Zeiler v. Deitsch

06-1893-cv, 06-5617-cv
Zeiler v. Deitsch

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2006

Heard: May 14, 2007 Decided: August 23, 2007

Docket Nos. 06-1893-cv, 06-5617-cv

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MAYER ZEILER, FLOCKTEX INDUSTRIES LTD.,
DE-LUX INDUSTRIES and ACHIM DEITSCH TEXTILE
INDUSTRIES,
Plaintiffs-Counter-Defendants-
Appellees,

v.

JOSEPH DEITSCH, MORDECAI DEITSCH, JACOB PINSON,
RACHEL SANDMAN, DEITSCH PLASTIC COMPANY,
DEITSCH PLASTIC PARTNERS, DEITSCH INTERNATIONAL
SALES CORP., SHALVAH PARTNERSHIP, OLDE POINTE
ASSOCIATED LIMITED PARTNERSHIP, ATC PARTNER-
SHIP, ESDEE REALTY, ORANGE INVESTMENT COMPANY,
WILLOWBROOK VENTURE COMPANY, ANNASH, INC. and
GREENDEER,
Defendants-Counterclaimants-Appellants.
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Before: NEWMAN, MINER and KATZMANN, Circuit Judges.

Appeals from the March 22, 2006, judgment and November 9, 2006,

order of the United States District Court for the Eastern District of

New York (Sandra L. Townes, District Judge), vacating, in No. 06-1893,

arbitral awards made by a panel of Jewish rabbis because a panel
member resigned, and confirming the full panel’s previous accounting

awards, and enforcing, in No. 06-5617, the judgment that had confirmed

the accounting awards.

No. 06-1893 reversed in part, affirmed in part, and remanded;

No. 06-5617 affirmed.

Nathan Lewin, Wash., D.C. (Alyza D. Lewin,
Lewin & Lewin, LLP, Wash., D.C.; Thomas A.
Kissane, Schlam Stone & Dolan, LLP, New
York, N.Y., on the brief), for Defendants-
Counterclaimants-Appellants.

Leslie A. Lupert, New York, N.Y. (Sarah P.
Karwan, Orans, Elsen & Lupert LLP, New
York, N.Y., on the brief), for Plaintiffs-
Counter-Defendants-Appellees.

JON O. NEWMAN, Circuit Judge.

The primary issue on the first of these two appeals, which were

heard in tandem, is the narrow question of whether, in the

circumstances of this case, an arbitration panel composed of three

rabbis can proceed to make an award after one member has resigned from

the panel. The second appeal concerns the validity of a court order

enforcing a judgment that confirmed the three-member panel’s earlier

awards requiring accountings. These matters arise on an appeal in No.

06-1893 from a judgment of the United States District Court for the

Eastern District of New York (Sandra L. Townes, District Judge)

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vacating the two-member panel’s arbitration awards and confirming

eight accounting awards previously made by the full three-member panel

and an appeal in No. 06-5617, from an order enforcing the District

Court’s judgment with respect to the accounting awards. We conclude

that the arbitration panel was entitled to continue after one member’s

resignation, that the accounting awards were properly confirmed, and

that the enforcement order was properly entered. In No. 06-1893, we

reverse the District Court’s judgment in part, affirm in part, and

remand, and in No. 06-5617, we affirm.

Background

Facts. A somewhat detailed account of the facts is required.

Plaintiff-Appellee Mayer Zeiler (“Zeiler”) and Defendants-Appellants

Joseph Deitsch, Mordecai Deitsch, Jacob Pinson, and Rachel Sandman

(collectively “Deitsch”) all belong to the Jewish-Orthodox Deitsch

family. Zeiler resides in Israel, and Deitsch resides in the United

States. They have jointly owned various assets in both the United

States and Israel. Plaintiffs-Appellees Flocktex Industries Ltd., De-

Lux Industries, and Achim Deitsch Textile Industries are three Israeli

corporations that were jointly owned by Zeiler and Deitsch (“Israeli

companies”). Defendants-Appellants Deitsch Plastic Co., Deitsch

Plastic Partners, Deitsch International Sales Corp., and Annash, Inc.

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are U.S. corporations that were also owned jointly by Zeiler and

Deitsch (“U.S. companies”). Defendants Shalvah Partnership, Olde

Pointe Associated Limited Partnership, ATC Partnership, Esdee Realty,

Orange Investment Co., Willowbrook Venture Co., Annash, Inc., and

Greendeer are real estate entities located in various states in the

United States, which are owned jointly by Zeiler and Deitsch (“U.S.

real estate”).

