Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 1 of 22

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 16- 24275-CIV-Moreno/O’Sullivan

INVERSIONES Y PROCESADORA
TROPICAL INPROTSA, S.A., a Costa Rican
Corporation,

Petitioner,

vs.

DEL MONTE INTERNATIONAL GMBH, a

Swiss Corporation,

Respondent.
______________________________________/

RESPONDENT’S MOTION TO DISMISS PETITION TO VACATE FINAL ARBITRAL

AWARD AND CROSS PETITION TO CONFIRM FINAL ARBITRAL AWARD

Despite the Eleventh Circuit’s extremely high standard to set aside international arbitration

awards governed by the New York Convention, and the Court’s warning of sanctions against

losers of arbitrations who assume a “never-say-die attitude and drag[] the dispute through the court

system without an objectively reasonable belief [that they] will prevail,” B.L. Harbert Int’l, LLC v.

Hercules Steel Co., 441 F.3d 905, 913 (11th Cir. 2010), abrogated on other grounds, Frazier v.

CitiFinancial Corp., 604 F.3d 1313 (11th Cir. 2010), Petitioner, Inversiones y Procesadora

Tropical INPROTSA, S.A. (“INPROTSA”), seeks to vacate an international arbitral award in

favor of Respondent, DEL MONTE INTERNATIONAL GMBH (“Del Monte”), after a two-week

final evidentiary hearing. INPROTSA basically asserts that the arbitral Tribunal (the “Tribunal”)

made errors of judgment in fact and law. INPROTSA’s Petition to Vacate Final Arbitral Award

(the “Petition to Vacate”) is without merit for three fundamental reasons:

First, because the resultant Final Arbitral Award (the “Final Award”) is international and

therefore governed by the Convention on the Recognition and Enforcement of Foreign Arbitral
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 2 of 22

Awards (the “New York Convention”), June 10, 1958, 3 U.S.T. 2517, T.I.A.S. No. 6997, as

implemented by 9 U.S.C. §§ 201–08, the Eleventh Circuit has held that the only grounds for

setting aside an international arbitral award or denying its confirmation are set forth exclusively in

Article V of the New York Convention. INPROTSA’s Petition to Vacate does not raise any of the

grounds allowed by Article V. Rather, the Petition is based on defenses set forth in § 682.13(1),

Fla. Stat., which governs domestic arbitration awards and which is inapplicable as a matter of law.

Second, erroneous legal reasoning and misapplication of the law -- including errors in

contract interpretation or the weighing of evidence -- are not grounds to vacate a final award under

Article V of the New York Convention. Nor are they grounds under the Revised Florida

Arbitration Code, Chapter 682, Fla. Stat., even if it applied (which it does not). Regardless, the

Tribunal’s rulings were not erroneous.

Third, pursuant to 9 U.S.C. § 12 of the Federal Arbitration Act, INPROTSA had, at most,

three months from the delivery of the Final Award on June 15, 2016 to formally perfect service of

process of its Petition to Vacate on Del Monte pursuant to Rule 4, Fed. R. Civ. P. Because

INPROTSA failed to serve Del Monte with a copy of the Petition to Vacate within the

three-month limitations period, its Petition to Vacate is time barred and INPROTSA is foreclosed

under the Federal Arbitration Act from asserting any defenses to confirmation of the Final Award.

Accordingly, Del Monte requests an order from this Court (1) dismissing with prejudice

the Petition to Vacate pursuant to Rule 12(b)(6), Fed R. Civ. P., (2) granting Del Monte’s cross

petition for confirmation of the Final Award set forth herein pursuant to 9 U.S.C. § 207 and the

New York Convention, and (3) requiring INPROTSA and its attorneys to pay Del Monte’s

attorneys’ fees pursuant to the parties’ agreement and as sanctions pursuant to the authority

granted by the Eleventh Circuit in B.L. Harbert and World Bus. Paradise, Inc. v. Suntrust Bank,

403 F. App’x 468 (11th Cir. 2010), and 28 U.S.C. § 1927.

2
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 3 of 22

MEMORANDUM OF LAW

I. BACKGROUND AND PROCEDURAL HISTORY

A. The Exclusive Pineapple Sales Agreement and Its Termination

This dispute arose out of an exclusive Pineapple Sales Agreement (the “Agreement”)

entered into between the parties in May 2001. A certified copy of the Agreement is attached as

Exhibit “A”. Pursuant to the Agreement, Del Monte, a Swiss corporation, and its predecessors in

interest supplied to INPROTSA, a Costa Rican pineapple grower, approximately 61 million scarce

and expensive “MD-2” variety pineapple seeds (worth in excess of $25 million) to transition its

plantation from a pineapple variety called “Champaka” to an extra sweet variety called the

“MD-2” that is sold in supermarkets throughout the world today. In exchange for Del Monte’s

multi-million dollar investment in scarce MD-2 pineapple seeds, Del Monte demanded -- and

INPROTSA agreed -- that INPROTSA would sell its MD-2 pineapples exclusively to Del Monte,

and if the Agreement were ever terminated for any reason, including contract expiration,

INPROTSA would return to Del Monte or destroy all remaining MD-2 pineapples and related

MD-2 plant stock and would not sell to third parties any MD-2 pineapples originating from the 61

million pineapple seeds. Agreement, Clause 2.

