Gulf Petro Trading Co. v. Nigerian National Petroleum Corp.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
January 7, 2008

No. 06-40713 Charles R. Fulbruge III
Clerk

GULF PETRO TRADING COMPANY INC;
PETREC INTERNATIONAL INC;
JAMES S FAULK; JAMES W FAULK

Plaintiffs - Appellants
v.

NIGERIAN NATIONAL PETROLEUM CORPORATION;
BOLA AJIBOLA; JACKSON GAIUS-OBASEKI, Individually;
SENA ANTHONY, Individually; ANDREW
W A BERKELEY; IAN MEAKIN; HANS VAN HOUTTE;
ROBERT CLARKE

Defendants - Appellees

Appeal from the United States District Court
for the Eastern District of Texas

Before KING, GARZA, and BENAVIDES, Circuit Judges.
KING, Circuit Judge:
This appeal is the latest round in a long-running dispute, previously
submitted to arbitration in Switzerland, arising out of a contract to salvage “slop
oil” generated by the operations of Nigeria’s state-owned oil company.
Plaintiffs–appellants—a Texas oil company, its subsidiary, and its
principals—appeal the district court’s dismissal of their complaint against the
Nigerian company and various associated individuals. The district court
 No. 06-40713

concluded that it lacked subject matter jurisdiction over the lawsuit, which it
determined to be a collateral attack on a foreign arbitral award. It alternately
concluded that suit against certain of the parties was barred on foreign sovereign
immunity and personal jurisdiction grounds. For the reasons set out below, we
conclude that this lawsuit was properly dismissed for lack of subject matter
jurisdiction, as we agree that it represents a collateral attack on a foreign
arbitral award. We therefore do not consider the district court’s alternate
holdings. AFFIRMED.
I. BACKGROUND
The origins of this dispute lie in a 1993 joint venture agreement between
Petrec International, Inc. (“Petrec”), and Nigerian National Petroleum
Corporation (“NNPC”), whereby Petrec was to undertake reclamation and
salvaging of slop oil discarded by NNPC in the course of its daily operations in
Nigeria. Petrec is a wholly owned subsidiary of Gulf Petro Trading Company,
Inc. (“GPTC”), a Texas oil field services company. NNPC is owned by the
government of Nigeria. The agreement called for the creation of a Nigerian
company, Petrec (Nigeria) Limited (“PNL”), which was to be jointly capitalized
and owned by Petrec and NNPC. Petrec and NNPC agreed to submit any
disputes arising out of the agreement to arbitration.
After NNPC allegedly failed to contribute its share of capital to PNL and
refused to provide access to the areas needed to conduct the salvaging
operations, Petrec initiated arbitration proceedings with the Chamber of
Commerce and Industry of Geneva in 1998. The arbitration proceedings were
phased, such that the panel would first consider issues of jurisdiction and
liability before, if necessary, determining damages. After some delay and two
evidentiary hearings, the panel issued a “Partial Award” on July 5, 2000, finding
that Petrec had standing to pursue its claims and that NNPC had failed to
contribute its share of capital to PNL. However, the panel further found that the

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joint venture agreement did not confer exclusive rights to all of NNPC’s slop oil
on PNL, as Petrec had argued. Rather, NNPC’s obligation was only to make
available enough slop oil to keep PNL’s operations viable and profitable.
In January 2001, the panel held a hearing for the purpose of determining
the quantum of Petrec’s damages. At this hearing, NNPC challenged the panel’s
jurisdiction and Petrec’s standing by producing a copy of a Texas certificate of
incorporation showing that an entity identified as “Petrec International Inc.” had
been incorporated in Texas on February 28, 2000, well after execution of the
joint venture agreement and the demand for arbitration. On October 9, 2001,
the panel issued a “Final Award,” holding that Petrec lacked capacity to
maintain its claims against NNPC. Additionally, the panel stated in dictum that
had Petrec been able to sustain its claims, its damages would have been much
lower than demanded in light of a variety of factors, including the panel’s earlier
determination in the Partial Award that the joint venture agreement did not
confer exclusive rights to all of NNPC’s slop oil on PNL.
Petrec challenged the Final Award in the federal court of Switzerland on
grounds that it violated Swiss arbitration law and public policy, but the Swiss
court upheld the panel’s decision in April 2002. Petrec next filed a lawsuit in the
Northern District of Texas, seeking, inter alia, confirmation of the Partial
Award, in which the panel had found in Petrec’s favor on some aspects of the
question of NNPC’s liability, and a determination of damages. The district court
dismissed the action for lack of subject matter jurisdiction. See Gulf Petro
Trading Co. v. Nigerian Nat’l Petrol. Corp., 288 F. Supp. 2d 783 (N.D. Tex.
2003). The court reasoned that in seeking confirmation of the Partial Award,
Petrec was effectively requesting that the Final Award be set aside or modified,
actions that the court was precluded from taking by the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the “New York

