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CISG CASE PRESENTATION

United States 26 May 2009 Federal Appellate Court [2nd Circuit] (Macromex S.r.l. v. Globex International Inc.)
[Cite as: http://cisgw3.law.pace.edu/cases/090526u1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20090526 (26 May 2009)

JURISDICTION: United States

TRIBUNAL: U.S. Court of Appeals (2nd Circuit) [federal appellate court]

JUDGE(S): John M. Walker, Jr., Sonya Sotomayor and Clifford Wallace

CASE NUMBER/DOCKET NUMBER: 08-2255-cv

CASE NAME: Macromex S.r.l. v. Globex International Inc.

CASE HISTORY: Arbitration instances: American Arbitration Association 23 October 2007 [Interim Award]; American Arbitration Association 12 December 2007 Final Award. Court instances: 1st court instance Federal District Court [New York] 16 April 2008 [affirmed arbitration award]

SELLER'S COUNTRY: United States (respondent)

BUYER'S COUNTRY: Romania (claimant)

GOODS INVOLVED: Frozen chicken parts


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 74 ; 79

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1450&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): Text presented below; see also 330 Fed Appx. 241; 2009 WL 1448999 (2nd Cir.(N.Y.)), 2009 U.S. App. LEXIS 11069

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text

United States Court of Appeals, Second Circuit
Macromex S.r.l. v. Globex International Inc.

No. 08-2255-cv

26 May 2009

[...]

Present: John M. Walker, Jr., Sonya Sotomayor and J. Clifford Wallace,[*] Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the United States District Court for the Southern District of New York is AFFIRMED.

Respondent-appellant Globex International Inc. ("Globex") appeals from an April 16, 2008 judgment of the United States District Court for the Southern District of New York (Scheindlin, J.) granting petitioner-appellee Macromex Srl's ("Macromex") petition for confirmation of an arbitral award and denying Globex's cross-petition to vacate that award. We assume the parties' familiarity with the underlying facts and procedural history of the case, as well as the issues presented on appeal.

We agree with the district court there was at least a "barely colorable justification" for the arbitrator's finding that Globex breached its contract with Macromex. See Wallace v. Buttar, 378 F.3d 182, 190 (2d Cir.2004) ("[An arbitration] award should be enforced ... if there is a barely colorable justification for the outcome reached." (internal quotation marks omitted)). As the district court concluded, it is possible to read U.C.C. 2-614(1)'s reference to "facilities" to include a facility that becomes unavailable as a result of an importation ban imposed by that facility's country. Thus, read this way, 2-614(1) could impose a duty to tender commercially reasonable substitute performance once the Romanian importation ban made delivery in Romania impossible. Further, Globex cites no authority or convincing analysis in support of its contention that, pursuant to the Official Comment, the Romanian importation ban went "to the very heart of the agreement," and therefore 2-614(1) did not apply to the contract. See Stolt-Nielsen SA v. AnimalFeeds Int'l Corp., 548 F.3d 85, 92 (2d Cir.2008) ("In the context of contract interpretation, we are required to confirm arbitration awards [even if we have] serious reservations about the soundness of the arbitrator's reading of the contract." (internal quotation marks and brackets omitted)).

With respect to damages, Globex argues that a proper reading of CISG Article 74 imposes liability for damages suffered as a consequence of the particularly identified breach, "with foreseeable damages ... simply as a cap on actual damages." See CISG Art. 74 ("Damages for breach of contract by one party consist of [the damages] ... suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw ... at the time of the conclusion of the contract."). Even if this argument were correct, and the arbitrator interpreted Article 74 erroneously by awarding the foreseeable damages in full, our precedent is clear that an arbitrator does not manifestly disregard the law in such circumstances. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933 (2d Cir.1986) ("Manifest disregard of the law ... clearly means more than error or misunderstanding with respect to the law." (internal quotation marks omitted)); Wallace, 378 F.3d at 190 ("Our cases demonstrate that we have used the manifest disregard of law doctrine to vacate arbitral awards only in the most egregious instances of misapplication of legal principles.").

We have considered Globex's remaining arguments and hold them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.


FOOTNOTE

* The Honorable J. Clifford Wallace, United States Court of Appeals for the Ninth Circuit, sitting by designation.

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Pace Law School Institute of International Commercial Law - Last updated November 10, 2009
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