After a successful 12-year relationship, the Agreement terminated in 2013. 1 See Final

Award, Exhibit “D”, at II(a)(2) & (11). Rather than comply with its obligations under the

Agreement, INPROTSA made the decision to breach the post-termination covenants by refusing

to “return or destroy” the MD-2 pineapples and related plant stock on its plantation and by selling

MD-2 pineapples to Del Monte’s competitors. Del Monte demanded that INPROTSA cease and
1
Prior to contracting with Del Monte, INPROTSA was on the verge of insolvency, losing
approximately $80,000 to $100,000 per week. Over the length of the Agreement with Del Monte,
INPROTSA quadrupled the size of its plantation, increased its annual sales from $2 million to
more than $20 million, and was paid approximately $233 million by Del Monte. See Tr. 656/24-
657/24, 1744/4-1744/9, & 1691/21-1692/1 (attached as Exhibit “B”); Expert Report, App’x 3.A,
298.0059-62 (attached as Exhibit “C”).

3
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 4 of 22

desist its breaches of contract, but INPROTSA refused.

B. The ICC Arbitration Proceeding

In March 2014, Del Monte commenced an arbitration proceeding (the Arbitration”) before

the International Court of Arbitration of the International Chamber of Commerce (the “ICC”),

Case No. 20097/RD, in accordance with the Agreement’s arbitration provision which mandated

final and binding arbitration in Miami, Florida “without further appeal, recourse, or review.”

Agreement, Clause 19. Del Monte asserted claims against INPROTSA for money damages,

specific performance, and permanent injunctive relief. INPROTSA raised various counterclaims

and defenses. During the course of the arbitration proceeding, INPROTSA declared its intention

not to comply with its obligations under the Agreement and continued to breach the Agreement.

C. The Tribunal’s Final Award in Favor of Del Monte

In November 2015, the Tribunal conducted a two-week final hearing in Miami, Florida.

On June 10, 2016, the Tribunal issued a detailed, reasoned Final Award in favor of Del Monte and

against INPROTSA, see Final Award, which was delivered to the parties by the ICC on June 15,

2016. The Tribunal vindicated Del Monte’s position, rejected all of INPROTSA’s counterclaims

and defenses, and (a) granted Del Monte specific performance of INPROTSA’s contractual duty to

return or destroy MD-2 pineapples and MD-2 plant stock growing on its plantation, (b)

permanently enjoined INPROTSA from selling 93% of INPROTSA’s MD-2 pineapple production

to third parties, and (c) ordered INPROTSA to pay Del Monte damages in the amount of

$26,133,000.00, plus pre and post-award interest, arbitral costs in the amount of $650,000.00, and

attorney’s fees in the amount of $2,507,440.54. Id. at ¶ 122. INPROTSA moved for correction

and clarification of the Final Arbitral Award, raising many of the same grounds set forth herein for

vacatur, which was denied in its entirety by the Arbitral Tribunal on August 6, 2016. See

Decision, attached hereto as Exhibit “E”.

4
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 5 of 22

D. INPROTSA Files a Legally Insufficient Petition to Vacate the Final Award

On September 9, 2016, despite overwhelming federal law that restricts and discourages

after-the-fact efforts to undo final arbitration awards governed by the New York Convention,

INPROTSA filed its Petition to Vacate in the Circuit Court of the Eleventh Judicial Circuit in and

for Miami-Dade County, Florida, Case No. 2016-23517 CA 01 (25). Del Monte removed the

Petition to Vacate to this Court on October 7, 2016. [ECF No. 1].

INPROTSA’s Petition to Vacate argues that the Tribunal erred by “exceed[ing] its

powers,” Pet. to Vacate, at 1, 14, “engag[ing] in misconduct,” id., misinterpreting the parties’

Agreement, id., at 16-20, misapplying Florida law, id. at 21-26, and not giving proper weight to

evidence in the record, id. at 26-29 -- grounds which are not permitted under the New York

Convention and federal law. Instead of asserting grounds authorized under the New York

Convention, which governs the Final Award, INPROTSA erroneously relies exclusively on

§ 682.13(1) of the Revised Florida Arbitration Code, which governs domestic -- not international -

- arbitration awards.

II. INPROTSA’S PETITION TO VACATE RAISES LEGALLY

INSUFFICIENT GROUNDS AND MUST BE DISMISSED

A. Grounds to Vacate or Oppose Confirmation of the Final Award

Are Governed Exclusively by the New York Convention

In the Eleventh Circuit, the only grounds to vacate an arbitration award are set forth in

Article V of the New York Convention. See Industrial Risk Insurers v. M.A.N.

Gutehoffnungshutte GmbH, 141 F.3d 1434, 1446 (11th Cir. 1998). Any other grounds, including

those set forth in Chapter 1 of the Federal Arbitration Act or under the Florida Arbitration Code,

are inapplicable as a matter of law. Costa v. Celebrity Cruises, Inc., 768 F. Supp. 2d 1237, 1240

(S.D. Fla. 2011), aff’d, 470 Fed. Appx. 726 (11th Cir. 2012). In this case, INPROTSA has not

raised any of the grounds set forth in Article V of the New York Convention to vacate the Final

5
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 6 of 22

Award. Accordingly, its Petition to Vacate is legally insufficient and must be denied.

In Industrial Risk Insurers, the district court denied a petition to vacate an arbitral award

governed by the New York Convention. 141 F.3d at 1439-40. On appeal, the Eleventh Circuit

was asked to decide the grounds and defenses available to a party who seeks vacatur of an arbitral

award:

The instant case presents an issue of first impression in this court: Do the New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(the “New York Convention”), and thus the provisions of Chapter 2 of the [Federal
Arbitration Act], govern an arbitral award granted to a foreign corporation by an
arbitral panel sitting in the United States and applying American federal or state
law? We hold that they do.

