Bayer Cropscience Ag v. Dow Agrosciences LLC , 680 F. App'x 985 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BAYER CROPSCIENCE AG, BAYER
CROPSCIENCE NV,
Plaintiffs-Appellees
v.
DOW AGROSCIENCES LLC, MYCOGEN PLANT
SCIENCE, INC., AGRIGENETICS, INC., DBA
MYCOGEN SEEDS, LLC, PHYTOGEN SEED
COMPANY, LLC,
Defendants-Appellants
______________________
2016-1530, 2016-1623
______________________
Appeals from the United States District Court for the
Eastern District of Virginia in No. 2:12-cv-00047-RAJ-
RJK, Judge Raymond Alvin Jackson.
______________________
Decided: March 1, 2017
______________________
CHRISTOPHER JAMES GASPAR, Milbank, Tweed, Hadley
& McCloy LLP, New York, NY, argued for plaintiffs-
appellees. Also represented by RYAN HAGGLUND; ROBERT
J. KOCH, MICHAEL D. NOLAN, STEPHANIE R. AMOROSO,
EDWARD JOHN MAYLE, Washington, DC.
2 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
DAVID JASON LENDER, Weil, Gotshal & Manges LLP,
New York, NY, argued for defendants-appellants. Also
represented by ELIZABETH WEISWASSER, DAVID
FITZMAURICE, ADAM BANKS; ALEX V. CHACHKES, PETER A.
BICKS, ROBERT L. SILLS, JAMES STENGEL, Orrick, Herring-
ton & Sutcliffe LLP, New York, NY; MARK S. DAVIES,
KATHERINE M. KOPP, JEFFREY M. PROKOP, MELANIE L.
BOSTWICK, Washington, DC; ELIZABETH MOULTON, Menlo
Park, CA.
LLOYD LEE DAVIS, III, Andrews Kurth Kenyon LLP,
Houston, TX, for amicus curiae Jeff C. Dodd.
______________________
Before MOORE, TARANTO, and CHEN, Circuit Judges.
TARANTO, Circuit Judge.
This case involves an international arbitration tribu-
nal’s decision on a contract claim, under French law, and
patent-infringement claims, under U.S. law, in a dispute
between Bayer CropScience NV and Bayer CropScience
AG (sometimes collectively, Bayer), on one side, and Dow
Agrosciences LLC, Mycogen Plant Science, Inc., Agri-
genetics, Inc., and Phytogen Seed Co. (collectively, Dow),
on the other. Bayer initially sued Dow for patent in-
fringement, but the district court stayed the action pend-
ing arbitration. The arbitral tribunal awarded Bayer
approximately $455 million, including damages for breach
of contract and patent infringement, and set a rate for
post-award interest. The district court, in the patent-
infringement case, confirmed the arbitral award. The
court rejected Dow’s arguments against the award and
also denied Dow’s motion to clarify that interest from the
date of the district court’s judgment would accrue at the
statutory rate for post-judgment interest rather than the
tribunal’s higher post-award rate. Dow appeals.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 3
We conclude that the district court correctly con-
firmed the award, but abused its discretion regarding
post-judgment interest. We modify the judgment to state
that interest from the date of the district court’s judgment
accrues at the federal statutory rate. We affirm the
judgment as modified.
I
A
Bayer CropScience NV, a successor of Plant Genetic
Systems NV, owns or co-owns the Leemans patent family,
which includes U.S. Patent Nos. 5,561,236, 5,646,024,
5,648,477, 7,112,665, and RE44,962. The patents describe
and claim various technologies related to the pat gene,
which confers resistance to the herbicide glufosinate. The
Leemans patents issued from continuations of U.S. Patent
Application No. 07/131,140 and have similar specifica-
tions.
Bayer CropScience AG, a successor of Hoechst AG,
owns the Strauch patent family, including U.S. Patent
Nos. 5,273,894 and 5,276,268 (Strauch ’268). Although
not asserted by Bayer CropScience AG, the Strauch
patents are indirectly at issue, as the basis for Dow’s
double-patenting challenge to the Leemans patents.
Bayer CropScience AG and Bayer CropScience NV are
wholly owned subsidiaries of non-party Bayer AG.
Dow AgroSciences LLC produces the Enlist E3, Enlist
E3+IR, Enlist Soybean, Enlist Cotton, Widestrike, and
Widestrike 3 products through its subsidiaries, Mycogen
Plant Science, Inc., Agrigenetics, Inc., and Phytogen Seed
Co. Each of those products contains the pat gene. The
Enlist E3 products also contain a molecular stack of the
aad-12 and dmmg genes. Like the pat gene, the aad-12
and dmmg genes confer resistances to herbicides.
In June 1992, Hoechst AG and Lubrizol Genetics, Inc.,
Dow’s predecessor, agreed to cross-license certain technol-
4 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
ogies to which they had rights. That agreement (the 1992
Agreement) granted Lubrizol licenses to certain patents,
including the Strauch and the Leemans patents. At the
time of the agreement, Hoechst owned the Strauch pa-
tents and exclusively licensed the Leemans patents from
Plant Genetic Systems NV.
Article 4 of the 1992 Agreement restricts the parties’
use of the licensed technology:
No right or license is hereby granted, to either
party, either expressly or by implication, to use
any other proprietary technology owned by or
available to the other in connection with the li-
censes granted hereunder.
Both parties are entitled to grant sublicences or
distribution rights for their Transformants.
Hoechst is furthermore entitled to grant subli-
cences for gene promoter constructs containing a
Promoter in conjunction with any gene of which
Hoechst can dispose.
J.A. 886, 4147. Article 12 states that the agreement is to
be governed by and construed in accordance with French
law and that all controversies or disputes are to be “decid-
ed by arbitration in accordance with the Rules of Concilia-
tion and Arbitration of the International Chamber of
Commerce.” J.A. 889, 4150.
