Pity poor Tiffany’s. Teeming with gold. Silver. Diamonds. Basking in the perpetual cinematic afterglow of a youthful Audrey Hepburn.

But there is real suffering here at 57th and 5th.

Consider: Tiffany’s remains mired in a trademark infringement debacle, in a US court in Manhattan, against online knock-off con artists who keep their accounts in Chinese banks. Legally savvy crooks, they have not bothered to defend the action on the merits, instead absorbing default judgments but wagering, wisely so far, on the ineffectiveness of US judgment enforcement methods to reach their assets in China. In the latest chapter, the federal district judge presiding over the case has vacated a pre-judgment asset freeze order against the defendants. On two grounds. First, as the case is now post-judgment, different legal standards for any asset seizure apply, i.e. state law procedures made applicable by Federal Rule of Civil Procedure 69. Second, at the stage of entering judgment on default, it had become evident that the judgment should be for money damages, and not for an equitable accounting of the ill-gotten profits of the infringers, and so Tiffany’s claim was one for money damages only, as to which, had the claim been so pleaded initially, it would not have qualified for a pre-judgment asset freeze under controlling (Grupo Mexicano) federal law. (Tiffany (NJ) LLC v. QI Andrew, 2015 WL 3701602 (S.D.N.Y. June 15, 2015)).

But this post is not really about what has happened already, but what happens next. We care, arbitration mavens, because this scenario plays out in similar fashion when an international arbitration award is presented for enforcement (and not merely recognition) in a US court, especially a partial award granting as a provisional measure the kind of asset freeze that Tiffany’s had earlier obtained.

Most of you know that in October 2014 the New York Court of Appeals handed a victory to global banks that operate New York branches, ruling that the hoary “separate entity rule” remains the law of New York, such that a judgment creditor’s state law notice to restrain assets (“restraining notice”), served on a New York branch of the bank, has no legal effect to require restraint of the judgment debtor’s assets held in an account associated with a foreign branch. (Motorola Credit Corp. v. Standard Chartered Bank, 24 N.Y.3d 149 (Oct. 23, 2014)). As a consequence, the “action” shifts to the discovery front, with judgment creditors seeking to use information subpoenas issued by the US federal court (in compliance with New York State judgment enforcement law) to the New York branches of those global banks to require disclosure of information about the accounts and assets of the judgment debtors. The “separate entity rule” as endorsed by the New York Court of Appeals in the Motorola case is not a barrier to such discovery.

The contest in legal disputes over the enforcement of such subpoenas  has been, and will continue to be, over the degree of deference that US courts should give to foreign nations’ statutes and regulations imposing bank secrecy and other similar restrictions on disclosure of information for use in foreign judicial proceedings. It is an issue of “international comity,” and it may have decisive impact on whether the Court permits discovery under the Federal Rules of Civil Procedure, which it may do, or alternatively requires use of the Hague Evidence Convention, which it need not automatically do but must at least consider according to a multi-factor test formulated by the US Supreme Court in the 1980s in the Aerospatiale case. Two years ago, your author as judgment creditor’s counsel served an information subpoena on Deutsche Bank in New York for information about the judgment debtor’s accounts in Singapore. Deutsche Bank moved to quash and presented expert evidence concerning Singapore’s bank secrecy law and its exceptions allowing disclosure in aid of judgment enforcement but only upon an order permitting disclosure issued by a Singapore court. The motion to quash was granted by a US Magistrate Judge (in an unpublished order that I will share upon request), despite the absence of evidence of any actual prosecutions or a declaration of prosecutorial policy to prosecute in Singapore for violations of the bank secrecy law in similar circumstances — i.e. where the bank’s disclosure of client account information was made in compliance with an order of a court outside Singapore. The Magistrate Judge held that the judgment creditor should instead secure from the US court a Letter of Request under the Hague Evidence Convention. This was done, and thereafter the Singapore authorities engaged in a series of dilatory actions evidently calculated to cause the Letter of Request to die a bureaucratic death, which it did.

