     07-4974-cv(L); 08-6184-cv(CON); 08-6188-cv(CON)
     Telenor Mobile Communications AS v. Storm LLC

1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2008

4    (Argued:    February 4, 2009                      Decided: October 8, 2009)

5                           Docket Nos. 07-4974-cv(L);
6                       08-6184-cv(CON); 08-6188-cv(CON)

7                    -------------------------------------

8                       TELENOR MOBILE COMMUNICATIONS AS,

9                               Petitioner-Appellee,

10                                      - v. -

11                                    STORM LLC,

12                             Respondent-Appellant,

13                  ALTIMO HOLDINGS & INVESTMENTS LIMITED,
14                     ALPREN LIMITED, HARDLAKE LIMITED,

15                      Additional Contemnors-Appellants.

16                   -------------------------------------

17   Before:     SACK and PARKER, Circuit Judges, and STANCEU, Judge.*

18               Consolidated appeals from a judgment and post-judgment

19   orders of the United States District Court for the Southern

20   District of New York.      In the judgment, the district court

21   (Gerard E. Lynch, Judge) confirmed a final arbitral award in

22   favor of the petitioner and denied the respondent's cross-motion

23   to vacate.    We agree with the district court that the arbitration

24   panel did not "manifestly disregard" the law either by failing to



           *
             The Honorable Timothy C. Stanceu, of the United States
     Court of International Trade, sitting by designation.
1    give preclusive effect to Ukrainian court judgments that the

2    parties' dispute was not arbitrable because the respondent's

3    agent lacked authority to execute the agreement giving rise to

4    the dispute, or by failing to require a trial to determine the

5    agreement's arbitrability pursuant to Sphere Drake Ins. Ltd. v.

6    Clarendon Nat'l Ins. Co., 263 F.3d 26 (2d Cir. 2001).   We also

7    agree with the district court that the agreement was arbitrable

8    as a matter of law because the respondent's agent had the

9    apparent authority to execute it.

10             Affirmed.

11                            ROBERT L. SILLS, Orrick, Herrington &
12                            Sutcliffe LLP (Jay K. Musoff, of
13                            counsel), New York, NY, for Petitioner-
14                            Appellee.

15                            PIETER VAN TOL, Lovells LLP (Gonzalo S.
16                            Zeballos, of counsel), New York, NY, for
17                            Respondent-Appellant.

18                            RONALD S. ROLFE, Cravath, Swaine & Moore
19                            LLP, New York, NY, for Additional
20                            Contemnors-Appellants.

21   SACK, Circuit Judge:

22             Telenor Mobile Communications AS ("Telenor"), a

23   Norwegian company, and Storm LLC ("Storm"), a Ukrainian company,

24   own Kyivstar G.S.M. ("Kyivstar"), a Ukrainian mobile

25   telecommunications company.   A shareholders agreement among the

26   three companies dated January 30, 2004 (the "2004 Agreement")

27   sets forth the terms of such ownership and provides that any

28   disputes that arise in connection with the agreement will be




                                      2
1    submitted to arbitration.   The present consolidated appeals1

2    result from an arbitration, commenced by Telenor, seeking relief

3    for Storm's alleged breach of the 2004 Agreement.

4              This opinion addresses appeal No. 07-4974-cv, in which

5    Storm challenges a judgment of the United States District Court

6    for the Southern District of New York.2   The district court

7    (Gerard E. Lynch, Judge) granted Telenor's petition to confirm

8    the arbitral award in its favor and denied Storm's cross-motion

9    for vacatur.

10             On appeal, Storm argues that the arbitration panel

11   "manifestly disregarded" the law in two respects.   First, Storm

12   contends it was reversible error for the panel to fail to give

13   preclusive effect to Ukrainian court judgments concluding that

14   the 2004 Agreement was not arbitrable because, according to the

15   Ukrainian courts, the agent who signed the agreement on behalf of

16   Storm was not authorized to do so.   In the alternative, Storm

17   contends, the panel manifestly disregarded our decision in Sphere

18   Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co., 263 F.3d 26 (2d Cir.

19   2001), by failing to require a trial on the arbitrability issue

20   in the district court.   We conclude that the panel had colorable


          1
           On October 5, 2009, the parties sought by stipulation to
     "withdraw [this appeal] from active consideration." We decline
     to do so. Cf. Khouzam v. Ashcroft, 361 F.3d 161, 167 (2d Cir.
     2004) ("Action by the court is not a subject that the parties may
     negotiate among themselves, and a judicial act, such as a
     dismissal of a petition, is normally taken only when the
     appellate court determines that such action is warranted on the
     merits.")
          2
             We address appeals from post-judgment orders of the
     district court in an accompanying summary order.
                                     3
1    reasons for rejecting both arguments and it therefore did not

2    manifestly disregard the law in either respect.     Storm also

3    contends, on the merits, that the 2004 Agreement is not

4    arbitrable.    We conclude, as did the arbitration panel and the

5    district court, that Storm's agent had at least the apparent

6    authority to execute the 2004 Agreement on behalf of Storm, and,

7    therefore, that the agreement is arbitrable.

8                The judgment of the district court is therefore

9    affirmed.

10                                BACKGROUND

11               Events Prior to 2004

12               In 2002, a shareholders agreement dated March 26, 1998,

13   (the "1998 Agreement") set forth the terms of the ownership of

14   Kyivstar's shares.    The 1998 Agreement contemplated the existence

15   of five stakeholders, including Telenor and Storm.     At some point

16   in early 2002, however, Telenor and Storm agreed to attempt to

17   buy out the other three stakeholders.     By August of that year,

18   they had nearly succeeded: only Omega JSC ("Omega") remained.       In

19   light of Kyivstar's newly altered ownership structure and in

20   anticipation of Omega's eventual capitulation, Storm and Telenor

21   negotiated an interim voting agreement between themselves (the

22   "Voting Agreement"), which supplemented and altered their rights

23   and obligations as to each other under the 1998 Agreement.

