The drive in the Second Circuit to clarify the rules regarding confirmation and enforcement of various types of arbitration awards continues. The latest addition is the decision in BSH Hausgerate GmbH v. Kamhi, 17 Civ. 5776, 2018 U.S. Dist. LEXIS 34597 (S.D.N.Y Mar. 2, 2018) (Sweet, J.). Federal district courts have occasionally decided that an arbitration award is ambiguous or incomplete or indefinite, and therefore should be remanded to the arbitrator for clarification rather than confirmed by the court. Judge Sweet seeks to bring clarity to the law concerning the judicial treatment of international arbitral awards in particular, holding that “ambiguity” is not a cognizable basis for refusing to enforce (or “confirm”) such an award.

Recall that, a year earlier, the Second Circuit distinguished various arbitration awards, with respect to how they should be treated by federal courts, as (a) domestic, (b) non-domestic, and (c) foreign. See CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58 (2d Cir. Mar. 2, 2017). An award that is issued outside the U.S. is a “foreign” arbitral award. If the country of origin is a signatory to the New York Convention, then “confirmation” of the award may occur, if at all, in the jurisdiction in which the award was issued, and “enforcement” of the award may be sought in any other Convention country. A court in the country of origin of the award has “primary” jurisdiction; a court in any other country to which the award is brought for enforcement will have “secondary” jurisdiction.

In Kamhi, the Court held that when it has “secondary jurisdiction” with respect to a foreign arbitration award, and the New York Convention applies, it “may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention,” CBF Industria de Gusa, 850 F.3d at 71, and Article V of the Convention does not include “ambiguity” as an enumerated basis to refuse enforcement.

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