Your author made anguished cries in this space. And now (with no claim of cause and effect, as the judge in the case about to be described is not a known reader of these rants) there is better news for judgment creditors from lower Manhattan, where the most recent published decision on this same question adopts a more inquisitive and less presumptive approach to the public policy interests of foreign States that are ostensibly served by statutes or regulations blocking information disclosure by financial institutions. See Motorola Credit Corp. v. Uzan, 2014 WL 7269724 (S.D.N.Y. Dec. 22, 2014). The District Court in this case did, and said that in the further proceedings it would, insist upon evidence that the foreign State had actually prosecuted or would prosecute violators of its nondisclosure/secrecy laws, or require other comparable evidence that the laws were fundamental public policies of the foreign State and not merely solicitous gestures toward powerful international banks whose local operations breathe life into local economies. Such a more formidable showing is to be required before the Court will  conclude that the foreign State’s interest in enforcement of its nondisclosure laws is a compelling reason of “international comity” to deny enforcement of the US domestic subpoena to the global bank’s New York branch and instead require the judgment creditor to try her luck domestically under the Hague Evidence Convention in the jurisdiction where the assets are believed to be on deposit.

This, I believe, is progressive thinking about “comity” given two fundamental contextual features: (1) a global economy in which foreign States sometimes seek to subsidize economic growth through legislation that makes the State a regulatory haven for particular industries, and (2) a US legal environment in which creative lawyers make “comity” arguments on behalf of their client global banks (and not directly as advocates for the foreign States in which their clients operate), framing such legislation as a broader reflection of fundamental domestic policy in the enacting foreign State than may in fact be the case. (For this reason, courts in some similar cases have considered it significant whether the foreign States themselves appears as amicus curiae to articulate for themselves their public policy perspectives)

It appears that Tiffany’s and a number of Chinese banks will shortly be entering the ring to counter-punch on these issues. The outcomes should be watched closely by all of us who calibrate the effectiveness of US courts for enforcement of awards and judgments against judgment debtors whose wealth is strategically held or concealed abroad.

Responding to the anguished cries of readers for a succinct review of the fate of Discounted Cash Flow (DCF) valuation methodology in recent investment arbitrations — a review to be offered without payment of conference fee, airplane fare, or subscription — Arbitration Commentaries steps to the lectern and reports:

1. In the now-legendary Yukos case, the controlling shareholders of the erstwhile oil colossus advanced DCF valuation as one of four alternative valuation methods, along with “comparable companies” and “comparable transactions” valuations as of the same date as the DCF valuation, and a “market capitalization” approach as of an earlier date. The Tribunal ultimately rejected DCF methodology entirely, along with each of the other valuation approaches proposed by Claimants other an “comparable companies.”  A full examination of the report of Russia’s valuation expert would be necessary to understand the Tribunal’s decision to accept that report as a decisive refutation of Claimant’s DCF analysis. But it is evident from the Award that the Tribunal’s determined that it could not rely upon historical information used as inputs to the DCF analysis, that it could not be confident that Claimant’s DCF analysis reliably captured all of Yukos’s operating expenses, and that Claimant’s DCF model did not, in the estimation of the Tribunal, take into account business risks that Yukos would have faced as a going concern had it not been effectively dismantled by the Russian State in 2004. (Yukos Universal Limited (Isle of Man) v. Russian Federation, PCA Case No. AA 227, Final Award dated July 18, 2014).

2. A Canadian mining investor called Gold Reserve and the Government of Venezuela, arbitrating over alleged taking or interference with mining concessions, agreed in principle on the use of DCF methodology — but not its exclusivity as the sole proper valuation approach. Claimant — perhaps concerned about relying too heavily on DCF to value an asset with no earnings history and many contingencies affecting its future profitability — advocated a weighted three-method approach assigning 50 percent weight to DCF, 35 percent comparable companies, and 15 percent comparable transactions. Venezuela urged the Tribunal to use DCF only, because the proposed comparables were not very comparable and the criteria offered to make adjustments based on the comparables to value the assets at issue were not reliable. The Tribunal on this point ruled for Venezuela, and used only the DCF approach. As would also be the case in the Mobil-Venezuela arbitration discussed below, the DCF experts differed on “country risk” for purposes of the discount rate, and took opposite sides of the question whether the market’s perception that Venezuela was a country that might nationalize natural resources assets was an appropriate risk factor or an impermissible charge against value based on conduct — i.e. expropriation without prompt adequate and effective compensation — that was prohibited by the BIT. Here the Tribunal agreed with Claimant to a degree, holding that the risk of unlawful expropriation should not be taken into account in the discount rate, but nevertheless considered that other political risks of doing business in Venezuela warranted a country risk factor significantly greater than what Claimant’s expert proposed. Claimant’s expert had advocated a valuation of $1.3 billion, and the Award was $713 million, with $130 million of the downward adjustment attributable to the Tribunal’s partial acceptance of Venezuela’s position on “country risk.” (Gold Reserve, Inc. v. Venezuela, ICSID Case No. ARB (AF)/09/1, Award dated Sept. 22, 2014).

