Republic of Argentina v. AWG Group Ltd

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2017 Decided July 3, 2018

No. 16-7134

REPUBLIC OF ARGENTINA,
APPELLANT

v.

AWG GROUP LTD.,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01057)

Matthew D. Slater argued the cause and filed the briefs for
appellant.

Elliot Friedman argued the cause for appellee. With him on
the brief was David Y. Livshiz.

Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: An arbitration panel determined
that the Republic of Argentina was liable to AWG Group Ltd.
 2

for $20 million. Argentina challenged that decision in district
court, arguing that a member of the arbitration panel had, with
a connection to two of the parties to the proceeding, shown
“evident partiality” under 9 U.S.C. § 10(a)(2), and that the way
the panel reached its determination exceeded its authority
under § 10(a)(4). The district court enforced the panel’s award
against Argentina, and we affirm.

I

In 1993, Argentina awarded a contract to Aguas
Argentinas S.A. (AASA), a consortium of seven companies.
Three were Argentine and four were not (AWG Group Ltd.
(“AWG”), Sociedad General de Aguas de Barcelona S.A.,
Vivendi Universal, S.A. (“Vivendi”), and Suez). According to
the contract, AASA agreed to invest in and operate Argentina’s
water services. By its terms, the contract was set to run through
2023 but allowed for earlier termination if either AASA or
Argentina failed to live up to its commitments. Argentina also
entered bilateral investment treaties with the home countries of
the members of AASA promising fair and equitable treatment
of their investments in Argentina (the “fair-treatment
provisions”). These treaties also established arbitration
procedures to resolve disputes that might arise from
investments in the signatory countries.

At the turn of this century, Argentina’s economy fell into
crisis, and its government responded with emergency
regulatory measures. One measure unpegged Argentina’s
currency, the Argentine peso, from the U.S. dollar. Another
froze the tariffs AASA could charge customers. Together these
measures suppressed the peso’s value and prevented AASA
from increasing its prices, which led to a significant loss of
revenue from its services. AASA had committed to repaying
 3

loans that were denominated in dollars and claimed that it could
not pay for the quality of service that it had provided when the
peso was more valuable unless something changed. Argentina
denied AASA’s repeated requests to alter the emergency
measures or modify its obligations.

In 2003, the non-Argentine members of AASA began
arbitration proceedings at the International Centre for
Settlement of Investment Disputes (the “Centre”) in
Washington, D.C. The gravamen of their claim was that
Argentina had breached its contract by treating them unfairly.
Among its defenses, Argentina maintained that its conduct was
compelled by the need to protect its economy and provide safe
water. Three years into the arbitration, Argentina terminated
the contract on the ground that AASA had failed to keep the
nation’s water supply free from contaminants. The arbitration
lasted twelve years. At its conclusion in April 2015, a
unanimous panel rejected Argentina’s defense that its conduct
was necessary to protect its economy and water supply and
concluded that Argentina had breached the contract by treating
AASA unfairly. The panel later awarded the claimants the
profits they would have realized had Argentina honored the
fair-treatment provisions.

In July 2015, Argentina brought suit in district court
seeking to vacate the panel’s award to AWG on two grounds.
First, that the panel member selected by AASA was biased in
favor of two of the non-Argentine consortium members.
Although Argentina does not allege that the panel member had
an outside interest in AWG, its fate in the arbitration was
wrapped up with the fate of its fellow consortium members.
Second, that the panel exceeded its authority by failing to credit
Argentina’s necessity defense and by compensating AASA
with hypothetical profits earned after Argentina had lawfully
 4

terminated the contract. The district court rejected each of
Argentina’s arguments and granted AWG’s cross-petition to
enforce the award. Republic of Argentina v. AWG Grp. Ltd.,
211 F. Supp. 3d 335, 363 (D.D.C. 2016). Argentina timely
appealed the district court’s judgment.

