Danstar Ferment AG v. B&D Nutritional Ingredients, Inc.

• Court: District Court, S.D. California
• Decided: February 27, 2026
• Docket: 3:25-cv-02460
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANSTAR FERMENT AG, Case No.: 25-cv-2460-RSH-VET

12 Petitioner, ORDER ON PETITION TO 13 v. CONFIRM FOREIGN ARBITRATION AWARD 14 B&D NUTRITIONAL INGREDIENTS,

INC., 15 [ECF No. 1] Respondent. 16 17 18 19 Before the Court is a petition filed by Danstar Ferment AG (“Danstar”) to confirm a 20 foreign arbitration award. ECF No. 1. Pursuant to Local Civil Rule 7.1(d)(1), the Court 21 finds the motion presented appropriate for resolution without oral argument. For the 22 reasons below, the Court grants the petition. 23 I. BACKGROUND 24 This action arises from an international arbitration award issued by the Swiss 25 Arbitration Centre against respondent B&D Nutritional Ingredients, Inc. (“B&D”). 26 A. Distribution Agreement between Evolva and B&D 27 Petitioner Danstar is a Swiss company and the purported legal successor to Evolva 28 SA (“Evolva”), a biotechnology company engaged in the research, development and 1 commercialization of active ingredients in health products, flavors and fragrances, and 2 insect repellants. ECF No. 1 ¶¶ 1, 6. Respondent B&D is a California corporation engaged 3 in the supply of products, including the ingredients used in dietary supplements, functional 4 foods and beverages, and personal care products. Id. ¶¶ 2, 6. 5 On August 31, 2019, Evolva and B&D entered into an agreement for the distribution 6 of Evolva’s product, Veri-te trans-resveratrol (the “Distribution Agreement”). Id. ¶ 7. 7 Under the agreement, B&D received exclusive distribution rights in the western United 8 States and non-exclusive distribution rights in the eastern United States to Veri-te trans- 9 resveratrol, subject to certain annual minimum purchase requirements. Id. ¶ 8. The 10 Distribution Agreement contained an arbitration clause that provided that: 11 [I]n the event of any dispute or difference or claim arising out of or in 12 relation to this Agreement, including the construction, validity, 13 performance, or breach thereof, shall be settled and decided by arbitration in accordance with the Swiss Rules of International 14 Arbitration of the Swiss Chambers’ Arbitration Institution in force on 15 the date in which the Notice of Arbitration is submitted in accordance with these Rules and the award made in pursuance thereof shall be 16 binding on the parties. The number of arbitrators shall be one. The place 17 of arbitration shall be Zurich, Switzerland and the language of arbitration shall be English. 18 19 Id. ¶ 18. A dispute subsequently arose between the Parties regarding their respective 20 obligations under the agreement. Id. ¶¶ 10–16. 21 B. Swiss Arbitration Proceedings 22 On July 14, 2023, Evolva initiated arbitration proceedings against B&D before the 23 Swiss Arbitration Centre pursuant to the Distribution Agreement. Id. ¶ 19. On February 24 17, 2025, the Swiss Arbitration Centre issued an order: (1) directing B&D to pay Danstar 25 $568,650.86 USD “together with simple interest at the rate of 7%” from February 25, 2023 26 until payment; (2) fixing arbitration costs at 75,000 Swiss Francs (“CHF”); and (3) 27 directing B&D to pay Danstar 18,750 CHF representing 50% of Danstar’s share of the 28 arbitration costs together with interest at the rate of 5% from the date of the award until 1 payment. Id. ¶¶ 25, 27–28; ECF No. 13-2 at 85. 2 C. Enforcement Efforts 3 On April 8, 2025, Danstar filed an application with the High Court of Zurich for a 4 declaration as to the enforceability of the arbitration award pursuant to Swiss law. ECF No. 5 1 at ¶ 32. This proceeding remains open. Id.; ECF Nos. 11 at 5–6; 15 at 3–4. 6 On September 18, 2025, Danstar filed the instant petition to confirm the international 7 arbitration award issued by the Swiss Arbitration Centre against B&D in this Court. ECF 8 No. 1 at 1. B&D filed a response. ECF No. 6. At the Court’s direction, Danstar 9 subsequently filed a supplemental brief and B&D filed a supplemental response. ECF Nos. 10 9, 11, 15. 