24               The Voting Agreement was executed on September 2, 2002.

25   Valeriy Nilov, Storm's "General Director," signed for Storm.

26   Three days earlier, Storm had sent Telenor a copy of a unanimous

                                        4
1    resolution by Storm shareholders authorizing Nilov to do so.     See

2    Storm LLC, Notice Regarding Resolutions Adopted by Written

3    Polling, Aug. 30, 2002, at 2-3 ("Authorization of the General

4    Director of . . . 'Storm', Nilov Valeriy Vladimirovich, to

5    execute and deliver [inter alia, the Voting Agreement]

6    and . . . take or cause to be taken any and all other actions, as

7    are required or desirable in connection with this Resolution and

8    the above-referenced agreements.").

9              The Voting Agreement contained a promise by each of the

10   parties to execute a new shareholders agreement once Storm bought

11   Omega's shares or the 1998 Agreement was terminated, whichever

12   occurred first.   See Voting Agreement § 2.05 (providing that,

13   within three days after the earlier of either condition, "the

14   Shareholders [viz., Telenor and Storm] agree to, and to cause

15   [Kyivstar] to, execute and deliver the New Shareholders

16   Agreement").   A form for the contemplated new shareholders

17   agreement was attached to the Voting Agreement as an exhibit.     It

18   was in all substantive respects but one -- a provision setting

19   forth the terms of material breach, which was later amended at

20   Storm's request identical to what would be the 2004 Agreement.

21             On October 29, 2002, Storm sent Telenor a document,

22   signed by Nilov, entitled "Certificate of Senior Officer of

23   Purchaser."    The Certificate included, among other things, a copy

24   of the Storm shareholders resolution authorizing Nilov to execute

25   the Voting Agreement, and minutes of a meeting occurring on

26   October 7, 2002, which confirmed the resolutions adopted by

                                       5
1    written polling on August 30, 2002.   The Certificate provided

2    that those documents "constitute[] valid approval under the laws

3    of Ukraine of [Storm's] execution, delivery and performance of

4    [inter alia, the Voting Agreement] and any other documents in

5    implementation of [inter alia, the Voting Agreement]."

6              The 2004 Agreement

7              In January 2004, Storm purchased the outstanding

8    Kyivstar shares from Omega.    After negotiations between Storm and

9    Telenor about possible alteration of the material breach

10   provision of the contemplated new shareholders agreement, a

11   negotiator for Storm wrote to Telenor by email on January 29,

12   saying: "Storm reviewed the language of the New Shareholders

13   Agreement that you distributed yesterday and agreed to it.     We

14   are ready to sign it tomorrow."

15             The following day, Nilov and representatives from

16   Telenor and Kyivstar signed the 2004 Agreement.   Storm sent

17   Telenor two documents, each entitled "Certificate of Incumbency

18   and Authority of Storm," which were signed by the chairman of

19   Storm and another Storm official, respectively.   The documents

20   each certified that Nilov was "duly authorized to sign, on behalf

21   of Storm[,] . . . the Shareholders Agreement dated January 30,

22   2004 between and among Telenor, Storm, Omega and Kyivstar."

23   Unlike the 2002 "Certificate of Senior Officer of Purchaser,"

24   however, the "Certificate[s] of Incumbency and Authority of

25   Storm" did not attach or incorporate by reference copies of

26   documentation of the shareholder authorization.

                                       6
1                The 2004 Agreement contains an arbitration provision

2    stating that "[a]ny and all disputes and controversies arising

3    under, relating to or in connection with this Agreement shall be

4    settled by arbitration by a panel of three (3) arbitrators under

5    the United Nations Commission on International Trade Law

6    (UNCITRAL) Arbitration Rules then in force."    2004 Agreement §

7    12.01(a).    It precludes any other sort of action "in connection

8    with any matter arising out of or in connection with this

9    Agreement," except for actions in connection with arbitration.

10   Id. § 12.01(b).

11               The Arbitration and the Ukrainian Proceedings

12               Pursuant to the 2004 Agreement's arbitration provision,

13   Telenor instituted an arbitration against Storm on February 7,

14   2006, alleging that Storm had breached the 2004 Agreement by (1)

15   violating its obligation thereunder not to frustrate Kyivstar

16   board activities through Storm's absence; (2) violating a

17   noncompete provision therein by "acquiring an equity interest in

18   at least one other company engaged in the mobile

19   telecommunications business in Ukraine"; and (3) violating the

20   arbitration provision therein by "prosecut[ing] a series of court

21   actions throughout Ukraine, attacking provisions of the

22   Shareholders Agreement and Kyivstar's charter."    Telenor sought,

23   among other relief, a declaration that Storm had breached the

24   2004 Agreement, an injunction requiring Storm to participate in

25   the governance and management of Kyivstar, an anti-suit

26   injunction, and damages.

                                       7
1                On April 14, 2006 -- the day of the first conference of

2    the arbitration panel -- Alpren Limited ("Alpren"), a Cyprus-

3    based subsidiary of Altimo Holdings & Investment Limited

4    ("Altimo"), brought suit in a Ukrainian court against Storm.

5    Alpren and Altimo are the owners of Storm, and Alpren, Altimo,

6    and Storm all belong to the same Russian corporate group, the

7    Alfa Group Consortium.    Alpren applied to the Ukrainian court for

8    a declaration that the 2004 Agreement was invalid because Nilov

9    lacked the authority to execute it on Storm's behalf.

10   Apparently, neither Telenor nor the arbitration panel were

11   notified of the Alpren lawsuit.

12               Storm retained no counsel and submitted no written

13   defense to the Alpren suit.    Instead, Vadim Klymenko, an Altimo

14   officer responsible for that company's "litigation" and

15   "arbitration" but who is not an attorney-at-law, appeared for

16   Storm and registered an oral opposition on the ground that the

17   arbitration panel had jurisdiction over Alpren's claim.    The

18   proceeding lasted approximately 20 minutes.