Between 2007 and 2008, Dow and non-party MS
Technologies, LLC entered into a series of agreements
regarding the pat and dmmg genes. In September 2007,
MS Tech granted Dow access to the dmmg gene, to which
MS Tech had a license under a 2004 agreement with
Bayer CropScience AG. In April 2008, Dow transferred
soybean seed transformants containing the aad-12, pat,
and dmmg genes to MS-Tech. Dow and MS Tech’s collab-
oration resulted in the creation of the Enlist E3 products.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 5
In November 2007, Bayer CropScience AG and MS
Tech entered into a new agreement, which involved the
dmmg gene and which transferred ownership of Event
FG72 to MS Tech. The agreement required MS Tech to
pay Bayer CropScience AG a percentage—in this case,
determined to be 50%—of the net trait revenues associat-
ed with Event FG72 until 2030.
B
In January 2012, Bayer CropScience AG terminated
the 1992 Agreement after accusing Dow of materially
breaching Article 4. The same month, Bayer CropScience
AG and Bayer CropScience NV sued Dow in the Eastern
District of Virginia for infringement of the ’236, ’024, ’477,
and ’665 patents. Dow moved to dismiss or stay the
action based on the agreement’s arbitration clause. The
district court stayed the action. See 9 U.S.C. § 3.
In September 2013, Bayer CropScience NV filed a re-
issue application for the ’665 patent. See 35 U.S.C. § 251.
In its application, Bayer CropScience NV stated that
reissuance was appropriate in view of the Supreme
Court’s decision in Association for Molecular Pathology v.
Myriad Genetics, Inc., 133 S. Ct. 2107 (2013). The ’665
patent reissued as the RE’962 patent, which expires in
2023. The other patents at issue expired no later than
July 2014.
Between November 2014 and August 2015, Dow filed
six requests for inter partes reexamination of the ’236,
’024, ’447, and RE’962 patents. See Ex Parte Leemans,
Control Nos. 90/013,394, 90/013,449, 90/013,452,
90/013,453, 90/013,515, 90/013,563. Dow alleged that
claims 8, 9, 12, 15, 18, and 19 of the ’236 patent; 1, 15,
and 16 of the ’024 patent; 1, 2, 15–17, and 19 of the ’477
patent; and 1 and 2 of the RE’962 patent were invalid for
obviousness-type double patenting over Strauch ’268 and
’894 and U.S. Patent No. 5,633,434. See Control Nos. -
394, -449, -452, -453, -515. Dow also alleged that claim 2
6 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
of the RE’962 patent would have been obvious over cer-
tain prior-art references. Control No. -563. At the exam-
iner level, the Office has issued final rejections in four
proceedings, Control Nos. -394, -449, -515, -563, and non-
final rejections in the others, Control Nos. -452, -453.
Those proceedings remain pending in the Office and do
not alter our resolution of this appeal. See 35 U.S.C.
§ 294; Fresenius USA, Inc. v. Baxter Int’l, Inc., 721 F.3d
1330 (Fed. Cir. 2013).
In October 2015, an arbitral tribunal entered an
award, finding, in relevant part, that (1) Dow breached
the 1992 Agreement by effectively sublicensing the pat
gene to MS Tech; (2) Dow infringed various claims of the
Leemans patents by its creation and other activities
involving the identified Enlist and Widestrike product—
specifically, claims 8, 9, 12, and 15 of the ’236 patent;
claims 15 and 16 of the ’024 patent; claims 15, 16, and 19
of the ’447 patent; and claim 1 of the RE’962 patent; (3)
the asserted claims of the ’024, ’236, ’447, ’665, and
RE’962 patents were not invalid for inadequate written
description or lack of enablement; and (4) the ’236, ’024,
’447, and RE’962 patents were not invalid for obviousness-
type double patenting over Strauch ’268. The tribunal
awarded Bayer $455,459,187 in damages, including
$374,731,000 in lost-opportunity damages under French
law for breach of contract and $67,837,000 in reasonable-
royalty damages under U.S. law for patent infringement.
The tribunal also awarded Bayer pre-award interest
using a rate of 8% and declared that the same rate would
apply to “post-award interest.” J.A. 560, 563. Arbitrator
George Berman dissented in part, disagreeing with the
tribunal’s conclusion of no double patenting.
Bayer moved the district court to confirm the arbitral
award. See 9 U.S.C. § 207. Dow cross-moved to vacate
the award. The court confirmed the award. The court
also denied Dow’s motion to amend the judgment to
clarify that any interest for a period after the district
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 7
court’s judgment would accrue at the rate specified by 28
U.S.C. § 1961(a), not at the tribunal’s 8% rate for “post-
award interest.” Dow appeals. We conclude that we have
jurisdiction, and we affirm the judgment as modified.
II
We have jurisdiction under 28 U.S.C. § 1295(a)(1),
which gives us jurisdiction over any “appeal from a final
decision of a district court . . . in any civil action arising
under, or in any civil action in which a party has asserted
a compulsory counterclaim arising under, any Act of
Congress relating to patents.” An action arises under the
patent laws if the complaint includes a claim asserting a
cause of action created by federal patent law. Christian-
son v. Colt Indus. Operating Corp., 486 U.S. 800, 808–09
(1988). It also arises under the patent laws in certain
circumstances where there is no federal cause of action.
In Christianson, the Court stated that a state-law cause of
action arises under federal patent law if “the plaintiff’s
right to relief necessarily depends on resolution of a
substantial question of federal patent law, in that patent
law is a necessary element of one of the well-pleaded
claims.” Id. More recently, in Gunn v. Minton, 133 S. Ct.
1059 (2013), which concerned patent-law issues involved
in a state-law malpractice claim, the Court explained that
“federal jurisdiction over a state law claim will lie if a
federal issue is: (1) necessarily raised, (2) actually disput-
ed, (3) substantial, and (4) capable of resolution in federal
court without disrupting the federal-state balance ap-
proved by Congress.” Id. at 1065; see also Grable & Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
314 (2005). In 2011, before the present suit was filed,
Congress amended § 1295(a)(1) to extend our jurisdiction
to actions that involve compulsory counterclaims arising
under the patent laws. 28 U.S.C. § 1295(a)(1); Leahy-
Smith America Invents Act, Pub. L. No. 112–29, § 19(b),
125 Stat. 284, 331–32 (2011). That amendment became
effective with respect to any civil action filed before Sep-
8 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
tember 16, 2011. Leahy-Smith America Invents Act
§ 19(e), 125 Stat. at 333; Wawrzynski v. H.J. Heinz Co.,
728 F.3d 1374, 1378 (Fed. Cir. 2013).
In this case, Bayer’s complaint arises under the pa-
tent laws. The complaint expressly alleges multiple
counts of patent infringement. The district court stayed
adjudication of those claims pending arbitration, but did
not dismiss the case or the patent claims. After the
tribunal entered its award, the court resolved the parties’
post-award motions in the same action. Bayer cites, and
we are aware of, no authority establishing that the tribu-
nal’s adjudication of the patent-infringement claims
altered the court’s basis for jurisdiction.
