We recently wrote about the Eleventh Circuit’s May 2022 decision in Corporacion AIC, S.A. v. Hidroelectrica Santa Rita S.A. (AICSA v. HSR), holding that FAA grounds for vacating domestic arbitration awards are not available to challenge international arbitration awards. The Eleventh Circuit reheard the case en banc, as urged by the three judge panel in its May 2022 opinion, and has now realigned itself with its sister circuits1 in holding that the vacatur grounds found in Chapter 1 of the FAA are available when parties seek to set aside nondomestic arbitral awards that are (a) rendered within the United States or (b) decided under United States law. These are instances in which the USA is said to have “primary jurisdiction.”
Overview of the Matter
We discussed the AICSA v. HSR matter and May 2022 decision in greater depth in our previous piece. Briefly, this was a dispute between two foreign entities, which was arbitrated in Miami. The award loser challenged the award in the district court on the ground that the arbitral panel had “exceeded its powers,” but its petition was denied. A three-judge panel for the Eleventh Circuit agreed that Article V(1)(e) of the New York Convention2 permits consideration of the FAA’s Chapter 1 vacatur grounds but said it was bound to follow circuit precedent holding to the contrary.