The University of Notre Dame (USA) in England v. TJAC Waterloo, LLC

49 F.4th 13

• Court: Court of Appeals for the First Circuit
• Decided: September 13, 2022
• Docket: 21-1558P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1558

THE UNIVERSITY OF NOTRE DAME (USA) IN ENGLAND,

Plaintiff, Appellee,

v.

TJAC WATERLOO, LLC; ZVI CONSTRUCTION CO., LLC,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Gelpí, Circuit Judges.

Richard E. Briansky, with whom Amy B. Hackett and Peckar & Abramson, P.C. were on brief, for appellants. John A. Tarantino, with whom Nicole J. Benjamin and Adler Pollock & Sheehan, P.C. were on brief, for appellee.

September 13, 2022 GELPÍ, Circuit Judge. This is an appeal from the

district court's confirmation of a foreign arbitral tribunal's

assessment of damages in a contractual dispute relating to

construction defects. The underlying arbitration concerns joint

liability claims made by appellee The University of Notre Dame

(USA) in England ("Notre Dame") against appellants TJAC Waterloo,

LLC ("TJAC") and ZVI Construction Co., LLC ("ZVI"), respectively

the seller and renovator of a dormitory that Notre Dame had agreed

to purchase. In a previous decision, we affirmed the district

court's confirmation of the arbitrator's liability judgment

against TJAC and ZVI. See Univ. of Notre Dame (USA) in Eng. v.

TJAC Waterloo, LLC (Notre Dame I), 861 F.3d 287, 296 (1st Cir.

2017). Now, TJAC and ZVI challenge the district court's

confirmation of certain damages awarded to Notre Dame, arguing

that Notre Dame's petition for judicial confirmation of these

awards is time-barred. Because appellants' contentions in this

building-defect dispute rest on shaky foundations, we affirm.

- 2 - I. Background1

Upon purchasing from TJAC the building that ZVI had

renovated, Notre Dame became aware of numerous defects. The

ensuing dispute was submitted to arbitration, and the parties

agreed to bifurcate the proceedings, first trying the liability

elements of Notre Dame's breach-of-contract claim, and

subsequently litigating issues of "quantum" (i.e., damages) for

any breach found during the liability phase. Id. at 290.

In Notre Dame I, we addressed the finality of the

arbitrator's judgment of joint liability against TJAC and ZVI

following the conclusion of the first phase of the arbitration.

861 F.3d at 289. TJAC and ZVI argued that the district court erred

in confirming the arbitrator's liability award because that

judgment -- only pertaining to the first stage of the bifurcated

proceedings -- lacked the requisite finality for judicial

confirmation under the United Nations Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, June 10,

1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (the "New York Convention").2

1 As this is the second time a dispute relating to the underlying arbitration has made its way to this court, see Notre Dame I, 861 F.3d at 287, we assume the reader's familiarity with our earlier opinion, and rehearse here only the facts and travel necessary to contextualize the instant appeal. 2 The New York Convention is implemented in domestic law by chapter two of the Federal Arbitration Act ("FAA"). See 9 U.S.C. §§ 201-08.

- 3 - Notre Dame I, 861 F.3d at 291. We disagreed, holding that the

same standard of finality applicable under domestic law applies to

proceedings pursuant to the New York Convention and reiterating

our previous determination that "a bifurcated liability judgment

may qualify as final when the arbitrating parties have formally

agreed to litigate liability and damages in separate, independent

stages." Id. at 291-92 (citing Hart Surgical, Inc. v. Ultracision,

Inc., 244 F.3d 231, 235-36 (1st Cir. 2001)). On de novo review,

see Cytyc Corp. v. DEKA Prods. Ltd. P'ship, 439 F.3d 27, 32 (1st

Cir. 2006), we affirmed the district court's finding that the

arbitrator's liability judgment was indeed final and thus

susceptible to judicial confirmation. Notre Dame I, 861 F.3d at

293.

While the parties litigated judicial confirmation of the

liability awards (issued by the arbitrator as Awards No. 1 and No.