The conclusion would not change even if one looked
beyond the original complaint to the post-arbitral-award
proceedings in the district court. When Dow turned to the
court to challenge the arbitral award by way of a motion
to vacate, it asserted patent law as a necessary basis for
certain challenges to parts of the tribunal’s award. See
Gunn, 133 S. Ct. at 1065. In particular, Dow argued that
the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention), June
10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, required the
court to decide, among other issues, whether enforcement
of the award would violate a host of patent-law require-
ments and policies. See New York Convention art.
V(2)(b). Those questions were not only “necessarily
raised,” but also “substantial” and “disputed.” Gunn, 133
S. Ct. at 1065. Moreover, because French law governed
the contract claim, there was no basis for concern that the
federal court’s determination of the patent-law issues,
within the strict limits of arbitral-award review, would
“disrupt[] the federal-state balance.” Id. Thus, whether
viewed as a new claim or as a compulsory counterclaim to
Bayer’s claim for confirmation of the arbitral award,
Dow’s challenge comes within the Gunn standard.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 9
Precedent reinforces the conclusion that we have ju-
risdiction over this appeal. In Flex-Foot, Inc. v. CRP, Inc.,
238 F.3d 1362 (Fed. Cir. 2001), we exercised jurisdiction
over a final district-court decision confirming an arbitral
award for patent infringement. Id. at 1364. Additionally,
in Microchip Technology Inc. v. U.S. Philips Corp., 367
F.3d 1350 (Fed. Cir. 2004), we held that we had jurisdic-
tion under § 1292(a)(1) over interlocutory orders denying
motions to compel arbitration. Id. at 1354–55. The Third
and Eighth Circuits have reached the opposite conclusion
regarding our jurisdiction over interlocutory appeals, but
neither has questioned our jurisdiction over final appeals.
Indus. Wire Prods., Inc. v. Costco Wholesale Corp., 576
F.3d 516, 518–20 (8th Cir. 2009); Medtronic AVE, Inc. v.
Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 51–53
(3d Cir. 2001). To the contrary, the Third Circuit has
concluded that we have jurisdiction in situations such as
this. Medtronic AVE, 247 F.3d at 53.
We are unaware of any instance in which the regional
circuits have decided an appeal involving the confirmation
or vacatur of an arbitral award for patent infringement.
In DeRosa v. J.P. Walsh & J.L. Marmo Enterprises, Inc.,
541 F. App’x 250 (4th Cir. 2013), and Rocket Jewelry Box,
Inc. v. Noble Gift Packaging, Inc., 157 F.3d 174 (2d Cir.
1998), the parties excluded the patent-related issues from
arbitration. DeRosa also involved only a counterclaim for
patent infringement, which did not suffice to create
jurisdiction in cases, like DeRosa, filed before September
16, 2011. See Holmes Grp., Inc. v. Vornado Air Circula-
tion Sys., Inc., 535 U.S. 826 (2002); DeRosa v. J.P. Walsh
& J.R. Marmo Enters., Inc., 471 F. App’x 902 (Fed. Cir.
2012). Although Golden v. Lim, No. 2:15-cv-10795, 2016
WL 520302 (E.D. Mich. Feb. 10, 2016), which is discussed
in Bayer’s filings, might not have been distinguishable on
the same grounds, the Sixth Circuit has since dismissed
the appeal in that case. See Golden v. Lim, No. 16-1313
(6th Cir. dismissed Apr. 14, 2016).
10 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
III
On the merits, we follow the Supreme Court’s and rel-
evant regional circuit’s law on issues not unique to patent
law. Flex-Foot, Inc., 238 F.3d at 1365–66. Nevertheless,
we have been shown no reason to think that our conclu-
sions would change under any other circuit’s law on
matters not squarely controlled by Supreme Court prece-
dent. We review the district court’s denial of the motion
to vacate the arbitral award without deference and any
underlying factual findings for clear error. Raymond
James Fin. Servs., Inc. v. Bishop, 596 F.3d 183, 190 (4th
Cir. 2010). We review the denial of the motion to amend
the judgment for abuse of discretion. Wilkins v. Mont-
gomery, 751 F.3d 214, 220 (4th Cir. 2014). A court neces-
sarily abuses its discretion if it commits legal error.
Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S.
Ct. 1744, 1748 n.2 (2014). The award of post-judgment
interest is a legal question, reviewed without deference.
Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614,
632–33 (4th Cir. 1999). To the extent that the parties
raise issues unique to patent law, we review those issues
under our law. Flex-Foot, Inc., 238 F.3d at 1365–66.
A
Judicial review of the arbitral award at issue here is
very limited even if, as we assume for present purposes,
the standards governing both international and domestic
arbitration apply. In numerous ways, the relevant federal
statutes and precedents make clear that ordinary legal or
factual error is not a ground for disturbing an arbitral
award like the one at issue here.
The New York Convention and its enabling statute, 9
U.S.C. §§ 201–208, require that a district court confirm an
award “unless it finds one of the grounds for refusal or
deferral of recognition or enforcement of the award speci-
fied in the said Convention.” 9 U.S.C. § 207. One ground
invoked here requires a finding that “the award deals
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 11
with a difference [i.e., issue] not contemplated by or not
falling within the terms of the submission to arbitration,
or contains decisions on matters beyond the scope of the
submission to arbitration.” New York Convention art.
V(1)(c). Another requires a finding that “recognition or
enforcement of the award would be contrary to the public
policy” of “the country where recognition or enforcement is
sought.” New York Convention art. V(2)(b).
