International Litigation | CPLR 7502(c): An Underused Weapon
Section 7502(c) of the CPLR authorizes provisional remedies in aid of arbitration. It can be used in aid of arbitrations that take place both in and outside of New York, thus making the statute broader than its sister statute governing attachments in aid of litigation. Perhaps the most interesting question about the statute is how come it is not used more? This article looks at the history of the statute and some of the cases decided under it.
Reversing 'Cooper'
In 1982, the New York Court of Appeals decided Cooper v. Ateliers de la Motobecane, S.A. , 57 N.Y.2d 408 (1982), in which it held that pre-award attachments could not be issued in connection with an international arbitration that fell under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention). 9 U.S.C. Chapter 2. The court explained that attachments could be brought only in connection with a lawsuit seeking money damages and that a case to compel arbitration did not so qualify. In addition, the court held that, because the Convention authorized a court to "refer" to arbitration any case falling under the Convention, a court could do nothing other than "refer." Inasmuch as granting an attachment order was more than just "referring" the case, it was forbidden. In response to this decision, in 1985, the Arbitration Committee of the City Bar Association recommended the enactment of what would become §7502(c).1 That report made clear that the purpose of §7502(c) was to reverse Cooper. However, somehow, without any explanation, the Memorandum of the Office of Court Administration accompanying the bill stated that the new statute would not affect international arbitration proceedings. Thus, the law with respect to international arbitration did not change and Cooper still precluded provisional remedies in aid of Convention arbitrations. Twenty years later, another committee of the City Bar Association, the International Commercial Disputes Committee (ICDC), took another run at reversing Cooper. 2 In its report, the Committee explained that Cooper was an anomaly.3 Other states (such as California, Connecticut, New Jersey and Texas) authorized provisional remedies in aid of international arbitration. Even within New York, there was a dichotomy because federal courts in New York rejected the Cooper reasoning and held that "[e]ntertaining an application for [a preliminary injunction] is not precluded by the Convention but rather is consistent with its provisions and its spirit." Borden v. Meji Milk Products , 919 F.2d 822, 826 (2d Cir. 1990). Likewise, foreign countries (in places as diverse as Australia, France, Malta, Singapore and Zimbabwe) allowed provisional remedies in connection with arbitrations. The ICDC recommended amendments to §7502(c) to achieve two objectives. First, provisional remedies would be available in connection with arbitrations under the Convention. And, second, a party could obtain a provisional remedy under §7502(c) even if the arbitration was taking place outside New York. In 2005, the legislature revised the statute in accordance with these recommendations, which now reads in relevant part: The supreme court in the county in which an arbitration is pending or in a county specified in subdivision (a) of this section, may entertain an application for an order of attachment or for a preliminary injunction in connection with an arbitration that is pending or that is to be commenced inside or outside this state, whether or not it is subject to the United Nations convention on the recognition and enforcement of foreign arbitral awards, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief. The legislative history reiterated the objectives in the ICDC Report.4
Section 7502(c) Cases
Unlike what happened with the 1985 changes, this time, the courts interpreted the statute as intended by the Bar Committee. Thus, cases have held that the statute can be used for Convention arbitrations, even if the arbitrations are located outside New York. Matter of Sojitz v. Prithvi Info. Solutions , 82 A.D.3d 89 (1st Dep't 2011) was a case that granted an attachment in aid of an arbitration seated in Singapore. And, in Invar Int'l. v. Zorlu Enerji Elektrik Uretim Anonim Sirketi , 32 Misc. 3d 1216(A), 2010 N.Y. Misc. LEXIS 6649 (Sup. Ct. NY County, July 23, 2010), the court granted provisional relief under CPLR 7502(c) pending an arbitration in Switzerland. The courts have been called on to address other issues as well. Sierra USA Commc'ns v. Int'l Tel. & Satellite , 824 N.Y.S.2d 560 (Sup. Ct., N.Y. 2006) addressed the part of the statute that requires that the underlying arbitration be commenced within 30 days of the court's order or else the order "shall be null and void." Here, the court granted a temporary restraining order under §7502(c). When 30 days passed without an arbitration being commenced, the respondents moved to vacate, after which the Petitioner moved to extend the 30-day deadline. Respondent argued that the statute authorizes an extension of the 30 days but, because that request had not been made within the 30 days, the court was without authority to extend the deadline of an order that had been rendered "null and void." The court disagreed and held that it had the discretion to extend the deadline, even after the 30 days. The decision in Sojitz concerned the issue of jurisdiction under §7502(c). The case involved a Japanese petitioner, an Indian respondent, a contract governed by English law and a Singapore arbitration. The court granted an attachment order and the petitioner attached $18,000 owed to the respondent by a New York customer. The respondent argued that the court lacked personal jurisdiction. The court disagreed, relying on the well known "security exception" to the minimum contacts requirement applicable in quasi in rem cases, as the Supreme Court discussed in Shaffer v. Heitner , 433 U.S. 186 (1977). Thus, if an attachment is sought solely to enforce a potential arbitration award, location of the property alone in New York is a sufficient basis for jurisdiction. Finally, Great E. Sec. v. Goldendale Investments, 2006 U.S. Dist. LEXIS 94271 (S.D.N.Y. Dec. 20, 2006) concerned the interesting issue of the intersection of §7502(c) and challenges to arbitration awards. In that case, an NASD arbitration panel entered an interim order in which, under §7502(c), they required the petitioner to place almost $500,000 in escrow pending the conclusion of the arbitration. The petitioner then moved in court to vacate the interim order on the grounds that the tribunal had exceeded its authority and acted in manifest disregard of the law. Interestingly, the manifest disregard argument was based on the arbitrators' supposedly applying §7502 improperly. There is, of course an extremely high hurdle for proving manifest disregard and the court rejected the argument. But the case at least raised the issue of whether, when parties seek provisional remedies from arbitral tribunals in New York in aid of a New York arbitration, are the arbitrators bound by the provisions of §7502(c)? That question may be answered in future cases.
An Underused Statute
Perhaps the most interesting aspect of the revised version of §7502(c) is that it is a potentially powerful weapon that does not seem to be used anywhere near as much as might be expected. In that regard, it is interesting to compare this arbitration attachment statute with the attachment statute for lawsuits. CPLR §6201 provides: Grounds for attachment. An order of attachment may be granted in any action, except a matrimonial action, where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants … Thus, when seeking an attachment in aid of a lawsuit, it must be brought in connection with a lawsuit in which the plaintiff is seeking a money judgment. There is no authority to seek an attachment in New York in aid of a lawsuit being conducted elsewhere. In contrast, §7502(c) specifically authorizes attachments in aid of arbitrations taking place outside of New York. Considering the broader scope of §7502(c) as compared to §6201, and the fact that New York, as the financial center of the world, is home to untold assets, one would have expected a significant increase in the use of §7502(c) after the statute was amended. Although statistics are not available, based on the number of reported decisions concerning §7502(c), as well as anecdotal evidence, that increase has not yet occurred. Perhaps publicity about the statute will increase its use.
Endnotes
1. 1985 Report of the Advisory Committee on Civil Practice, reprinted in McKinney's 1985 Session Laws at 3432.
2. The authors of this article were the Chairman and Secretary, respectively, of the Committee.
3. The report may be found at http://www.nycbar.org/pdf/report/international_arb_rpt_on_equit_remedies.pdf.
4. 2005 NY Senate Bill S 4837, Sponsor Memorandum in Support of Legislation.
Lawrence W. Newman is of counsel and David Zaslowsky is a partner of Baker McKenzie in New York. They can be reached at lawrence.newman@bakermckenzie.com and david.zaslowsky@bakermckenzie.com, respectively.