2), the arbitration continued to the quantum phase of the

proceedings. Between 2016 and 2020, the arbitrator issued a series

of damages awards concerning various costs that stemmed from the

breach established at the liability stage:

• Award No. 3 ("An Expert Determination on Quantum") -- Dated

September 20, 2016; regarding the preliminary "Cost of Works"

to remediate the deficiencies in the building under contract;

no amount was awarded.

- 4 - • Award No. 4 ("An Expert Determination on Quantum") -- Dated

April 11, 2017; regarding the final cost of works; the amount

awarded was £1,781,048.44.

• Award No. 5 ("Decisions") -- Dated July 27, 2017; regarding

certain additional and ancillary costs of work items not

covered by Award No. 4; the amount awarded was £957,450.00.

• Award No. 6 ("Expert Determination Award No. 6

(Amended)") -- Dated December 5, 2018; regarding interest due

on Awards No. 4 and 5; the amount awarded was £328,001.37 +

£269.52 per day (beginning on November 30, 2018).

• Award No. 7 ("Expert Determination Award No. 7 -- Decisions

as to VAT") -- Dated March 31, 2020; concerning costs relating

to the value-added tax (VAT) previously paid by Notre Dame as

well as remaining outstanding items (e.g., expert fees and

interest); the amount awarded was £547,699.00 + £5,040.00 +

£65,723.00 (interest through August 1, 2018) + £60.02 per day

(beginning on August 2, 2018).

On May 15, 2020, Notre Dame moved for the district court

to confirm these awards and enter summary judgment in its favor.

TJAC and ZVI opposed the motion, arguing that Award No. 4 was, for

purposes of judicial confirmation, final upon issuance and that

Notre Dame's request for confirmation of Award No. 4 was thus time-

barred. Because the FAA provides that a party to an arbitration

may apply for judicial confirmation "[w]ithin three years after an

- 5 - arbitral award falling under the [New York] Convention is made,"

see 9 U.S.C. § 207, and Award No. 4 was issued on April 11, 2017,

TJAC and ZVI posited that the statute of limitations for

confirmation of the award expired on April 11, 2020. Similarly,

TJAC and ZVI argued that Award No. 6 was partially ineligible for

judicial confirmation insofar as it granted interest on the

(putatively unconfirmable) Award No. 4.

The district court disagreed, holding that Award No. 4

was not a final award eligible for judicial confirmation upon

issuance. Instead, the court held that the three-year statute of

limitations for judicial confirmation only began to run upon the

issuance of Award No. 7 on March 31, 2020, as it was only at this

time that the arbitrator had "issued a decision as to all th[e]

sub-categories" of awards, and therefore arrived at a "final

comprehensive damages determination" that "definitively and

comprehensively settl[ed] the parties' dispute regarding damages."

Univ. of Notre Dame (USA) in Eng. v. TJAC Waterloo, LLC (Notre

Dame II), No. 16-CV-10150, 2021 WL 2827442, at *3 (D. Mass. July

7, 2021). Accordingly, the court granted Notre Dame's request for

judicial confirmation.3 Id. at *5. TJAC and ZVI timely appealed.

3 TJAC and ZVI also contested the confirmability of Award No. 7 on the ground that it ran afoul of the "revenue rule," which constrains judicial enforcement of recognition of foreign revenue rules. The district court rejected this argument, Notre Dame II, 2021 WL 2827442, at *3-4, and appellants do not raise the issue on appeal.

- 6 - II. DISCUSSION

A. The Finality Requirement

We review the district court's decision to confirm Notre

Dame's damages awards de novo. Cytyc Corp., 439 F.3d at 32.

Federal courts are generally loath to disturb arbitral awards,

deferring to arbitrators if they are "even arguably construing or

applying the contract and acting within the scope of [their]

authority." Id. (alteration in original) (quoting United

Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)).

As we have recognized, '[j]udicial review of binding arbitration

awards is necessarily limited so as to "maintain[] arbitration's

essential virtue of resolving disputes straightaway."' Farnsworth

v. Towboat Nantucket Sound, Inc., 790 F.3d 90, 99 (1st Cir. 2015)

(second alteration in original) (quoting Hall St. Assocs. v.

