Refusal to Confirm a Foreign Arbitral Award When the Tribunal Was Not Appointed Under the Parties’ Chosen Institutional Rules (New York Convention art. V(1)(d))

1. Introduction

Case: Spineway SA v. Strategos Group LLC (3d Cir. Mar. 18, 2025) (not precedential).
Parties: Spineway SA (medical device company) sought confirmation of a Swiss-seated arbitral award; Strategos Group LLC (investment firm, incorporated in Delaware) resisted enforcement.
Key issue: Whether a U.S. court may refuse to confirm a foreign arbitral award under the New York Convention where the arbitration clause named a non-existent arbitral institution (“Geneva International Chamber of Commerce”), and the claimant proceeded instead before a different institution (SCAI) that appointed the arbitrator under its own rules.
Secondary issue: Whether Strategos waived its right to object to the tribunal’s authority by not participating in the arbitration.

2. Summary of the Opinion

The Third Circuit affirmed denial of confirmation. It held that Strategos did not waive its right to challenge the arbitrator’s authority by abstaining from the arbitration, and that the award was not enforceable under New York Convention Article V(1)(d) because the arbitrator was appointed under SCAI rules rather than the arbitral mechanism the parties intended (the ICC and ICC rules). Applying French contract-interpretation principles (as chosen in the contract), the court agreed that extrinsic evidence showed the parties’ true common intent was ICC administration in Geneva—not SCAI.

3. Analysis

A. Precedents Cited

  • Jiangsu Beier Decoration Materials Co. v. Angle World LLC, 52 F.4th 554 (3d Cir. 2022)
    Used for the standard of review and the framework that enforcement of foreign awards is governed by the New York Convention, with de novo review of Convention interpretation.
  • Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362 (2d Cir. 2003)
    Cited to illustrate the waiver concept: participation in arbitration without timely objection can imply consent and waive later jurisdictional challenges—by contrast to Strategos’s non-participation.
  • MCI Telecomms. Corp. v. Exalon Indus., Inc., 138 F.3d 426 (1st Cir. 1998)
    Central to the waiver holding: a party asserting it is not bound by an arbitration agreement may “simply abstain” and later object at enforcement, rather than appearing and risking implied consent.
  • Langlais v. PennMont Benefit Servs., Inc., No. 2-11-CV-05275, 2012 WL 2849414 (E.D. Pa. July 11, 2012), aff’d, 527 F. App’x 215 (3d Cir. 2013)
    Reinforced that a party need not appear before the arbitrator to preserve jurisdictional objections.
  • China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274 (3d Cir. 2003)
    Served two roles: (i) waiver principles are not materially different under the Convention versus the FAA; and (ii) courts owe no deference to a putative arbitrator’s determination of jurisdiction because arbitral power derives solely from party agreement.
  • Control Screening LLC v. Tech. Application & Prod. Co. (Tecapro), HCMC- Vietnam, 687 F.3d 163 (3d Cir. 2012)
    Cited for the interpretive method: courts examine the arbitration agreement’s language (and apply governing contract law) when assessing Convention-based arbitration/enforcement questions.
  • Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85 (2d Cir. 2005)
    Important analogue on Article V(1)(d): refusal to confirm where the arbitral panel/body was not selected in accordance with the agreement; supports strict attention to agreed appointment mechanisms.
  • Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos, 25 F.3d 223 (4th Cir. 1994)
    Quoted for a categorical proposition: awards by arbitrators not appointed under the method provided in the contract must be vacated/refused—supporting the Third Circuit’s Article V(1)(d) application.
  • Int’l Bhd. of Teamsters, Loc. 249 v. W. Pa. Motor Carriers Ass’n, 574 F.2d 783 (3d Cir. 1978)
    Supports non-deference: a court should not accept an arbitrator’s self-determination of authority where the agreement clearly does not grant it.
  • Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007)
    Cited to respect choice-of-law provisions in arbitration agreements—here, French law governed interpretation of the arbitration clause.
  • United States v. Pellulo, 399 F.3d 197 (3d Cir. 2005)
    Used procedurally: Spineway’s failure to contest factual findings on appeal resulted in waiver of those challenges.