11 II. LEGAL STANDARD 12 A. New York Convention 13 1. Generally 14 The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 15 (“New York Convention”), June 10, 1958, 21 U.S.T. 2517 governs “the recognition and 16 enforcement of arbitral awards made in the territory of a State other than the State where 17 the recognition and enforcement of such awards are sought.” New York Convention, art. 18 I(1); see Castro v. Tri Marine Fish Co. LLC, 921 F.3d 766, 773 (9th Cir. 2019). “The 19 United States acceded to the New York Convention on September 30, 1970, and it entered 20 into force in the United States on December 29, 1970.” CBF Industria de Gusa v. AMCI 21 Holdings, Inc., 850 F.3d 58, 70 (2d Cir. 2017). “The goal of the Convention, and the 22 principal purpose underlying American adoption and implementation of it, was to 23 encourage the recognition and enforcement of commercial arbitration agreements in 24 international contracts and to unify the standards by which agreements to arbitrate are 25 observed and arbitral awards are enforced in the signatory countries.” Scherk v. Alberto- 26 Culver Co., 417 U.S. 506, 520 n.15 (1974). 27 The United States has implemented its obligations under the New York Convention 28 “in domestic law by way of the second chapter of the Federal Arbitration Act (‘FAA’).” 1 China Nat’l Metal Prods. Imp./Export Co. v. Apex Dig., Inc., 379 F.3d 796, 799 (9th Cir. 2 2004). “Under 9 U.S.C. § 202, an arbitration award ‘falls under the Convention’ if it is one 3 ‘arising out of a legal relationship, whether contractual or not, which is considered as 4 commercial, including a transaction, contract, or [arbitration] agreement.’” Al-Qarqani v. 5 Chevron Corp., 8 F.4th 1018, 1024 (9th Cir. 2021). 6 2. Confirmation under the New York Convention 7 Under the FAA, “[w]ithin three years after an arbitral award falling under the 8 Convention is made, any party to the arbitration may apply to any court having jurisdiction 9 under this chapter for an order confirming the award as against any other party to the 10 arbitration.” 9 U.S.C. § 207. 11 A court’s “review of a foreign arbitration award is “quite circumscribed.” Ministry 12 of Def. & Support v. Cubic Def. Sys., 665 F.3d 1091, 1103 (9th Cir. 2011). “Rather than 13 review the merits of the underlying arbitration” a court reviews “only whether the party 14 established a defense under the Convention.” China Nat’l, 379 F.3d at 799. Under 9 U.S.C. 15 § 207, a court “shall confirm” a foreign arbitration award “unless it finds one of the grounds 16 for refusal or deferral of recognition or enforcement of the award specified in the [New 17 York] Convention.” 9 U.S.C. § 207. “The seven grounds for refusing to confirm an award 18 are set out in Article V of the Convention.” Ministry, 665 F.3d at 1096. Under Article V, 19 confirmation may be denied upon a showing that: 20 (a) The parties to the agreement … were, under the law applicable to 21 them, under some incapacity, or the said agreement is not valid under 22 the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or 23 24 (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration 25 proceedings or was otherwise unable to present his case; or 26 (c) The award deals with a difference not contemplated by or not 27 falling within the terms of the submission to arbitration, or it contains 28 decisions on matters beyond the scope of the submission to arbitration, 1 provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which 2 contains decisions on matters submitted to arbitration may be 3 recognized and enforced; or

4 (d) The composition of the arbitral authority or the arbitral procedure 5 was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country 6 where the arbitration took place; or 7 (e) The award has not yet become binding on the parties, or has been 8 set aside or suspended by a competent authority of the country in 9 which, or under the law of which, that award was made. 10 New York Convention, art. V(1)(a)-(e). 11 In addition, “[r]ecognition and enforcement of an arbitral award may also be refused 12 if . . . [t]he subject matter of the difference is not capable of settlement by arbitration under 13 the law of that country” or “[t]he recognition or enforcement of the award would be 14 contrary to the public policy of that country.” Id., Art. V(2)(a)-(b). “These defenses are 15 construed narrowly, and the party opposing recognition or enforcement bears the burden 16 of establishing that a defense applies.” Ministry, 665 F.3d at 1096. This burden is 17 “substantial because the public policy in favor of international arbitration is strong[.]” 