Id. at 1440. The Eleventh Circuit recognized that, in matters involving interstate commerce, the

Federal Arbitration Act “governs the enforcement of arbitration agreements, and of arbitral awards

made pursuant to such agreements, in federal and state courts” and that “the New York

Convention is incorporated into federal law by the [Federal Arbitration Act].” Id. at 1441. 2

With regard to the merits of the petition to vacate, the Eleventh Circuit in Industrial Risk

Insurers held that the “arbitral award must be confirmed unless appellants can successfully assert

one of the seven defenses against enforcement of the award enumerated in Article V of the New

York Convention.” Id. at 1441. Rejecting any defenses to confirmation that are not contained in

the New York Convention, the Eleventh Circuit emphasized that “[t]he New York Convention’s

enumeration of defenses against enforcement is exclusive.” Id. at 1142 (emphasis supplied).

Likewise, in Costa v. Celebrity Cruises, Inc., 768 F. Supp. 2d 1237 (S.D. Fla. 2011), the

2
The Eleventh Circuit also addressed whether the New York Convention applies to “awards ‘not
considered as domestic awards in’ the country where enforcement of the award is sought.”
Industrial Risk Insurers, 141 F.3d at 1440. The Eleventh Circuit held that “awards ‘not
considered domestic’ in the United States are those agreements and awards which are subject to
the Convention not because [they were] made abroad, but because [they were] made within the
legal framework of another country, e.g., pronounced in accordance with foreign law or involving
parties domiciled or having their principal place of business outside the enforcing jurisdiction.”
Id. at 1441 (brackets and italics in original).

6
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 7 of 22

district court dismissed a petition to vacate an international arbitration award governed by the New

York Convention. Id. at 1238-39, 1243. The plaintiffs sought to vacate the award on grounds set

forth in Chapter 1 of the Federal Arbitration Act (governing domestic arbitrations) and in §

684.0027 of the Florida International Arbitration Act. Costa, 768 F. Supp. at 1239. Relying on

the Eleventh Circuit’s holding in Industrial Risk Insurers, the district court held that the only

legally sufficient grounds to vacate an arbitral award are those enumerated in Article V of the New

York Convention:

The Convention and Chapter 2 of the [Federal Arbitration Act] exclusively governs
arbitration between a citizen of the United States and citizens of a foreign country.
See 9 U.S.C. § 207; Indus. Risk Ins. v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d
1434, 1439-41 (11th Cir. 1998). Here, Plaintiffs are citizens of India and, thus, the
Convention and Chapter 2 of the [Federal Arbitration Act] apply. Accordingly,
Celebrity is correct that the only potential grounds for vacating the arbitration
award in this case are the seven defenses to enforcement enumerated in the
Convention. Indus. Risk Ins., 141 F.3d at 1445–46. And any additional grounds for
vacating an arbitration award as may be contained in Chapter 1 of the [Federal
Arbitration Act] or the [Florida International Arbitration Act, Chapter 684, Fla.
Stat.] are strictly inapplicable. See, e.g., id. (“In short, the Convention’s
enumerations of defenses is exclusive.”). For this reason, the Court will dismiss
with prejudice Plaintiffs’ claimed defenses under Chapter 1 of the [Federal
Arbitration Act] or the [Florida International Arbitration Act].

Costa, 768 F. Supp. 2d at 1240 (emphasis added). On appeal, the Eleventh Circuit “affirmed the

judgment of dismissal based on our decision in Industrial Risk.” Costa v. Celebrity Cruises, Inc.,

470 Fed. Appx. 726, *1 (11th Cir. 2012). Other courts in this District have reached the same

result. Sural (Barbados) Ltd. v. The Gov’t of the Republic of Trinidad and Tobago, 2016 WL

4264061, *3 (S.D. Fla. Aug. 12, 2016) (“Thus, a district court must confirm an arbitration award

under the [New York] Convention, unless one of the seven enumerated defenses in Article V

apply.”); Chelsea Football Club Ltd. v. Mutu, 849 F. Supp. 2d 1341, 1344 (S.D. Fla. 2012) (a non-

domestic arbitral award must be confirmed unless a losing party can successfully assert one of

seven defenses against enforcement under New York Convention); Four Seasons Hotels and

Resorts B.V. v. Consorcio Barr, S.A., 613 F. Supp. 2d 1362, 1366 (S.D. Fla. 2009) (“A district

7
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 8 of 22

court’s ‘review of a foreign arbitration award is quite circumscribed.’ The court shall confirm the

award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the

award specified in the said [New York] Convention.”), aff’d, Four Seasons Hotel and Resorts,

B.V. v. Consorcio Barr, S.A., 533 F.2d 1349 (11th Cir. 2004).

Here, because both Del Monte and INPROTSA are foreign corporations “having their

principal place of business outside the enforcing jurisdiction,” Pet. to Vacate, at 3, and this dispute

“involves property located abroad [and] envisages performance or enforcement abroad,” the Final

Award is non-domestic and governed exclusively by the New York Convention. Industrial Risk

Insurers, 141 F.3d at 1440 n.6. The only grounds to vacate the Final Award are, therefore, found

exclusively in Article V of the New York Convention.

B. INPROTSA May Only Assert Defenses Available Under Article V

of the New York Convention to Seek Vacatur of the Final Award

The seven defenses available under Article V of the New York Convention to vacate an

arbitral award or oppose its confirmation are:

1. Recognition and enforcement of the award may be refused, at the request of

the party against whom it is invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II 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 where 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 or

8
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 9 of 22

suspended by a competent authority of the country in which, or under the law

of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the
competent authority in the country where recognition and enforcement is sought
finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration
under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public
policy of that country.