Mattel, Inc., 552 U.S. 576, 588 (2008)).

The FAA provides that, "[w]ithin three years after an

arbitral award falling under the [New York] Convention is made,"

a party may seek judicial confirmation of the award. 9 U.S.C § 207

(emphasis added). Appellants suggest that, because Award No. 4

was issued on April 11, 2017 and Notre Dame did not seek

confirmation until May 2020, the language of 9 U.S.C. § 207

precludes confirmation. But this textual argument overlooks the

relationship between the meaning of "is made" in § 207 and the

Convention requirement that an award be "binding" to be confirmed.

- 7 - Confirmation under 9 U.S.C. § 207 is mandatory unless

"one of the grounds for refusal or deferral of recognition or

enforcement of the award specified in the said Convention" applies.

Id. One such exception provides that "[r]ecognition and

enforcement of the award may be refused" if "[t]he award has not

yet become binding on the parties." New York Convention art.

V(1)(e). Because an award can only be subject to judicial

confirmation if it is binding on the parties, we do not think an

award can be "made" under § 207 until the award is binding on the

parties. Interpreting "is made" to require only that a foreign

arbitral award "is issued" by an arbitrator would permit the

statute of limitations to run even where the "non-binding"

exception to confirmation in Article V(1)(e) prevented the winning

side from securing judicial confirmation of the issued award. See

New York Convention art. V(1)(e).

Our conclusion that an award "is made" within the meaning

of 9 U.S.C. § 207 when it becomes binding on the parties is

consistent with our precedent in the context of domestic arbitral

awards, see Hart Surgical, 244 F.3d at 233, 235 (interpreting "is

made" in 9 U.S.C. § 9 to mean "is made final"), and flows directly

from our reasoning in Notre Dame I, 861 F.3d at 291. There, we

held that the New York Convention's textual requirement that a

foreign arbitral award be "binding" is "conceptually

indistinguishable" from the judicially constructed requirement

- 8 - that a domestic arbitral award be "final" to be subject to judicial

confirmation under the FAA. 861 F.3d at 291. We observed that

this interpretation was "in harmony with cases from outside this

circuit that have addressed the Convention standard for judicial

confirmation with the domestic law vocabulary," id., and cited in

support of this equivalence the Ninth Circuit's observation that

"[t]he not-binding defense in the Convention's Article V(1)(e) may

be invoked when an action to confirm or enforce an arbitration

award is filed before the award has become final," id. (citing

Ministry of Def. & Support for the Armed Forces of the Islamic

Republic of Iran v. Cubic Def. Sys., Inc., 665 F.3d 1091, 1100

(9th Cir. 2011)), and district courts' equation of the requirements

of 'binding' and 'final,' id. (citing Ecopetrol S.A. v. Offshore

Expl. & Prod. LLC, 46 F. Supp. 3d 327, 336 (S.D.N.Y. 2014), and

Daum Glob. Holdings Corp. v. Ybrant Digit. Ltd., No. 13 CIV. 03135,

2014 WL 896716, at *2 (S.D.N.Y. Feb. 20, 2014)). The key

consideration in this case, therefore, is when the damages awards

became binding on the parties. And, as we concluded in Notre Dame

I, it was appropriate to scrutinize foreign arbitral awards "by

the familiar finality standard that[,] '[n]ormally, an arbitral

award is deemed "final" provided it evidences the arbitrators'

intention to resolve all claims submitted in the demand for

arbitration.'" Id. (second alteration in original) (quoting Hart

Surgical, 244 F.3d at 233).

- 9 - In a different context, the Second Circuit in

Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co. v.

Navimpex Centrala Navala, 989 F.2d 572 (2d Cir. 1993), held that

a foreign arbitral award is "made" for FAA purposes when it is

"originally decided by the arbitrators," rather than when the

appeals process provided by the arbitral forum state has been

exhausted. Id. at 581 (holding that § 207's three-year statute of

limitations was triggered by the issuance of the "final award" by

a French arbitral tribunal, rather than upon the subsequent

dismissal of an appeal before the Court of Appeal of Paris,

whereupon the award "became final" as a matter of French law).

