International: Interim versus final orders

The 7th Circuit held that an "order" confirming an award issued under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) was a final order and was properly confirmed by the district court. The court noted that a ruling on a discrete, time-sensitive issue may

The case stemmed from the dissolution of a joint venture between True North Communications and Publicis Communication. The parties agreed to arbitrate most of their dispute before the London Court of International Arbitration under the UNCITRAL rules. They resorted to arbitration to resolve a dispute as to whether Publicis, a French company, had to turn over certain tax records that True North, a U.S. company, said it needed to file with U.S. tax and securities regulators. The chair of the tribunal signed an order "for and on behalf of" the arbitrators requiring Publicis to provide to True North tax information for 1994 to 1996 by Nov. 23, 1998. When Publicis did not comply, True North sought to confirm the tribunal's decision. The District Court for the Northern District of Illinois confirmed the ruling.

On appeal, Publicis argued that the ruling was an "interim" order, not a final award, and thus was improperly confirmed. It asserted that a tribunal's ruling must bear the term "award" to be final and enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The 7th Circuit found that this argument reflected "an extreme and untenable formalism." The court said that the content of a decision, not its nomenclature determined finality. The court noted that arbitration decisions that do not use the term "award" have been held to be final under the Federal Arbitration Act and that those decisions may guide the interpretation of the New York Convention, which supplements the FAA.

Examining the content of the tribunal's order to turn over tax records, the court held that it was a final order. It was significant that this was the only issue the tribunal was called upon to resolve, and that the tribunal concluded that True North's claim was "urgent" and that interim measures were necessary. The court found that finality was demonstrated by the deadline. "Requiring the unrelated issues to be arbitrated to finality before allowing True North to enforce a decision the tribunal called urgent would defeat the purpose of the tribunal's order," the court said.

Publicis Communication v. True North Communications Inc., No. 99-1199, 99-3424, 2000 WL 273983 (7th Cir. March 14, 2000).