II

The law of the United States governing arbitration is
codified in the Federal Arbitration Act (the “Act”), 9 U.S.C.
§ 1 et seq., which incorporates the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards, June 10, 1958, 21 U.S.T. 2517 (the “New York
Convention”), in 9 U.S.C. §§ 201-08. The New York
Convention is a multilateral treaty that requires signatory
nations like the United States to honor the results of
international arbitrations that comply with the treaty, but
allows a court of the nation in which the arbitration was held to
vacate the award if the proceeding violated that nation’s
domestic policy of fair adjudication. New York Convention art.
V(2); 9 U.S.C. § 207; Enron Nigeria Power Holding, Ltd. v.
Federal Republic of Nigeria, 844 F.3d 281, 283 (D.C. Cir.
2016); TermoRio S.A. v. Electranta S.P., 487 F.3d 928, 935-36
(D.C. Cir. 2007). Under the New York Convention, the district
court had authority to enforce or, if the arbitration violated the
standards of fair adjudication set out in § 10 of the Act, vacate
the award. 9 U.S.C. § 203; see also § 10(a). We have
jurisdiction under 28 U.S.C. § 1291 to hear Argentina’s appeal
of the district court’s decision, and we review the court’s legal
conclusions de novo. See Kurke v. Oscar Gruss & Son, Inc.,
454 F.3d 350, 355 (D.C. Cir. 2006).

As a general matter, we will enforce an arbitration award
unless given a compelling reason to suspect that the award
 5

resulted from an unfair process. See Hall St. Assocs. v. Mattel,
Inc., 552 U.S. 576, 588 (2008) (“[L]imited review [is] needed
to maintain arbitration’s essential virtue of resolving disputes
straightaway.”); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
213, 221 (1985) (“[W]e rigorously enforce agreements to
arbitrate . . . .”). Congress has pointedly endorsed private
dispute resolution and directed courts to make the lawful
judgments of arbitration panels effective. Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1621 (2018) (“[Congress] specifically
directed [courts] to respect and enforce . . . parties’ chosen
arbitration procedures.”); see also Preston v. Ferrer, 552 U.S.
346, 353 (2008) (describing the Act as establishing a national
policy in favor of enforcing arbitration awards). Congress
requires enforcement even when arbitration proceedings do not
provide the full process protections that courts provide because
the “primary purpose” of the Act is not to turn arbitration
panels into private federal courts but to “ensure that private
agreements to arbitrate are enforced according to their terms.”
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662,
682 (2010) (internal quotation marks and citations omitted).

If we interfere with an arbitration decision, it is only
because the proceeding deviated significantly from the Act’s
standards of fair adjudication. Oxford Health Plans LLC v.
Sutter, 569 U.S. 564, 568 (2013) (“Under the [Act], courts may
vacate an arbitrator’s decision ‘only in very unusual
circumstances.’” (quoting First Options of Chi., Inc. v. Kaplan,
514 U.S. 938, 942 (1995))); see also Hall St. Assocs., 552 U.S.
at 586 (“Section[] 10 . . . address[es] egregious departures from
the parties’ agreed-upon arbitration . . . .” (emphasis added)).
The burden to prove that there was unfair process falls on the
challenger’s shoulders, and it is “onerous.” Al-Harbi v.
Citibank, N.A., 85 F.3d 680, 683 (D.C. Cir. 1996); see also
Encyclopaedia Universalis S.A. v. Encyclopaedia Brittanica,
 6

Inc., 403 F.3d 85, 90 (2d Cir. 2005) (describing the burden on
the challenger as a “heavy one”). If it were easy to call into
question the fairness of an arbitration, losing parties would
have every reason to challenge the process in court. Because
arbitration’s “essential virtue” is the avoidance of the length
and expense of litigation, courts may grant relief to a
disgruntled party only when its challenge to the arbitration is
compelling. Hall St. Assocs., 552 U.S. at 588; see also Epic
Sys., 138 S. Ct. at 1621 (“[I]n Congress’s judgment arbitration
. . . offer[s] . . . the promise of quicker, more informal, and
often cheaper resolutions for everyone involved.”).

III

Impartiality of the arbitrators is a cardinal feature of fair
adjudication. In 9 U.S.C. § 10(a)(2), Congress permitted
federal courts to set aside the results of arbitration “where there
was evident partiality . . . in the arbitrators.” Argentina
contends that there was evident partiality by one of the
arbitrators because she sat on the board of directors for a
company with investments in two of the parties.