TJAC and ZVI cite Seetransport for the proposition that

the statute of limitations for foreign arbitral awards begins to

run when an award is "decided by the arbitrator and issued." We

see no daylight, however, between Seetransport's "originally

decided by the arbitrators" test and our own intent-based approach

to determining arbitral finality. Indeed, the Seetransport court

explicitly contrasted a previous "interim award issued" by the

arbitrator (which did not trigger § 207's statute of limitations)

with the arbitrator's "final award" (which did). 989 F.2d at 574.

It was thus only upon issuance of the latter, which definitively

and comprehensively resolved the claims at bar, that the award was

"made" and "decided by the arbitrators." Id. at 581. As such,

the Second Circuit deemed this decree a "final award" in much the

- 10 - same way as we ordinarily understand arbitral finality -- that is,

reflecting the "arbitrators' intention to resolve all claims

submitted in the demand for arbitration." Notre Dame I, 861 F.3d

at 291 (quoting Hart Surgical, 244 F.3d at 233).4

Having established this legal background, we now proceed

to evaluate the parties' arguments about when the awards became

final.

B. The Interim Arbitral Awards Were Not Final

On appeal, TJAC and ZVI contest the district court's

determination that the damages awards only became final on March

31, 2020, at which time the arbitrator issued Award No. 7,

resolving the last remaining subcategory of damages and

"definitively and comprehensively settling the parties' dispute

4 Moreover, our reading of Seetransport as incorporating an arbitral intent standard of finality is in harmony with the Second Circuit's jurisprudence in the domestic arbitral context. There, the Second Circuit held that an arbitral award that fails to conclusively dispose of a separate independent claim -- and is thus "nonfinal" as a question of arbitral intent -- does not trigger the one-year statute of limitations established by 9 U.S.C. § 9. See Kerr-McGee Refin. Corp. v. M/T Triumph, 924 F.2d 467, 471 (2d Cir. 1991) (questioning "whether the one-year limitation should apply to a party seeking confirmation of an award that does not end the arbitration, since such a rule 'will make arbitration more complicated, time consuming and expensive,'" but holding that the court "need not resolve this issue" because "the Partial Final Award did not finally dispose of a separate independent claim, thus rendering the one-year limitation inapplicable in any event" (citation omitted)); see also Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 158 (2d Cir. 2003) (noting that "section 207 . . . is analogous to section 9 of the FAA," rendering precedent concerning § 207 "difficult to distinguish" from cases concerning § 9 (citing Seetransport, 989 F.2d at 580-81)).

- 11 - regarding damages." Notre Dame II, 2021 WL 2827442, at *3.

Appellants argue that Award No. 4 was, in fact, a final arbitral

award, for which the FAA's three-year statute of limitations for

judicial confirmation began to run on April 11, 2017. Because

Notre Dame moved for judicial confirmation on May 15, 2020,

appellants contend that the award (and, derivatively, the portion

of Award No. 6 granting interest on Award No. 4) is no longer

judicially confirmable. In support of their argument, appellants

place great emphasis on language in Award No. 4 referring to the

arbitrator's "final views" and stating that the "[d]eterminations

herein served are final Quantum sums." Seizing on these two usages

of the word "final," and suggesting that the parties intended for

each interim damages award to be confirmable upon issuance, TJAC

and ZVI argue that the district court erred in determining that

the interim award was nonfinal, such that confirmation in this

case would not be barred by the statute of limitations, because it

did not resolve all outstanding damages claims. On this telling,

although various claims remained to be adjudicated when Award No.

4 was issued, the award was sufficiently discrete and definitive

-- and its "plain language" adequately probative of the

arbitrator's intent -- to be final upon issuance.