New York Convention, Article V.

INPROTSA’s Petition to Vacate does not assert or rely upon any of the New York

Convention defenses. Instead, INPROTSA urges the Court to vacate the Final Award pursuant to

§ 682.13(1)(b)(3) and § 682.13(1)(d), Fla. Stat., which are part of Florida’s Revised Arbitration

Code governing domestic arbitrations: 3

(1) Upon motion of a party to an arbitration proceeding, the court shall vacate an
arbitration award if:
(a) The award was procured by corruption, fraud, or other undue means;
(b) There was:
1. Evident partiality by an arbitrator appointed as a neutral arbitrator;
2. Corruption by an arbitrator; or
3. Misconduct by an arbitrator prejudicing the rights of a party to the
arbitration proceeding;
(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause
for postponement, refused to hear evidence material to the controversy, or
otherwise conducted the hearing contrary to s. 682.06, so as to prejudice
substantially the rights of a party to the arbitration proceeding;
(d) An arbitrator exceeded the arbitrator’s powers;
(e) There was no agreement to arbitrate, unless the person participated in the
arbitration proceeding without raising the objection under s. 682.06(3) not later
than the beginning of the arbitration hearing; or
(f) The arbitration was conducted without proper notice of the initiation of an
arbitration as required in s. 682.032 so as to prejudice substantially the rights
of a party to the arbitration proceeding.

3
Even though Florida arbitration statutes are completely inapplicable to a petition to vacate an
international arbitral award governed by the New York Convention, see Industrial Risk Insurers,
141 F.3d at 1441; Costa, 768 F. Supp. 2d at 1240, INPROTSA premised its Petition to Vacate on
the Revised Florida Arbitration Code governing domestic arbitrations rather than the Florida
International Commercial Arbitration Act, Chapter 684, Fla. Stat., which governs international
arbitrations, and which grounds “effectively mirror[] the limited grounds to refuse enforcement in
the New York Convention.” Sural (Barbados) Ltd., 2016 WL 4264061, *4 n.4.

9
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 10 of 22

§ 682.13(1), Fla. Stat. Section 682.13(1) is modeled after and virtually mirrors the grounds for

vacatur set forth in Chapter 1 of the Federal Arbitration Act, which also governs domestic arbitral

awards. See 9 U.S.C. § 10. But, as noted above, none of these grounds are applicable to an

arbitral award governed by the New York Convention. Industrial Risk Insurers, 141 F.3d at 1441;

Costa, 768 F. Supp. 2d at 1240 (“any additional grounds for vacating an arbitration award as may

be contained in Chapter 1 of the [Federal Arbitration Act] or the [Florida International Arbitration

Act, Chapter 684, Fla. Stat.] are strictly inapplicable”). Pursuant to Industrial Risk Insurers and

Costa, therefore, the grounds set forth in § 682.13(1), Fla. Stat., are inapplicable as a matter of law

to the Final Award at issue. 4 Just as in Costa, these non-New York Convention grounds must be

dismissed with prejudice. Costa, 768 F. Supp. 2d at 1240 (“the Court will dismiss with prejudice

Plaintiffs’ claimed defenses under Chapter 1 of the [Federal Arbitration Act] or the [Florida

International Arbitration Act]”).

C. Even If INPROTSA’s Grounds for Vacatur Were Characterized as

Article V Defenses, INPROTSA’s Petition to Vacate Must Be Denied

INPROTSA raises a host of reasons in its Petition to Vacate why it believes the Final

Award should be vacated under § 682.13, Fla. Stat., even though § 682.13 is plainly inapplicable

to an award governed the New York Convection. But, even if INPROTSA tried to shoehorn its

4
In Ingaseosas Int’l Co. v. Aconcagua Investing Ltd., 2011 WL 500042 (S.D. Fla. Feb. 10, 2011),
the district court dismissed a petition to vacate a non-domestic arbitral award for lack of subject
matter jurisdiction, holding that the New York Convention does not recognize an action to vacate
an arbitral award. Id. at *1-4. The district court stated in dicta that “[i]n Florida, a petitioner may
appeal a Florida arbitral decision in state court pursuant to Fla. Stat. § 682.13.” The Eleventh
Circuit affirmed the district court’s dismissal in Ingaseosas, not because it found an absence of
subject matter jurisdiction, but “upon a different ground” that rendered “the case [as] moot.” 479
F. App’x 955, 959 (11th Cir. 2012). The district court’s decision in Ingaseosas is contrary to the
Eleventh Circuit’s holding in Industrial Risk Insurers, and predates the Eleventh Circuit’s
affirmance of Costa, 768 F. Supp. 2d at 1240, aff’d, 470 F. App’x 726 (11th Cir. 2012). See also
Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 71 (2d Cir.
2012) (a federal district court has subject matter jurisdiction over “actions to confirm or vacate an
arbitral award that is governed by the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the ‘New York Convention’).”).

10
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 11 of 22

reasons for vacatur of the Final Award into the seven defenses authorized by Article V of the

Convention, INPROTSA’s Petition would nevertheless fail.