The Federal Arbitration Act likewise strictly limits
the grounds for disturbing an arbitral award. See 9
U.S.C. §§ 10–11; Hall Street Assocs., L.L.C. v. Mattel, Inc.,
552 U.S. 576, 584–89 (2008). For example, the Act per-
mits vacatur “where the arbitrators exceeded their pow-
ers.” 9 U.S.C. § 10(a)(4). But as the Supreme Court has
explained, the Act authorizes only “the limited review
needed to maintain arbitration’s essential virtue of resolv-
ing disputes straightaway,” thus ensuring that arbitra-
tion not become “merely a prelude to a more cumbersome
and time-consuming judicial review process.” Hall Street
Assocs., 552 U.S. at 588 (quoting Kyocera Corp. v. Pruden-
tial-Bache Trade Servs., Inc., 341 F.3d 987, 998 (9th Cir.
2008)). The Court adhered to those principles in review-
ing international arbitral awards under the Act. BG Grp.,
PLC v. Republic of Argentina, 134 S. Ct. 1198, 1206
(2014).
The Fourth Circuit has stated that an award may be
vacated if the arbitrators “manifestly disregarded” the
applicable law. Wachovia Sec., LLC v. Brand, 671 F.3d
472, 480 (4th Cir. 2012). The court has explained that the
manifest-disregard ground exists either “as an independ-
ent ground for review or as a judicial gloss on the enu-
merated grounds for vacatur set forth at 9 U.S.C. § 10.”
Id. at 483 (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l
Corp., 559 U.S. 662, 672 n.3 (2010)). In one formulation,
the ground applies only if the tribunal was “aware of the
law, understood it correctly, found it applicable to the case
before them, and yet chose to ignore it in propounding
12 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
their decision.” Three S Del., Inc. v. DataQuick Info. Sys.,
Inc., 492 F.3d 520, 529 (4th Cir. 2007) (quoting Remmey v.
PaineWebber, Inc., 32 F.3d 143, 149 (4th Cir. 1994)). In
another, it applies only if “(1) the applicable legal princi-
ple is clearly defined and not subject to reasonable debate;
and (2) the arbitrator[s] refused to heed that legal princi-
ple.” Long John Silver’s Rests., Inc. v. Cole, 514 F.3d 345,
349–50 (4th Cir. 2008) (quoting Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir.
1995)); Wachovia, 671 F.3d at 483. That “carefully cir-
cumscribed standard,” the Fourth Circuit has said, “is not
an invitation to review the merits of the underlying
arbitration.” Id. Instead, the standard has “for decades
guaranteed that review for manifest disregard not grow
into the kind of probing merits review that would under-
mine the efficiency of arbitration.” Id.
Additionally, although an award may be disturbed if
it “fails to draw its essence” from the relevant contractual
provisions, MCI Constructors, LLC v. City of Greensboro,
610 F.3d 849, 857 (4th Cir. 2010) (quoting Patton v.
Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir.
2006)), it does not fail to draw its essence from those
provisions merely because the arbitrators misread them,
see Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064,
2068 (2013); Stolt-Nielsen, 559 U.S. at 671; United Pa-
perworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38
(1987); Choice Hotels Int’l, Inc. v. SM Prop. Mgmt., LLC,
519 F.3d 200, 207 (4th Cir. 2008); Three S Del., 492 F.3d
at 527–28. Rather, “as long as the arbitrator is even
arguably construing or applying the contract and acting
within the scope of his authority, that a court is convinced
he committed serious error does not suffice to overturn his
decision.” United Paperworkers Int’l Union, 484 U.S. at
38; Choice Hotels Int’l, 519 F.3d at 207 (quoting U.S.
Postal Serv. v. Am. Postal Workers Union, AFL-CIO, 204
F.3d 523, 527 (4th Cir. 2000)).
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 13
A challenger must meet related, and similarly high,
standards to support a refusal to confirm an award as
contrary to public policy. In the domestic labor-
arbitration context, the Supreme Court has said that, to
justify non-enforcement, an asserted public policy “must
be well defined and dominant, and is to be ascertained ‘by
reference to the laws and legal precedents and not from
general considerations of supposed public interests.’”
W.R. Grace & Co. v. Local Union 759, Int’l Union of
United Rubber, Cork, Linoleum & Plastic Workers, 461
U.S. 757, 766 (1983) (quoting Muschany v. United States,
324 U.S. 49, 66 (1945)). Relatedly, the Court has recog-
nized the strong policy considerations that favor allowing
parties to enter into international arbitral agreements.
See Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,
515 U.S. 528, 537–39 (1995); Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631–40
(1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 517–18
(1974). Guided by those considerations, the Court has
enforced an agreement to arbitrate, over a “public policy”
objection that the arbitrators would not permit assertion
of a U.S. statutory right, where it was not clear that such
a “prospective waiver of a party’s right to pursue statuto-
ry remedies” would occur. Vimar Seguros, 515 U.S. at
540; see also Mitsubishi, 473 U.S. at 637 & n.19.
Courts of appeals have construed the New York Con-
vention’s public-policy exception narrowly. In Parsons &
Whittemore Overseas Co. v. Société Generale De
L’Industrie du Papier (RAKTA), 508 F.2d 969 (2d Cir.
1974), the Second Circuit stated that, in accordance with
general international choice-of-law principles, the excep-
tion applies “only where enforcement would violate the
forum state’s most basic notions of morality and justice.”
Id. at 974 (citing 1 Restatement (Second) of the Conflict of
Laws § 117 cmt. c, at 340 (Am. Law Inst. 1971)). Most
circuits follow that approach. See Ministry of Def. &
Support for the Armed Forces of the Islamic Republic of
14 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
Iran v. Cubic Def. Sys., Inc., 665 F.3d 1091, 1097 (9th Cir.
2011); TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d
928, 938 (D.C. Cir. 2007); Karaha Bodas Co. v. Perus-
ahaan Pertambangan Minyak Dan Gas Bumi Negara, 364
F.3d 274, 306 (5th Cir. 2004); Slaney v. Int’l. Amateur
Athletic Fed’n, 244 F.3d 580, 593 (7th Cir. 2001); M & C
Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851
n.2 (6th Cir. 1996). The Eleventh Circuit has applied the
Supreme Court’s labor-relations standard to the review of
arbitral awards entered under the New York Convention,
stressing the standard’s strictness. Indus. Risk Ins. v.