Careful examination of the awards at issue leads us to

conclude otherwise. TJAC and ZVI first encounter a formidable

obstacle in their attempts to evade judicial confirmation upon

- 12 - confronting our circuit's well-worn finality standard, by which we

"[n]ormally" deem an award final if it reflects the arbitrator's

intent to resolve "all claims submitted in the demand for

arbitration." Notre Dame I, 861 F.3d at 291 (alteration in

original) (quoting Hart Surgical, 244 F.3d at 233). By its plain

terms, Award No. 4 did not purport to resolve every claim submitted

to arbitration. Instead, Award No. 4 only addressed certain "Cost

of Works" damages resulting from TJAC and ZVI's breach of contract,

explicitly disclaiming a comprehensive resolution and noting that

multiple "Heads of Claim" were "yet to be decided." Nor did the

various damages awards correspond to different findings of

liability at the first stage of the arbitration. Rather, all

damages flowed from the same, singular liability determination on

the breach-of-contract claim asserted by Notre Dame. Against this

backdrop, we proceed to assess whether TJAC and ZCI furnish

sufficient reason for us to deviate from our "general rule"

regarding arbitral finality. See Hart Surgical, 244 F.3d at 233.

TJAC and ZVI's suggestion that the parties nonetheless

agreed for the seriatim damages awards to be considered final upon

issuance -- akin to their prior agreement to bifurcate the arbitral

proceedings into separate and binding liability and damages phases

-- does not suffice to surmount the hurdle posed by our finality

standard. Noting the district court's finding that "[w]ithin the

damages phase, the parties asked the [arbitrator] to adjudicate

- 13 - multiple damages sub-categories," Notre Dame II, 2021 WL 2827442,

at *3, TJAC and ZVI assert that the parties entered into a "unique

agreement" under which the arbitrator would grant a series of

"discrete, final and confirmable interim awards" during the

damages phase. But TJAC and ZVI do not offer evidence that any

such express or implied agreement ever existed, and we find none

in the record. The fact that the parties intended for the

arbitrator to assess multiple types of damages flowing from the

breach of contract, and that these damages were adjudicated in a

piecemeal fashion, does not evidence an intention or agreement

that the individual damage awards would be separately confirmable

upon issuance. There is no parallel here to the situation we

encountered in Notre Dame I, where the parties agreed to bifurcate

the arbitration into separate liability and damages stages. It

was only in light of that agreement that the arbitrator issued its

"binding decision[] as to [l]iability."5 See Notre Dame I, 861

F.3d at 290, 292 n.2; see also Hart Surgical, 244 F.3d at 235

5 This agreement, moreover, reflected our longstanding recognition of the "legitimacy of requesting bifurcation in foreign as well as domestic arbitral determinations" and deferring to the "arbitrator's understanding of finality on a bifurcated component" of the arbitration. Notre Dame I, 861 F.3d at 293. This precedent does not support the disaggregation of a damages proceeding within a bifurcated arbitration into separate and independently final sub-proceedings. To the contrary, our decision in Notre Dame I reflected an understanding that the quantum phase of the arbitration would consist of one "separate proceeding to assess damages," not multiple. Id. at 292.

- 14 - (noting that "the definiteness with which the parties have

expressed an intent to bifurcate is an important consideration" in

determining whether an award is final).

Just as we find no joint agreement between the parties

regarding the finality of the interim damages awards, neither do

we discern any such intent on the part of the arbitrator. TJAC

and ZVI contrast Award No. 4's statement that the "[d]eterminations

herein served are final Quantum sums," with language in Award No.

3, concerning the same subcategory of damages, labeling that award

"preliminary views" rather than a "[f]inal [d]etermination."

However, appellants' entreaties to follow the arbitrator's "plain

language" ignore the following lines in Award No. 4, which advise

that "[t]he Awards are to be read together" and that multiple

damages subcategories were "yet to be decided." In other words,

as the district court recognized, the arbitrator only viewed his

damages determination as "comprehensive" and therefore "final"

once all the awards had issued. Notre Dame II, 2021 WL 2827442,

at *3.

From that perspective, the arbitrator's admonition to

read the damages awards in tandem reveals a very different picture

of the arbitrator's intent from that depicted by TJAC and ZVI.