INPROTSA essentially attacks the Tribunal for making multiple errors of law and fact that

fall into five broad categories:

• The Tribunal misinterpreted the Agreement by issuing an award enforcing the

Agreement’s post-termination restrictive covenants contrary to their terms. (Pet. to
Vacate, at 1, 16-20);

• The Tribunal misapplied Florida law by enforcing post-termination restrictive

covenants that were allegedly unreasonable in geographic scope and time. (Pet. to
Vacate, at 21-22);

• The Tribunal misapplied Florida law by ruling that INPROTSA’s defense that the post-
termination covenants were unreasonable in geographic scope and time was barred by
the statute of limitations. (Pet. to Vacate, at 23);

• The Tribunal misapplied Florida law by awarding damages based on INPROTSA’s

gross revenues without deducting INPROTSA’s expenses. (Pet. to Vacate, at 24-26);

• The Tribunal failed to give proper weight to evidence in the record. (Pet. to Vacate, at
26-29);

None of these reasons are legally or factually sufficient to permit vacatur of the Final

Award under Article V of the New York Convention or prevent its confirmation.

1. Factual and Legal Errors of the Arbitration Panel Are Not

Authorized Defenses under the New York Convention

The Eleventh Circuit has held that arbitrations conducted pursuant to the New York

Convention are not governed by same rules of law, procedure and evidence applicable in federal

litigation:

The purpose of the New York Convention, and of the United States’ accession to
the convention, is to “encourage the recognition and enforcement of international
arbitral awards,” to “relieve congestion in the courts and to provide parties with an
alternative method for dispute resolution that [is] speedier and less costly than
litigation.” The Convention, and American enforcement of it through the [Federal
Arbitral Act], “provide[] businesses with a widely used system through which to
obtain domestic enforcement of international commercial arbitration awards
resolving contract and other transactional disputes, subject only to minimal

11
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 12 of 22

standards of domestic judicial review for basic fairness and consistency with
national public policy.”

But arbitration proceedings “need not follow all the ‘niceties’ of the federal courts;
[they] need provide only a fundamentally fair hearing.” “An arbitrator enjoys wide
latitude in conducting an arbitration hearing. Arbitration proceedings are not
constrained by formal rules of procedure or evidence.” Arbitration rules, such as
those of the AAA, are intentionally written loosely, in order to allow arbitrators to
resolve disputes without the many procedural requirements of litigation.

Industrial Risk Insurers, 141 F.3d at 1440, 1443-44 (citations omitted).

Therefore, there is a “high threshold required to overturn an arbitration award under the

[New York] Convention.” Sural, 2016 WL 4264061, *5. “Because the [Federal Arbitration] Act

creates a ‘presumption in favor of confirming arbitration awards,’ judicial review of arbitral

decisions is limited and a court ‘must “give considerable leeway to the arbitrator, setting aside his

or her decision only in certain narrow circumstances.”’” Gerson v. UBS Fin. Serv., Inc., 2012 WL

3962374, *2 (S.D. Fla Sept. 10, 2012); Four Seasons, 613 F. Supp. 2d at 1366 (Because the only

“grounds for refusal or deferral of recognition or enforcement of the award [are] specified in the

[New York] Convention,” the district court’s “‘review of a foreign arbitration award is quite

circumscribed.’”); see also Sural, 2016 WL 4264061, *5 (same).

“The party opposing confirmation bears the burden of proving the applicability of the

Convention’s enumerated defenses.” Four Seasons, 613 F. Supp. 2d at 1367. Further,

proceedings to enforce awards under the New York Convention and the Federal Arbitration Act

are “summary proceedings” which are “not intended to involved complex factual determinations,

other than a determination of the limited statutory grounds for confirmations or grounds for refusal

to confirm.” Chelsea Football Club, 849 F. Supp. 2d at 1344; see also Republic of Argentina v.

BG Group PLC, 764 F. Supp. 2d 21, 28-29 (D.D.C. 2011) (“Given that the New York Convention

provides only several narrow circumstances when a court may deny confirmation of an arbitral

12
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 13 of 22

award, confirmation proceedings are generally summary in nature.”).

Limited and circumscribed review of arbitral awards under Article V advances the “policy

of expedited judicial action because they prevent a party who has lost in the arbitration process

from filing a new suit in federal court and forcing relitigation of the issues.” Booth v. Hume

Publishing, Inc., 902 F.2d 925, 932 (11th Cir. 1990). Moreover, “notwithstanding the

applicability of a defense against confirmation [under the New York Convention], courts retain the

discretion to confirm the arbitral award.” Four Seasons, 533 F.2d at 1351 n.2.

Most importantly, “[e]rroneous legal reasoning or misapplication of the law is generally

not a violation . . . within the meaning of the [New York] Convention.” Costa, 768 F. Supp. 2d at

1241. “A holding in an arbitration award that is contrary to the substantive law governing the

arbitration is not a defense under the [New York] Convention, and therefore a district court

generally may not review an arbitration award on the merits.” Four Seasons, 613 F. Supp. 2d at

1369; Sural, 2016 WL 4264061, *5 (“[t]here is a reason why federal courts grant substantial

deference to the evidentiary findings of arbitral tribunals: these bodies have greater resources,

expertise, and access to evidence in order to develop factual findings, and federal courts are poorly

situated to second-guess their conclusions.”). In sum, “‘[a]n arbitrator’s result may be wrong; it

may appear unsupported; it may appear poorly reasoned; it may appear foolish. Yet, it may not be

subject to court interference.’” Chelsea Football Club, 849 F. Supp. 2d at 1344 (quoting Delta Air

Lines v. Air Line Pilots Ass’n, Intern., 861 F.2d 665, 670 (11th Cir. 1988)).

None of INPROTSA’s arguments for vacatur fall within or satisfy any of the seven

grounds authorized by Article V of the New York Convention. As a result, the Petition to Vacate

should be dismissed as a matter of law.