19               On April 25, 2006, the Ukrainian court concluded that

20   Nilov lacked the authority to execute the 2004 Agreement on

21   behalf of Storm.    The court's decision "rendered" that agreement

22   "null and void in full, including the arbitration clause, from

23   the time of [Nilov's] execution [of the document]."    Storm

24   appealed.    On May 25, 2006, the Ukrainian appeals court affirmed.




                                       8
1              Five days later, Storm filed a statement of defense in

2    the arbitration panel arguing, among other things, that Telenor's

3    claims were not arbitrable in light of the Ukrainian judgment.

4    Storm also moved before the panel to dismiss the arbitration.    On

5    October 22, 2006, the panel issued a partial final award and

6    denied the motion.    The panel concluded that it had jurisdiction

7    to determine the 2004 Agreement's arbitrability.    It also

8    concluded that the dispute was arbitrable, notwithstanding the

9    Ukrainian decision in the Alpren suit, because it found that

10   Storm and Telenor "had a clear intent to have their disputes

11   resolved through arbitration," and that the arbitration provision

12   of the 2004 Agreement was severable and thus not subject to the

13   Ukrainian judgment.   Partial Final Award 11-13.   The panel noted

14   that the Ukranian court did not address the severability

15   question, because Alpren and Storm did not present the question

16   to the court and because Telenor was never even notified of the

17   proceeding.   Id. at 14.

18             Shortly thereafter, Storm asked the Ukrainian court of

19   appeals to clarify whether, in the court's opinion, the

20   arbitration provision of the 2004 Agreement and the agreement as

21   a whole were invalid in light of the potential severability of

22   the arbitration clause.    On November 8, 2006, the court

23   concluded, by now unsurprisingly, that the arbitration agreement

24   was invalid and that any arbitration pursuant to it was in

25   violation of the court's prior order.



                                       9
1               On November 13, 2006, Storm applied in New York State

2    Supreme Court for an injunction terminating the arbitration

3    proceedings and vacating the partial final award in light of the

4    Ukrainian decisions.    Telenor removed the New York lawsuit to the

5    United States District Court for the Southern District of New

6    York.   Storm then made a motion in that forum seeking a

7    preliminary injunction.    The district court denied the motion on

8    the grounds that the panel's order was interlocutory and

9    therefore not ordinarily subject to appeal, and that Storm was

10   unlikely to prevail on the merits.

11              A Ukrainian court then, upon Alpren's application,

12   enjoined Telenor, Storm, and Klymenko from participating in the

13   arbitration.   Telenor received no notice of the injunction and

14   was not a party to this new Alpren lawsuit.    Storm twice applied

15   to the arbitration panel to stop the arbitration pursuant to the

16   Ukrainian injunction, but the panel denied each application.

17              In an attempt to put a stop to the Ukrainian

18   litigation, Telenor applied in these federal district court

19   proceedings for an anti-suit injunction against Storm and its

20   related entities.    The district court issued such a temporary

21   restraining order.

22              Following an evidentiary hearing, the district court

23   issued an anti-suit injunction, writing that "there is no doubt

24   that [the Ukrainian] litigation has been designed to, and has had

25   the effect of, interfering in the arbitration process" -- indeed,

26   that it was "conducted in the most vexatious way possible" -- and

                                      10
1    that the court substantially agreed that "Nilov . . . had at

2    least apparent authority to sign the [2004 Agreement]" under

3    either New York or federal law.    Storm LLC v. Telenor Mobile

4    Commc'ns AS, No. 06 Civ. 13157(GEL), 2006 WL 3735657, at *8-*9,

5    2006 U.S. Dist. LEXIS 90978, at *23-*26 (S.D.N.Y. Dec. 18, 2006).

6               With the injunction in place, the arbitration hearings

7    continued.   Storm refused to participate.

8               On July 2, 2007, the arbitration panel issued a final

9    award, which reaffirmed the partial final award's findings in

10   light of subsequent events.   See Final Award 33-36.   The panel

11   held, as relevant to this appeal, that Nilov had both actual and

12   apparent authority under New York law to execute the 2004

13   Agreement on Storm's behalf, see id. at 36, 43-53, and that Storm

14   was in breach of the agreement in several respects, see id. at

15   55.   Telenor was granted injunctive relief but no damages.   See

16   id. at 65-68.

17              The Confirmation of the Award

18              Telenor petitioned the district court for a

19   confirmation of the final arbitral award.    Storm cross-moved for

20   vacatur.   With a lengthy opinion that appears to reflect

21   decreasing patience with Storm's tactics, Telenor Mobile Commc'ns

22   AS v. Storm LLC, 524 F. Supp. 2d 332 (S.D.N.Y. 2007), the court

23   granted Telenor's application and denied Storm's.    The court

24   rejected Storm's contentions that the panel had manifestly

25   disregarded the law by failing to give determinative effect to

26   the Ukrainian judgments that the 2004 Agreement was never

                                       11
1    executed by Storm and thus not arbitrable.    After conducting its

2    own independent assessment of arbitrability, the district court

3    concluded that Storm had proffered insufficient evidence to

4    warrant a trial on the issue.   The court wrote:

 5             Storm provided every conceivable assurance to
 6             Telenor that its signatory officers were
 7             empowered to bind it to [the 2004 Agreement].
 8             When Storm breached the agreement, it was
 9             provided with precisely the fair and
10             impartial hearing it had bargained for . . .
11             despite making repeated efforts to renege on
12             its agreement and to torpedo the proceeding
13             by collusive and vexatious litigation.