In the late 1990s, Zeiler and Deitsch decided to sever much of

their business relations by dividing the jointly owned assets between

them. Due to the complexity of the issues and the various disputes

involved in making the division, the parties decided to submit their

dispute to arbitration. They agreed that arbitration would occur

before a “Beth Din,” which is a Jewish religious tribunal comprising

three rabbis.

The parties agreed to appoint the members of the Beth Din

according to the method known in Jewish law as “Zabla,” in which each

party elects one arbitrator, and the two appointed arbitrators then

pick a third neutral arbitrator as the presiding member of the panel.1

1
“Zabla” is the pronunciation of an acronym for the Hebrew words

“Ze Borer Lo Echad” (substituting capital “E” for the letter “aleph”

with its diacritical mark, signifying the sound of an “e”); the phrase

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Zeiler appointed Rabbi Moshe Tendler, Deitsch appointed Rabbi Moshe

Bogomilsky, and Rabbis Tendler and Bogomilsky selected Rabbi Shmuel

Gurwitz as the presiding arbitrator.

After the appointment of the panel, the parties signed, on August

22, 1999, a formal arbitration agreement--a concise, standard-form

contract in traditional Hebrew entitled “Arbitration Deed” (“1999

Arbitration Agreement”).2 The 1999 Arbitration Agreement stated, in

pertinent part, the willingness of the parties to seek resolution of

all their disputes by a Beth Din consisting of Rabbis Tendler,

Bogomilsky, and Gurwitz, who were to arbitrate the case according to

Jewish law. The arbitrators were authorized to enter interim and

final awards and to reach decisions by vote of a majority of the

roughly translates as “each picks his one.”
2
The District Court encountered an insignificant confusion

regarding the exact date of the signing: the Agreement stated only the

Hebrew calendar date, 10 Ellul 5759, which was in fact August 22,

1999. The translation supplied to the District Court, however,

mentioned the incorrect date September 22, 1999, and subsequent

documents filed by the parties apparently echoed that mistake. The

District Court therefore referred to the Agreement as the “September

1999 agreement.”

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members of the panel.

In September 1999, following several arbitration sessions, the

panel entered a framework decision in which it adopted the parties’

agreement to sever their commercial connections by granting Zeiler

full ownership of the Israeli companies and Deitsch full ownership of

the U.S. companies, while retaining joint ownership of the U.S. real

estate (“1999 Decision”). The decision then set out a general plan

according to which the dissolution of the partnership and the division

of the assets would take place. The 1999 Decision also required the

parties to jointly shoulder, in relative shares, the tax obligations

incurred by the U.S. and Israeli companies until the end of 1997;3 and

that Zeiler should receive “a full and accurate listing” of the

jointly owned real estate and additional information regarding his

pension and insurance rights in the U.S. companies. Finally, the Beth

Din ordered that a detailed contract be prepared based on the

principles set out in the decision.

From 1999 to 2003 the parties engaged in extensive negotiations

3
Since Zeiler owned 1/6 of the joint assets, his relative tax

liability was 1/6 of the full amount paid by the partners. The

arrangement regarding the tax liability was reiterated in a ruling of

the Beth Din in June 2001.

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in order to implement the 1999 Decision. As various disputes arose

along the way, the parties returned to the arbitration panel which in

turn entered various detailed decisions. Six such decisions, handed

down between July 2000 and April 2003, required, among other things,

that Deitsch provide Zeiler with an accounting regarding the U.S. real

estate entities, which are jointly owned by the parties but

effectively controlled by Deitsch.4 The parties disagree as to whether

all these orders, along with a similar provision in the 1999 Decision

4
More specifically, a decision of July 3, 2000, provided that

“Zeiler is entitled to an accounting and payment of all income due

him“ from the U.S. real estate; a decision of July 6, 2000, ordered

Deitsch “to provide Zeiler with a complete accounting of his real

estate investments, with documentation for the past five years”; a

decision of June 24, 2001, provided that “Zeiler should immediately be

given all the real estate information as indicated in the previous

[orders]”; a decision of May 14, 2002, stated that “Mr. Zeiler, or his

representative, has the right to review the books of the American real

estate partnerships”; a decision of March 4, 2003, required the

parties to follow the directives of an appointed accountant regarding

Zeiler’s request for information; and a decision of April 28, 2003,

literally reiterated the previous order.

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and a subsequent order in February 2004, regarding Zeiler’s life

insurance policies (collectively, the “accounting orders”), were fully

complied with (as Deitsch contends) or not (as Zeiler contends).