M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1445
(11th Cir. 1998). For the purposes of this appeal, any
differences between the various approaches are immate-
rial: under any approach, an asserted policy must be
clearly established to justify non-enforcement of an arbi-
tral award. See W.R. Grace & Co., 461 U.S. at 766; Indus.
Risk Ins., 141 F.3d at 1445; Parsons & Whittemore Over-
seas Co., 508 F.2d at 974.
B
Dow’s first set of arguments attack parts of the arbi-
tral award as counter to U.S. law or policies governing
double patenting and post-patent-expiration royalties.
We reject Dow’s arguments.
1
The tribunal’s rejection of Dow’s double-patenting de-
fense to patent infringement does not justify non-
enforcement of the award. Dow argued to the tribunal
that the Leemans patents were invalid for obviousness-
type double patenting in light of Strauch ’268, contending
that the patents were commonly owned by Bayer AG, the
parent company of Bayer CropScience AG (owner of the
Strauch patents) and Bayer CropScience NV (owner or co-
owner of the Leemans patents). The tribunal carefully
scrutinized Dow’s argument, accepted the premise that
the Leemans and Strauch patents did not claim patenta-
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 15
bly distinct inventions, but nevertheless rejected the
challenge. It concluded that the patents were not com-
monly owned because Bayer CropScience AG and Bayer
CropScience NV were different entities and Dow had not
provided sufficient evidence to pierce the corporate veil
separating them. We cannot say that the tribunal’s
conclusion is contrary to public policy or reflects a mani-
fest disregard of the law under the strict standards gov-
erning such challenges. 1
It suffices to say that the tribunal’s conclusion did not
contravene any well-defined, established law applicable to
the situation presented here. Dow does not challenge the
tribunal’s conclusion that, with no common inventors,
common ownership of the patents was required for the
double-patenting bar to apply. To support its position on
common ownership, Dow relies on Manual of Patent
Examining Practice (MPEP) § 706.02, which states that
patents owned by wholly owned subsidiaries of the same
parent company are commonly owned for purposes of
deciding what qualifies as prior art under 35 U.S.C.
§ 103(c). See MPEP § 706.02(l)(2)(I), at 700-74. But the
MPEP does not have the force of law. See Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1425 (Fed. Cir. 1988). And in any
event, the MPEP passage is not addressed to double-
patenting doctrine.
As we have explained, obviousness-type (or “non-
statutory”) double patenting is a judicially-created corol-
lary to “statutory” double patenting, which is itself a
judicial gloss on § 101. See Geneva Pharm., Inc. v. Glax-
oSmithKline PLC, 349 F.3d 1373, 1377–78 (Fed. Cir.
2003). The authoritative source of law in this area is
therefore judicial precedent. But while the courts may
1 The tribunal separately found no common owner-
ship on the ground that Biogen is a co-owner of the Lee-
mans patents. We need not address that ground.
16 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
someday reach the present situation, they have not yet
done so. 2 The Leemans and Strauch patents, having
originated from separate inventors and unrelated compa-
nies (Hoechst AG and Plant Genetic Systems), are now
held by sibling companies. The tribunal concluded that
Dow had not established that the corporate veil separat-
ing the companies could be pierced. No precedent cited to
the tribunal, or to us, considers and resolves in Dow’s
favor the doctrinal questions presented by this situation,
including those addressed to the policies that underlie the
doctrine—the unjustified extension of exclusivity rights
against the public and the potential for separate assignee
suits enforcing the same rights. See id. at 1378; In re
Hubbell, 709 F.3d 1140, 1145 (Fed. Cir. 2013). With the
doctrinal question as unsettled as it is for the present
circumstances, the tribunal’s rejection of Dow’s double-
patenting challenge cannot be declared a manifest disre-
gard of law or contrary to public policy.
2
We reach the same conclusion with respect to Dow’s
argument that the tribunal’s contract-damages award is
partially unenforceable because it violates U.S. patent-
law limits on the recovery of post-expiration royalties for
practicing a patent. In Brulotte v. Thys Co., 379 U.S. 29(1964), the Supreme Court held unenforceable a licensing
agreement that required the licensee to pay royalties after
the expiration of the patent. Recently, the Court declined
to overrule that precedent. See Kimble v. Marvel Entm’t.,
LLC, 135 S. Ct. 2401 (2015). Under the standards for
public-policy and manifest-disregard challenges, we
2 A district-court decision concerning terminal-
disclaimer law supports Bayer, not Dow, on this issue.
Email Link Corp. v. Treasure Island, LLC, No. 2:11-cv-
1433-ECR-GWF, 2012 WL 4482576 (D. Nev. Sept. 25,
2012).
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 17
conclude, Dow has not established that the contract
award—more precisely, the portion of the award reaching
past the 2023 expiration of the RE’962 reissue patent—
must be vacated based on Brulotte.
The tribunal awarded contract damages to compen-
sate Bayer CropScience AG for certain revenues that it
would have earned had Dow not breached the 1992
Agreement’s restriction on sublicensing certain rights it
obtained from Bayer. At the time of the breach, Dow and
MS Tech were considering two alternatives, which the
parties refer to as “Option B” and “Option C.” Although
Dow and MS Tech chose Option C, which resulted in the
Enlist E3 products, the tribunal found that, in the ab-
sence of breach, Option C would have been unavailable,
and Dow and MS Tech would have chosen Option B. That
option would have required MS Tech to pay licensing
revenues to Bayer CropScience AG under the 2007 Bayer-
MS Tech agreement, which the tribunal determined to be
50% of net trait revenues associated with Event FG72.
The tribunal calculated contract damages based on the
revenues that Bayer CropScience AG would have received
under that agreement until it expired, in 2030. Although
Dow argues that the tribunal misconstrued the amount
that Bayer CropScience AG would have received under
the 2007 Bayer-MS Tech agreement, see infra pp. 22–23,
it does not dispute the tribunal’s conclusion that the
agreement entitled Bayer CropScience AG to at least
some revenues.