14   Id. at 369.

15             Storm appeals.

16                              DISCUSSION

17             I. Governing Legal Standards

18   A. Review of Arbitral Awards Under the New York Convention

19             Federal jurisdiction over the final arbitral award in

20   favor of Telenor arises from Chapter 2 of the Federal Arbitration

21   Act ("FAA"), 9 U.S.C. §§ 201-08, which empowers the federal

22   courts to enforce arbitrations, such as this one, governed by the

23   New York Convention on the Recognition and Enforcement of Foreign

24   Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38

25   (the "New York Convention" or the "Convention").   See 9 U.S.C.

26   § 201 ("The Convention . . . shall be enforced in United States

27   courts in accordance with this chapter."); id. § 203 ("An action

28   or proceeding under the Convention shall be deemed to arise under

29   the laws and treaties of the United States.   The district courts

30   of the United States . . . shall have original jurisdiction over

                                     12
1    such an action or proceeding . . . ."); Vaden v. Discover Bank,

2    129 S. Ct. 1262, 1271 n.9 (2009).3

3              "Given the strong public policy in favor of

4    international arbitration, review of arbitral awards under the

5    New York Convention is very limited in order to avoid undermining

6    the twin goals of arbitration, namely, settling disputes

7    efficiently and avoiding long and expensive litigation."

8    Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc.,

9    403 F.3d 85, 90 (2d Cir. 2005) (citation, internal quotation

10   marks, and ellipsis omitted).   Storm's arguments on appeal

11   implicate three types of such limited review.

12             1. Defenses to Enforcement of the Arbitral Award.

13   Pursuant to the New York Convention as incorporated by the FAA, a

14   district court, upon petition by a party to a qualifying arbitral

15   award, "shall confirm the award unless it finds one of the

16   grounds for refusal or deferral of recognition or enforcement of

17   the award specified in the . . . Convention."   9 U.S.C. § 207.

18   The Convention sets forth seven grounds for denial of

19   confirmation, including, of relevance to this appeal, if



          3
             The parties assume that the New York Convention governs
     this commercial dispute, and, because the dispute is between two
     foreign corporations, we conclude that that assumption is
     correct. See Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys "R" Us,
     Inc., 126 F.3d 15, 19 (2d Cir. 1997) (holding that New York
     Convention governed dispute involving conduct occurring in the
     Middle East between nondomestic parties and a domestic
     corporation, because Convention encompasses awards "pronounced in
     accordance with foreign law or involving parties domiciled or
     having their principal place of business outside the enforcing
     jurisdiction" (quoting Bergesen v. Joseph Muller Corp., 710 F.2d
     928, 932 (2d Cir. 1983)), cert. denied, 522 U.S. 1111 (1998).
                                     13
1   "recognition or enforcement of the award would be contrary to the

2   public policy of [the] country [in which that relief is sought],"

3   New York Convention, art. V(2)(b).4


         4
             The grounds are:

               (a) The parties to the agreement [to
               arbitrate] were, under the law applicable to
               them, under some incapacity, or the said
               agreement is not valid under the law to which
               the parties have subjected it or, failing any
               indication thereon, under the law of the
               country were the award was made; or

               (b) The party against whom the award is
               invoked was not given proper notice of the
               appointment of the arbitrator or of the
               arbitration proceedings or was otherwise
               unable to present his case; or

               (c) The award deals with a difference not
               contemplated by or not falling within the
               terms of the submission to arbitration, or it
               contains decisions on matters beyond the
               scope of the submission to arbitration,
               provided that, if the decisions on matters
               submitted to arbitration can be separated
               from those not so submitted, that part of the
               award which contains decisions on matters
               submitted to arbitration may be recognized
               and enforced; or

               (d) The composition of the arbitral authority
               or the arbitral procedure was not in
               accordance with the agreement of the parties,
               or, failing such agreement, was not in
               accordance with the law of the country where
               the arbitration took place; or

               (e) The award has not yet become binding on
               the parties, or has been set aside by a
               competent authority of the country in which,
               or under the law of which, that award was
               made.

    New York Convention art. V(1).   And:

               (a) The subject matter of the difference is
               not capable of settlement by arbitration
                                     14
1              "The party opposing enforcement of an arbitral award

2    has the burden to prove that one of the seven defenses under the

3    New York Convention applies."    Encyclopaedia Universalis, 403

4    F.3d at 90.    "The burden is a heavy one, as the showing required

5    to avoid summary confirmance is high."    Id. (citations, ellipsis,

6    and internal quotation marks omitted); see also Zeiler v.

7    Deitsch, 500 F.3d 157, 164 (2d Cir. 2007) (same).

8              2. Arbitrability.    A dispute is arbitrable only if the

9    parties contractually bind themselves to arbitrate it.    See,

10   e.g., AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643,

11   648 (1986) (noting that "arbitration is a matter of contract");

12   see also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,

13   943 (1995) ("[T]he arbitrability of the merits of a dispute

14   depends upon whether the parties agreed to arbitrate that

15   dispute.").    A question of arbitrability is therefore raised

16   when, as here, someone asserts that an arbitral award should not

17   be enforced because there was no effective agreement to arbitrate

18   the dispute.

19             Review of arbitrability questions is subject to two

20   important presumptions:   First, "the federal policy in favor of

21   arbitration requires that 'any doubts concerning the scope of


               under the law of that country [i.e., the
               country where recognition and enforcement is
               sought]; or

               (b) The recognition or enforcement of the
               award would be contrary to the public policy
               of that country.

     Id. art. V(2).
                                      15
1    arbitrable issues' be resolved in favor of arbitration.'"   Shaw

2    Group Inc. v. Triplefine Int'l Corp., 322 F.3d 115, 120 (2d Cir.

3    2003) (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,

4    460 U.S. 1, 24-25 (1983)).   Second, arbitrability questions are

5    presumptively to be decided by the courts, not the arbitrators

6    themselves.   See id. ("[W]hen the doubt concerns who should

7    decide arbitrability . . . [t]he law [presumptively] favor[s]

8    judicial rather than arbitral resolution."); see also First

9    Options, 514 U.S. at 944-45.   We have written that the latter

10   presumption can be rebutted only by "clear and unmistakable

11   evidence from the arbitration agreement, as construed by the

12   relevant state law, that the parties intended that the question

13   of arbitrability shall be decided by the arbitrator."   Bell v.