Consider, for example, appellants' claim that "each Award (Nos. 4,

5, 6 and 7) resolved separate discrete issues finally and forever,"

being thereby "discrete, final, and confirmable" upon issuance.

- 15 - In language mirroring Award No. 4, Award No. 5 states that it is

a "final [d]ecision," according to which the arbitrator's

"preliminary views are now amended & final." Among the damages

assessed in Award No. 5 was an ongoing interest award granted to

Notre Dame, assessed at a daily rate of £117.48. According to

appellants' theory of the case, this award was final and

confirmable on July 27, 2017, the date of its issuance. But in

Award No. 6, issued on December 5, 2018, the arbitrator revised

his previous interest determination from Award No. 5, reassessing

the same ongoing interest expense to accrue at a daily net rate of

£269.52. The fact that the arbitrator saw fit to subsequently

amend the damages already granted in Award No. 5 -- notwithstanding

that the award was labeled "final," and that over sixteen months

had elapsed in between awards -- is at odds with appellants'

assertion that the arbitrator intended for the interim damages

awards to "definitively and forever resolve claims between the

parties."

We see no evidence that the arbitrator regarded Award

No. 4 any differently from Award No. 5. It is, indeed, TJAC and

ZVI's position that Awards No. 4 and 5 are of the same nature,

each being sufficiently "specific and discrete" to be

"independently confirmable" upon issuance. This claim, however,

is contradicted in the arbitrator's subsequent modification of

Award No. 5, well over a year after its initial issuance. Read in

- 16 - context of the overall seriatim award process, then, the

arbitrator's bare use of the word "final" in these awards did not

constitute a term of art or otherwise evince an intent to issue a

definitive, confirmable award.6 See Publicis Commc'n v. True N.

Commc'ns Inc., 206 F.3d 725, 728 (7th Cir. 2000) ("The content of

a[n] [arbitral] decision -- not its nomenclature -- determines

finality.") Rather, it merely indicates that the arbitrator,

having come to an interim (and amendable) decision on one set of

issues, intended to move on to evaluate the next subcategory of

damages to be considered in the proceedings. As the district court

noted, the fact that the arbitrator followed a "piecemeal approach"

to evaluating the various damages -- all flowing from the same

breach of contract and grouped together for apparent purposes of

administrative convenience -- "does not . . . suggest that each

time the [arbitrator] decided a particular component, that

decision was a final arbitral award." Notre Dame II, 2021 WL

2827442, at *3.

Given that neither the parties' conduct during the

arbitration nor the arbitrator's treatment of the individual

6 By way of contrast, we further note that the arbitrator termed the liability award at issue in Notre Dame I a "binding [d]ecision" that "cannot be changed," echoing the terminology for arbitral finality employed by the New York Convention. See Notre Dame I, 861 F.3d at 293; New York Convention art. V(1)(e). No comparable language can be found in the interim damages awards at issue.

- 17 - damages award evinces an understanding that the awards at issue

would be final upon issuance, we find the out-of-circuit caselaw

that TJAC and ZVI recite regarding the confirmability of interim

damages awards to be inapposite. To be sure, as we have previously

noted, "[s]everal circuits have recognized exceptions to th[e]

general rule" of arbitral finality, according to which "an arbitral

award is deemed 'final' provided it evidences the arbitrators'

arbitration." Hart Surgical, 244 F.3d at 233 (quoting Fradella v.

Petricca, 183 F.3d 17, 19 (1st Cir. 1999)). We have recognized

one such exception (announced in Hart Surgical and applied in Notre

Dame I) that a "partial award" on liability, in a bifurcated

proceeding agreed upon by the parties, can be final for purposes

of judicial confirmation. However, while our ordinary rule with

respect to arbitral finality is not ironclad, it does not follow

that an arbitration -- once cleaved into two stages -- can be yet

further fractured into multifarious sub-proceedings, each

producing separate and immediately confirmable final awards.