2. The Grounds Raised by INPROTSA in Its Petition to Vacate Would

Not Satisfy the Requirements of § 682.13(1), Even If the Florida
Domestic Arbitration Code Were Applicable (Which It Is Not)

13
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 14 of 22

INPROTSA urges the Court to vacate the Final Award pursuant to § 682.13(1), Fla. Stat.,

but it is clear from a cursory review of the authorities from this Circuit that § 682.13(1), Fla. Stat.

does not apply to a New York Convention award. Industrial Risk Insurers, 141 F.3d at 1441;

Costa, 768 F. Supp. 2d at 1240. But even if it did, the result would be no different.

INPROTSA argues that the Tribunal “exceeded its powers” in violation of § 682.13(1)(d),

and “engaged in misconduct” in violation of § 682.13(1)(b)(3). Pet. to Vacate, at 14. “[A]n

arbitrator exceeds his or her power … when he or she goes beyond the authority granted by the

parties or the operative documents and decides an issue not pertinent to the resolution of the issue

submitted to arbitration.” Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1329 (Fla.

1989); Nucci, M.D. v. Storm Football Partners, 82 So. 3d 180, 183 (Fla. 2d DCA 2012) (“[T]he

arbitrator exceeds his power only when he exceeds the authority the parties granted him in their

agreement to arbitrate.”). So long as the determinations set forth in the award were within the

arbitrators’ authority, “‘[t]he fact that the relief granted is such it could not or would not be

granted by a court of law or equity is not a ground for vacating or modifying the award.’” Marr v.

Webb, 930 So. 2d 735, 738 (Fla. 3d DCA 2006).

INPROTSA suggests that the Tribunal engaged in misconduct, Pet. to Vacate at 14-16, but

arbitrator misconduct occurs when an arbitrator fails “to avoid even the appearance of partiality”

which prejudices the rights of a party. Deen v. Oster, 814 So. 2d 1065, 1068 (Fla. 4th DCA

2001); see also Pochat v. Lynch, 2013 WL 4496548, *10 (S.D. Fla 2013) (engaging in misconduct

under 9 U.S.C. § 10(a)(3), upon which § 682.13(1)(b)(3) is modeled, does not include making

erroneous evidentiary or other legal rulings). There is no suggestion in INPROTSA’s Petition that

the Arbitral Tribunal showed bias or partiality to any party.

INPROTSA argues that the Tribunal made multiple errors or law and fact, Pet. to Vacate,

at 16-29, but errors in judgment as to the facts or the law, including errors in contract

14
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 15 of 22

interpretation, application of the law, or the weighing of evidence, are not grounds for vacatur

under § 682.13(1), Fla. Stat. See Visiting Nurse Ass’n of Fl., Inc. v. Jupiter Medical Ctr., Inc., 154

So. 3d 1115, 1134 (Fla. 2014) (“Further, the list of circumstances set forth in section 682.13(1) is

directed at arbitral misconduct or lack of authority, and not mere errors of law, or errors of

construction or interpretation of a contract;” therefore, arbitrators who interpreted a contract

inconsistent with the contract’s terms or in a manner that would violate state or federal law “did

not exceed its powers”); Schnurmacher, 542 So. 2d at 1328-1329 (arbitrator who was asked to

determine what party has obligation to pay sales tax under lease did not “exceed its powers” by

making determination; “[a]n award of arbitration may not be reversed on the ground that the

arbitrator made an error of law.”); Marr, 930 So. 2d at 738 (“The arbitration panel “is the sole and

final judge of the evidence and the weight to be given to it, and we will not review the findings of

fact contained in its arbitration award” as grounds that the arbitrator exceeded its authority.); State

of Fl. Dep’t of Ins. v. First Floridian Auto and Home Ins. Co., 803 So. 2d 771, 776, 777 (Fla. 1st

DCA 2001) (“the award of arbitrators in statutory arbitration proceedings cannot be set aside for

mere errors of judgment either as to the law or as to the facts”); Alterman v. Marin-Busutil, 716

So. 2d 849, 849 (Fla. 4th DCA 1998) (“The errors claimed by appellant all relate to errors in the

arbitrator’s factual findings, conclusions, or interpretation of the contract, not to those factors

enumerated in section 682.13(1)(a)-(e), which would justify a trial court in vacating an arbitrator’s

decision.”); Veruza Constr., Inc. v. Surfside Ocean, Inc., 708 So. 2d 994 (Fla. 3d DCA 1998)

(“The law is clear that awards made by arbitration panels cannot be set aside for mere errors of

judgment either as to the law or as to the facts.”).

INPROTSA does not, and cannot, allege that the Tribunal decided “an issue not pertinent

to the resolution of the issue submitted to arbitration,” or violated their duty of impartiality in any

way. Rather, INPROTSA disagrees with the Tribunal’s findings of facts and conclusions of law,

15
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 16 of 22

and then attempts to recast its disagreement as “violations” of § 682.13(1). An unfavorable

outcome does not create a violation of § 682.13(1).

Accordingly, even using the defenses afforded by § 682.13(1), Fla. Stat. -- a state statute

that unquestionably is irrelevant to international arbitration awards under the New York

Convention -- INPROTSA’s Petition to Vacate must denied with prejudice.

3. The Final Award Refutes INPROTSA’s Contention

that the Tribunal Made Errors of Law or Fact

INPROTSA has not relied on any Article V defenses in its Petition to Vacate and the

§ 682.13 defenses are inapplicable under the New York Convention. On top of that,

INPROTSA’s reasons for vacatur are factually meritless. The Final Award itself rebuts each of

INPROTSA’s contentions.

First, INPROTSA argues that the Tribunal should not have enforced the post-termination

restrictive covenants after ruling that INPROTSA had legal title to the plants on its plantation.