14   Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002) (internal

15   quotation marks and emphasis omitted); see also Shaw Group, 322

16   F.3d at 120-21.5


          5
             In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440
     (2006), the Supreme Court made clear that in light of the
     severability of agreements to arbitrate generally, see id. at
     445, the presumption of judicial resolution of arbitrability
     applies only when a party has specifically challenged the
     arbitration agreement -- "unless the challenge is to the
     arbitration clause itself, the issue of the contract's validity
     is considered by the arbitrator in the first instance," id. at
     445-46. But Buckeye expressly limited its holding to challenges
     to a "contract's validity," as distinguished "from the issue
     whether any agreement between the alleged obligor and obligee was
     ever concluded," including, as relevant to this appeal, "whether
     the signor lacked authority to commit the alleged principal."
     Id. at 444 n.1.
          We have not modified our previous ruling that such questions
     about whether a contract was ever made -- like the question
     before us in the instant case -- are presumptively to be decided
     by the court even without a specific challenge to the agreement
                                     16
1               The presumption that the court should decide

2    arbitrability questions also applies when a party seeks to compel

3    arbitration under the New York Convention.    See New York

4    Convention, art. II(3) (providing that the court "shall, at the

5    request of one of the parties, refer the parties to arbitration,

6    unless it finds that the . . . agreement is null and void,

7    inoperative or incapable of being performed").    We addressed such

8    a motion to compel in Sphere Drake Ins. Ltd. v. Clarendon Nat'l

9    Ins. Co., 263 F.3d 26 (2d Cir. 2001), writing that when "the

10   making of the agreement to arbitrate is placed in issue . . . the

11   court must set the issue for trial," so long as "the party

12   putting the agreement to arbitrate in issue . . . present[s]

13   'some evidence' in support of its claim."    Id. at 30 (quoting

14   Interocean Shipping Co. v. Nat'l Shipping & Trading Corp., 462

15   F.2d 673, 676 (2d Cir. 1972)).   Depending on the type of claimed

16   inarbitrability, we noted that the party might also be required

17   to make a specific challenge to the arbitration clause.      See id.


     to arbitrate. See Sphere Drake Ins. Ltd. v. Clarendon Nat'l Ins.
     Co., 263 F.3d 26, 31-32 (2d Cir. 2001) (holding that if a party
     alleges that an agreement is "void" -- as distinct from
     "voidable" -- the agreement's validity is subject to judicial
     resolution by "trial" without the party's having to challenge the
     arbitration clause in particular, so long as the party alleges
     "that [the] contract is void and provides some evidence in
     support"). Because we conclude below that even if Storm
     challenged the arbitration clause of the 2004 Agreement in
     particular, it has still failed to provide sufficient evidence
     that this dispute was not arbitrable, we need not decide whether
     this aspect of Sphere Drake survives Buckeye. Cf. Rubin v. Sona
     Int'l Corp., 457 F. Supp. 2d 191, 193 (S.D.N.Y. 2006) (concluding
     that, in light of Buckeye, "[whether a party] argues that [an]
     agreement is void or voidable, [the party] may only avoid
     arbitration if it can successfully challenge the validity of the
     arbitration clause itself").
                                     17
1    at 31-32 (noting that in setting an arbitrability issue for

2    trial, a party alleging that a contract is void need not

3    challenge the arbitration clause, but a party alleging that a

4    contract is voidable must challenge the arbitration clause in

5    particular); see also supra n.[4].

6              3. Manifest Disregard.   Federal courts with

7    jurisdiction to enforce an arbitral award may also consider

8    whether the award was in "manifest disregard" of the law.   See

9    Stolt-Nielsen SA v. Animalfeeds Int'l Corp., 548 F.3d 85, 91-92,

10   94-95 (2d Cir. 2008).6   The boundaries of the manifest disregard



          6
            In Hall St. Assocs., L.L.C. v. Mattel, Inc., 128 S. Ct.
     1396 (2008), the Supreme Court observed that the "manifest
     disregard" doctrine might be a ground for review independent of
     the FAA, or might instead be a name for some, or all, of the
     grounds for vacatur of arbitral awards set forth in Section 10(a)
     of the FAA, 9 U.S.C. § 10(a), including circumstances "where the
     arbitrators were guilty of misconduct," id. § 10(a)(3), or
     "exceeded their powers, or so imperfectly executed them that a
     mutual, final, and definite award upon the subject matter
     submitted was not made," id. § 10(a)(4). See Hall St. at 1403-04
     ("Maybe the term 'manifest disregard' was meant to name a new
     ground for review, but maybe it merely referred to the § 10
     grounds collectively, rather than adding to them."). In Stolt-
     Nielsen, we read Hall St. to hold that the FAA set forth the
     "exclusive" grounds for vacating an arbitration award, and that
     the term "manifest disregard" was merely a "judicial gloss" on
     some of those grounds. Stolt-Nielsen, 548 F.3d at 94.
          The Supreme Court has granted certiorari to review Stolt-
     Nielsen explicitly on another issue, see 129 S. Ct. 2793 (2009),
     but even if it confirms or rejects our interpretation of the term
     "manifest disregard," that will not affect this appeal. If the
     Stolt-Nielsen interpretation is correct, we may review this
     arbitral award for manifest disregard because the arbitration
     took place in the United States and therefore is "subject to the
     FAA provisions," like Section 10(a), "governing domestic
     arbitration awards." See Zeiler, 500 F.3d at 164; see also 9
     U.S.C. § 208. If our interpretation was incorrect, this opinion
     will be applying a judicially created "non-statutory defense to
     enforcement." Telenor Mobile Commc'ns AS v. Storm LLC, 524 F.
     Supp. 2d 332, 344 (S.D.N.Y. 2007).
                                     18
1    concept are not precisely defined, but the term "clearly means

2    more than error or misunderstanding with respect to the law."