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Convention,” or “Convention”).1 Id. at 792–93. The court also determined that
doctrines of res judicata and international comity precluded it from revisiting
the Swiss court’s decision not to vacate the Final Award. Id. at 794–95. This
court affirmed the decision of the district court in an unpublished opinion.
In September 2005, GPTC, Petrec, and principals James S. Faulk and
James W. Faulk (collectively, “Gulf Petro”) brought this action in the Eastern
District of Texas, alleging that the Final Award was procured by fraud, bribery,
and corruption. Gulf Petro has what is purportedly a March 18, 2002, letter
from Chief Sena Anthony, NNPC’s general counsel, to Andrew Berkeley, one of
the arbitrators, detailing the payment of a $25 million bribe. According to the
letter, this payment was authorized by various individuals within NNPC and
was to be shared by the three arbitrators in return for delivery of a favorable
award to NNPC in the slop oil arbitration. Gulf Petro also alleges that Berkeley
and Ian Meakin, another arbitrator, engaged in a variety of undisclosed dealings
and ex parte communications with NNPC that cast doubt on their impartiality
as arbitrators in the matter.
Gulf Petro named as defendants NNPC, Anthony, Prince Bola Ajibola,
formerly Nigeria’s High Commissioner to the United Kingdom, Jackson Gaius-
Obaseki, formerly NNPC’s Group Managing Director, Robert Clarke, outside
counsel to NNPC, and the three arbitrators, Berkeley, Meakin, and Hans van
Houtte. In six separate counts, Gulf Petro sought relief under: (1) the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.
(three counts); (2) the Texas Deceptive Trade Practices Act (“DTPA”), TEX. BUS.
& COMM. CODE § 17.46 et seq.; (3) Texas common law fraud; and (4) the Texas
common law tort of civil conspiracy. In a seventh count, Gulf Petro sought to

1
See 21 U.S.T. 2517 (entered into force with respect to the United States, December 29,
1970), implemented at 9 U.S.C. § 201 et seq.

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nullify (i.e., vacate) the Final Award under the Federal Arbitration Act (“FAA”),
9 U.S.C. § 1 et seq.
NNPC, Anthony, Ajibola, Obaseki, and Clarke filed a motion to dismiss,
asserting lack of subject matter jurisdiction on account of the New York
Convention and foreign sovereign immunity, as well as lack of personal
jurisdiction.2 The district court granted the motion in a March 15, 2006, order.
The court first concluded that under the Convention it lacked subject matter
jurisdiction to modify or vacate the Final Award. It then reasoned that although
only one of Gulf Petro’s claims explicitly sought to vacate the award, its
remaining claims were based on the theory that bribery of the arbitrators
rendered the Final Award invalid, and sought damages that Gulf Petro would
only be entitled to if the Final Award were vacated. Therefore, the court
concluded that Gulf Petro’s entire complaint constituted a collateral attack on
the Final Award that it lacked subject matter jurisdiction to entertain.
Additionally, the court determined that NNPC, Anthony, and Obaseki were
entitled to foreign sovereign immunity, and that it lacked personal jurisdiction
over Ajibola and Clarke. Gulf Petro now appeals.
II. STANDARD OF REVIEW
We review a dismissal for lack of subject matter jurisdiction de novo, using
the same standard as the district court. Robinson v. TCI/US W. Commc’ns. Inc.,
117 F.3d 900, 904 (5th Cir. 1997).
III. DISCUSSION
Gulf Petro concedes on appeal that its claim seeking vacatur of the Final
Award was properly dismissed for lack of subject matter jurisdiction, and we
agree that the New York Convention requires this result. Gulf Petro first
contests the district court’s determination that the Convention requires