In June 2003, a comprehensive agreement entitled “Shares Sales

Agreement” was finally signed by the parties (“2003 Agreement”). The

2003 Agreement implemented the general guidelines of the 1999 Decision

and the subsequent orders of the arbitration panel. It specified the

details of both parties’ obligations, which would lead to splitting

the ownership of the Israeli and U.S. companies--mostly, reciprocal

transfers of funds, shares, and documents. Among its many provisions,

the 2003 Agreement reiterated Zeiler’s obligation to pay his relative

share (1/6) of tax obligations. The 2003 Agreement also required

Deitsch to provide Zeiler with documents regarding the U.S. real

estate and Zeiler’s pension and insurance rights in the U.S.

companies. Lastly, the 2003 Agreement stated:

[T]his Agreement shall be governed and construed
pursuant to the Torah law,[5] and the Beth Din

5
“Torah law” and “Halachic law” are the formal terms for the body

of law sometimes referred to in English as “Jewish law.” See

http://en.wikipedia.org/wiki/Jewish_law (“Halakha”) (last visited

August 1, 2007). Jewish law is not to be confused with “Israeli law,”

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 shall have exclusive jurisdiction in connection
herewith.

“Beth Din” is defined in the 2003 Agreement as:

a judicial tribunal governed by Halachic law, the
members of which are the honorable Rabbi Moshe D.
Tendler, Rabbi Shmuel C. Gurwitz and Rabbi Moshe
Bogomilski, or any other tribunal governed by
Halachic law upon which the Parties mutually
agree[.]

As the 2003 Agreement was being implemented, another dispute

arose between the parties, this time regarding the amount of Zeiler’s

share of the taxes paid by Deitsch to the I.R.S. In December 2003

Deitsch filed with Zeiler a reimbursement demand for 1/6 of the taxes

allegedly paid by Deitsch, an amount of nearly $800,000. In April

2004, Zeiler sent a letter to the three arbitrators in which he

contested Deitsch’s demand on the basis of lack of credible

documentation. Five days later, and before the Beth Din considered

this dispute, Rabbi Tendler, the arbitrator appointed by Zeiler,

resigned from the Beth Din. In two letters sent to Rabbi Gurwitz,

Rabbi Tendler accused Rabbi Gurwitz of failing to compel Deitsch to

abide by the accounting orders, and claimed that Rabbi Bogomilsky (the

arbitrator appointed by Deitsch) was biased.

Following Rabbi Tendler’s resignation, the two remaining

the body of law governing in Israel.

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arbitrators, Rabbis Gurwitz and Bogomilsky, entered a decision on May

7, 2004, stating that under Jewish law and in accordance with the 1999

Arbitration Agreement they retained authority over the arbitration.

In a letter sent to an Israeli rabbi, Rabbis Gurwitz and Bogomilsky

detailed the authorities in Jewish law on which they had based their

decision to retain jurisdiction. Their reasoning was based primarily

on the fact that the substantive issue--Zeiler’s 1/6 share in the

joint tax liability--had already been decided by the three arbitrators

in 2001, so the remaining dispute concerned only the amount of money

to be paid under that liability. In addition, the arbitrators

mentioned the 1999 Arbitration Agreement’s authorization to decide

issues by a majority vote. Rabbis Gurwitz and Bogomilsky then issued

a letter to the parties scheduling a session of the arbitration panel

to hear argument on the tax dispute.

In response, Zeiler declared that because the panel had lost one

of its members, “the Beth Din, as previously constituted, no longer

exists and it is for the parties to decide henceforth with regards to

a newly constituted Beth Din.” Zeiler added that he would not appear

before the two-member panel.

Rabbis Gurwitz and Bogomilsky denied Zeiler’s objections and

conducted the session, at which only Deitsch appeared, presenting

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evidence regarding the amount of money he had paid in U.S. taxes and

seeking reimbursement of Zeiler’s share. On June 16, 2004, Rabbis

Gurwitz and Bogomilsky entered a decision ordering Zeiler to pay

Deitsch $794,145.16--his share of the taxes that Deitsch proved he had

paid to the I.R.S. for earnings prior to the end of 1997. The June

16, 2004, decision briefly considered the claims included in Zeiler’s

letter contesting the tax liability, but denied them.

The litigation. In August 2004, Zeiler and the Israeli companies

filed a petition in New York Supreme Court, which Deitsch removed to

the District Court. Zeiler asked the Court to vacate the two-member

panel’s decisions of May 7, 2004 (retaining jurisdiction), and June

16, 2004 (imposing the nearly $800,000 liability). Zeiler also asked

the Court to confirm the eight accounting orders previously entered by

the three-member panel between 1999 and 2004. In an almost

symmetrical counter-petition, Deitsch and the U.S. companies sought

confirmation of the June 16, 2004, award and vacation of the eight

accounting orders.