3. Mobil and the Republic of Venezuela, arbitrating over nationalized oil exploration concessions, agreed upon the utility of DCF but stood very far apart on the discount rate, Mobil’s expert urging 8.7 percent while the Republic’s expert urging nearly 20 percent. Accounting for most of the gap was “country risk,” and in particular the very risk that came to fruition and provoked the arbitration, i.e. that Venezuela would opt to nationalize petroleum exploration.  That risk shoud be omitted from the discount rate, argued Mobil, because including it would in effect take a negative charge against the value of the assets for pre-expropriation steps taken by the Government that diminished value because they foretold a potential expropriation. Factor in that risk, argued the Government, because any hypothetical willing buyer who might have thought about buying Mobil’s oil concessions in Venezuela before the Government acted, would have factored the risk of expropriation into her bid. Citing decisions of a number of other investment tribunals, this Tribunal sided with Venezuela on the discount rate “country risk” question. (Venezuela Holdings B.V. and Mobil Cerro Negro Holding Ltd. et al. v. Venezuela, ICSIDE Case No. ARB/07/27, Award dated Oct. 9, 2014).

4. British Caribbean Bank and the Government of Belize, arbitrating over deprivation of the Bank’s right to repayment of its loans to a telecoms firm, argued over the consequences of the Bank’s decision not to submit any expert valuation report. The Bank argued that its loan was expropriated and that, perforce, the fair market value of the expropriated property was the principal and interest due on the loan. Not so, said Belize, the FMV of the expropriated loan is what a willing buyer would pay to own the loan, which is not necessarily the face amount plus interest, and so if there is no valuation report, the Claimant should lose on damages. On the expropriation claim, the Tribunal agreed with Belize, but that is not the end of the story.   The Bank also had a fair and equitable treatment (FET) claim, prevailed on this as to liability, and on damages argued that whereas the relevant treaty set forth no particular compensation standard, the standard furnished by international law is simply to provide reparation sufficient to cancel out the economic effects of the unlawful act.  The Bank said no valuation report was needed for this FET claim, that the sum sufficient to provide such reparation is the principal of the loan plus interest. The Tribunal agreed, and this was the sum awarded. (British Caribbean Bank Ltd. v. Belize, PCA Case No. 2010-18, Award dated Dec. 19, 2014).

5. Romania, arbitrating with an investor of US nationality over impairment of its State-granted concession to sell consumer goods from kiosk locations throughout the country, insisted that the investor’s DCF valuation should be rejected because it was premised on the thesis of expropriation, which Romania contended had not occurred, and further because the Claimant was not a going concern and indeed had a history of losses and its prospects for future earnings were uncertain. The Tribunal sustained Claimant’s FET claim while rejecting its expropriation claim, and stated that it was rejecting the DCF approach in part because it had rejected the expropriation claim. But evidently the main rationale for rejection by the Tribunal of the DCF valuation was the Claimant’s history of losses and uncertain future prospects. As a result, a DCF valuation of $223 million per Claimant’s expert was rejected in favor of an award (on the principal claim) limited to Claimant’s actual investment of $7.5 million. (Awdi v. Romania, ICSID Case No. ARB/10/13 (Award dated March 2, 2015).

6. Following the lead of the Mobil Cerro Negro Tribunal as discussed above, another Tribunal addressing expropriation by Venezuela of oil service industry assets accepted the notion that a hypothetical pre-expropriation willing buyer would take into account in evaluating political risk the attitude of the Republic toward possible nationalization of petroleum industry assets. Here the Republic urged a 14.75 percent “country risk” premium in the discount rate, and this was accepted by the Tribunal as “conservative” — at least by comparison to the 18 percent “country risk” premium endorsed in the Mobil Cerro Negro Award. (Tidewater Investment SRL et ano. v. Venezuela, ICSID Case No. ARB/10/5, Final Award dated March 13, 2015).