At the outset of the arbitration proceedings, AASA chose
as an arbitrator Professor Gabrielle Kaufmann-Kohler, a
professor of arbitration at the University of Geneva; Argentina
chose Professor Pedro Nikken, the former President of the
Inter-American Court of Human Rights; and to chair the panel,
the Centre chose and the parties approved Professor Jeswald
W. Salacuse, an expert in international law. Three years into
the proceedings, in April 2006, international financial-services
company UBS AG (“UBS”) appointed panel member
Kaufmann-Kohler to serve on its board of directors. She was
paid for her services in part with UBS stock and in part with a
cash salary.
 7

At the time of Kaufmann-Kohler’s appointment, UBS
managed trillions of dollars in investments, including over $2
billion in Suez and Vivendi. Most of those investments were
made for the clients of UBS, who relied on the company to
manage their funds. Only a sliver of the Suez and Vivendi
shares were purchased as investments for UBS. Owning shares
in Suez and Vivendi made UBS a passive shareholder without
a management role or entitlement to the firms’ profits.

When she accepted the position on the board of directors,
Kaufmann-Kohler did not know of UBS’s investments in Suez
and Vivendi. UBS ran a check for any conflicts of interest she
might have had with the company, and as part of that process
Kaufmann-Kohler reported her activity as an arbitrator,
including the arbitration involving Argentina, Suez, and
Vivendi. The only conflict UBS identified was Kaufmann-
Kohler’s upcoming participation in the jury for the America’s
Cup race in which UBS had sponsored a yacht. UBS did not
alert her to any connection the company had with Suez or
Vivendi. In fact, Kaufmann-Kohler first learned of UBS’s
investments in them in November 2007, when Argentina
sought her recusal from the panel because of her relationship
with UBS. 1 The other members of the panel rejected Argentina’s
challenge, concluding that UBS’s interests in Suez and Vivendi
were too trivial to cause a reasonable person to doubt
Kaufmann-Kohler’s fairness. Even so, Kaufmann-Kohler
resigned from the board on April 15, 2009, more than a year

1
Before this, Argentina had raised two other challenges to the
panel, neither of which is part of this litigation. In August 2006, the
panel rejected Argentina’s challenge to its jurisdiction on various
grounds. In October 2007, the panel rejected a challenge to
Kaufmann-Kohler’s impartiality stemming from her role as
arbitrator in a previous dispute involving Argentina.
 8

before the panel reached its decision finding Argentina liable
to AASA.

We must decide whether Kaufmann-Kohler’s brief service
on the board obliged her to disclose to the arbitration parties
her connections to Suez and Vivendi. The Act’s “evident
partiality” standard imposes duties on arbitrators with
significant interests in the parties, a standard the Supreme
Court examined in Commonwealth Coatings Corp. v.
Continental Casualty Co., 393 U.S. 145 (1968). There, the
Court vacated an award because one of the three arbitrators did
not disclose a prior substantial business relationship with a
party to the arbitration proceeding. Id. at 150. The arbitrator’s
“repeated and significant” consultations for that party on
various business projects generated sizeable fees over time. Id.
at 146. Although there was no evidence that the arbitrator
actually favored that party, the Court determined that his failure
to disclose his interest in the party created a circumstance
“[w]here there was evident partiality.” Id. at 147-48 (quoting
§ 10(a)(2)).

The Court agreed that disclosure was necessary, but the
Justices could not agree on a single rationale. In his plurality
opinion, Justice Black proposed adopting the same standard for
avoiding partiality for arbitrators that governed judges. Id. at
148. His rule would require arbitrators to disclose “any
dealings that might create an impression of possible bias.” Id.
at 149. In his mind, failing to disclose the exchange of a single
dollar between an arbitrator and a party would violate the Act,
even though that transaction likely would not have influenced
the arbitrator. Id. at 147-48.

In his concurrence, Justice White advanced a rule that
relieves arbitrators from a duty to disclose trivial interests:
 9

“[A]rbitrators are not automatically disqualified by a business
relationship with the parties before them if both parties are
informed of the relationship in advance, or if they are unaware
of the facts but the relationship is trivial.” Id. at 150. The
exception for trivial interests relaxed the burden that a standard
fit for federal judges would impose on professional arbitrators,
whom Justice White distinguished as people “of affairs, not
apart from but of the marketplace.” Id. In Justice White’s view,
first-hand experience in the business world makes arbitrators
especially adept at resolving the disagreements that arise in that
world, and the Act did not create a disclosure duty so broad that
it would drive away “the best informed and most capable
potential arbitrators.” Id. His interpretation of the Act would
require an arbitrator to disclose an interest only when she “has
a substantial interest in a firm which has done more than trivial
business with a party.” Id. at 150-52. This is the rule we
follow. 2

We applied Justice White’s rule in Al-Harbi to uphold an
award despite the arbitrator’s undisclosed relationship with a
party to the arbitration. 85 F.3d at 684. There, unbeknownst to
the arbitrator, his former law firm had previously represented
the party on matters that were unrelated to the dispute
submitted to the arbitration. Id. at 682-83. The challenger
claimed the arbitration award should be vacated for evident
partiality because the arbitrator had not investigated, and of
course had not disclosed, the connection. Id. at 682.