3    Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d

4    930, 933 (2d Cir. 1986).   A mere demonstration that an

5    arbitration panel made "the wrong call on the law" does not show

6    manifest disregard; "the award should be enforced . . . if there

7    is a barely colorable justification for the outcome reached."

8    Wallace v. Buttar, 378 F.3d 182, 190 (2d Cir. 2004) (emphasis in

9    original) (internal quotation marks omitted).   Examples of

10   manifest disregard therefore tend to be extreme, such as

11   "explicitly reject[ing] controlling precedent" or otherwise

12   reaching a decision that "strains credulity" or lacks even a

13   "barely colorable" justification.    Stolt-Nielsen, 548 F.3d at 92-

14   93 (internal quotation marks omitted).   It is, in a word, "rare"

15   to obtain relief from an arbitral award under this doctrine.    Id.

16   at 91 & n.7 (internal quotation marks omitted).

17             The "manifest disregard" inquiry has three steps:

18             First, we must consider whether the law that
19             was allegedly ignored was clear, and in fact
20             explicitly applicable to the matter before
21             the arbitrators. . . .

22             Second, once it is determined that the law is
23             clear and plainly applicable, we must find
24             that the law was in fact improperly applied,
25             leading to an erroneous outcome. . . .
26
27             Third, once the first two inquiries are
28             satisfied, we look to the subjective element,
29             that is, the knowledge actually possessed by
30             the arbitrators. In order to intentionally
31             disregard the law, the arbitrator must have
32             known of its existence, and its applicability
33             to the problem before him.

                                     19
1    Id. at 93 (quoting Duferco Int'l Steel Trading v. T. Klaveness

2    Shipping A/S, 333 F.3d 383, 389-90 (2d Cir. 2003)).

3    B. Standard of Review

4              As a general matter, "[w]e review a district court's

5    decision to confirm an arbitration award de novo to the extent it

6    turns on legal questions, and we review any findings of fact for

7    clear error."   Duferco, 333 F.3d at 388.   Accordingly, here we

8    review de novo the question whether the arbitration panel erred

9    in a respect explicitly set forth by the FAA as a ground for

10   vacatur of an arbitral award.   See, e.g., Westerbeke Corp. v.

11   Daihatsu Motor Co., 304 F.3d 200, 219-23 (2d Cir. 2002).

12             Similarly, "'[w]hen a party challenges the district

13   court's review of an arbitral award under the manifest disregard

14   standard, we review the district court's application of the

15   standard de novo.'"   Wallace, 378 F.3d at 189 (quoting The GMS

16   Group, LLC v. Benderson, 326 F.3d 75, 77 (2d Cir. 2003)).

17             II. Analysis

18   A. The Ukrainian Judgments

19             Storm argues that the arbitration panel manifestly

20   disregarded the law governing the preclusive effect of foreign

21   judgments when it failed to give such effect to the Ukrainian

22   court judgments holding that the 2004 Agreement was never

23   executed by Storm and is therefore not arbitrable.    Storm also

24   argues that its compliance with the arbitral award as enforced by

25   the district court would entail actions that would place it in



                                     20
1    contempt of the Ukrainian courts, contrary to New York public policy.

2               1. Manifest Disregard.   In Ackermann v. Levine, 788

3    F.2d 830 (2d Cir. 1986), we reiterated the "well-settled rule"

4    that

 5              a final judgment obtained through sound
 6              procedures in a foreign country is generally
 7              conclusive as to its merits unless (1) the
 8              foreign court lacked jurisdiction . . . ; (2)
 9              the judgment was fraudulently obtained; or
10              (3) enforcement of the judgment would offend
11              the public policy of the state in which
12              enforcement is sought.

13   Id. at 837 (emphasis in original).    Storm contends that the

14   arbitration panel manifestly disregarded this rule by failing to

15   give conclusive weight to the Ukrainian judgments that the 2004

16   Agreement is not arbitrable.7

17              The district court disagreed.   It concluded that the

18   judgments obtained by Alpren against Storm had contravened the

19   rule against "friendly litigation," see Lord v. Veazie, 49 U.S.

20   (8 How.) 251, 256 (1850) (concluding that such litigation results

21   in a judgment which "is a mere form" and is therefore "a

22   nullity").   The district court remarked that it and the

23   arbitration panel had both previously found the Alpren litigation

24   to have been collusive.   Telenor, 524 F. Supp. 2d at 346-47.     The

25   district court also concluded that the Ukrainian proceedings had

26   afforded Telenor no notice or opportunity to be heard prior to

27   the entry of the judgment, and that they were intended to



            7
             The first and third steps of the manifest disregard
     inquiry -- that the Ackermann rule was clear, plainly applicable,
     and made known to the arbitration panel -- are undisputed.
                                     21
1    undermine a possible confirmation of an award in Telenor's favor.

2    Id. at 347.    In light of those conclusions, the court found that

3    the Ukrainian procedures were not "sound" for Ackermann purposes

4    and therefore not binding on the arbitration panel.    Id. at 348.

5              Storm argues that the arbitration panel did not

6    actually find that the Ukrainian actions by Alpren were

7    collusive.    To be sure, the panel did not employ the word

8    "collusive" in its partial or final award.    But the panel does

9    mention, repeatedly, that the Alpren litigation was conducted

10   among related corporate entities, see, e.g., Final Award 21 ("As

11   previously noted, Alpren and Storm were under the direct or

12   indirect control of Altimo, and the ultimate control of Alfa."),

13   without notice to or appearance by Telenor, see, e.g., id. at 17

14   ("Telenor . . . had no notice of the Ukrainian proceedings until

15   after the order of the Ukrainian appellate court . . . ."); id.