2
The arbitrators did not join in the motion to dismiss and apparently never appeared
in the lawsuit.

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dismissal of the remaining claims in its complaint for lack of subject matter
jurisdiction. For the reasons that follow, we conclude that those claims were
properly dismissed as well.
As an initial matter, some discussion of the rules and framework
established by the New York Convention is necessary to understand its
application in this case. The Convention provides that it “shall apply to the
recognition and enforcement of arbitral awards made in the territory of a
[country] other than the [country] where the recognition and enforcement of such
awards are sought.” Convention, art. I(1). The award at issue in this case,
which was made in Switzerland under arbitral proceedings governed by Swiss
law, is clearly a foreign award within the scope of the Convention.
Though its “essential purpose” relates to the recognition and enforcement
of foreign arbitral awards, “the underlying theme of the New York Convention
as a whole is clearly the autonomy of international arbitration.” FOUCHARD,
GAILLARD, GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION § 250
(Emmanuel Gaillard & John Savage, eds., 1999) [hereinafter FOUCHARD]. To
this end, the Convention “mandates very different regimes for the review of
arbitral awards (1) in the countries in which, or under the law of which, the
award was made, and (2) in other countries where recognition and enforcement
are sought.” Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas
Bumi Negara, 335 F.3d 357, 364 (5th Cir. 2003) (quoting Yusuf Ahmed Alghanim
& Sons v. Toys “R” Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997)) (internal quotation
marks and brackets omitted). We have characterized the country “in which, or
under the [arbitration] law of which,” an award was made as having primary
jurisdiction over the award. Id. All other signatory countries are then said to
be secondary jurisdictions. Id. It is undisputed that Switzerland is the country
of primary jurisdiction with respect to the Final Award.

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“[T]he Convention does not restrict the grounds on which primary-
jurisdiction courts may annul an award, thereby leaving to a primary
jurisdiction’s local law the decision whether to set aside an award.” Id. at 368.
Such courts are “free to set aside or modify an award in accordance with [the
country’s] domestic arbitral law and its full panoply of express and implied
grounds for relief.” Alghanim, 126 F.3d at 23.
In contrast, the Convention significantly limits the review of arbitral
awards in courts of a secondary jurisdiction; essentially, “parties can only contest
whether that [country] should enforce the arbitral award.” Karaha Bodas, 335
F.3d at 364. “Articles IV and V of the Convention specify the procedures for
courts of secondary jurisdictions to follow when deciding whether to enforce a
foreign arbitral award.” Id. at 368. “Article IV provides that a party can obtain
enforcement of its award by furnishing to the putative enforcement court the
authenticated award and the original arbitration agreement (or a certified copy
of both).” Id. In turn, Article V enumerates the exclusive grounds on which a
court of secondary jurisdiction may refuse recognition and enforcement of an
award. See id.; M & C Corp. v. Erwin Behr GmbH & Co., 87 F.3d 844, 848–49
(6th Cir. 1996). Finally, Article VI allows a court of secondary jurisdiction to
stay enforcement proceedings if an application to set aside the award is pending
in the primary jurisdiction.
In sum, although the Convention permits a primary jurisdiction court to
apply its full range of domestic law to set aside or modify an arbitral award,
secondary jurisdiction courts may only refuse or stay enforcement of an award
on the limited grounds specified in Articles V and VI. See Karaha Bodas, 335
F.3d at 368. As one commentator has explained, Articles V and VI of the
Convention “unequivocally lay down the principle that the court in the country
in which, or under the law of which, the award was made has the exclusive
competence to decide on the action for setting aside the award.” ALBERT JAN VAN

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DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A