B. Legal Reasoning

  1. No waiver from non-participation.
    The court treated Strategos’s abstention as a recognized path for a party claiming it never agreed to the asserted tribunal. Consistent with MCI Telecomms. Corp. v. Exalon Indus., Inc. and Langlais v. PennMont Benefit Servs., Inc., Strategos could refuse to appear and later raise the jurisdiction/authority objection at the enforcement stage. The court contrasted this with the risk identified in Opals on Ice Lingerie v. Bodylines Inc.: participation without timely objection can imply consent.
  2. Article V(1)(d) focuses on adherence to the parties’ agreed “composition” and “procedure.”
    Under New York Convention Article V(1)(d), enforcement “may be refused” if the composition of the arbitral authority or the arbitral procedure was not in accordance with party agreement. The court framed the dispute as one about who was empowered to appoint the arbitrator and under what rules, not a merits dispute.
  3. Contract interpretation under French law (true common intent) supplied the missing institutional identity.
    Although the clause referenced a non-existent “Geneva International Chamber of Commerce,” the parties agreed French law governed interpretation. Applying French law’s search for “the true common intent of the parties,” and allowing extrinsic evidence (drafting history and expert testimony), the District Court found—without clear error—that the parties intended ICC administration and ICC rules in Geneva.
  4. Because SCAI appointed the arbitrator under SCAI rules, the award was not made by the tribunal the parties selected.
    The Third Circuit held this mismatch fit squarely within Article V(1)(d). The court also emphasized it owed no deference to the arbitrator’s jurisdictional determination (per China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp. and Int’l Bhd. of Teamsters, Loc. 249 v. W. Pa. Motor Carriers Ass’n) because arbitral power is purely contractual.
  5. Delegation/arbitrability did not block judicial review.
    Even if the parties intended to arbitrate “questions of arbitrability,” the court held it could still decide whether the decisionmaker was the one the parties chose—because the dispute concerned the identity of the arbitral tribunal and the appointment rules, not whether a category of disputes was arbitrable.

C. Impact

  • Institutional-designation errors can be outcome-determinative at enforcement. Proceeding before a “close substitute” institution, without a legally grounded basis that it matches party intent, risks non-enforcement under Article V(1)(d) even when the seat is respected and notice is given.
  • Article V(1)(d) remains a potent, procedure-focused defense. The decision underscores that party autonomy over tribunal composition/appointment is core; deviations can defeat confirmation even absent merits irregularities.
  • Non-participation can preserve jurisdictional objections. The opinion validates a strategic choice: a respondent disputing tribunal authority may abstain and litigate enforceability later—while recognizing that participation may risk waiver.
  • Drafting practice lesson for cross-border contracts. Parties should name real institutions and rules (and consider “fallback” mechanisms) to avoid later disputes about intent and appointment authority.

4. Complex Concepts Simplified

New York Convention
An international treaty requiring courts of member states to recognize and enforce foreign arbitral awards, subject to limited defenses (including Article V).
Article V(1)(d)
A defense allowing a court to refuse enforcement when the arbitrator/tribunal was formed or the arbitration procedure was not what the parties agreed to (e.g., wrong appointing authority or wrong institutional rules).
“Composition of the arbitral authority”
How the arbitrator(s) are selected and constituted—who appoints them and under what process.
Waiver by participation
If a party participates in arbitration without timely objecting to the tribunal’s authority, courts may treat that conduct as implied consent, forfeiting later challenges.
Arbitrability vs. tribunal identity
“Arbitrability” asks whether a dispute must go to arbitration at all; “tribunal identity” asks which specific forum/institution and appointment method the parties chose. Courts may decide the latter even when the former is delegated to arbitrators.
Extrinsic evidence and “true common intent” (French law)
Rather than relying only on the literal words, French interpretation may look to drafting history and other evidence to identify what both parties actually meant.

5. Conclusion

The Third Circuit affirmed refusal to confirm a foreign arbitral award where the arbitration proceeded under SCAI rules even though the parties’ intended bargain—determined under French law using extrinsic evidence—was ICC administration and ICC appointment procedures. The opinion highlights two practical rules: (1) a respondent disputing tribunal authority does not necessarily waive that objection by abstaining from the arbitration; and (2) under New York Convention Article V(1)(d), enforcing courts may deny confirmation when the tribunal was not constituted in accordance with the parties’ agreed (and properly interpreted) appointment mechanism.