2
We use Justice White’s approach because his rule is narrower
than Justice Black’s. Belize Bank Ltd. v. Gov’t of Belize, 852 F.3d
1107, 1111 n.4 (D.C. Cir. 2017) (“When a fragmented Court decides
a case . . . the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the
narrowest grounds.” (alteration in original) (quoting Marks v. United
States, 430 U.S. 188, 193 (1977))).
 10

Before considering whether evident partiality could apply
when the arbitrator did not know he had an interest in the party,
we first asked whether his interest was significant. See id. at
683. There is no duty to disclose a trivial interest under
Commonwealth Coatings even if the arbitrator has full
knowledge of his connection to the party. Id. We found that the
challenger hadn’t “establish[ed] specific facts that indicate[d]
improper motives on the part of [the] arbitrator.” Id. (quoting
Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 991
F.2d 141, 146 (4th Cir. 1993)). Because his interest was trivial,
it could not give rise to evident partiality whether he knew
about the interest or not. See id. (“[N]othing else appearing, the
fact that an arbitrator has not conducted an investigation
sufficient to uncover the existence of facts marginally
disclosable under the Commonwealth Coatings duty is not
sufficient to warrant vacating an arbitration award for evident
partiality.”).

We emphasized in Al-Harbi that a challenger to an
arbitrator’s partiality has a steep slope to climb. Id. (upholding
the award in “light of [the] onerous standard for vacatur”). A
challenger can satisfy its heavy burden of proof only by
presenting “specific facts that indicate improper motives on the
part of an arbitrator.” Id. (quoting Peoples Sec., 991 F.2d at
146). We conclude that the facts Argentina sets forth fail to
meet that high standard.

Argentina contends that a reasonable person would think
the huge sum of money UBS invested in Suez and Vivendi
biased Kaufmann-Kohler in their favor because of her position
on the UBS board. This appearance of bias would, in
Argentina’s view, trigger a duty for Kaufmann-Kohler to
disclose the investments UBS made in the parties before she
 11

joined its board of directors. AWG responds that Kaufmann-
Kohler did not need to discover and disclose the investments
because her connection with Suez and Vivendi was remote—
so remote, in fact, that she hadn’t even known about the
investments.

Neither Argentina nor AWG disputes that Kaufmann-
Kohler had some degree of interest in Suez and Vivendi, but it
falls to Argentina to show that the degree was significant. See
id. Under Commonwealth Coatings, Argentina must first show
that “the arbitrator ha[d] a substantial interest” in UBS. 393
U.S. at 151 (White, J., concurring). Argentina notes without
contest that Kaufmann-Kohler’s position on the board of
directors gave her an interest in UBS. 3 This satisfies the first
Commonwealth Coatings step.

AWG responds that, although her supervisory position
with UBS might have given her a substantial interest in the
firm, Kaufmann-Kohler’s position was so far removed from
investment decisions that it could not have given her a
substantial interest in the parties. But AWG skips a step. The
second part of the Commonwealth Coatings framework asks
whether UBS, not Kaufmann-Kohler, “ha[d] done more than
trivial business with” Suez or Vivendi. Id. at 152 (“[W]here the
arbitrator has a substantial interest in a firm which has done
more than trivial business with a party, that fact must be
disclosed.”). It is because Argentina does not convince us that
the importance of the parties to UBS is “more than trivial,” id.,
that we hold Kaufmann-Kohler had no disclosure duties.

3
Although Kaufmann-Kohler also owned stock in UBS through
her compensation package, we do not need to decide whether her
status as a shareholder gave her a substantial interest in UBS, given
that her position as a director did so.
 12

Both Argentina and AWG agree there is more to an
interest than just its commercial value. A majority of the Court
in Commonwealth Coatings suggested that frequent deals with
a party may make an arbitrator’s interest significant although
only small sums are exchanged. See id. at 146 (plurality
opinion); id. at 150 (White, J., concurring). And we found in
Al-Harbi that an arbitrator’s relationship with a firm at which
he no longer worked and that had formerly represented a party
to the arbitration in an unrelated matter was too thin to be
meaningful. 85 F.3d at 682-83. Neither case, however,
examines the interest a passive investor has in the companies it
holds.