16   ("[T]he April-May 2006 Ukrainian court proceedings came as a

17   surprise to both the Tribunal and to Telenor . . . .").    The

18   panel's repeated observations along these lines make clear that

19   the panel considered the Ukrainian proceedings to have been

20   collusive, even though the panel understandably elected to avoid

21   using that term in relation to proceedings before a duly

22   constituted foreign court.    See id. at 25 (noting that the panel

23   had previously "made clear" that it was not "ignoring the

24   decisions of the Ukrainian courts . . . [or] impugning the

25   integrity of those courts or their decisions").



                                      22
1               Politic or not, in light of the "strong presumption

2    that an arbitration tribunal has not manifest[ly] disregarded the

3    law," Westerbeke, 304 F.3d at 212 n.8, the panel's multiple

4    references to the Alfa-internal and ex parte nature of the Alpren

5    litigation supply a sufficiently "colorable" justification for

6    its refusal to give the Ukrainian judgments controlling weight.

7    Cf. Motorola Credit Corp. v. Uzan, 388 F.3d 39, 60-61 (2d Cir.

8    2004) (affirming denial of comity to injunctions entered by

9    Turkish courts that "were the product of collusion").

10              Storm does not seriously dispute that the Alpren

11   litigation was a cooperative venture among allied interests.8     It

12   argues, instead, that Storm "had no contact" with its adversary

13   during the litigation, that it "presented a defense" in the

14   proceedings, and that it "appealed."   Appellant Br. 42.    But

15   these assertions, if true, would not refute the panel’s finding

16   of collusion on the facts of this case and would not be a basis

17   upon which the district court was required to overturn that

18   finding.   The panel was not obliged to interpret Storm's

19   decidedly modest efforts in the Alpren suit to be material or

20   meaningful.9



          8
            Storm does rely upon a declaration from Klymenko,
     submitted after judgment was entered by the district court, which
     says that Storm, Alpren, and Altimo are not "the same entities."
     We decline to find clear error on the basis of a self-serving
     declaration that the district court had no opportunity to
     consider.
          9
             Moreover, Storm offers no good reason why we should not
     affirm on the district court's finding of collusion. See
     Telenor, 524 F. Supp. 2d at 346-47.
                                     23
1              Moreover, "the force of" the Ukrainian judgments as

2    against Telenor is "further reduced" by the fact that Telenor was

3    not a party to the Alpren litigation and was continually denied

4    notice of the proceedings.   Final Award 34; see also id. at 21-

5    22, 25-27; Telenor, 524 F. Supp. 2d at 346-47.   The failure of

6    the Ukranian court to afford Telenor what we would regard as

7    rudimentary due process, see Parklane Hosiery Co. v. Shore, 439

8    U.S. 322, 327 n.7 (1979) ("It is a violation of due process for a

9    judgment to be binding on a litigant who was not a party or privy

10   and therefore never had an opportunity to be heard."), provides

11   an independent colorable justification for the panel's conclusion

12   that the Ukrainian proceedings were unsound for Ackermann

13   preclusion purposes.

14             It was the opinion of a witness whom Storm proffered as

15   an expert that "Telenor . . . could have intervened" in the

16   Alpren litigation after it was notified of the judgment against

17   it "for purposes of filing an appeal to Ukraine's highest court"

18   but "chose not to do so."    That is beside the point for at least

19   two reasons.   First, this opinion testimony, if assumed to

20   constitute competent evidence of the process actually available

21   to Telenor in the Alpren litigation, would fail to demonstrate

22   that Telenor, after intervening solely for purposes of appeal,

23   would have been afforded a full and fair opportunity to be heard

24   on the merits of the issues decided in that litigation.   Second,

25   it would not in any event be sufficient to have warranted a

26   reversal by the district court under the "manifest disregard"

                                      24
1    standard.    See Stolt-Nielsen, 548 F.3d at 91 ("We do not . . .

2    'recognize manifest disregard of the evidence as proper ground

3    for vacating an arbitrator's award.'" (quoting Wallace, 378 F.3d

4    at 193) (emphasis added in Stolt-Nielsen)).

5                The Ukrainian decisions therefore provide no basis for

6    a denial of enforcement of the final arbitral award on "manifest

7    disregard" grounds.

8                2. Public Policy.

9                Storm argues that the arbitral award should nonetheless

10   be vacated pursuant to Article V(2)(b) of the New York Convention

11   because, Storm says, it is contrary to New York public policy to

12   force a party to comply with an arbitral award that will cause it

13   to violate a foreign judgment.    We do not think that Storm can

14   properly invoke the protection of any such policy.

15               Two factfinders have concluded that Storm brought the

16   Ukrainian judgments upon itself through use of highly

17   questionable litigation tactics.       See Final Award 21, 25;

18   Telenor, 524 F. Supp. 2d at 346-47, 356-58.       Storm's situation,

19   like that of the apocryphal parricide seeking mercy because he

20   had been orphaned, is entirely of its own making.

21               Our view, in light of the findings of the arbitration

22   panel and the district court, is that it is Storm's improper

23   collateral litigation, not the arbitral award, that is contrary

24   to public policy, viz., the well-established federal public

25   policy in favor of arbitration.    See, e.g., Chelsea Square

26   Textiles, Inc. v. Bombay Dyeing & Mfg. Co., 189 F.3d 289, 294 (2d

                                       25
1    Cir. 1999) ("Through the FAA, Congress has declared a strong

2    federal policy favoring arbitration as an alternative means of

3    dispute resolution."   (internal quotation marks omitted)).

4    Collateral and unilateral litigation of arbitrability – or any

5    other issue pertinent to an arbitration, for that matter --

6    undertaken in a foreign forum by a party to that arbitration in

7    an attempt to protect itself from an adverse arbitral award

8    would, if indulged, tend seriously to undermine the underlying

9    scheme of the FAA and the New York Convention.

