Commercial Litigation and Arbitration

Electronic Fund Transfers at Intermediary Bank Are Not Subject to Attachment to Secure Payment of International Arbitration Award, Even After ETFs Converted to Cash Deposits — Independent Jurisdiction over Arbitral Defendant Required

From Opal Finance Ltd. v. Agrenco Madeira Comercio Internacional LDA, 2010 U.S. Dist. LEXIS 9826 (S.D.N.Y. Feb. 3, 2010):

On October 16, 2009, the Court of Appeals for the Second Circuit held that EFTs being processed by an intermediary bank are not subject to attachment under Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims. Shipping Corp. of India, Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009). On December 22, 2009, the Court of Appeals concluded that because the decision in Jaldhi was a jurisdictional ruling, its holding must be applied retroactively. Hawknet, Ltd. v. Overseas Shipping Agencies, F.3d , 2009 WL 4911944, at *2 (2d Cir. Dec. 22, 2009). Here, Opal Finance indicates that the attached funds were, at least initially, being transferred pursuant to EFTs. *** Accordingly, the recent Court of Appeals decisions in Jaldhi and Hawknet require this Court to determine whether it has personal or quasi in rem jurisdiction over Agrenco and Inlogs.

Opal Finance contends, first, that the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 ("the New York Convention") and its implementing statute, 9 U.S.C. § 207, confers personal jurisdiction over Defendants for the purpose of confirming Opal Finance's foreign arbitration award. This argument is unavailing in light of the Court of Appeals' recent decision in Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393 (2d Cir. 2009). The Frontera court held "that the district court did not err by treating jurisdiction over either [the defendant] or [the defendant's] property as a prerequisite to the enforcement" of an arbitration award pursuant to § 207. Id. at 398; see also Consub Delaware L.L.C. v. Schahin Eugenharia Limitada, F. Supp. 2d , 2009 WL 4858078, at *4 n.41 (S.D.N.Y. Dec. 15, 2009) (Scheindlin, J.) (following Frontera). Accordingly, § 207 does not confer personal jurisdiction over Agrenco for the purpose of confirming Opal Finance's arbitration award.

Next, Opal Finance contends that the Court should use its equitable powers to exercise jurisdiction over Agrenco because Opal Finance "has met all of the requirements for confirmation and enforcement of the . . . award" and Agrenco "has refused to pay any of the sums due and owing" under the award. *** This argument is unavailing for three reasons. First, as discussed above, the fact that the award is outstanding does not provide a basis for exercising jurisdiction over Agrenco. Second, courts in this District have routinely rejected equitable arguments for departure from the rules of Jaldhi and Hawknet, and Opal Finance presents no unique circumstances here. [Citations omitted.] Third, Opal Finance ignores the equitable factor that, under Hawknet, the EFTs never should have been attached in the first place. For all of these reasons, the Court declines to use its equitable powers to exercise jurisdiction over Agrenco.

Opal Finance also contends that jurisdiction exists because it served process on the banks after the banks had converted the EFTs to cash deposits. Yet, as numerous Courts in this District have held, "No alchemy by the bank transformed EFTs that cannot be attached into property of the defendant that can be attached. " Argus Dev. Inc. v. Steelcore Trading Ltd., No. 09 Civ. 6009, 2009 WL 4016626, slip op. at 1 (S.D.N.Y. Nov. 16, 2009) (Koeltl, J.). Accordingly, attachment of the cash deposits does not supply a basis for jurisdiction.

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