18 Polimaster Ltd. v. RAE Sys., 623 F.3d 832, 836 (9th Cir. 2010). 19 III. ANALYSIS 20 In its Response, B&D argues the Court should stay these proceedings pending 21 resolution of the Danstar’s enforcement action before the High Court of Zurich. ECF No. 22 6 at 1–2, 6–7. Alternatively, if the Court declines to impose a stay, B&D contends that 23 Danstar’s petition should be denied as: (1) Danstar failed to file duly certified copies of the 24 arbitral award and the operative arbitration agreement as required by the New York 25 Convention; (2) Danstar has not demonstrated that it is entitled to confirmation of the 26 arbitral award because the arbitration was commenced by a “different” entity, Evolva; and 27 (3) the Parties did not agree under the Distribution Agreement that a court judgment could 28 1 be entered upon an arbitration award. Id. at 2, 7–13. The Court addresses each of these 2 arguments, in turn, below. 3 A. Abstention/Stay 4 B&D first moves to stay this matter under the international abstention doctrine, 5 arguing that Danstar has already filed an application seeking to enforce the same arbitral 6 award before the High Court of Zurich, which remains pending. ECF No. 6 at 6–7. In 7 response, Danstar argues that: (1) an enforcement application in another court is not one of 8 the seven enumerated grounds for refusing to confirm an award set forth in Article V of 9 the New York Convention; and (2) the High Court of Zurich has already ruled that the 10 arbitration agreement is enforceable and the proceeding remains formally open only 11 because Danstar has not yet been able to serve this decision on B&D. ECF Nos. 11 at 3–4, 12 5-6; 12-1, 12-2. 13 “The international abstention doctrine ‘allows a court to stay or dismiss an action 14 where parallel proceedings are pending in the court of a foreign nation.’” Photothera, Inc. 15 v. Oron, No. 07CV490-MMA(AJB), 2009 WL 734282, at *7 (S.D. Cal. Mar. 19, 2009) 16 (quoting Supermicro Computer, Inc. v. Digitechnic, S.A., 145 F. Supp. 2d 1147, 1149 (N.D. 17 Cal. 2001)). The doctrine “is rooted in concerns of international comity, judicial efficiency 18 and fairness to litigants.” Supermicro, 145 F. Supp. 2d at 1149. “Abstention doctrines are 19 prudential doctrines and [a] court is not obligated under American statutory law to defer to 20 foreign courts.” Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1155 (C.D. 21 Cal. 2005) (quoting Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237 n.13 22 (11th Cir. 2004)). “The proponent of a stay bears the burden of establishing its need.” 23 Clinton v. Jones, 520 U.S. 681, 708 (1997). 24 Here, B&D has not demonstrated that this case presents extraordinary circumstances 25 warranting abstention. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 26 800, 813 (1976) (“The doctrine of abstention, under which a District Court may decline to 27 exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow 28 exception to the duty of a District Court to adjudicate a controversy properly before it.”). 1 The Ninth Circuit’s decision in Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines, 2 925 F.2d 1193 (9th Cir. 1991) is instructive here. Neuchatel involved a commercial dispute 3 arising from cargo lost during international transport. 925 F.2d at 1194. The district court 4 stayed the case pending the outcome of parallel proceedings in Switzerland. Id. The Court 5 of Appeals reversed, holding there were no “exceptional circumstances” as required under 6 Colorado River to justify the district court’s “refusal to exercise jurisdiction in deference 7 to parallel proceedings in another jurisdiction.” Id. In so doing, the Court of Appeals 8 emphasized that the case involved an “unexceptional commercial dispute involving the 9 owner of a lost cargo, the consignee of the cargo, the cargo’s insurer, and the air carrier to 10 whom the cargo was entrusted.” Id. at 1195. In addition, the “mere fact” that the parallel 11 foreign proceedings may have been further