No established law declares that result prohibited un-
der the Brulotte rule. The 1992 Agreement established
obligations entirely within the patent period: unless
breached earlier, the agreement was to terminate upon
expiration of the last covered patent—2023, as relevant
here. The pertinent condition set by the Agreement on
Dow’s use of the pat gene—namely, the restriction on
sublicensing it to others—neither extends beyond the
patent period nor violates any other identified law or
18 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
policy. If Dow’s predecessor had simply refused to accept
the no-sublicensing condition, instead of accepting and
then breaching it, Bayer’s predecessor could have refused
to grant the patent license. In that scenario, according to
the tribunal’s findings, Dow and MS Tech would have
turned to Option B. If they had done so Bayer then would
have earned the licensing revenues under the 2007 Bayer-
MS Tech agreement that the tribunal awarded here as
contract damages under French law. Dow does not allege
that the 2007 Bayer-MS Tech agreement, to which Dow is
not a party, violates Brulotte.
Bayer has not shown why the facts of the present case
are materially different from the foregoing scenario. More
generally, it has not shown why the contract-damages
award is prohibited by sufficiently established legal
authority, whether Brulotte or its successors, to make the
award contrary to public policy or manifestly in disregard
of the law. We therefore reject the Brulotte-based chal-
lenge without deciding whether the Brulotte rule involves
the kind of public policy that would, where violated,
undercut an arbitral award. 3
C
Dow presents a number of additional arguments for
vacating the arbitral award. It argues that the tribunal
exceeded its powers or manifestly disregarded applicable
law (or committed some error that would justify vacatur)
3 Dow’s invocation of the Constitution’s patent
clause, U.S. Const. art. I, § 8, cl. 8, does not bolster its
argument. If judicial precedent and statutory provisions
do not forbid the contract-breach damages here under the
limited standards of review of arbitral awards, neither
does the Constitution’s “limited Times” language, which is
no more self-defining, or fundamental, than the language
limiting patents to “Inventors” and their “Discoveries.”
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 19
by (1) rejecting Dow’s written description and enablement
defenses, (2) ruling on the RE’962 patent, (3) misconstru-
ing the relevant contract provisions, and (4) imposing an
8% rate for pre-award interest. We reject these conten-
tions.
1
Dow challenges the tribunal’s rejection of its written-
description defense, J.A. 379–95, but its arguments
amount to no more than allegations of ordinary legal
error. For example, Dow accuses the tribunal of conduct-
ing its written-description analysis backwards, by first
adopting a claim construction that, according to Dow,
improperly narrowed the relevant genus based on the
specification’s disclosures and then asking whether the
narrowed genus was sufficiently disclosed. Similarly,
Dow argues invalidity on the ground that the specification
directly disclosed only two of the four members of the
relevant genus. Dow’s assertions do not meet the de-
manding standards for showing that arbitrators exceeded
their powers or manifestly disregard the law. See Oxford
Health Plans, 133 S. Ct. at 2068; Stolt-Nielsen, 559 U.S.
at 671; Hall Street, 552 U.S. at 584–85; Wachovia, 671
F.3d at 481; Long John Silver’s Rests., 514 F.3d at 349–
50; Remmey, 32 F.3d at 149.
The same is true of Dow’s challenge to the tribunal’s
rejection of its enablement defense. J.A. 395–96. In its
Phase II submissions, Dow argued to the tribunal that the
asserted claims of the ’024 and ’447 patents were invalid
because the specification did not enable monocots. The
tribunal rejected that argument because it concluded that
the claims did not cover monocots. In doing so, the tribu-
nal properly considered Plant Genetic Systems, N.V. v.
DeKalb Genetics Corp., 315 F.3d 1335 (Fed. Cir. 2003), in
which this court affirmed the district court’s conclusion
that certain claims of the ’236 patent excluded monocots
because they were limited to plants “susceptible to infec-
20 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
tion and transformation by Agrobacterium and capable of
regeneration thereafter.” Id. at 1345. After considering
Plant Genetic Systems, the tribunal in the present matter
concluded that the asserted claims were expressly or
implicitly limited to Agrobacterium transformation. The
tribunal’s analysis shows no manifest disregard of law or
other error meeting the standards for rejection of arbitral
determinations.
2
Dow’s argument that the tribunal exceeded the scope
of its powers by including the RE’962 patent in the pro-
ceeding, see J.A. 325–31, is similarly without merit. The
RE’962 patent is a reissue of the ’665 patent, which Bayer
asserted earlier in the arbitration. 4 In its opening Phase
II Memorial—filed after the Office allowed the reissue
application on April 25, 2014, but before the reissue
patent issued on June 24, 2014—Bayer asserted claim 1
of the RE’962 patent. In its Phase II Reply, Dow argued
that Article 23(4) of the Rules of Arbitration of the Inter-
national Chamber of Commerce prohibited parties from
raising new claims outside the Terms of Reference with-
out the tribunal’s authorization. The tribunal determined
that Bayer’s RE’962 patent-infringement claim was not a
“new claim” within the meaning of Article 23(4). J.A. 325,
4 The ’665 and RE’962 patents recite only two
claims: one specifying an amino-acid sequence; the other,
a codon sequence. Where ’665 claim 1 states that amino
acid X “is Met or Val,” RE’962 claim 1 limits X to Met and
also requires the codon for X to be ATG. ’665 patent, col.
51, lines 44–45; RE’962 patent, col. 51, lines 41–42.
Where ’665 claim 2 allows ATG or GTG at a specified
place in the codon sequence, RE’962 claim 2 limits that
codon to ATG. ’665 patent, col. 52, line 45; RE’962 patent,
col. 52, line 41.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 21
330. We see no reason to vacate the arbitral award based
on that determination.
The tribunal concluded that whether Bayer’s RE’962
patent-infringement claim was a “new claim” under
Article 23(4) depended on considerations of “procedural
integrity and fairness.” J.A. 330. Dow presents no mean-
ingful argument against that aspect of the tribunal’s
determination: although Dow suggests that the “new
claim” standard must mirror U.S. patent law’s standard
for whether a reissue claim supports intervening rights, it
provides no persuasive reason that Article 23(4), a proce-
dural provision governing international arbitration, must
follow that standard. Given those considerations, the
tribunal determined that Bayer’s RE’962 patent-
infringement claim was not a new claim because: (1) claim
1 of the RE’962 patent was “fully included in the asserted
claim of the ’665 patent”; (2) the RE’962 patent “was fully
briefed”; and (3) if the RE’962 patent were excluded, it
would need “to be dealt with in another proceeding.” J.A.
330.
