Century Indemnity Co. v. Equitas Ins. Ltd., et al., 11 Civ. 1034 (NRB) (S.D.N.Y. 2011), addresses cross-motions to confirm and vacate arbitral award. A few of the subsidiary issues decided by the Court are important for the international litigation/dispute resolution practitioner, including:
First, the Court faced a situation where it appeared that the parties were attempting to use the confirmation/vacatur process to disclose matters litigated in the confidential arbitration. The petition to confirm contained material the opposing party didn’t like. Yet the opposing party didn’t oppose confirmation, just the additional material. So the opposing party filed another petition to confirm without the offending material, making lots more work for the Court.
The Court was strong on two points: first, the Court reaffirmed its earlier refusal to seal the record in the case, “consistent with the principle that when a party seeks to avail itself of the court system, it must do so consistent with the rules, including public access, of the public forum; but, at the same time, the Court saw no need to litigate the underlying confidential arbitration issues and in fact granted the very-rarely-granted motion to strike certain material that could not have any bearing on the Court’s determination of the motions to confirm/vacate. Adding such material to a pleading was unnecessary, and the Court found the explanation disingenuous.
Second, the Court saw that the unnecessary material was itself trying to react to unnecessary material in the initial petition to confirm. The Court offered two sensible options: the opposing party could have filed nothing and ignored the allegedly offending paragraphs, or the party opposing the allegedly offending paragraphs could have informed the Court that the party did not oppose confirmation but did dispute certain of the background facts.
We don’t often see Courts taking the time to react to strategies and strategems at this level of detail and nuance. These issues arise all the time in international practice. Having some judicial guidance on them is timely and beneficial.