along did not make the case “‘exceptional’ for 12 the purpose of invoking the Colorado River exception to the general rule that federal courts 13 must exercise their jurisdiction concurrently with courts of other jurisdictions.” Id. 14 Similar to Neuchatel, the instant action involves a straightforward petition to confirm 15 a foreign arbitral award stemming from an ordinary contractual dispute. ECF No. 1 ¶¶ 6– 16 33. The only factor B&D identifies in support of abstention is the desire to avoid piecemeal 17 litigation. ECF Nos. 6 at 6–7; 15 at 3–4. However, “[a] general preference for avoiding 18 piecemeal litigation is insufficient to warrant abstention[.]” Seneca Ins. Co. v. Strange 19 Land, Inc., 862 F.3d 835, 842 (9th Cir. 2017). “Any case in which Colorado River is 20 implicated will inevitably involve the possibility of ‘conflicting results, piecemeal 21 litigation, and some duplication of judicial efforts,’ which are the ‘unavoidable price of 22 preserving access to . . . federal relief.’” Id. at 842 (quoting Neuchatel, 925 F.2d at 1195). 23 Nor does the fact that the Swiss enforcement action may arguably be further along render 24 this case “exceptional.” See Neuchatel, 925 F.2d at 1195. 25 For these reasons, the Court declines to stay this case under the international 26 abstention doctrine. 27 /// 28 /// 1 B. Certified Copies 2 B&D next argues the Court should dismiss this action because Danstar did not file 3 certified copies of: (1) the August 31, 2019 Distribution Agreement between B&D and 4 Evolva, or (2) the February 17, 2025 arbitral award from the Swiss Arbitration Centre until 5 January 8, 2026—several months after initiating this suit. ECF No. 15 at 2–3. B&D further 6 disputes that Danstar properly submitted certified copies of these documents. Id. 7 Under Article IV of the New York Convention, a petitioner applying for 8 “recognition and enforcement” of a foreign arbitral award must submit, “at the time of the 9 application”: (1) a “duly authenticated original award or a duly certified copy”; and (2) 10 “the original [agreement to arbitrate] or a duly certified copy thereof.” New York 11 Convention, art. IV(1). 12 Here, Danstar submitted a declaration from its counsel, Martin Molina, attesting to 13 the authenticity of the Distribution Agreement. ECF No. 13-1 at 2 ¶¶ 4, 7. Danstar also 14 provided a certificate issued by a Swiss notary authenticating the Swiss Arbitration 15 Centre’s arbitral award. ECF No. 13-2 at 86. The Court finds these submissions are 16 sufficient to satisfy the requirements of Article IV of the New York Convention. See, e.g., 17 Ma v. Fang, No. SACV 21-441 PSG (ADSX), 2022 WL 1078867, at *4–5 (C.D. Cal. Mar. 18 2, 2022) (holding that declaration of petitioner’s attorney was sufficient to authenticate 19 original loan agreement and arbitral award); Wong To Yick Wood Lock Ointment Ltd. v. 20 Madison One Acme Inc., No. CV1407645SJOFFMX, 2015 WL 13919442, at *5–6 (C.D. 21 Cal. Apr. 21, 2015) (rejecting evidentiary challenge where arbitral award was certified by, 22 among other individuals, a notary public); Belize Soc. Dev. Ltd. v. Gov’t of Belize, 5 F. 23 Supp. 3d 25, 38 n.18 (D.D.C. 2013) (noting that courts “routinely confirm arbitral awards 24 relying on documents sworn and certified by petitioner’s counsel”). 25 Notably, “[t]he purpose of Article IV’s ‘original ... or duly certified copy’ 26 requirement is to require the petitioner to prove that the relevant documents exist.” Gen. 27 Marine II, LLC v. Kelly, No. 3:21-CV-1425-W-DEB, 2022 WL 1459566, at *6 (S.D. Cal. 28 May 9, 2022) (quoting Belize, 5 F. Supp. 3d at 38). In this case, B&D does not meaningfully 1 contest either the existence or authenticity of the documents submitted by Danstar. See 2 ECF No. 15 at 2–3. Instead, B&D raises a technical challenge to the form of certification. 3 Id. Courts have repeatedly rejected such challenges. See e.g., Belize, 5 F. Supp. 3d at 38 4 (characterizing a similar argument as “‘grasping at straws, attempting to persuade the Court 5 to refuse to confirm the award on the basis of a mere technicality’”) (quoting Arb. between 6 Overseas Cosmos, Inc. & NR Vessel Corp., No. 97 CIV. 5898 (DC), 1997 WL 757041, at 7 *5 (S.D.N.Y. Dec. 8, 1997)); see also Haas v. Winebow, Inc., No. 2:24-CV-10146-JLS- 8 AJR, 2025 WL 2994553, at *4 (C.D. Cal. Mar. 20, 2025) (rejecting similar argument where 9 respondent did not “meaningfully contest” the existence of either the arbitration award or 10 arbitration agreement); Gen. Marine II, 2022 WL 1459566, at *5–6 (same); Wong, 2015 11 WL 13919442, at *6 (same). 