Pet. to Vacate, at 16-20. The Tribunal correctly ruled that under U.S. law, parties can

contractually agree to restrict the use of property as a matter of contract, regardless who owns

“title” to the property. Final Award, ¶¶ 51, 56, 62 n.42 & 91-93.

Second, INPROTSA argues that the post-termination covenants under the Agreement are

unreasonable in geographic scope and time. Pet. to Vacate, at 21-22. INPROTSA made the same

argument to the Tribunal, which was rejected. Final Award, ¶¶ 16, 122(i). Moreover, the

Tribunal limited the scope of the post-termination covenants to MD-2 plant stock originating from

seeds provided by Del Monte under the Agreement, and expressly gave INPROTSA the option to

transition its plantation in stages with newly-acquired MD-2 seeds over a 14-month growth cycle,

while still selling the MD-2 pineapples to Del Monte at FOB (free on board) prices paid to Del

Monte’s independent growers. Id., ¶¶ 27(iv), 84-96, 122.

Third, INPROTSA argues that the Tribunal erred in holding that INPROTSA’s defenses

16
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 17 of 22

were time-barred. Pet. to Vacate, at 23. The Tribunal, however, only time-barred certain of

INPROTSA’s counterclaims, not its defenses. Final Award, ¶¶ 73-75. Nevertheless, INPROTSA

was permitted to provide evidence and legal arguments as to all of its defenses, even though they

were ultimately rejected based on the entire evidentiary record presented. Id., § I, at pp. 1-6, ¶¶

16, 122(i).

Fourth, INPROTSA argues that the Tribunal erred in awarding damages based on

INPROTSA’s gross revenues without deducting expenses. Pet. to Vacate, at 24-26. INPROTSA,

however, does not dispute that Florida law permits the Tribunal to award damages incidental to

specific performance by returning the parties to the status quo at the time of breach. Final Award,

¶¶ 102-09 and case law cited therein. The Tribunal awarded damages -- in an amount nearly half

of what Del Monte requested -- based only on 2014 sales improperly made and received by

INPROTSA. Further, as the Tribunal points out and INPROTSA neglected to inform this Court,

INPROTSA refused to provide discovery of its costs and profits sought during the arbitration

proceeding by Del Monte and is therefore now estopped from arguing that the Tribunal did not

take into account its net profits. Id., ¶ 107. Moreover, the Tribunal awarded ancillary damages

based on the amount that INPROTSA was unjust enriched by its violation of the restrictive

covenants, as Florida law permitted. Id., ¶ 102-09.

Finally, INPROTSA argues that the Tribunal did not give proper weight to an unsworn

letter written by a third party, Fernando Baeza, who was not disclosed as a trial witness, who did

not submit sworn pre-filed testimony as required by the Tribunal’s pre-hearing orders, and who

was not made available by INPROTSA at the final hearing for cross-examination. Pet. to Vacate,

at 28. However, INPROTSA concedes, as it must, that the Tribunal admitted Baeza’s unsworn

letter into evidence, considered it, and gave it the weight it deserved -- especially in light of the

overwhelming and contrary testimony by INPROTSA’s own former production manager, Jose

17
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 18 of 22

Nixon Jimenez, and Alfredo Volio, the former Minister of agriculture who the Tribunal found

“has no interest in this proceeding and his testimony was credible and unrefuted by INPROTSA.”

Final Award, ¶ 66; see also id., ¶ 52.

D. INPROTSA’s Petition Is Time Barred

A petition to vacate an international arbitral award governed by the New York Convention

is subject to the three month statute of limitations set forth in 9 U.S.C. § 12. See, e.g., Gonsalvez

v. Celebrity Cruises, Inc., 935 F. Supp. 2d 1325, 1331 (S.D. Fla. 2013), aff’d, 750 F.3d 1195 (11th

Cir. 2013). 9 U.S.C. § 12 provides:

Notice 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. If the adverse party is a resident of the district within which the award
was made, such service shall be made upon the adverse party or his attorney as
prescribed by law for service of notice of motion in an action in the same court. If
the adverse party shall be a nonresident then the notice of the application shall be
served by the marshal of any district within which the adverse party may be found
in like manner as other process of the court. For the purposes of the motion any
judge who might make an order to stay the proceedings in an action brought in the
same court may make an order, to be served with the notice of motion, staying the
proceedings of the adverse party to enforce the award.

(emphasis added). Because extraterritorial parties such as Del Monte, a Swiss corporation whose

principal business office is in Monaco, Final Award, § I(c), p. 2, are not located within the United

States, service must be effected pursuant to Rule 4, Fed. R. Civ. P. Americatel El Salvador, S.A.

de C.V. v. Compania de Telecomunicaciones de El Salvador, S.A. de C.V., 2007 WL 2781057, *1-

2 (S.D. Fla. Sept. 19, 2007). A petitioner must strictly comply with the service requirements. Id.

(holding service by FedEx and without a summons was insufficient under 9 U.S.C. § 12 and Rule

4); Belz v. Morgan Stanley Smith Barney, LLC, 2014 WL 897048, *4-7 (S.D. Fla. Mar. 6, 2014)

(ruling that motion to vacate arbitral award was time barred due to failure to strictly comply with

service requirements under 9 U.S.C. § 12, and that actual notice through email to counsel was

insufficient to cure the defect).

18
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 19 of 22

Importantly, “the failure of a party to move to vacate an arbitral award within the three-

month limitations period prescribed by section 12 of the [Federal Arbitration Act] bars him from

raising the alleged invalidity of the award as a defense in opposition to a motion … to confirm the

award.” Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851, 854 (11th Cir. 1989);

Belz, 2014 WL 897048, *8 (same).

