The case of the day is United States v. Trabelsi (D.C. Cir. 2017). Days after the 9/11 attack, Nizar Trabelsi, a Tunesian national and former professional footballer, was arrested in Belgium. The policy searched his apartment and found an Uzi submachine gun and a list of chemicals used to make explosives. He was charged with conspiracy, destruction by explosion, possession of weapons of war, and belonging to a private militia. He was convicted and sentenced to ten years in prison. Continue reading Case of the Day: United States v. Trabelsi→
The case of the day is Receivers of Sabena SA v. Deutsche Bank AG (N.Y. App. Div. 2016). Sabena, before it became insolvent, was Belgium’s national airline. It provided airplane maintenance services to Sudan Airways Ltd. In 1997, to pay for some services Sabena had provided for its planes, Sudan Airways initiated an electronic funds transfer for $360,000 with Sabena as the beneficiary. Sudan Airways’s bank was the National Bank of Abu Dhabi. Generale Bank was Sabena’s bank. Bankers Trust, in New York, was the intermediary bank. Its successor-in-interest was Deutsche Bank.
The case of the day is Presley v. N.V. Masureel Veredeling (Tex. Ct. App. 2012). Marina Presley was the president of Sudaglass Fiber Co. She and Sudaglass entered into a joint venture agreement with Masureel, a Belgian company in the business of yarns and fabrics finishing. The aim of the joint venture was to sell continuous filament fiber. The joint venture agreement provided that it was to be “governed by, and construed and interpreted in accordance with, the laws of Belgium.” It also had agreement to arbitrate disputes “arising out of or in relation with the Agreement”.
Presley also entered into a loan agreement with Masureel on the same day as the joint venture agreement. The loan agreement was attached as an exhibit to the joint venture agreement. It contained a choice of law and choice of forum clause that provided: “This agreement shall be governed by and construed in accordance with Belgian law. The courts of Kortrijk have non-exclusive jurisdiction for any dispute which may arise under or in connection with this agreement.”
Masureel, claiming that Presley had failed to pay as required by the loan agreement, brought an action in the Kortrijk court for payment. Presley defended on the grounds that the joint venture agreement and the loan agreement “constituted one whole,” and that the dispute arising under the loan agreement was within the scope of the agreement to arbitrate. She also counterclaimed for breach of the joint venture agreement.
The Belgian court held that it had no jurisdiction to hear the counterclaim, which was within the scope of the agreement to arbitrate. But it held that it did have jurisdiction to hear Masureel’s claim, as the parties had evidently intended that disagreements about the loan agreement could be litigated in the court notwithstanding the arbitration agreement in the joint venture agreement. It awarded damages to Masureel. On appeal, the Court of Appeals in Ghent affirmed, explaining that hearing claims but refusing to hear counterclaims, when the scope of the arbitration agreement so required, was correct except in the rare case where the claims and counterclaims are “indivisible,” and that wasn’t the case here.
Masureel sought recognition and enforcement of the judgment in the Texas state courts in Houston. Presley opposed recognition and enforcement on the grounds that the judgment was contrary to the parties’ agreement to arbitrate the dispute (as we have seen before, this is one of the grounds for nonrecognition under the UFMJRA). The trial court recognized the judgment, and on appeal, the court affirmed. The court decided the question under Texas law, and its decision seems clearly correct, as it seems pretty plain that the parties intended to allow lawsuits regarding the loan agreement. But the court also noted that the agreement was governed by Belgian law, and that Presley had given no reason to think that the Belgian courts had gotten the Belgian law of arbitrability wrong. 1
The parties’ choice-of-law clauses could have more clearly indicated that Belgian law governed both the main contract and the arbitration agreement, but it seem pretty clear that that was the parties’ intent. ↩