12 Likewise, B&D has also not set forth any authority holding that a duly authenticated 13 or certified copy of the arbitration agreement and arbitral award must be filed with the 14 initial petition and cannot be filed later. “Indeed, district courts regularly consider petitions 15 to confirm arbitration awards where such petitions have been amended.” Haas, 2025 WL 16 2994553, at *3 (rejecting respondent’s argument confirmation should be denied because 17 petitioner failed to supply the court with an original or certified copy of arbitration 18 agreement at the time of application). 19 Consistent with these above decisions, the Court rejects B&D’s technical challenges. 20 C. Proper Parties 21 B&D additionally argues that Danstar is not entitled to confirmation of the Swiss 22 Arbitration Centre’s arbitral award because Danstar was not a party to the arbitration 23 agreement between B&D and Evolva and has not adequately established that it is Evolva’s 24 legal successor. ECF No. 6 at 7–10. 25 The arbitral award itself reflects that this issue was at least considered if not resolved 26 by the Swiss arbitrator. Although the claimant in the underlying arbitration proceedings 27 was identified as Evolva, the award expressly notes that Evolva had been acquired by 28 Danstar on April 22, 2024 and that Danstar was Evolva’s legal successor. ECF No. 13-2 at 1 8. Consistent with that determination, the arbitrator ordered B&D to make payment to 2 Danstar—not Evolva. Id. at 85. To the extent B&D seeks to relitigate this conclusion, B&D 3 has not set forth how such a challenge falls within the narrow scope of the Court’s review. 4 See Castro, 921 F.3d at 773 (“Confirmation under the Convention is a summary proceeding 5 in nature, which is not intended to involve complex factual determinations, other than a 6 determination of the limited statutory conditions for confirmation or grounds for refusal to 7 confirm.”) (quoting Zeiler v. Deitsch, 500 F.3d 157, 169 (2d Cir. 2007)); Seung Woo Lee 8 v. Imaging3, Inc., 283 F. App’x 490, 493 (9th Cir. 2008) (“Although [respondent] argues 9 that the arbitration contract was between [respondent] and ‘Medison Econet,’ not 10 ‘Medison,’ and that Medison breached its contract with [respondent], those issues were 11 considered by the [foreign arbitration board] and are not subject to reconsideration here.”). 12 D. Agreement for Entry of Judgment 13 Finally, B&D contends the Court should deny Danstar’s petition on the ground that 14 the Parties did not mutually consent to the entry of a court judgment following arbitration. 15 ECF No. 6 at 12–13. As B&D notes, this argument has been considered and rejected by 16 Courts of Appeals. See Phx. Aktiengesellschaft v. Ecoplas, Inc., 391 F.3d 433, 436 (2d Cir. 17 2004) (“Section 207 [of the New York Convention] does not in any way condition 18 confirmation on express or implicit consent.”); McDermott Int’l v. Lloyds Underwriters of 19 London, 120 F.3d 583, 588–89 (5th Cir. 1997) (declining to apply consent to confirmation 20 requirement to foreign arbitration agreement). Here, B&D does not identify any Article V 21 ground for refusal based on the absence of consent, nor does it explain why the reasoning 22 of the Second and Fifth Circuits should not apply. In the absence of contrary authority from 23 the Ninth Circuit or a persuasive basis to depart from the Second and Fifth Circuits’ 24 reasoning, the Court declines to impose a consent to confirmation requirement in this case. 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 For the reasons stated above, the Court GRANTS Danstar’s petition. The Parties are 3 || DIRECTED to meet and confer and prepare a joint proposed judgment consistent with 4 || this Order within fourteen days of the issuance of this Order. 5 IT IS SO ORDERED. 6 || Dated: February 27, 2026 ‘

g Hon. Robert S. Huie United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28