On March 22, 2006, the District Court entered a judgment granting

all aspects of Zeiler’s petition--vacating the May 7, 2004, and June

16, 2004, decisions and confirming the eight accounting orders. Due

to the varying nationalities of the parties and the locations of the

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assets involved, the Court applied the standards for confirmation set

by Chapter 2 of the Federal Arbitration Act (“FAA”), which

incorporated the terms of the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, 1958, 9 U.S.C. §§ 201-08, 21

U.S.T. 2517 (“Convention”). See Zeiler v. Deitsch, No. 04-3602

(E.D.N.Y. March 22, 2006). Deitsch appeals both aspects of the

District Court’s judgment in No. 06-1893.

After entry of the March 22, 2006, judgment, Zeiler filed a

motion with the District Court to enforce the judgment that had

confirmed the accounting orders. Zeiler’s enforcement motion

specifically asked the Court to order Deitsch to provide Zeiler with

“an accounting for the years 1995 to the present within ten (10) days

for the [U.S. real estate].” On October 27, 2006, Judge Townes

granted “in all respects” Zeiler’s motion to enforce the accounting

orders. An order to that effect was entered on November 9, 2006.

In December 2006, this Court granted Deitsch’s motion for a stay

of the District Court’s enforcement order. See Zeiler v. Deitsch, No.

06-1893 (2d Cir. Dec. 6, 2006). Deitsch then filed a second notice of

appeal, this time appealing the District Court’s enforcement order of

November 9, 2006. Deitsch claims that the enforcement decision has

broadened the scope of his accounting obligations, compared to the

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language of the eight accounting orders entered by the arbitration

panel and previously confirmed by the District Court. We consider

this second appeal, No. 06-5617, along with the appeal from the

Court’s March 22, 2006, judgment.

Discussion

I. Applicable Principles

“Where a district court denies confirmation of an arbitral award,

we review its findings of fact for clear error, and its conclusions of

law de novo.” Encyclopaedia Universalis S.A. v. Encyclopaedia

Britannica, Inc., 403 F.3d 85, 89 (2d Cir. 2005). Similarly, “[w]e

review a district court’s decision to confirm an arbitration award de

novo to the extent it turns on legal questions, and we review any

findings of fact for clear error.” Duferco International Steel Trading

v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003). In a

case governed by the Convention, “[t]he party opposing enforcement of

an arbitral award has the burden to prove that one of the seven

defenses under the New York Convention applies. Art. V(1). The burden

is a heavy one, as the showing required to avoid summary confirmance

is high.” Encyclopaedia, 403 F.3d at 90 (internal quotation marks and

citation omitted).

The facts of the case support the District Court’s assumption

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that, even though the arbitration took place in New York, it should be

considered a non-domestic arbitration for the purposes of the FAA, and

therefore covered by the Convention. Some of the assets that were the

subject of the arbitration are located in Israel, and some of the

parties reside there. The law chosen to govern the arbitration is

based on a foreign system. The commercial transactions decided in the

arbitration have a clear international character. See Convention, art.

I(1) (The Convention applies to “arbitral awards not considered as

domestic awards in the State where their recognition and enforcement

are sought.”); 9 U.S.C. § 202 (“An agreement or award arising out of

[a commercial] relationship which is entirely between citizens of the

United States shall be deemed not to fall under the Convention unless

that relationship involves property located abroad, envisages

performance or enforcement abroad, or has some other reasonable

relation with one or more foreign states.”); Bergesen v. Joseph Muller

Corp., 710 F.2d 928, 932-33 (2d Cir. 1983) (both the Convention and

section 202 authorize United States courts to enforce under the

Convention non-domestic awards entered in the United States); Yusuf

Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 19

(2d Cir. 1997) (awards become subject to the Convention “not because

made abroad, but because made within the legal framework of another

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country, e.g., pronounced in accordance with foreign law or involving

parties domiciled or having their principal place of business outside

the enforcing jurisdiction” (quoting Bergesen, 710 F.2d at 932)).

Judicial confirmation of the arbitration awards in the pending

case is therefore initially governed by the provisions of chapter 2 of

the FAA, 9 U.S.C. §§ 201-08, and by the Convention, 21 U.S.T. 2517, as

incorporated in the FAA. However, since the arbitration took place in

the United States, the awards entered by the Beth Din are at the same

time subject to the FAA provisions governing domestic arbitration

awards. See Convention, art. V(1)(e); Yusuf, 126 F.3d at 21-23; Sole

Resort, S.A. de C.V. v. Allure Resorts Management, LLC, 450 F.3d 100,

102 n.1 (2d Cir. 2006); Jacada, Ltd. v. International Marketing

Strategies, Inc., 401 F.3d 701, 709 (6th Cir. 2005). It appears that

the District Court did not consider the import of the FAA’s “domestic”

provisions, instead applying solely the Convention’s grounds of

review. However, as will be discussed in more detail below, we

conclude that such an additional analysis would have had no practical

effect on the matters before us.

