Productos Roche S.A. v. Iutum Services Corp. and Gerardo Jose Guarino

At a glance

Parties

Productos Roche S.A. (Venezuela) v. Iutum Services Corp. and Gerardo Jose Guarino (both citizens of Florida)

Case no.

Civil Action No. 20-20059-Civ-Scola

Court

U.S. District Court, Southern District of Florida (Judge Robert N. Scola, Jr.)

Underlying award(s)

Final award of 7 November 2018, Arbitration Center of the Caracas Chamber (ACCC), rendered by default

Treaty

Inter-American (Panama) Convention on International Commercial Arbitration; New York Convention case law applied

Sector

Sale of electronic equipment

Outcome

Petition to confirm and enforce granted; final judgment entered against both respondents (9 April 2020).

Amount

Award confirmed: USD 176,785.95, owed jointly and severally

The dispute

Productos Roche S.A., a Venezuelan company, agreed to buy 257 pieces of electronic equipment from Iutum Services Corp. Roche paid for all 257 pieces, but Iutum delivered only 138. Roche began arbitration before the Arbitration Center of the Caracas Chamber on 21 August 2017. The respondents did not take part. On 7 November 2018 a three-member tribunal held Iutum and Gerardo Jose Guarino, who had signed the agreement for Iutum, jointly and severally liable for USD 176,785.95. Roche asked the court to confirm the award. Guarino opposed enforcement against him under Article V(1)(a) and (b) of the New York Convention. He argued that he was not a party to the arbitration agreement and that he had not received proper notice of the proceedings.

Key holdings

1. The Panama Convention governs the award. For enforcement purposes it is substantially identical to the New York Convention, so case law under one applies to the other. Under 9 U.S.C. § 207, confirmation is mandatory unless a Convention ground for refusal is shown. pp. 1–3
2. Guarino's argument that he was not a party to the arbitration agreement fails. The agreement chose Venezuelan law. Article 357 of the Venezuelan Commercial Code makes a person who contracts for a foreign company not registered in Venezuela personally and jointly liable. The arbitral tribunal had already found that Guarino was bound on this basis. p. 3
3. There was no violation of due process under Article V(1)(b). The tribunal tried repeatedly to notify the respondents: by mail to the contract address (one delivery was signed for by "Galvan" on 4 June 2018), by several emails that never bounced back, and by publication in El Nacional. These efforts were reasonably calculated to inform the respondents of the proceedings. p. 4
4. Reasonable notice does not require actual notice. That Guarino never actually learned of the arbitration does not breach due process. pp. 4–5
5. The court found no ground to refuse recognition. It confirmed the award, entered final judgment against both respondents and dismissed the case with prejudice. p. 5

Procedural history

1. 21 August 2017Roche commences arbitration before the Arbitration Center of the Caracas Chamber.
2. 10 April 2018Three arbitrators appointed. The respondents do not take part and the proceeding continues by default.
3. 7 November 2018Final award holds the respondents jointly and severally liable for USD 176,785.95.
4. 9 April 2020The District Court grants the petition to confirm and enforce the award and enters final judgment for Roche.

Tribunal, counsel and experts

Decided by

• Jr. Robert N. Scola Judge, U.S. District Court, Southern District of Florida

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Keywords

• Panama Convention
• Inter-American Convention
• New York Convention
• Article V(1)(a)
• Article V(1)(b)
• recognition and enforcement
• confirmation of award
• non-signatory
• Venezuelan Commercial Code Article 357
• notice by publication
• due process
• default award
• Caracas Chamber
• electronic equipment
• Venezuela
• 9 U.S.C. § 207

Summary generated with AI from the published documents — refer to the award for the authoritative text.