United States District Court, S.D. Florida
Grupo Unidos Por El Canal, S.A. and Sacyr, S.A., Petitioners,
Autoridad del Canal de Panama, Defendant.
OMNIBUS ORDER ON MOTION TO VACATE, MOTION TO DISMISS,
AND MOTION TO CONFIRM ARBITRAL AWARD 
N. Scola, Jr. United States District Judge
matter is before the Court upon multiple motions filed by the
parties in this case. The Petitioners Grupo Unidos Por El
Canal, S.A. (“GUPC”) and Sacyr, S.A. initiated
this action requesting that the Court vacate a final arbitral
award. Thereafter, the Petitioners filed an amended motion to
vacate (ECF No. 15), which the Respondent Autoridad del Canal
de Panama (“ACP”) seeks to dismiss (ECF No. 43),
and opposes in substance (ECF No. 44). The Respondent ACP
also filed a motion to confirm the arbitration award (ECF No.
50). For the reasons set forth below, the Court finds that
the Petitioners' motion to vacate is time-barred, and
that ACP's motion to confirm should be granted in part.
case arises as a result of a dispute related to the design
and construction of the third set of locks on the Pacific and
Atlantic sides of the Panama Canal. The Petitioner GUPC is
the contractor that designed and built the third set of
locks, and the Petitioner Sacyr is one of GUPC's
shareholders. The Respondent ACP is an entity established by
the Panamanian constitution to operate, manage, and preserve
the Panama Canal. The underlying dispute involved significant
time delays and cost overruns of almost $200 million on the
Pacific side of the project, related to the design and
construction of a cofferdam, which would allow a dry work
area, and a diversion of the nearby Cocoli River. According
to the Petitioners, the delay and increased costs occurred
due to unexpected site conditions because of extensive prior
dredging in the area, which ACP knew about, yet failed to
disclose. As set forth in the parties' agreement, the
dispute was arbitrated in Miami pursuant to the Rules of
Arbitration of the International Chamber of Commerce
(“ICC”). Ultimately, the arbitration resulted in
an award in favor of ACP, ordering the Petitioners (and
additional claimants not parties to the instant case) to
reimburse ACP for significant legal, administrative, and
other costs, for a total of over $22 million. The Petitioners
now request that the Court vacate the award pursuant to 9
U.S.C. section 10(a)(3), arguing that the arbitration
tribunal majority refused to consider relevant and necessary
evidence as a result of ACP's repeated failure to produce
pertinent documentation and witnesses. ACP argues that the
Petitioners' motion to vacate is barred because they
failed to timely serve notice as required by the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 12, and
the Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. § 1608. In addition, ACP requests that this Court
confirm the underlying arbitration award.
“well settled that judicial review of an arbitration
award is narrowly limited.” Davis v. Prudential
Sec., Inc., 59 F.3d 1186, 1190 (11th Cir. 1995). In
fact, such review is “among the narrowest known to the
law.” AIG Baker Sterling Heights, LLC v. Am.
Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007)
(citation and quotation marks omitted). As long as an
arbitrator is even arguably construing the issues before him
based on the parties' agreement, and acting within the
scope of his authority, “that a court is convinced he
committed serious error does not suffice to overturn his
position.” United Paperworkers Int'l Union v.
Misco, Inc., 484 U.S. 29, 38 (1987). In short, “it
is only when an arbitrator strays from interpretation and
application of the agreement and effectively dispenses his
own brand of industrial justice that his decision may be
unenforceable.” White Springs Agric. Chems., Inc.
v. Glawson Invs. Corp., 660 F.3d 1277, 1281 (11th Cir.
2011) (alterations omitted) (quoting Stolt-Nielsen S.A.
v. AnimalFeeds Int'l Corp., 559 U.S. 662, 671
(2010)). The Federal Arbitration Act “imposes a heavy
presumption in favor of confirming arbitration awards and
federal courts should defer to an arbitrator's decision
whenever possible.” Pochat v. Lynch, No.
12-22397-CIV, 2013 WL 4496548, at *5 (S.D. Fla. Aug. 22,
2013) (Rosenbuam, J.) (quoting Riccard v. Prudential Ins.