UNIFORM JUDICIAL INTERPRETATION 350 (1981) (emphasis removed).
Accordingly, a United States court sitting in secondary jurisdiction lacks subject
matter jurisdiction over claims seeking to vacate, set aside, or modify a foreign
arbitral award. See M & C, 87 F.3d at 849; Gulf Petro, 288 F. Supp. 2d at
792–93; Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera,
Industrial y Comercial, 745 F. Supp. 172, 177, 182 (S.D.N.Y. 1990).
As noted above, though, Gulf Petro does not take issue with the district
court’s determination that it lacked subject matter jurisdiction over the claim
seeking vacatur of the Final Award. Rather, Gulf Petro argues that the court
erred in “extending” that holding to its remaining RICO, DTPA, and common
law fraud and civil conspiracy claims. Gulf Petro challenges the dismissal of
these claims on two fronts. First, it argues that the claims are not a collateral
attack on the Final Award. Second, it contends that there is no basis for
imposing a subject matter jurisdictional bar. We consider each argument in
turn.
A. Collateral Attack on the Final Award
Gulf Petro argues that a fair reading of its complaint shows that the RICO
and state law claims are not disguised attempts to vacate or attack the Final
Award. Rather, it contends that it has alleged a pattern of racketeering and
conspiratorial conduct that, while arising in the context of arbitration
proceedings, constitutes an independent violation of federal and state law and
compels relief analytically distinct from vacatur. We disagree. Like the district
court, we conclude that the claims asserted by Gulf Petro are no more, in
substance, than a collateral attack on the Final Award itself.
The district court relied on Corey v. New York Stock Exchange, 691 F.2d
1205 (6th Cir. 1982), in determining that Gulf Petro’s claims were an
impermissible attack on the Final Award. In Corey, the plaintiff had initiated

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arbitration proceedings against Merrill Lynch after his investment portfolio
suffered significant losses. Id. at 1207. The rules of the New York Stock
Exchange (“NYSE”) governed the selection of the arbitration panel as well as the
procedural rules to be followed, and an NYSE official was responsible for the
preliminary arrangements of the arbitration and appointment of the panel. Id.
at 1208. The arbitration panel ultimately dismissed the plaintiff’s claim. Id.
The arbitration at issue in Corey fell under Chapter One of the FAA, which
provides for limited judicial review of an arbitral award in the federal district
court of the district in which the award was made. See id. at 1212 (discussing
the FAA). However, instead of seeking relief under the FAA, the plaintiff
brought suit against the NYSE, alleging that he was deprived of a fair hearing
because the NYSE official had selected the panel in violation of NYSE rules and
had adjourned and rescheduled hearings over the plaintiff’s objection. Id. at
1207. These allegations of wrongdoing fell squarely within the scope of § 10 of
the FAA, which provides for vacatur of an award in cases of evident partiality
of the arbitrators or adjournments resulting in prejudice. See id. at 1212. After
concluding that “the [FAA] provides the exclusive remedy for challenging acts
that taint an arbitration award,” the Sixth Circuit determined that the plaintiff’s
“attempt to sue the NYSE . . . [was] no more, in substance, than an
impermissible collateral attack on the award itself.” Id. at 1211–12. The court
explained its reasoning as follows:
[The plaintiff’s] claims constitute a collateral attack against the
award even though [the plaintiff] is . . . requesting damages for the
acts of wrongdoing rather than the vacation, modification or
correction of the arbitration award. [The plaintiff] was not harmed
by the selection of the arbitrators and the adjournments of the
hearings in and of themselves . . . . Rather, he was harmed by the
impact these acts had on the award. [The plaintiff’s] complaint has