When the U.S. Second Circuit Court of Appeals speaks about arbitration, here at Arbitration Commentaries the ignition key turns, and the engine of this rusty old four-by-four squeals, wheezes, and eventually springs to life. This month’s fuel is judicial provisional relief in aid of arbitration. (Benihana, Inc. v. Benihana of Tokyo, 2015 WL 1903587 (2d Cir. April 28, 2015)).

First, a few facts about the case. It is about restaurants and hamburgers. In simplified form with some innocent liberties taken: Franchisor asserts menu control rights over franchisee, which franchisee allegedly violates by allegedly selling hamburgers in its franchised restaurant in Hawaii. Arbitration ensues, but franchisor seeks and obtains judicial provisional relief of two kinds: first, to enjoin sale of hamburgers in Hawaii during the arbitration, second (more interesting and less caloric than the first), enjoining franchisee from arguing to the Tribunal for any extension of the default cure period in case the Tribunal should determine that the franchisee was in default and that termination of the franchise agreement was justified on that basis.

The Second Circuit affirmed branch one of the injunction and vacated part two. As you would expect. So I will not herald as a terrain-shifting development that a US appellate court rejected the notion that an injunction in aid of arbitration obtained from a federal district court may foreclose a party from making an argument for final relief to an arbitral tribunal (at least absent some very clear language in the arbitration agreement limiting the power of the arbitrators).

I would however suggest that the Court’s eminently sound reasoning in support of this outcome speaks in favor of a broader reconsideration of the standards governing issuance of judicial provisional relief in aid of arbitration — which at this time, whether in a domestic or international case, are in lockstep with the standards for issuance of preliminary injunctions in cases pending before the courts. In particular, the requirement of “likelihood” or “probability” of success on the merits as a criterion for issuance of injunctive relief (sometimes varied slightly in the federal courts to allow in the alternative “serious questions going to the merits” combined with serious hardship) is at odds with US arbitration jurisprudence that in most contexts reserves to the arbitrators unfettered jurisdiction to decide the merits.

The Second Circuit, cutting through the parties’ arguments that the question of whether the tribunal could extend the default cure period was a question of “arbitrability,” rightly determined that this was “a merits argument masked as a jurisdictional one” and that the merits, obviously, were for the arbitrators. Said the Court: “Once arbitrators have jurisdiction over a matter, ‘any subsequent construction of the contract and of the parties’ rights and obligations under it’ is for the arbitrators to decide.” A court has “‘no business weighing the merits of the claims…’” said the Second Circuit quoting a venerable and venerated US Supreme Court arbitration case. And later, in the same line of reasoning, the Second Circuit said: “Prohibiting a court’s assessment of the merits until after the arbitral decision has been rendered is consistent with the structure of the Federal Arbitration Act (“FAA”) and with the ‘strong federal policy favoring arbitration as an alternative means of dispute resolution.’“

In federal and state courts in the US, “probability of success” prevails as a litmus test for a preliminary injunction because our legal tradition expresses reluctance to permit relief resembling what could be obtained in a final judgment when there has been only an accelerated and perhaps partial and perhaps skewed assessment of the facts and law relevant to liability. Lurking in the background is concern that the “preliminary” injunction will have a duration through the final adjudication, which could be quite a long time, and so there is a pressing need to try to get it right.

But the judicial injunction in aid of arbitration serves a different function. The interval to which it is addressed is shorter: up to the time when the Arbitral Tribunal is able to hear and decide the application for provisional relief. That should ordinarily be a matter of a few weeks, and so there should be less concern in the courts about getting it right and a rather singular focus on preventing an alteration of the status quo so irreversible that, in a few weeks time, a provisional measure from the Tribunal would be ineffectual to address it.

It is of course possible to reconcile that traditional judicial injunction standard of “probability of success on the merits” with the Second Circuit’s solemn incantation of the exclusivity of the arbitrators’ power in regard to the merits. The findings of fact and conclusions of law provisionally made by a court for purposes of an injunction in aid of arbitration do not bind the Tribunal. But certainly the Tribunal will be influenced by those findings, often to the point of giving them tacit presumptive validity. Arguably this erodes the arbitral process, and transforms it into a hybrid judicial-arbitral process whenever judicial interim relief is sought. And this dilutes the practical effectiveness of the principles stated by the Second Circuit as quoted earlier in this post.

Perhaps the time has come in the USA for judicial re-thinking of standards for issuance of an injunction in aid of arbitration.