10              Article V(2)(b) must be "construed very narrowly" to

11   encompass only those circumstances "where enforcement would

12   violate our most basic notions of morality and justice."

13   Europcar Italia S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310,

14   315 (2d Cir. 1998) (internal quotation marks omitted).

15   Consistent with that rule, we conclude that enforcing the

16   arbitral award as against Storm would not be contrary to public

17   policy.

18   B.   Sphere Drake and Arbitrability

19              Storm argues that the panel manifestly disregarded

20   Sphere Drake when it failed to arrange for a trial to be held on

21   the arbitrability of the 2004 Agreement.   Storm also argues that

22   the district court erred in making its own determination, de

23   novo, that the 2004 Agreement was executed by Storm.   We conclude

24   to the contrary that Storm failed to present "some evidence" of a

25   dispute as to arbitrability so as to warrant a trial under Sphere



                                     26
1    Drake.10    In particular, Storm has not provided sufficient

2    evidence to support its allegation that Nilov lacked apparent

3    authority to execute the agreement on behalf of Storm.

4                Under New York law,11 an agent has apparent authority

5    if "a principal places [the] agent in a position where it appears

6    that the agent has certain powers which he may or may not

7    possess."    Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 665 (2d

8    Cir. 1964).    The apparent authority question is susceptible to

9    judgment as a matter of law against the principal.    See, e.g.,

10   Warnock Cap. Corp. v. Hermitage Ins. Co., 21 A.D.3d 1091, 803

11   N.Y.S.2d 606 (2d Dep't 2005).    Here, there is no genuine issue of

12   fact, let alone a material one, as to Nilov's apparent authority:

13   There is substantial evidence that Telenor received multiple

14   notices from Storm that Nilov had the authority to execute the

15   2004 Agreement and there is no evidence, at least that has been




          10
             We do not reach the question of   whether Storm was
     required to challenge the arbitrability   of the arbitration
     clause, in particular, or whether it in   fact did so. Even if
     Storm challenged the arbitration clause   itself, as it contends,
     we would reach the same result.
          11
             The 2004 Agreement provides that it "shall be governed
     by, and construed in accordance with," New York law, "without
     giving effect to any conflicts of laws principles . . . which
     would result in the application of the laws of another
     jurisdiction." 2004 Agreement § 13.06. This choice of law
     clause governs Storm's arbitrability challenge. See Motorola
     Credit Corp. v. Uzan, 388 F.3d 39, 50 (2d Cir. 2004) ("[A]
     choice-of-law clause in a contract will apply to disputes about
     the existence or validity of that contract."), cert. denied, 544
     U.S. 1044 (2005). By the terms of the clause, Storm is incorrect
     that Ukrainian law applies to the dispute as a matter of New York
     conflicts principles.
                                     27
1    brought to our attention, that Telenor should have thought

2    otherwise.

3              The record reflects that Storm sent Telenor a variety

4    of signals that Nilov had the authority to execute the 2004

5    Agreement.   Among them:

 6             ! In 2002, Telenor received a copy of the August 20,
 7             2002 Storm shareholders resolution, which referenced
 8             both the Voting Agreement and the draft shareholders
 9             agreement that ultimately became the 2004 Agreement and
10             authorized Nilov "to execute and deliver [those]
11             agreements" and to "take or cause to be taken any and
12             all other actions, as are required or desirable in
13             connection with this Resolution and the above-
14             referenced agreements." Storm LLC, Notice Regarding
15             Resolutions Adopted by Written Polling, Aug. 30, 2002,
16             at 3.

17             ! Nilov executed -- with actual authority -- the
18             Voting Agreement providing that Storm "agree[d]
19             to . . . execute and deliver the New Shareholder
20             Agreement." Voting Agreement § 2.05.

21             ! Telenor received an email from a Storm negotiator
22             stating that Storm was "ready to sign" the 2004
23             Agreement, and discussing Nilov's availability to sign
24             it, the day before Nilov actually signed it.

25             ! Telenor received documentation from Storm signed by
26             Storm's chairman and another official, stating that
27             Nilov was "duly authorized" to execute the agreement on
28             Storm's behalf. See Storm LLC, Certificate of
29             Incumbency and Authority of Storm, Jan. 30, 2004.

30             Storm does not challenge the validity of these

31   representations to Telenor of Nilov's apparent authority to

32   execute the agreement.     Rather, Storm argues that Telenor should

33   have deduced from the Storm charter and from having not received

34   documentation of any shareholder meeting specifically authorizing

35   Nilov to sign the 2004 Agreement, despite Storm's repeated

36   statements that he was so authorized, that Nilov's execution
                                       28
1    required a shareholder meeting for authorization.   This fails to

2    raise a genuine issue of material fact.   For one thing, Storm

3    cites nothing in the record (including in the charter) to support

4    the proposition that Nilov required shareholder approval to

5    execute the 2004 Agreement on his company's behalf.   For another,

6    there is no evidence from which a rational juror might infer that

7    Telenor should have concluded that there was no such meeting, in

8    light of Storm's repeated assurances that Nilov was indeed duly

9    authorized.

10             Storm has, moreover, failed to explain why Nilov would

11   sign the agreement without authorization.

12             In any event, the record evidence shows that everyone

13   at the relevant time, including Storm, thought that Nilov had the

14   authority to execute the agreement.   That is sufficient ground on

15   which to conclude that Storm has failed to proffer sufficient

16   evidence from which a rational juror could conclude that Nilov

17   lacked apparent authority to execute the 2004 Agreement and that

18   no trial was required to find out if the agreement was, or was

19   not, arbitrable.

20                              CONCLUSION

21             For the foregoing reasons, the judgment of the district

22   court is affirmed.




                                    29