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no purpose other than to challenge the very wrongs affecting the
award for which review is provided under section 10 of the [FAA].
Id. at 1213.
NNPC also directs our attention to a similar case, Decker v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 205 F.3d 906 (6th Cir. 2000), in which the Sixth
Circuit affirmed the dismissal of several contract and tort claims alleging
wrongdoing in the course of an arbitration proceeding. The plaintiff in Decker
was engaged in arbitration with Merrill Lynch when the chairperson of the
arbitration panel revealed that his law firm had been hired by a Merrill Lynch
subsidiary in connection with several real estate transactions. Id. at 908. The
panel denied the plaintiff’s motion to recuse the chairperson, proceeded with the
arbitration, and issued an award. Id. Instead of seeking to vacate the award
under the FAA, the plaintiff brought various claims against Merrill Lynch based
on its hiring of the chairperson’s law firm. Id.
As in Corey, the court looked to the alleged harm suffered by the plaintiff,
which “did not result when the Merrill Lynch subsidiary hired the chairperson
. . . , but instead resulted from the impact of this action on the arbitration
award.” Id. at 910. The “ultimate objective in this damages suit,” the court
continued, was “to rectify the alleged harm [the plaintiff] suffered by receiving
a smaller arbitration award than she would have received in the absence of the
chairperson’s relationship with Merrill Lynch.” Id. Because this objective
should have been pursued by filing a motion to vacate under the FAA, the court
concluded that the plaintiff’s suit was a collateral attack requiring dismissal. Id.
at 910–11.
Although Corey and Decker involved allegations of wrongdoing in the
context of domestic arbitrations, rather than international arbitrations, we find
the reasoning employed in both cases on the question of when a claim constitutes
a collateral attack on an arbitral award to be persuasive. In both cases,

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plaintiffs alleged wrongdoing in the course of an arbitration but did not explicitly
seek to overturn or modify the award. In response, the Sixth Circuit examined
the relationship between the alleged wrongdoing, purported harm, and
arbitration award, and concluded that because the harm was not caused by the
wrongdoing in and of itself, but rather by the impact of the acts complained of
on the award, the claims were no more than collateral attacks on the award.
With this methodology in mind, we turn to Gulf Petro’s complaint.3
Gulf Petro alleges two broad categories of wrongdoing on the part of
NNPC, its officials and attorneys, and the arbitrators. First, it alleges that
NNPC paid a $25 million bribe to the arbitrators in order to procure a favorable
outcome in the slop oil arbitration. Second, it alleges that two of the arbitrators
had a variety of business dealings and ex parte communications with NNPC and
its attorneys that they failed to disclose prior to or during the arbitration.
According to Gulf Petro, arbitrator Berkeley failed to disclose that he traveled
to Nigeria shortly before the arbitration to discuss the matter with NNPC, had
previously served on an arbitration panel with members of the Nigerian
government, engaged in internet and phone communications with NNPC

3
We decline Gulf Petro’s invitation to apply the reasoning found in Mian v. Donaldson,
Lufkin & Jenrette Securities Corp., 7 F.3d 1085 (2d Cir. 1993) (per curiam), which Gulf Petro
contends limits the holding of Corey. In Mian, the plaintiff brought a pro se action under 42
U.S.C. §§ 1981, 1985, and 1986, alleging that the "defendants impermissibly discriminated
against him because of his race during the course of an arbitration." Id. at 1086. Although
the court acknowledged that the issue was not “free of all doubt,” it concluded that the
plaintiff’s failure to seek vacatur of the award under the FAA did “not prevent him from
seeking to recover damages for alleged civil rights violations that occurred during the
arbitration proceeding itself,” even if “a major component of the damages sought would consist
of the amount of the arbitration award.” Id. at 1086–87. In so holding, the Mian court was
apparently influenced by language in a then-recent Supreme Court opinion stating that § 1981
“‘covers wholly private efforts to . . . obstruct nonjudicial methods of adjudicating disputes.’”
Id. at 1087 (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989)) (emphasis
in original). As we discern no similar considerations in the instant case, we believe that Corey
and Decker supply the proper analytical framework for determining if Gulf Petro’s claims
constitute a collateral attack on the Final Award. See also Foster v. Turley, 808 F.2d 38, 41–42
(10th Cir. 1986).