The power of a district court to confirm a non-domestic

arbitration award under the Convention is stated in 9 U.S.C. § 207:

Within three years after an arbitral award
falling under the Convention is made, any party

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 to the arbitration may apply to any court having
jurisdiction under this chapter for an order
confirming the award as against any other party
to the arbitration. 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 Convention.

Article V of the Convention stipulates the bases for denying

confirmation of an arbitral award. It reads, in relevant part:

(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:

. . . .

(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
suspended by a competent authority of the
country in which, or under the law of which,
that award was made.

Applying these provisions, the District Court ordered the two

decisions entered by Rabbis Gurwitz and Bogomilsky vacated, and

confirmed the eight accounting orders entered by all three arbitrators

prior to Rabbi Tendler’s resignation. We consider each of these

decisions separately.

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II. Composition of the Arbitration Panel

The District Court ruled that the 2003 Agreement explicitly

required that the arbitration panel consist of the three named rabbis

and that the 2003 Agreement did not authorize any two of them to

continue the arbitration in the absence of the third. The Court

therefore granted Zeiler’s petition to vacate the two decisions

entered by only two members of the panel.6 The Court relied on

6
In vacating the two awards, rather than merely refusing to

confirm them, the District Court seems to have briefly recognized its

double role, both as a confirmation-and-enforcement tribunal of non-

domestic arbitration awards under the Convention, and as a “competent

authority of the country in which . . . that award was made,”

Convention, art. V(1)(e), authorized under Chapter 1 of the FAA to

vacate arbitration awards entered in the United States. See Yusuf, 126

F.3d at 21-23. While the distinction between vacation of an

arbitration award and refusal to confirm an arbitration award may be

of negligible significance within the United States, it can affect the

remaining force of an unconfirmed award outside this country, if a

party seeks to confirm and enforce the award under the Convention

abroad.

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Convention, art. V(1)(d), which authorizes a court to refuse

confirmation of an arbitration award if the award was entered by an

arbitral authority whose composition “was not in accordance with the

agreement of the parties.”

Deitsch presents two main arguments for the confirmation of the

June 16, 2004, award. First, he argues that the Convention grants a

However, as long as the Court had considered only Article V(1)(d)

of the Convention, it should not have vacated the arbitration awards,

as neither the Convention nor its enabling statute, 9 U.S.C. §§ 201-

08, grant such a power with regard to non-domestic awards. See Yusuf,

126 F.3d at 22; M & C Corp. v. Erwin Behr GMBH & Co., KG, 87 F.3d 844,

849 (6th Cir. 1996); Tesoro Petroleum Corp. v. Asamera (South

Sumatra), Ltd., 798 F. Supp. 400, 405 (W.D. Tex. 1992); Alan Scott

Rau, The New York Convention in American Courts, 7 Am. Rev. Int’l Arb.

213, 234-36 (1996). Rather, the Court should have only refused to

confirm the June 16, 2004, award, the confirmation of which was sought

in Deitsch’s cross-petition. Only if it had proceeded to analyze the

claims Zeiler presented under 9 U.S.C. § 10(a), could the District

Court have vacated the May 7, 2004, and the June 16, 2004, awards.

However, given our view of the merits of the appeal, as discussed

below, this broadening of the remedy is of no consequence.

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district court discretion whether to confirm non-domestic awards even

if they fall within the scope of Article V. Second, he argues that

contrary to the District Court’s view, the arbitration agreements

allow two arbitrators, when facing the unique circumstances that

existed in this case, to retain jurisdiction over the arbitration and

enter the June 16, 2004, award.7 We need not consider the first

argument because we agree with the second.

The authority of the two remaining arbitrators after the

resignation of the third one is essentially an issue of contract

interpretation, grounded in the language of the agreements between the

parties. See Volt Information Sciences, Inc. v. Board of Trustees of

Leland Stanford Junior University, 489 U.S. 468, 476 (1989) (“[T]he

federal policy [under the FAA] is simply to ensure the enforceability,

according to their terms, of private agreements to arbitrate.”).

Because the District Court relied for its interpretation of the 2003

Agreement on the contractual language itself, we review de novo its

inference that the 2003 Agreement could not be understood to foresee

the possibility of a two-member disposition in the unique

7
Deitsch also argues that this is the view of Jewish law, which

was explicitly chosen by the parties to govern both the substance of

the arbitration and the interpretation of the 2003 Agreement.

