J. Robert van Faassen, LLM v. Greg Lindberg

At a glance

Parties

J. Robert van Faassen and Eleonora L. Zetteler, as insolvency practitioners of Nederlandsche Algemeene Maatschappij van Levensverzekering "Conservatrix" N.V. (petitioners–appellees), v. Greg Evan Lindberg, Trier Holding B.V., Netherlands Insurance Holdings, Inc. and NIH Capital, LLC (respondents–appellants)

Case no.

United States Court of Appeals for the Fourth Circuit, No. 24-1898 (on appeal from M.D.N.C. No. 1:23-cv-00879-CCE-JEP)

Forum and rules

U.S. federal court proceedings to confirm a foreign arbitral award under Chapter 2 of the Federal Arbitration Act (9 U.S.C. § 207) and to recognise a Dutch judgment under the North Carolina Uniform Foreign-Country Money Judgments Recognition Act

Treaty

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (10 June 1958)

Court

Circuit Judges Rushing (opinion) and Heytens, and Senior Circuit Judge Floyd

Underlying award(s)

Award of 31 January 2020 in Netherlands Arbitration Institute (NAI) summary arbitral proceedings; Court of Rotterdam order of 17 February 2020 granting leave to enforce, upheld by the Court of Appeal of The Hague and the Supreme Court of the Netherlands

Sector

Life insurance; solvency capital

Outcome

Confirmation of the award under the FAA reversed as time-barred; the Dutch judgment is recognisable under North Carolina law, so the case was remanded for proceedings on its enforcement (14 July 2026).

Amount

The arbitral award, as enforced by the Dutch court, required payment of €150,000,000 if the solvency capital ratio was not restored within sixty days, €134,725 for arbitration fees and €200,000 for legal fees. The district court had entered judgment in U.S. dollars; the amount is not stated in the opinion.

The dispute

The respondents own Conservatrix, a Dutch life insurer, and agreed to keep its solvency capital ratio at a minimum of 135%. When the ratio fell below that level, Conservatrix started summary arbitral proceedings before the NAI. The arbitrator ordered the respondents on 31 January 2020 to restore the ratio, with a €150,000,000 penalty for non-compliance within sixty days, plus costs and fees. The Dutch courts granted and upheld leave to enforce, but the respondents did not comply, and Conservatrix went into liquidation. Its trustees petitioned in the Middle District of North Carolina on 17 October 2023 to confirm the award under the FAA and the New York Convention, and in the alternative to enforce the Dutch judgment under North Carolina law. The respondents argued that the FAA petition was out of time and that the Dutch order was not a foreign-country judgment.

Key holdings

1. The three-year limitations period in 9 U.S.C. § 207 is mandatory, not permissive. "May apply" makes seeking confirmation optional, but the phrase "within three years" sets a binding outer limit; reading it otherwise would deprive the phrase of any effect. Policy arguments about efficiency cannot override the text. pp. 6–8
2. Sverdrup Corp. v. WHC Constructors, which treated the one-year period in 9 U.S.C. § 9 as permissive, does not control. Section 9 governs domestic awards under a different chapter enacted decades earlier. Section 208 does not import Section 9 into Chapter 2 because the two limitations periods conflict. pp. 8–10
3. Sverdrup's policy rationale carries less weight for foreign awards. Other efficient routes exist, such as recognising a foreign court judgment on the award, and Article VII of the New York Convention preserves such parallel mechanisms. No court of appeals has read Section 207 as permissive, and the court declined to create a circuit split. pp. 10–11
4. Because the petition was filed more than three years after the award was made, the district court's confirmation of the award under the FAA was reversed. The court did not decide whether equitable tolling applies, because the petitioners did not argue it. p. 11 and n. 2
5. The Court of Rotterdam's order granting leave to enforce the attached award is a foreign-country judgment under the North Carolina Act. It grants recovery of a sum of money and, having been affirmed by the Court of Appeal of The Hague and the Supreme Court of the Netherlands, is final, conclusive and enforceable. pp. 12–13
6. The Act excludes arbitral awards themselves but covers a foreign court judgment confirming an award. The Dutch judgment did not need to restate or "explicitly adopt" the monetary award; identifying and attaching it was enough. The denial of the motion to dismiss the state-law claim was affirmed, and the case was remanded for proceedings on enforcement of the Dutch judgment. pp. 13–14

Procedural history

1. 31 January 2020The NAI summary arbitrator orders the respondents to restore Conservatrix's solvency capital ratio to 135%, with a €150,000,000 penalty for non-compliance within sixty days, plus costs and fees.
2. 17 February 2020The Court of Rotterdam grants leave to enforce the award. The Court of Appeal of The Hague and the Supreme Court of the Netherlands later uphold it.
3. 17 October 2023The trustees petition the Middle District of North Carolina to confirm the award.
4. 2024The district court denies the respondents' motion to dismiss (Van Andel v. Lindberg, 732 F. Supp. 3d 476).
5. 8 August 2024The district court confirms the award under the FAA and enters judgment in U.S. dollars. It does not rule on the North Carolina claim.
6. 10 December 2025Oral argument before the Fourth Circuit.
7. 14 July 2026Fourth Circuit published opinion: FAA confirmation reversed as time-barred; case remanded for enforcement proceedings on the Dutch judgment under North Carolina law.

Tribunal, counsel and experts

For the claimant

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP

For the respondent

Michael Gregory Newell · Monica Langdon Jackson

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Keywords

• New York Convention
• Federal Arbitration Act
• 9 U.S.C. § 207
• statute of limitations
• time-barred confirmation
• confirmation of foreign award
• recognition of foreign judgment
• Netherlands Arbitration Institute
• summary arbitral proceedings
• Conservatrix
• solvency capital ratio
• life insurance
• Sverdrup
• circuit split
• equitable tolling
• Fourth Circuit

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