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officials and attorneys, accepted appointments from NNPC to serve on other
arbitration panels, and had ongoing relationships with law firms that
represented NNPC. Arbitrator Meakin allegedly failed to disclose that he had
been associated with a Swiss law firm that represented NNPC.
Based on these allegations, Gulf Petro asserts violations of RICO, the
Texas DTPA, and Texas common law fraud and civil conspiracy. For each
claim, Gulf Petro seeks the following damages: (1) costs and expenses of the
arbitration and subsequent legal challenges; (2) lost expenses and profits that
would have been awarded had the panel rendered a fair award; (3) reputational
injury suffered as a consequence of not prevailing in the arbitration; and (4) lost
business opportunities suffered as a consequence of not prevailing in the
arbitration.
Gulf Petro briefly contends that its claims cannot be construed as a
collateral attack on the Final Award because they do not attempt to relitigate
the facts and defenses that were raised in the prior arbitration. In one sense,
however, they do seek to relitigate certain issues, since Gulf Petro asks for as
damages the award it believes it should have received in the arbitration, which
would require an inquiry into questions of liability that were already presented
to the arbitration panel. We do recognize that the specific allegations of bribery
and corruption are separate from the contract dispute over slop oil that was the
subject of the arbitration. However, it does not follow that these claims cannot
be construed as a collateral attack. Limiting the concept of a collateral attack
as Gulf Petro suggests would be squarely at odds with Corey and Decker, where
the plaintiffs were found to be engaged in collateral attacks even though they did
not attempt to relitigate the facts and defenses of the underlying disputes that
had prompted arbitration, but instead were alleging that wrongdoing had
tainted the arbitration proceedings and caused unfair awards.

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More broadly, Gulf Petro argues that the claims it advances and relief it
seeks are analytically distinct from vacatur. However, this argument is belied
by a close examination of the allegations and damages actually found in Gulf
Petro’s complaint. Gulf Petro contends that it has pled independent violations
of federal and state law, but the ultimate significance of the conduct it complains
of can only be found in the effect that it had on the Final Award. Like the
plaintiffs in Corey and Decker, Gulf Petro’s harm was not caused by the alleged
acts of wrongdoing in and of themselves. The harm in this case did not result
when the arbitrators failed to disclose business dealings, engaged in ex parte
communications with NNPC, or were bribed. Rather, it resulted from the impact
that these acts had on the Final Award. The relief Gulf Petro seeks—the award
it believes it should have received, as well as costs, expenses, and consequential
damages stemming from the unfavorable award it did receive—shows that its
true objective in this suit is to rectify the harm it suffered in receiving the
unfavorable Final Award. Under the framework of the New York Convention,
the proper method of obtaining this relief is by moving to set aside or modify the
award in a court of primary jurisdiction. Though cloaked in a variety of federal
and state law claims, Gulf Petro’s complaint amounts to no more than a
collateral attack on the Final Award itself.
B. Dismissal for Lack of Subject Matter Jurisdiction
Gulf Petro also argues that its federal and state law claims cannot
properly be the subject of a Rule 12(b)(1) dismissal for lack of subject matter
jurisdiction. See FED. R. CIV. P. 12(b)(1). We disagree. Because the Convention
bars the litigation of claims of the type asserted by Gulf Petro in all but the
courts of the primary jurisdiction, dismissal for lack of subject matter
jurisdiction was appropriate in this case.
Gulf Petro first argues that there is no basis for the notion that a
complaint can be dismissed on subject matter jurisdictional grounds as a

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collateral attack on an arbitral award. It points out that in Corey and Decker,
the complaints that were held to be collateral attacks were dismissed for failure
to state a claim upon which relief can be granted or on summary judgment, and
not for lack of subject matter jurisdiction. This argument misapprehends the
significance of Corey and Decker to the instant case, which lies in the reasoning
employed by the Sixth Circuit in concluding that the claims asserted were
collateral attacks on arbitration awards, and not in the final dispositions of the
cases themselves. Corey and Decker were litigated in the shadow of the
framework for judicial review of domestic arbitrations established by Chapter
One of the FAA, while the instant case is being litigated in the shadow of the
framework for international arbitrations established by the New York
Convention, which is implemented by Chapter Two of the FAA. Once it has been
established that Gulf Petro’s claims constitute a collateral attack on a foreign
arbitral award, it is the Convention, and not Corey or Decker, that dictates the
appropriate disposition.4
Gulf Petro also characterizes the dismissal in this case as creating an
“arbitration exception” to federal subject matter jurisdiction, and warns of
ominous consequences that it expects will follow if the district court’s decision
is upheld. For example, Gulf Petro states that this so-called exception will
render unenforceable statutes that make it a crime to obstruct justice or suborn
the corruption of an arbitration panel, preclude application of RICO’s civil
provisions to “irregularities arising from conduct relating to arbitration,” and,
more generally, bar lawsuits that touch even tangentially upon arbitration. We