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circumstances of this case. See Bellefonte Reinsurance Co. v. Aetna

Casualty & Surety Co., 903 F.2d 910, 912 (2d Cir. 1990) (“The proper

standard for appellate review of a pure textual construction by the

district court, whatever the procedural posture of the case, is de

novo.”). On this issue of interpretation we disagree with the District

Court.

Article V(1)(d) of the Convention authorizes courts to deny

confirmation of arbitration awards entered by a panel whose

composition was not in accord with the parties’ agreement. Applying

this article, the District Court focused its inspection on the 2003

Agreement’s definition of “Beth Din.” Because that definition

specified the three named arbitrators, the Court ruled that a panel

composed of only two of those originally named was not the panel

agreed upon. Zeiler also argues that the only alternative under the

2003 Agreement to the three-member panel was “any other tribunal

governed by Halachic law upon which the parties mutually agree.”

Since the parties did not reach a new agreement as to the panel’s

composition following Rabbi Tendler’s resignation, Zeiler maintains

that the award entered by the two remaining members was not in

accordance with the parties’ agreement.

We conclude that the naming of the three rabbis in the 2003

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Agreement did not have the effect of precluding two members from

continuing in the absence of a resigned member. Since the 2003

Agreement was executed after the three panel members had been

identified, the more natural reading of the 2003 Agreement is that the

three members were named only to reflect the choices previously made

by the parties and their designated members, not to state a limitation

on the authority of the panel to continue in the unexpected event that

one of the members might resign. Cf. Doe v. Pataki, 481 F.3d 69, 76-77

(2d Cir. 2007) (recitation of terms of then-existing statutory

provisions in agreement between state and private parties did not

prohibit state from amending its statutes).

This conclusion is also consistent with the “Zabla” method that

the parties had employed in appointing the three arbitrators.

Although the parties did not explicitly mention “Zabla” in either the

1999 Arbitration Agreement or the 2003 Agreement, neither party

disputes that this method was the basis for the appointment of the

three named arbitrators. A natural implementation of the Zabla method

when a member designated by a party resigns would be that party’s

appointment of a substitute. Cf. Trade & Transport, Inc. v. Natural

Petroleum Charterers, Inc., 931 F.2d 191, 195-96 (2d Cir. 1991) (in

domestic arbitration, absent express agreement to that effect, full

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panel should not be removed due to the death of party-appointed

member; replacement arbitrator should be designated).

Reading the parties’ agreement to permit continuation of the

panel in the event of a member’s resignation, with the opportunity of

the relevant party to appoint a successor, is especially appropriate

in the circumstances of this case. The panel had already decided the

substantive issues between the two sides. All that remained was

determination of the amount of tax liabilities in light of the prior

determination of the allocation of those liabilities. To read the

agreement to require the proceeding to be halted upon the resignation

of one member at that late stage of the proceedings would enable bad

faith manipulation of the arbitration process: in an ongoing and

complex arbitration, a party receiving unfavorable interim rulings

would have an incentive to invite the member he designated to resign

to forestall an anticipated ultimate defeat, or even, as in the

pending case, after securing favorable rulings that are confirmable,

to precipitate an arbitrator’s resignation in the hope of avoiding

confirmation of a later unfavorable award. The agreement should not

be read to countenance the waste of resources required to redo a

protracted arbitration proceeding in the event that one member of a

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panel died or otherwise became unable to serve during the proceeding.8

A more sensible reading of the agreement makes continuation of the

remaining members of the panel (with an opportunity for appointment of

a replacement) the default position, subject to an explicit agreement

8
Zeiler’s claim that federal and state courts have often reached

such an unreasonable conclusion is unpersuasive, as none of the cases

he cites involved a unique arbitration structure such as the one

before us nor an attempt by one party to abort an ongoing arbitration

while certain issues were still pending. See, e.g., Encyclopaedia, 403

F.3d at 91 (refusal to confirm under the Convention a single,

conclusive award); Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830

(11th Cir. 1991) (vacation under the FAA of single, conclusive award

and remand for new arbitration proceedings); Gutfreund v. Weiner (In

re Salomon Inc. Shareholders Derivative Litigation), 68 F.3d 554 (2d

Cir. 1995) (arbitration thwarted from the start by agreed arbitrator’s

declining to arbitrate); New York Telephone Co. v. Pennsylvania

General Insurance Co., 87 A.D.2d 956, 451 N.Y.S.2d 219 (App. Div.

