, Respondents have failed to demonstrate
that enforcement of the three ICAC awards would violate an "explicit

public policy" of the United States and that the terms of the 2012
Settlement Agreement would prevent an award for Petitioner on the

30

disputed loan agreements.

Public policy "is to be ascertained by

reference to the laws and legal precedents and not from general

considerations of supposed public interests."
Int'l Union,

484 U.S at 43.

As

United Paperworkers

Petitioner effectively argues,

Respondents have not identified law or legal precedent that supports
their assertion that enforcing an arbitral award, which allegedly

conflicts with a private settlement agreement, would violate the
United States' public policy.
Resp.

Pet'r's First Reply at 4; Pet'r's

to Resp'ts' Suppl. Br. at 1-2.

Further, Respondents have not developed a record evidencing
that, 1) under the 2012 Settlement Agreement, Petitioner, via its

bankruptcy proceedings, is a "related entity" of Zorlu Enerji or
Zorlu Holding, or 2) Zorlu Industrial, as a bankruptcy creditor of
R&D, "aided or abetted" litigation against Mr. Razinski's related
entities,

between

EP and Worldwide,

Petitioner

and

Settlement Agreement.

Reply brief,

or 3)

the disputed loan agreements

Respondents

were

included

in

the

2012

First, as Petitioner argues in its Second

Respondents

have not proven that the bankruptcy

debtor-creditor relationship between R&D and Zorlu Industrial makes
R&D a "related entity" of Zorlu Enerji or Zorlu Holding.

Second Reply at 4; Vershinin Decl.

H 2.

Pet'r's

Second, as Petitioner

argues, Respondents EP and Worldwide, as "related entities" of Mr.
Razinski, have not demonstrated that Zorlu Industrial "aided and

abetted" litigation against them.

31

Instead, Petitioner argues, it

appears

that

Zorlu

Industrial

attempted

to

prevent

arbitration

against EP and Worldwide by proposing and adopting resolutions not
to file ICAC arbitration claims on the defaulted loan agreements and

not

to

pay

duties,

fees,

regarding such claims.

H 2.

or

expenses

for

ICAC

representation

Pet'r's Second Reply at 3-4; Vershinin Decl.

Finally, as Petitioner convincingly argues in its Response to

Respondents' Supplemental Brief, Respondents have not proven that
the parties to, and claims resolved by, the 2012 Settlement Agreement

are identical to the parties and claims at the ICAC arbitration, such
that the doctrine of res judicata would preclude the arbitral panels

from rendering

awards

on

Petitioner's

defaulted

loan

claims.

Pet'r's Resp. to Resp'ts' Suppl. Br. at 2-8; see Union Carbide Corp.
v. Richards, 721 F.3d 307, 314-15 (4th Cir. 2013) ("A party invoking

res judicata must establish three elements:

judgment on the merits,

(1) a previous final

(2) an identity of the cause of action in

both the earlier and the later suit, and (3) an identity of parties

or their privies in the two suits. " (citing Meekins v. United Transp.
Union,

946 F.2d 1054, 1057 (4th Cir. 1991))).

Therefore, even presuming that Respondents did not waive their
arguments regarding the terms and preclusive effect of the 2012
Settlement

Agreement

by

failing

to

raise

such

argument

at

arbitration, Respondents have not demonstrated that recognition and
enforcement of the three ICAC arbitration awards "violate[s]

[United

States']

most

basic

notions

32

of

the

morality and justice."

Instead, Respondents seek an improper substantive review of the three
ICAC arbitration awards.

United States'

Thus,

the Court cannot,

in light of the

strong public policy favoring arbitration,

deny

enforcement of the three ICAC arbitration awards on the basis of

Respondents' public policy defense.
IV.

For

the

reasons

CONCLUSION

discussed

above,

Respondents

demonstrated that they were "unable to present

have

[their]

not

case" at

arbitration or that enforcement or recognition of the three ICAC

arbitral awards "would be contrary to public policy of [the United
States]."

As a result, Respondents have failed to demonstrate that

this Court should refuse to confirm and enforce the three arbitral

awards rendered by the ICAC against EP and Worldwide.

Therefore,

the Court GRANTS Petitioner's Petition for Confirmation of Arbitral

Awards and Entry of Judgment.7
The Petition for Confirmation of Arbitral Awards and Entry of

Judgment, ECF No. 1, is GRANTED.
September 25,

The ICAC arbitration awards dated

2014, September 26, 2014,

and October 3,

2014 are

CONFIRMED.

The Clerk of the Court is DIRECTED to enter judgment in favor

of Petitioner against

(1)

Respondent EP International,

LLC for

$6,512,462.79, related to the September 25, 2014 ICAC Arbitration
7 To the extent that Petitioner seeks costs and its attorney's fees, such

relief must be sought in accordance with the Federal Rules of Civil
Procedure.

33

Judgment;

(2)

Respondent Worldwide Vision,

LLC for $1,084,471.80,

related to the September 26, 2014 ICAC Arbitration Judgment; and (3)
Respondent EP International, LLC for $9,084,352.63, related to the
October 3, 2014 ICAC Arbitration Judgment.

The Clerk is further DIRECTED to provide a copy of this Opinion
and Order to all counsel of
IT

IS

SO

record.

ORDERED.

jgn^h:

/a/
Mark
UNITED

Norfolk, Virginia

April 3Jp , 2016

34

STATES

S.

Davis

DISTRICT JUDGE