Dow has not presented any persuasive argument jus-
tifying judicial reversal of the tribunal’s conclusion.
Significantly, although Dow broadly asserted to the
tribunal that including the RE’962 patent in the arbitra-
tion would be fundamentally unfair, it did not present any
evidence of concrete prejudice. As far as Dow has shown
in this court, it did not identify to the tribunal any partic-
ular argument or evidence that it needed greater oppor-
tunity to develop and present or that it would have
presented if it had known earlier that the RE’962 patent
(rather than the ’665 patent) would be at issue. See J.A.
3049–52. At a minimum, Dow did not identify such an
argument in its opening brief in this court. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d
1312, 1319 (Fed. Cir. 2006) (“Our law is well established
that arguments not raised in the opening brief are
waived.”).
22 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
Dow suggests that we review the tribunal’s determi-
nation regarding inclusion of the RE’962 patent without
deference. But Dow provides no convincing basis for our
departing from the established approach to judicial re-
view of whether domestic arbitrators have exceeded their
powers in construing the scope of arbitration agreements.
In those circumstances, the Supreme Court has applied
the same deferential standard that it applies to their
determination of other issues. See Oxford Health Plans,
133 S. Ct. at 2068; Stolt-Nielsen, 559 U.S. at 671. In any
event, for the reasons given above, we have been shown
no error in the tribunal’s construction or application of the
“new claim” standard of Article 23(4) to support inclusion
of RE’962 in this arbitration.
3
Dow also contends that the tribunal, in calculating
lost-opportunity contract damages, misconstrued relevant
contract provisions. In particular, Dow challenges the
tribunal’s reliance on the 50%-revenue provision of
§ 5.1.1(a)(i) of the 2007 Bayer-MS Tech Agreement in-
stead of § 5.1.1(a)(x). See J.A. 448–68. But Dow forfeited
this argument by not making it to the tribunal. In its
Phase III submissions, Dow argued that Bayer’s evidence
did not establish harm, causation, or foreseeability. Dow
also objected to Bayer’s lost-profits theory on due-process
grounds. Dow did not present the contract argument it
now makes about Bayer’s prospective revenues under
Option B. We see no basis for excusing Dow’s failure to
raise this argument and now requiring the arbitral panel
to redo its application of contract provisions clearly within
its authority to interpret. 5 We conclude, therefore, that
5 Dow’s new argument involves the interpretation
of contract provisions clearly within the arbitral tribunal’s
authority to interpret. In this respect, Dow’s challenge is
quite different from the challenge at issue in Stolt-
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 23
Dow cannot raise the issue at this juncture. See Nat’l
Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731, 990
F.2d 957, 960 (7th Cir. 1993) (“Failure to present an issue
before an arbitrator waives the issue in an enforcement
proceeding.”); United Food & Commercial Workers Local
100A, AFL-CIO v. John Hofmeister & Son, Inc., 950 F.2d
1340, 1343–45 (7th Cir. 1991).
4
For similar reasons, the tribunal did not manifestly
disregard Indiana law governing pre-judgment interest.
Based on the evidence submitted by the parties, the
tribunal found it highly likely that Dow and MS Tech
would have pursued Option B if they had not breached
the 1992 Hoechst-Lubrizol Agreement. J.A. 464–68, 515–
16. The tribunal calculated contract damages based on
the amount that Bayer would have received under the
2007 Bayer-MS Tech agreement and awarded pre-award
interest based on that amount. The parties agree that
Indiana law governs the pre-judgment interest award.
Nielsen, in which the Supreme Court held that an arbi-
trator exceeded his powers, i.e., acted without a contrac-
tual basis, by concluding that the arbitration agreement
authorized class arbitration when the parties had stipu-
lated that the contract was silent on the issue. 559 U.S.
at 665–65; see Oxford Health Plans, 133 S. Ct. at 2069.
This case likewise differs from Bankers Life & Casualty
Insurance Co. v. CBRE, Inc., 830 F.3d 729 (7th Cir. 2016),
in which the Seventh Circuit disapproved the arbitration
panel’s reliance on a disclaimer that was outside the scope
of the agreement submitted to arbitration. Id. at 730–33.
See also Dewan v. Walia, 544 F. App’x 240, 245–48 (4th
Cir. 2013) (arbitrator found release clause enforceable,
but nevertheless refused to enforce it).
24 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
Dow argues that Indiana law allows pre-judgment in-
terest to be awarded only when “the amount of the claim
rests upon a simple calculation and the terms of the
contract make such a claim ascertainable.” Kummerer v.
Marshall, 971 N.E.2d 198, 201 (Ind. Ct. App. 2012) (quot-
ing Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793
N.E.2d 1063, 1078 (Ind. Ct. App. 2003)). Indiana practice
may not be as uniform as Dow suggests. See James P.
Nehf, Contract Damages as Substitute for Full Perfor-
mance, 32 Ind. L. Rev. 765, 783, (1999) (“In practice,
however, Indiana courts have awarded prejudgment
interest even when the terms of the contract did not make
the amount of the claim readily ascertainable by mere
computation.”). But the tribunal carefully considered and
applied Indiana law in evaluating the parties’ arguments
regarding pre-award interest. Dow’s challenge amounts
to no more than an assertion that the tribunal misapplied
the law, which is not enough. See Long John Silver’s
Rests., 514 F.3d at 349–50; Remmey, 32 F.3d at 149. We
therefore decline to vacate the tribunal’s award of pre-
award interest.
D
Although we affirm the district court’s decision to con-
firm the arbitral award, we conclude that the court
abused its discretion in denying Dow’s motion to amend
the judgment to use the federal statutory rate for post-
judgment interest for the period beginning with the entry
of the district court’s judgment. 28 U.S.C. § 1961(a)
provides that “interest shall be calculated from the date of
the entry of the judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield, as
published by the Board of Governors of the Federal Re-
serve System, for the calendar week preceding the date of
the judgment.” Dow argues that the court was obligated
to replace the tribunal’s “post-award” interest rate with
the statutory post-judgment rate for time after the district
court’s judgment. We agree on the facts of this case.