1982) (vacation of single, conclusive award entered after single

session); Golenbock v. Komoroff, 2 A.D.2d 742, 153 N.Y.S.2d 309 (App.

Div. 1956) (refusal to appoint replacement arbitrator for full

arbitration).

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of the parties that only a panel with the three originally designated

members still serving is authorized to render an award, albeit by a

majority vote.

We note the parties’ agreement that the arbitration is to be

governed by Jewish law, an intricate set of norms culled from written

and oral tradition and custom, as prescribed by widely accepted

rabbinic authorities, but absent a singular authoritative code or a

firm institutional structure. Not surprisingly, we have not been

referred to any authoritative precedent under that body of law, and,

in view of our interpretation of the parties’ agreement, we need not

rule definitively on what Jewish law would say if the parties’

agreement did not resolve the pending issue. We would be surprised,

however, should the issue arise, if Jewish law would permit the

opportunity for manipulation of the sort we have identified.

We also believe that Zeiler’s reliance on the latter part of the

definition of “Beth Din” in the 2003 Agreement lacks merit. The words

“other tribunal” signal that the parties did not intend this provision

to apply to an instance such as the one before us, in which the

original panel, although lacking one member, remains. Rather, the

parties’ power to mutually agree on some “other tribunal” contemplates

the possibility of creating a wholly distinct mechanism of dispute

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resolution, in case the parties choose to abandon the original “Beth

Din.”9

Because we believe the panel was entitled to continue after Rabbi

Tendler’s resignation, we conclude that the awards were confirmable

and therefore reverse.

III. Confirmation of the Accounting Orders

The District Court confirmed, as a group, eight orders entered by

the arbitration panel over the course of about four years, requiring

Deitsch to provide Zeiler with accounting of the joint U.S. real

estate, beginning in 1995, as well as documents regarding Zeiler’s

pension and insurance rights in the U.S. companies. Deitsch contends

that the eight orders could not be confirmed because they were not

final awards and because, even as “interim” awards, they were already

satisfied. We disagree with both contentions and therefore affirm the

9
We further note that while Zeiler stresses the centrality of the

“other tribunal” alternative to the original three-member panel, he

made no attempt to suggest the creation of some other tribunal in the

three years that have passed since Rabbi Tendler’s resignation, nor

even now.

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District Court’s confirmation of the accounting orders.10

(a) Finality of the orders. Deitsch views the eight accounting

orders as interim discovery rulings that were all intended to

facilitate a subsequent final resolution of the substantive commercial

disputes between the parties, and should therefore be regarded as non-

final and non-confirmable. Zeiler, on the other hand, stresses the

independent nature of Deitsch’s accounting obligations and the

10
9 U.S.C. § 207 sets a three-year statute of limitations for

seeking confirmation of an arbitration award under the Convention. See

Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co.,

Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 580-

81 (2d Cir. 1993); cf. Kerr-McGee Refining Corp. v. M/T Triumph, 924

F.2d 467, 471 (2d Cir. 1991). While Zeiler’s petition was filed in

August 2004, the first four accounting orders he sought to confirm

were entered between September 1999 and June 2001--more than three

years earlier. Because Deitsch did not raise a statute of limitations

objection in the District Court, we consider it abandoned. See

generally National Market Share, Inc. v. Sterling National Bank, Inc.,

392 F.3d 520, 526 (2d Cir. 2004) (“If an affirmative defense is

neither pled nor tried with the parties’ consent, the defense is

usually waived.”).

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separate value he attributes to receiving information about assets

that are and will remain in joint ownership of both parties.

We agree with Zeiler that all of the accounting orders are final

orders requiring accounting and transfer of documents. The decisions

require specific action and do not serve as a preparation or a basis

for further decisions by the arbitrators. They have “finally and

conclusively disposed of a separate and independent claim” and

therefore “may be confirmed although [they] do[] not dispose of all

the claims that were submitted to arbitration.” Metallgesellschaft

A.G. v. M/V Capitan Constante, 790 F.2d 280, 283 (2d Cir. 1986); see

also Sperry International Trade, Inc. v. Government of Israel, 532 F.

Supp. 901, 909 (S.D.N.Y. 1982), aff’d, 689 F.2d 301 (2d Cir. 1982).11

The confirmable nature of the various accounting orders stems

11
Deitsch’s reliance on Michaels v. Mariforum Shipping, S.A., 624

F.2d 411 (2d Cir. 1980), is unavailing. In Michaels, we reversed a

district court’s willingness to review a partial arbitral award that

had decided only some of the liability claims, but had left other

liability issues as well as damages determinations to a subsequent

award. The accounting orders in the pending case are not segments of

a future conclusive award, nor are they determinations required for

furtherance of the arbitration.