At a minimum, the cases cited by TJAC and ZVI require

that an award "finally and definitively dispose[] of a separate

independent claim" in order to be confirmable. Metallgesellschaft

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

accord Zeiler v. Deitsch, 500 F.3d 157, 169 (2d Cir. 2007); Rocket

Jewelry Box, Inc. v. Nobel Gift Packaging Inc., 157 F.3d 174, 176

- 18 - (2d Cir. 1998); Kerr-McGee Refin. Corp. v. M/T Triumph, 924 F.2d

467, 471 (2d Cir. 1991); Ecopetrol S.A. v. Offshore Expl. & Prod.

LLC, 46 F. Supp. 3d 327, 337 (S.D.N.Y 2014). Moreover, given that

judicial confirmation of interim awards constitutes an exception

to the ordinary rule governing arbitral finality, these cases often

involve other factors -- such as the peculiar character of the

arbitration, express agreements between litigants, or unusually

exigent circumstances -- that are not present here. See, e.g.,

Zeiler, 500 F.3d at 169 (finding certain interim awards to be final

given the "unique character of th[e] arbitration, as agreed by the

parties"); Publicis Commc'n, 206 F.3d at 729 (construing an order

as immediately confirmable because "the order was necessary to

prevent the final award from becoming meaningless"); see also Hall

Steel Co. v. Metalloyd Ltd., 492 F. Supp. 2d 715, 719-20 (E.D.

Mich. 2007) (cataloguing caselaw and tracing a "common feature" in

many cases where "courts have found it appropriate to confirm

interim awards," viz., "that the party seeking confirmation was

seeking an immediate need for relief").

As we have just explained, Award No. 4 did not "finally

and definitively" resolve a claim, Metallgesellschaft A.G., 790

F.2d at 283, and the parties had no agreement to treat the various

damages awards as independently final and confirmable. Further,

as established supra, the damages do not correspond to 'separate'

and 'independent' claims, id., but rather all flow from the same

- 19 - breach of contract established at the liability stage. As such,

regardless of whether there are circumstances outside of the

bifurcated liability award context where certain interim awards

may be immediately confirmable, we do not face such a situation

here.

* * *

"The primary purpose served by the arbitration process

is expeditious dispute resolution." Fradella, 183 F.3d at 19.

"Arbitration loses some of its luster, though, when one party

refuses to abide by the outcome and the courts are called in after

all for enforcement." Publicis Commc'n, 206 F.3d at 729. TJAC

and ZVI have now twice come to us in attempts to avoid judicial

confirmation. They urge us to deviate from our ordinary approach

to arbitral finality, instead adopting a rule that would force

litigants in arbitral proceedings to run to the courthouse upon

the issuance of interim awards lest they lose their right to

judicial confirmation.

Nothing in the awards in question, our precedents, or

the principles that animate our liberal approach to arbitration

compels such an outcome. Indeed, we have previously noted the

risk of "creat[ing] situations at the arbitration level in which

[a party] may forfeit an appeal . . . by waiting until all

arbitration proceedings are complete." Hart Surgical, 244 F.3d at

236. Similarly, we have admonished that district courts should

- 20 - not be held "open as an appellate tribunal during an ongoing

arbitration proceeding, since applications for interlocutory

relief result only in a waste of time, the interruption of the

arbitration proceeding, and . . . delaying tactics in a proceeding

that is supposed to produce a speedy decision." Id. at 233

(quoting Michaels v. Mariform Shipping, S.A., 624 F.2d 411, 414

(2d Cir. 1980)). We find that Award No. 4 was not confirmable

upon issuance, and that the three-year statute of limitations

established by 9 U.S.C. § 207 only began to run upon the issuance

of the final arbitral award in March 2020.7 As such, Notre Dame's

motion for judicial confirmation was not time-barred.

III. CONCLUSION

Affirmed. Costs awarded to appellee.

7 Because we find that Notre Dame's motion for judicial confirmation of Award No. 4 was timely, we need not consider TJAC and ZVI's argument that the portion of Award No. 6 granting interest on Award No. 4 was time-barred.

- 21 -