By summary order issued on July 1, 2015, the Second Circuit for the second time in the same case declined to confirm an award issued by an arbitral panel in Brazil. VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners II L.P., No. 14-3906-CV, 2015 WL 3971177 (2d Cir. July 1, 2015) affirming No. 11 Civ. 0198 (MGC), 2014 WL 4928929 (S.D.N.Y. Oct. 2, 2014).

The Second Circuit previously remanded the matter to the district court to determine if the parties had agreed to arbitrate the substantive liability issue that was resolved by the award as well as the issue of arbitrability. VRG, 2015 WL 3971177, at *1 (citing VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners II L.P., 717 F.3d 322 (2d Cir. 2013)). On remand, the district court found that the party against whom the award was issued (the defendant), did not agree to arbitrate—notwithstanding the fact that the arbitral tribunal in Brazil found otherwise and the Brazilian courts had refused to vacate the arbitral award. VRG, 2015 WL 3971177, at *1–2.

The matter came to the United States when the plaintiff sought to confirm the award in the Southern District of New York pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201-08 (New York Convention). Id., at *2; VRG, 717 F.3d at 323. The district court refused to confirm the award—twice. On appeal from the district court, the plaintiff contended (originally and in its appeal after remand) that the district court erred by failing to enforce and give effect to the judgments of Brazilian courts. The Second Circuit, however, held that under the New York Convention, the threshold issue of arbitrability is to be determined under United States arbitration law. VRG, 2015 WL 3971177, at *2; VRG, 717 F.3d at 325.

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