4
On a related note, Gulf Petro asserts that no provision of the FAA can be construed
to bar federal subject matter jurisdiction over its claims. Further, Gulf Petro argues that since
Chapter One of the FAA does not even grant an independent ground for federal subject matter
jurisdiction, it cannot strip jurisdiction over otherwise cognizable claims. But the absence of
a jurisdiction-granting provision in Chapter One of the FAA is of no import here, as Chapter
Two provides that the Convention “shall be enforced” in United States courts, and it is the
Convention, not Chapter One, that controls in this case. See 9 U.S.C. § 201.

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believe these fears of a wide-ranging “arbitration exception” to be unfounded, as
our holding in this case is actually quite narrow, and only bars jurisdiction over
claims that, when evaluated under the analytical framework of Corey and
Decker, are determined to be a collateral attack on a foreign arbitral award. For
one, we fail to see how this methodology could be employed to preclude statutes
criminalizing activities that might occur in an arbitration. Nothing in Corey and
Decker can be taken as affecting the availability of criminal prosecutions under
such statutes, as those cases simply stand for the proposition that “where a
party files a complaint . . . seeking damages for an alleged wrongdoing that
compromised an arbitration award and caused the party injury, it ‘is no more,
in substance, than an impermissible collateral attack on the award itself.’”
Decker, 205 F.3d at 910 (quoting Corey, 691 F.2d at 1211–12). Nor do we believe
that the result here will preclude lawsuits that touch only tangentially on an
arbitration, since a plaintiff need only be able to allege wrongdoing that has
caused harm independent of its effect on the arbitration award to avoid the
collateral attack label.5
We also have considered the possibility that the Final Award’s effect on
Gulf Petro’s claims should have been evaluated under the doctrine of res
judicata, rather than as a jurisdictional inquiry. Under this line of thinking,
Gulf Petro’s RICO and state law claims would have survived NNPC’s 12(b)(1)
motion, but individual elements of those claims could later have been challenged
on res judicata grounds through an affirmative defense. In fact, the Convention
acknowledges that foreign awards can serve as res judicata in secondary

5
To take Gulf Petro’s example of a hypothetical RICO lawsuit relating to “irregularities
arising from conduct relating to arbitration,” it seems likely that if the link between the
conduct complained of and the arbitration was indeed so attenuated that the wrongdoing could
truly be characterized as only “arising from conduct relating to arbitration,” then at least some
of the resulting claims would be based on harm independent of the arbitration award and
therefore could not be construed as a collateral attack. Such a suit, however, is not before this
court.

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jurisdictions, and accordingly provides for the “recognition” of an award, in
addition to the more commonly invoked enforcement.6 See Convention, arts.
III–V. Recognition typically occurs “in a court action between the same parties
on the same subject matter as decided in the foreign award.” VAN DEN BERG,
supra, at 244. In such a case, “the defendant requests the recognition of the
award by invoking its effect of res judicata . . . .” Id. It might therefore be
suggested that instead of granting NNPC’s 12(b)(1) motion and dismissing Gulf
Petro’s claims for lack of subject matter jurisdiction, the district court should
have entertained a motion to recognize the Final Award, in which case Gulf
Petro could have asserted the specific defenses to recognition found in Article V.7
However, the nature of Gulf Petro’s claims, which relate first and foremost to the
alleged tainting of the arbitration proceedings rather than the underlying
contract dispute itself, counsels against such a course of action. There is simply
more at work here than res judicata, as Gulf Petro’s claim that NNPC suborned
the corruption of the panel, though certainly arising out of the arbitration
proceedings, is not a matter that was decided in those proceedings.
Finally, Gulf Petro argues that any limitations imposed on courts of
secondary jurisdiction by the Convention should be overlooked in this case
because relief is not available in the primary jurisdiction of Switzerland. We
note that Gulf Petro already has sought to have the Final Award set aside in
Switzerland, although on different grounds than it advances here. According to
Gulf Petro, though, it has no means of vindicating its new claims of bribery and

