I was bundled in my favorite leather coat last week, having an outdoor lunch and braving the late April snow flurries with an arbitrator friend, who began to tell me not about a case he had, but about a case he dreamed he had. It was a bad dream, he said, and it went something like this:
“So in my dream I get appointed to chair what looks like a pretty simple non-payment case except that Claimant is a Company in Haiti, of all places, and the Respondent is like a Haitian government agency. And the really odd thing is I get approached by the party-appointed arbitrators who tell me they are both appointed by the Claimant.”
“Sounds a bit odd,” I offered. “But I assume it’s what the contract provided. And that when you got to PO #1 you had both sides sign it with the stipulation that the Tribunal was duly constituted and no contention to the contrary would be made at any time in any forum. Right?”
My friend cringed. “Well…” he replied “yes the contract said Claimant could appoint the second arbitrator if Haiti failed to appoint. But I confess I didn’t get that stipulation in my dream. I mean, it was the middle of the night … and they had an agreed form of PO#1 and I didn’t want to rock the boat….”
“Ok, I see how this gets to be a bad dream,” I say, mustering solace and zipping my coat. “You should have called me, even in the middle of the night. So then what happened?”
“Well we made a schedule — this is all about interim relief, mind you, security for an eventual award, you know — and got Claimant’s Memorial a couple of months later, March I think and two days after that there is an email from Haiti’s lawyer and it says ‘you don’t have jurisdiction and by the way back in December we filed in the New York State Supreme Court for a stay of the arbitration, to enjoin the arbitration.’”
“Nice of them to let you know.” I dabbed at the hot soup running down my chin. “Did they get it? You didn’t stop did you?”
“No, no. I figured it’s now April and they filed in Court in December and so far they don’t have an order so let’s go ahead. And for a while we did.”
“I thought you said this was a bad dream?”
“It got worse from there. They say we can’t have a Zoom hearing, it violates due process. They say the Covid in Haiti is so widespread that you can’t do a Zoom anyway. They say we have no jurisdiction and the court will decide that. They say ‘if you hold a hearing we won’t come, not even on Zoom.’ Eventually they say their star witness has bad Covid anyway so forget about it. And the President of Haiti who was in charge of the case, he just got shot, and you can’t possibly make us arbitrate in this situation.”
“OK it’s a bad dream,” I concede. “I hope you got up and had some warm milk.”
“I should have,” he admits. “But you know, it’s 3 am, my wife and the dogs are sound asleep, and I think we were out of milk anyway.”
“Ok can we finish this? Sorry but I have a 2:30 Zoom in a gnarly case of my own.”
“Ok really quick. So then there is this terrible scene where my co arbs said – screamed really – ‘we gotta wait! We look terrible! The courts will vacate it! It will be all over Law360 saying a runaway Tribunal ran roughshod over this struggling poor nation and made a mockery of due process. All three of us will be in disrepute. Our Chambers rankings will go up in smoke!”
“Don’t tell me you bought into that.”
“I didn’t. We put things off a couple of weeks for the witness to get over his Covid. We sent them the Zoom link like four times. They didn’t show. They said we were biased against Haiti and we’re denying them due process and the courts would say so and give them real Justice. We went ahead with our hearing and issued a Partial Final Award for security of $23 million.”
“You’re a brave soul my friend. My compliments. I know of a few judges who would back you up.”
“Well, one did. You can read it.
- Preble-Rush Haiti, S.A. v. Republic of Haiti
, 2022 WL 229701 (S.D.N.Y. Jan. 26, 2022) but they filed an appeal so who knows. Let’s go back to work. Thanks for listening.”