The Final Award was issued by the Tribunal on June 10, 2016, and delivered by the ICC to

the parties on June 15, 2016. See June 14, 2016 Letter from ICC to counsel for the parties,

attached as Exhibit “F”. Consequently, INPROTSA had until September 15, 2016 by which to

serve Del Monte pursuant to Rule 4, Fed. R. Civ. P. Americatel El Salvador, S.A. 2007 WL

2781057, *1-2. 5 But INPROTSA has never served its Petition to Vacate upon Del Monte.

Instead, INPROTSA waited until the eve of the statute of limitations to file its Petition to Vacate

in Florida state court and then made no efforts to serve the Petition to Vacate on Del Monte. The

docket sheet in the State Court Action, reflects that INPROTSA had not even requested the clerk

of court to issue a summons that could be served on Del Monte. State Court Docket, Case No.

2016-023517-CA-25, attached as Exhibit “G”.

INPROTSA’s Petition to Vacate is time barred, and INPROTSA is foreclosed from

asserting defenses to Del Monte’s cross petition to confirm. Cullen, 863 F.2d at 854; Belz, 2014

WL 897048, *8. The Petition to Vacate should be dismissed with prejudice for this reason as well.

III. DEL MONTE IS ENTITLED TO CONFIRMATION OF THE FINAL AWARD

To obtain recognition and enforcement of the Final Award by this Court, Del Monte

shall, at the time of the application, supply: (a) The duly authenticated original
5
Although INPROTSA filed its Petition to Vacate in Florida state court within 90 days of the
delivery of the Final Award by the ICC, it did not perfect service of the Petition to Vacate within
the three month limitations period. 9 U.S.C. § 12 plainly requires a petition to vacate to be
“served” within the three-month limitation period. Merely filing the Petition to Vacate is not
sufficient to meet the time limitations imposed by 9 U.S.C. § 12. Americatel, 2007 WL 2781057,
*1-2; Belz, 2014 WL 897048, *4-7.

19
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 20 of 22

award or a duly certified copy thereof; (b) The original agreement referred to in
article II or a duly certified copy thereof.

New York Convention, Art. IV(1). Certified copies of the Final Award and the Agreement are

attached hereto as Exhibits “A” and “D”. This Court is required to “confirm the [Final Award]

unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award

specified in the said [New York] Convention” under Article V. 9 U.S.C. § 207; Industrial Risk

Insurers, 141 F.3d at 1442, 1446; Costa, 768 F. Supp. 2d at 1240.

INPROTSA has not asserted, and cannot establish, any of the seven enumerated grounds

set forth in Article V of the New York Convention to vacate the Final Award or oppose its

confirmation and is, in any event, time-barred from doing so. Accordingly, this Court should deny

INPROTSA’s Petition to Vacate and confirm the Final Award.

IV. INPROTSA SHOULD PAY DEL MONTE’S ATTORNEY’S FEES

INPROTSA and its attorneys should pay Del Monte’s attorney’s fees incurred in defending

the meritless Petition to Vacate, pursuant to the prevailing party attorney’s fee provision in the

Agreement, Clause 19, and the authority granted by the Eleventh Circuit and federal law. See

World Business, 403 Fed. App’x at 470-71 (awarding sanctions against loser of arbitration for

meritless challenge based on B.L. Harbert); Fowler v. Ritz-Carlton Hotel Co., 2015 WL 1001205,

**15-18 (M.D. Fla. 2015) (sanctioning arbitration losers and their attorney for meritless motion to

vacate arbitral award pursuant to the authority set forth in B.L. Harbert); 28 U.S.C. § 1927

(holding attorneys personally responsible for unreasonable and vexatious litigation).

V. CONCLUSION

For the reasons set forth above, the Petition to Vacate should be dismissed with prejudice,

the Final Award should be confirmed, and Del Monte should be awarded it costs and attorneys’

fees.

20
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 21 of 22

Dated: October 11, 2016 Respectfully submitted,

By: Brian J. Stack

Brian Stack, Esq.
Fla. Bar No. 476234
Email: bstack@stackfernandez.com
Lazaro Fernandez, Jr.
Fla. Bar No. 716545
Email: lfernandez@stackfernandez.com
Robert Harris
Fla. Bar No. 817783
Email: rharris@stackfernandez.com
STACK FERNANDEZ ANDERSON
& HARRIS, P.A.
1001 Brickell Bay Drive
Suite 2650
Miami, Florida 33131
Telephone: 305.371.0001
Facsimile: 305.371.0002

Attorneys for Respondent, Del Monte

International GmbH

21
Case 1:16-cv-24275-FAM Document 6 Entered on FLSD Docket 10/11/2016 Page 22 of 22

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of October 2016 I electronically filed the

foregoing document with the Clerk of Court by using the CM/ECF system. I further certify that

the foregoing is being served this day upon all counsel of record or pro se parties identified in the

following Service List in the manner specified, either via transmission of Notices of Electronic

Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who

are not authorized to receive electronically Notices of Electronic Filing.

By: s/ Brian J. Stack

Brian J. Stack, Esq.

SERVICE LIST

Richard C. Lorenzo
Email: richard.lorenzo@hoganlovells.com
Alvin F. Lindsay
Email: alvin.lindsay@hoganlovells.com
Juan C. Garcia
Email: juan.garcia@hoganlovells.com
HOGAN LOVELLS US LLP
600 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 459-6500
Facsimile: (305) 459-6550
Attorneys for Petitioner

[Via CM/ECF]

22