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 25
Under the doctrine of merger, when “a valid and final
judgment for the payment of money is rendered in favor of
the plaintiff, the original claim of the plaintiff is extin-
guished and a new cause of action on the judgment is
substituted for it.” Restatement (Second) of Judgments
§ 47. Reflecting that notion, numerous circuits have
concluded that once a federal court confirms an arbitral
award, the award merges into the judgment and the
federal rate for post-judgment interest presumptively
applies. See Tricon Energy Ltd. v. Vinmar Int’l, Ltd., 718
F.3d 448, 456–460 (5th Cir. 2013); Newmont U.S.A. Ltd.
v. Ins. Co. of N. Am., 615 F.3d 1268, 1275–77 (10th Cir.
2010); Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d
1021, 1023–24 (9th Cir. 2004); Carte Blanche (Sing.) Pte.,
Ltd. v. Carte Blanche Int’l, Ltd., 888 F.2d 260, 268–70 (2d
Cir. 1989); Parsons & Whittemore Ala. Mach. & Servs.
Corp. v. Yeargin Constr. Co., 744 F.2d 1482, 1484 (11th
Cir. 1984). To overcome this presumption, courts have
required the parties or arbitrators to unambiguously
express their intent to replace the federal rate for the
post-judgment period. See Tricon Energy, 718 F.3d at
456–60; Newmont U.S.A., 615 F.3d at 1275–77; Fid. Fed.
Bank, 387 F.3d at 1023–24; Westinghouse Credit Corp. v.
D’Urso, 371 F.3d 96, 101–02 (2d Cir. 2004).
We think that the Fourth Circuit would follow the ap-
proach taken by its sister circuits and apply the federal
post-judgment interest rate in the absence of unambigu-
ous evidence of the parties’ or arbitrators’ contrary intent.
In a non-precedential opinion, the Fourth Circuit has
applied the same rule to determine whether a contractual
interest rate replaced the federal rate. See Kanawha-
Gauley Coal & Coke Co. v. Pittston Minerals Grp., Inc.,
501 F. App’x 247, 254–55 (4th Cir. 2012) (per curiam).
Bayer does not identify any reason that the Fourth Cir-
cuit would not apply the same rule to arbitral awards.
We are also unaware of any instance in which a federal
26 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
court has allowed an interest rate specified in an award to
replace the federal rate based on less than clear evidence.
In this case, there is insufficiently clear evidence to
displace the federal statutory rate. Here, the tribunal
granted “post-award interest” “at the rate of 8% from the
date of this Award until full payment.” J.A. 560, 563.
And it is undisputed that the tribunal’s attention was not
called to the distinction between the time from award to
confirmation judgment and the time after confirmation
judgment. We see no basis on which to distinguish these
circumstances from other grants found to be insufficiently
clear to displace the statutory post-judgment rate. See
Tricon Energy, 718 F.3d at 456–60; Fid. Fed. Bank, 387
F.3d at 1023–24; Westinghouse Credit, 371 F.3d at 101–
02.
The Fifth Circuit’s decision in Tricon Energy is espe-
cially instructive. There, arbitrators awarded Tricon
contract damages and “post-award interest” “at the rate of
8.5% per annum . . . [from] the date of th[e] award, until
paid.” 718 F.3d at 459 (alterations in original). The
district court awarded post-judgment interest at the
statutory rate. Id. at 452. The Fifth Circuit affirmed,
explaining that, because the “panel did not use the words
‘postjudgment interest,’ it is far from clear that it meant
to award postjudgment interest.” Id. at 459. The court
also rejected Tricon’s contention that because the panel
awarded interest “until paid,” the arbitrators meant to
replace the federal rate. Id. We do not see how this case,
in which the tribunal awarded 8% interest “until full
payment,” is materially different from the Tricon Energy
arbitrators’ award of 8.5% interest “until paid.”
Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Ven-
ezuela, No. 14 Civ. 8163 (PAE), 2015 WL 926011(S.D.N.Y. Mar. 4, 2015), is not to the contrary. There, the
district court held that the federal post-judgment interest
rate did not apply to post-judgment interest awarded
BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC 27
under the Convention on the Settlement of Investment
Disputes Between States and Nationals of Other States
(ICSID Convention), Mar. 18, 1965, 17 U.S.T. 1271, 575
U.N.T.S. 159. Id. at *1–3. In reaching that conclusion,
however, the court relied on reasoning that applies to the
ICSID Convention, but not the New York Convention.
For example, the court noted that the Federal Arbitration
Act’s enforcement provisions do not apply to the ICSID
Convention. See 22 U.S.C. § 1650a. By contrast, the New
York Convention’s enabling statute contains no such
prohibition. See 9 U.S.C. § 208. The court also made
specific factual findings regarding the language of the
award.
Under 28 U.S.C. § 2106, a federal appellate court
“may affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought
before it for review.” In exercising our discretion under
that provision, we modify the district court’s judgment to
include the relief requested by Dow’s motion to amend.
See Bayer CropScience AG, No. 2:12-cv-47-RAJ-RJK (E.D.
Va. Jan. 21, 2016), ECF Nos. 209–10. Specifically, we
modify the district court’s judgment to provide that post-
award interest, as set forth in the arbitral award, shall
accrue through January 15, 2015, the date on which the
court entered judgment, and post-judgment interest shall
accrue thereafter at the rate established in § 1961. We
affirm the judgment as modified. Like the Fourth Circuit,
we believe that this approach is appropriate because the
resolution of the parties’ dispute requires only the correc-
tion of the relevant interest rates. See Martin v. Harris,
560 F.3d 210, 219–22 (4th Cir. 2009); First Fed. Sav. &
Loan Ass’n of S.C. v. Chrysler Credit Corp., 981 F.2d 127,
135–36 (4th Cir. 1992). Remand for further proceedings
would cause the parties to suffer additional delay and
expense with no change in outcome.
28 BAYER CROPSCIENCE AG v. DOW AGROSCIENCES LLC
IV
For the foregoing reasons, we affirm the district
court’s decision to confirm the arbitral award. We vacate
the court’s decision denying Dow’s motion to amend the
judgment. We modify the court’s judgment to provide
that post-award interest accrued at the tribunal-set rate
through January 15, 2015, and thereafter post-judgment
interest shall accrue at the rate established in 28 U.S.C.
§ 1961. We affirm the judgment as modified.
Costs awarded to Bayer.
AFFIRMED AS MODIFIED