Argentina seems to agree that the relationship UBS had
with Suez and Vivendi was limited to purchasing and selling
shares in the parties. UBS had no management responsibilities
nor any guarantee of directly sharing in their profits. At the
same time, Argentina does not explain why this kind of
relationship is comparable to recurrent client relationships,
which arbitrators might have wanted to retain. While Suez and
Vivendi might have been interested in retaining UBS as an
investor because the company owned more than 2% of their
shares, Argentina does not explain how the importance of the
parties’ interest in UBS affects the interest UBS had in the
parties. Commonwealth Coatings requires us to gauge the
interest of Kaufmann-Kohler’s firm in the parties, not their
interest in her firm. We see no hint from Argentina that UBS
cared about staying in the good graces of Suez and Vivendi.

Argentina proposes that the relationship UBS had with the
parties was significant simply because it was ongoing while the
arbitration was pending. Yet even assuming that a fresh
relationship with a party is more important than one that has
 13

gone stale, Argentina does not satisfy its heavy burden to
explain why this makes the interest of a passive investor, which
is far more detached than the company-client relationships it
cited as examples, a substantial one. We have been given no
reason to think that the Act proscribes the relationships UBS
had with Suez and Vivendi simply because they coincided with
the arbitration.

That leaves Argentina to rely on the sheer number of
dollars UBS had wrapped up in the parties as evidence of
significance. We agree that the more than $2 billion UBS had
invested in Suez and Vivendi added up, to state the obvious, to
a significant sum. However, Argentina forgets to put that
number in context. UBS is in the business of managing money
by purchasing and selling shares in corporations. The $2 billion
that UBS invested in Suez and Vivendi made up less than
0.06% of the $3.6 trillion UBS had in invested assets. That
percentage is too small to suggest much significance, and
Argentina does not provide additional context to persuade us
otherwise.

We have no problem agreeing with Argentina that UBS
was interested in the success of companies in which it had
invested $2 billion, no matter what percentage of its portfolio
that amount made up. However, Argentina fails to put forth any
specific facts beyond the dollars invested to show why that
interest was more than trivial to such a mammoth investment
firm. Speculation that UBS’s investment of 0.06% of its assets,
most of which was credited to its clients and not its own bottom
line, created a substantial interest in Suez and Vivendi is simply
not enough to satisfy the Act’s high standard of proof.

Argentina does not give us reason to find that the passive
investments UBS made in Suez and Vivendi created evident
 14

partiality in Kaufmann-Kohler. If the interest presented here
could disqualify an arbitrator who did not disclose it, parties
would hesitate to select arbitrators associated with financial
companies that invest broadly. The risk would be too high that
“evident partiality” challenges, like Argentina’s, could uproot
results of decade-long arbitrations without any evidence of bias
beyond a diversified portfolio. See Epic Sys., 138 S. Ct. at 1623
(warning courts to “be alert to new devices and formulas that
would” undermine the Act’s endorsement of arbitration).
Requiring arbitrators to either avoid working for companies
with sophisticated financial strategies or investigate the far
reaches of their investment plans would upset the balance
between experience and neutrality struck in Commonwealth
Coatings. And nothing in our decision here prevents parties
who seek additional protection from agreeing that the
arbitrators of their disputes must make known trivial passive-
investor relationships that would not trigger the Act’s rule.

Because UBS’s interests in Suez and Vivendi were trivial,
and therefore Kaufmann-Kohler’s interests in these parties
were insignificant, they could not have created evident
partiality, and there is no basis for vacating the panel’s award
under § 10(a)(2). See Al-Harbi, 85 F.3d at 683.

IV

Argentina next argues the panel exceeded its authority by
rejecting the country’s necessity defense without explanation
and by basing the award on events that Argentina prevented by
canceling the contract. The Act authorizes vacatur of an award
if “the arbitrators exceeded their powers” under the arbitration
agreement. § 10(a)(4). The bar is high: courts may disturb an
award only if the challenger can show that it was inconsistent
with the panel’s own understanding of the award that was
 15

authorized by the agreement. See Stolt-Nielsen, 559 U.S. at
671-72. Argentina tries, but fails, to show that the panel’s
decision had no basis in the governing arbitration agreement.