Co. of Am., 307 F.3d 1277, 1288 (11th Cir. 2002) and
Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313,
1321 (11th Cir. 2010)) (quotation marks omitted). Ultimately,
“a court's confirmation of an arbitration award is
usually routine or summary.” Riccard, 307 F.3d
outset, the Court notes that although the Federal Rules of
Civil Procedure apply to actions relating to arbitration, the
FAA does not provide a procedural mechanism for dismissal of
an action, such as Rule 12 of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 81(6)(B) (stating
that “[t]hese rules, to the extent applicable, govern
proceedings under [9 U.S.C., relating to arbitration], except
as these laws provide other procedures”). Rather, the
proper procedure for seeking review of an arbitration award
is to file a motion, to which the respondent would present
its defenses in a response. See O.R. Secs., Inc. v.
Prof'l Planning Assocs., Inc., 857 F.2d 742, 745-46
(11th Cir. 1988) (setting out the proper procedure for
seeking to vacate an arbitration award). Indeed, “[t]he
manner in which an action to vacate an arbitration award is
made is obviously important, for the nature of the proceeding
affects the burdens of the various parties as well as the
rule of decision to be applied by the district court.”
Id. at 745. In the instant case, ACP filed both a
motion to dismiss pursuant to Rule 12(b)(5) based upon the
failure to timely serve notice under the FAA, and a
substantive response to the Petitioners' motion to
vacate. In the context of this proceeding, however, ACP's
motion to dismiss is better construed as an additional
substantive argument in response to the Petitioners'
motion to vacate. See Id. at 746 (construing a Rule
12(b)(6) motion as a response to a motion to vacate); see
also Belz v. Morgan Stanley Smith Barney, LLC, No.
3:13-cv-636-J-34MCR, 2014 WL 897048, at *3 (M.D. Fla. Mar. 5,
2014) (same) (citing additional cases). The Court thus
considers the instant motions through this lens.
The motion to vacate is time-barred
parties agree that the motion to vacate is governed by the
FAA. According to the FAA, “[n]otice of a motion to
vacate, modify, or correct an award must be served upon the
adverse party or his attorney within three months after the
award is filed or delivered.” 9 U.S.C. § 12. The
parties also agree that ACP is an “instrumentality of a
foreign state” within the meaning of the FSIA. The
Federal Rules of Civil Procedure provide that “[a]
foreign state or its political subdivision, agency, or
instrumentality must be served in accordance with 28 U.S.C.
§ 1608.” Fed.R.Civ.P. 4(j)(1). ACP argues that the
Petitioners failed to serve notice of the petition in
accordance with 28 U.S.C. § 1608(b)(1). The Petitioners
contend that they delivered notice in compliance with the
“special arrangement for service” under the FSIA,
that there was substantial compliance because ACP had actual
notice of the petition, and that, in any event, they should
have an opportunity to cure, if the Court finds that service
was not sufficient. The Court considers each argument in
relevant portion of the FSIA states that “[s]ervice in
the courts of the United States and of the States shall be
made upon an agency or instrumentality of a foreign state by
delivery of a copy of the summons and complaint in accordance
with any special arrangement for service between the
plaintiff and the agency or instrumentality.” 28 U.S.C.
§ 1608(b)(1). The Respondents contend that no special
arrangement for service exists in this case, and that the
Petitioners' emailed petition to ACP's arbitration
counsel, electronic submission and delivery in hard copy to
ACP's arbitration counsel and ACP via courier does not
constitute valid service.
response, the Petitioners rely upon language from the
parties' Conditions of Contract (ECF No. 47-7) and the
Terms of Reference of the Arbitration (ECF No. 47-4) to
demonstrate the existence of a “special arrangement for
service” between them. According to the Terms of
All written notifications and communications arising in the
course of this arbitration shall be deemed to have been
validly made to each Party where they have been transmitted
to [ACP's arbitration counsel].
. . .
All written communications of less than twenty pages shall be
sent by email (eventually confirmed by fax or courier
service) and all written communications of twenty or more
pages, including formal submissions and all attachments,