6
Most cases under the Convention involve requests for enforcement: typically, a party
who has prevailed in a foreign arbitration seeks to collect on the award by confirming it in a
country where the losing party has assets. See VAN DEN BERG, supra, at 243–44. Recognition,
on the other hand, “may be requested where the party relying on an award merely wishes it
to have a negative effect.” FOUCHARD, supra, § 1667.
7
The same conditions as for an enforcement of an award found in Articles IV–VI are
applicable to a recognition. See VAN DEN BERG, supra, at 244.

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corruption in Switzerland because it has been unable to initiate a criminal
proceeding against the arbitrators in that country, such an action apparently
being a prerequisite to obtaining reconsideration of the Swiss court’s earlier
decision. Some commentators suggest that the absence of any possibility of
setting aside an award in the primary jurisdiction justifies removing the
protection of the Convention from an award. See FOUCHARD, supra, § 1688
(discussing views on this issue). But this view is almost unanimously rejected.
Id. § 1689. In any event, Gulf Petro has already had one opportunity to set aside
the award in Switzerland, and now seeks a second opportunity. Needless to say,
we have come across no suggestion that the absence of multiple opportunities to
set aside an award in the primary jurisdiction should render the protections of
the Convention inapplicable. In the interest of finality, every primary
jurisdiction undoubtedly will foreclose review of an award at some point. It
would seriously undermine the functioning of the Convention if the fact that the
opportunity for judicial review of an award in the primary jurisdiction has
passed could open the door to otherwise impermissible review in a secondary
jurisdiction. Moreover, “it is not the district court’s burden or ours to protect [a
party] from all the . . . hardships it might undergo . . . as a result of this foreign
arbitration or the international commercial dispute that spawned it.” Karaha
Bodas, 335 F.3d at 369. There is no basis for an exception here.
We have seen that the Convention operates by “assigning . . . different
roles to national courts to carry out the aims of the treaty.” Id. at 368. As
discussed above, the role assigned to courts of secondary jurisdiction is a limited
one. It is undisputed that the Convention precludes a court of secondary
jurisdiction from vacating, setting aside, or modifying a foreign arbitral award.
See M & C, 87 F.3d at 849. And given the particular interests at stake in
arbitration, it is not surprising that this limitation has been implemented in the
form of a jurisdictional bar, which provides an extremely effective method for

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choking off post-arbitration litigation at the earliest possible moment, thereby
encouraging finality and limiting costs.
At the outset of this appeal, all parties stood in agreement that Gulf
Petro’s claim seeking vacatur constituted a direct attack on the Final Award,
and was therefore properly dismissed by the district court for lack of subject
matter jurisdiction. We have since concluded that Gulf Petro’s remaining
claims, though ostensibly sounding in independent sources of law, are no more
than an indirect attack on that same award. Having come this far, it would be
perverse to say that the disposition that Gulf Petro itself concedes to be
appropriate for the former claim—dismissal for lack of subject matter
jurisdiction—is somehow inappropriate for the latter ones. Put simply, Gulf
Petro’s entire complaint is an attempt to set aside the Final Award and replace
it with a modified award. The Convention dictates that a United States court,
sitting in secondary jurisdiction, lacks jurisdiction to consider such an action.
We do not see what result, other than dismissal for lack of subject matter
jurisdiction, should follow.
IV. CONCLUSION
Having concluded that Gulf Petro’s claims were properly dismissed for lack
of subject matter jurisdiction, we see no need to consider Gulf Petro’s challenges
to the district court’s alternate rulings on the issues of foreign sovereign
immunity and personal jurisdiction. The judgment of the district court is
AFFIRMED.

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