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from the unique character of this arbitration, as agreed by the

parties. See Trade & Transport, 931 F.2d at 195 (“[I]f the parties

agree that the panel is to make a final decision as to part of the

dispute, the arbitrators have the authority and responsibility to do

so.”). This was not a “regular” arbitration, in which the arbitrators

would hear all the evidence and eventually reach a conclusive

resolution of the entire case. Rather, the arbitrators were asked to

preside over the continuing process of sorting out the details of a

commercial relationship, entering operative decisions along the way.

The various decisions entered since the 1999 Decision were practical

orders to the parties to take various actions, including conducting

accountings and providing documents. Each order was specific and

final and did not need to be followed by a concluding award.

(b) Confirmation of satisfied awards. Deitsch contends, in the

alternative, that the District Court could not have confirmed awards

that had already been complied with. Zeiler responds that the

accounting orders are yet to be satisfied, and that in any event prior

compliance is not a ground for refusal of confirmation. While

expressing no view as to the factual question of Deitsch’s compliance

with the accounting orders, we agree with Zeiler that Deitsch has

failed to show why prior compliance should serve as a ground for

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refusal to confirm an arbitration award. Confirmation under the

Convention is a summary proceeding in nature, which is not intended to

involve complex factual determinations, other than a determination of

the limited statutory conditions for confirmation or grounds for

refusal to confirm. See Encyclopaedia, 403 F.3d at 90. A district

court confirming an arbitration award does little more than give the

award the force of a court order. At the confirmation stage, the

court is not required to consider the subsequent question of

compliance. See, e.g., District Council No. 9 v. APC Painting, Inc.,

272 F. Supp. 2d 229, 239 (S.D.N.Y. 2003); Collins v. D.R. Horton,

Inc., 361 F. Supp. 2d 1085, 1093 (D. Ariz. 2005).

Because Deitsch did not provide a sufficient reason for refusing

to confirm the eight accounting orders, we affirm the District Court’s

confirmation of these awards.

III. Scope of Enforcement

Having affirmed the District Court’s confirmation of the eight

accounting orders, we next consider Deitsch’s second appeal, No. 06-

5617, which contests the scope of the Court’s order enforcing the

confirmed arbitration awards. Deitsch contends that the District

Court impermissibly went beyond the scope of the confirmed arbitration

awards. Specifically, Deitsch understands the confirmed arbitration

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awards to require accounting only until the date of entry of the last

of the eight awards, February 18, 2004, and argues that the Court

could not require an accounting for any period after that date.

Zeiler, on the other hand, contends that the Court’s order properly

requires an accounting for the period ending on the date of the

Court’s enforcement order, November 9, 2006.

“As a general rule, once a federal court has entered judgment, it

has ancillary jurisdiction over subsequent proceedings necessary to

vindicate its authority, and effectuate its decrees. This includes

proceedings to enforce the judgment.” Dulce v. Dulce, 233 F.3d 143,

146 (2d Cir. 2000) (quotation marks and internal citation omitted).

In the context of an arbitration, the judgment to be enforced

encompasses the terms of the confirmed arbitration awards and may not

enlarge upon those terms. However, enforcement is not confirmation.

Once confirmed, the awards become enforceable court orders, and, when

asked to enforce such orders, a court is entitled to require actions

to achieve compliance with them.

In the pending case, after judgment was entered on March 22,

2006, Zeiler moved for an order requiring Deitsch “to comply with the

. . . judgment and provide [Zeiler] with an accounting for the years

1995 to the present.” The District Court granted Zeiler’s motion “in

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all respects.” That order is fairly understood to require an

accounting “to the present,” meaning the date of the Court’s order,

November 9, 2006.12 It was entirely permissible for the Court to

enforce its judgment by requiring an accounting up to that date in

order to implement the judgment.

Conclusion

Accordingly, in No. 06-1893, we reverse that part of the District

Court’s judgment that vacated the arbitration awards of May 7, 2004,

and June 16, 2004; affirm that part of the judgment that confirmed the

eight accounting awards; and remand for entry of an amended judgment

confirming the arbitration award of June 16, 2004. The stay

previously entered is lifted. In No. 06-5617, we affirm the

enforcement order.

12
It is arguable that the motion’s use of the phrase “to the

present” should be understood to limit the accounting to the date of

the motion, April 5, 2006. However, Deitsch has not made this

argument, and we understand the “present” in the Court’s order

granting the motion on November 9, 2006, to mean the date of the

Court’s order. Counsel would have been well advised to avoid this

ambiguity by specifying either a date certain or an event as the end

point of the accounting it was then seeking.

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