Argentina contends that the panel failed to fully consider
its necessity defense. Necessity is a well-known principle of
international law that, as presented by Article 25 of the
International Law Commission Articles on Responsibility of
States for Intentionally Wrongful Acts, would excuse
Argentina from liability if its breach of the fair-treatment
provisions was the “only means for the State to safeguard an
essential interest against a grave and imminent peril” that
Argentina had not itself caused. 4 During the arbitration
proceeding, Argentina alleged that the unforeseen economic
crisis had limited its ability to accommodate AASA’s requests
while preserving safe water services for the country’s residents
and resuscitating its economy. The panel rejected Argentina’s
assertions with brief conclusions, left unsupported by
particular evidence, about the panel’s understanding of the
government’s role in the crisis and the actions it might have
taken to comply with the fair-treatment provisions. Argentina
interprets the cursory dismissal as suggesting that the panel
based its decision on its own policy preferences instead of the
criteria to which the parties had agreed. Otherwise, Argentina
reasons, the panel would have addressed with care each of
Argentina’s arguments that it breached the fair-treatment
provisions out of necessity.

We have never required of an arbitration award the sort of
extended explanation Argentina urges. In fact, we have
determined that a panel’s decision may be upheld even if it

4
AWG does not dispute that the defense in Article 25 would
apply to Argentina if satisfied. See AWG Br. 54.
 16

offered no explanation at all because the alternative, requiring
a particular level of detail for every response to each party’s
theories, would “unjustifiably undermine the speed and thrift
sought” from arbitration proceedings. Sargent v. Paine Webber
Jackson & Curtis, Inc., 882 F.2d 529, 532 (D.C. Cir. 1989)
(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983)).

An unexplained decision might show that a panel
exceeded its powers if there is good reason to suspect that the
decision relied on factors prohibited by the arbitration
agreement. See id. But Argentina did not point to anything in
the record suggesting that the panel rejected the defense to suit
its own preferences instead of the criteria set out in the
agreement. Without such a showing, we have no reason to
suspect that the panel strayed from the arbitration agreement.
And without more, we will not disturb the panel’s decision.

Argentina also argues the panel exceeded its powers when
it calculated the damages Argentina owed AASA by estimating
the profits each member of the consortium would have received
had Argentina complied with the fair-treatment provisions. The
final award included estimated profits from 2002, the time at
which Argentina began treating AASA unfairly, until 2023, the
default expiration date of the contract. The panel reasoned that
in a world in which Argentina treated AASA fairly and
equitably, Argentina would have granted the consortium some
relief from the country’s emergency economic policies and
preserved, not canceled, the contract.

According to AWG, it was reasonable for the panel to
assume that the contract would have lasted past 2002 had there
been no breach, and so it was appropriate for the panel’s award
to include estimated profits from the years 2006 through 2023.
 17

Argentina takes issue with the panel’s assumption that the
contract would have continued past 2006, the time at which
Argentina actually terminated the contract. But the government
fails to show how the arbitration agreement prohibits making
that assumption. Argentina also fails to prove that the panel
exceeded its powers by basing AWG’s compensation on
payments that were not discounted to account for the risk of
lawful termination. Even had the panel erroneously
overestimated the probability that Argentina would have
granted relief to AASA and ignored the risk of contract
termination, we would still uphold the panel’s decision as the
result of its good-faith understanding of the type of
compensation permitted by the arbitration agreement. See
Oxford Health Plans, 569 U.S. at 572-73; United
Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S.
29, 36 (1987) (“The courts are not authorized to reconsider the
merits of an award even though the parties may allege that the
award rests on errors of fact or on misinterpretation of the
contract.”).

V

Argentina also asks us to vacate the award under the New
York Convention for the same reasons it asked us to vacate the
award under the Act. For the same reasons we could not vacate
the award under the Act, we cannot vacate it under the New
York Convention. See 9 U.S.C. § 208; Ario v. Underwriting
Members of Syndicate 53 at Lloyds for 1998 Year of Account,
618 F.3d 277, 290 (3d Cir. 2010) (explaining that the Act
provides broader, not narrower, grounds for vacatur than the
New York Convention).
 18

VI

We conclude that Argentina has not satisfied the Act’s or
the New York Convention’s elements required to vacate the
award. We affirm the district court’s judgment.

So ordered.