RESPONDENT S COMPENDIUM

Transcription

1 Court File No. C60871 THE COURT OF APPEAL FOR ONTARIO IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED AND IN THE MATTER OF THE PROPOSAL OF COGENT FIBRE INC. RESPONDENT S COMPENDIUM January 8, 2016 JAFFE & PERITZ LLP Barristers and Solicitors 100 Richmond Street, Suite 424 Toronto, ON M5H 3K6 Brandon Jaffe LSUC No D Tel: (416) Fax: (416) Lawyers for the Respondent, Nippon Yusen Kaisha, Tokyo TO: DENTONS CANADA LLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON M5K 0A1 Fax: (416) Kenneth Kraft LSUC No P Tel: (416) kenneth.kraft@dentons.com Sara-Ann Van Allen LSUC No C Tel: (416) sara.vanallen@dentons.com Lawyers for the Appellant, Cogent Fibre Inc.

2 AND TO: ISAACS & CO. Barristers and Solicitors 11 King Street West, Suite 1200 Toronto, ON M5H 4C7 Fax: (416) Marc D. Isaacs Tel: (416) Alan Cofman Tel: (416) AND TO: AIRD & BERLIS LLP Barristers and Solicitors Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Fax: (416) Kenneth R. Rosenstein Tel: (416) Sam Babe Tel: (416) Ian Aversa Tel: (416) Lawyers for The Fuller Landau Group Inc.

3 AND TO: DEPARTMENT OF JUSTICE Tax Section Exchange Tower 130 King Street West, Suite 3400 P.O. Box 36 Toronto, ON M5X 1K6 Diane Winters Tel: (416) Fax: (416) AND TO: MINISTRY OF FINANCE Legal Services Branch Michael Starr Building 33 King Street West, 6 th Floor P.O. Box 627, Station A Oshawa, ON L1H 8H5 Kevin O Hara Tel: (905) kevin.ohara@ontario.ca AND TO: ARTHUR BIRNBAUM Barrister and Solicitor Yonge Street Toronto, ON M2N 7E9 arthur.birnbaum@rogers.blackberry.net Lawyer for Cogent Biomass Inc. and CFP International Inc. AND TO: ANDREW C. LEWIS Barrister and Solicitor 1 Eglinton Avenue East Suite 508 Toronto, ON M4P 3A1 andrew@andrewlewislaw.ca Lawyer for Leeward Debt Acquisition Inc.

4 AND TO: BORDEN LADNER GERVAIS LLP Scotia Plaza 40 King Street West Toronto, ON M5H 3Y4 Roger Jaipargas Tel: (416) Doug Smith Tel: (416) Lawyers for NS United Kaiun Kaisha, Ltd. COURTESY COPY: TO: THE FULLER LANDAU GROUP INC. 151 Bloor Street West, 12 th Floor Toronto, ON M5S 1S4 Ken Pearl Tel: (416) Fax: (416) Proposal Trustee

5 Court File No. C60871 THE COURT OF APPEAL FOR ONTARIO IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED AND IN THE MATTER OF THE PROPOSAL OF COGENT FIBRE INC. RESPONDENT S COMPENDIUM TABLE OF CONTENTS TAB DOCUMENT PAGE(S) 1 Affidavit of Kazushi Fukuda sworn August 6, A Exhibit A : Corporation Profile Report for CFI dated July 24, B Exhibit B : Corporate Profile Report for Biomass dated July 24, C Exhibit C : Confirmation Opinion dated July 14, D Exhibit D : Judgment dated July 16, E Exhibit E : Notice of Intention dated July 15, F Exhibit F : Cash Flow Statement from July 16, 2015-October 9, G Exhibit G : Notice of Motion dated July 16, H Exhibit H : Unsworn Affidavit of Robert Mantrop dated July 16, I Exhibit I : Order of Justice Pattillo dated July 17, J Exhibit J : Chapter 15 Petition dated July 17, K Exhibit K : Mantrop Declaration dated July 17, L Exhibit L : Status Quo Order dated July 20, M Exhibit M : Bank Act Search dated July 21,

6 TAB DOCUMENT PAGE(S) N Exhibit N : PPSA Search dated July 21, Affidavit of Robert Mantrop sworn August 6, O Exhibit A : Notice of Intention and Certificate for Filing dated July 15, P Exhibit B : U.S. Provisional Order dated July 20, Q Exhibit C : U.S. Scheduling Order dated July 20, Trustee s Report to Creditors of Cogent Fibre Inc. dated August 21, B 4 Transcript of Videconference deposition of Kazushi Fukuda on August 10, Affidavit of Arthur Birnbaum sworn August 23, R Exhibit A : Order of Justice Penny dated August 12, S Exhibit B : Reasons of Justice Penny released August 17, T Exhibit C : Notice of Appeal of Cogent Fibre Inc. dated August 13, U Exhibit D : Amended Proposal to Creditors of Cogent Fibre Inc. dated August 17, V Exhibit E : Report on the Amended Proposal dated August 21, Affidavit of Arthur Birnbaum sworn October 26, W Exhibit A : Notice of Intention to Make a Proposal of Cogent Fibre Inc. dated July 15, 2015 X Exhibit B : Affidavit of Arthur Birnbaum sworn August 23, 2015, without exhibits Y Exhibit C : Issued and entered Order of Justice Penny made August 12, Z Exhibit D : Written reasons of Justice Penny dated August 17,

7 TAB DOCUMENT AA Exhibit E : Amended Proposal of Cogent Fibre Inc. dated August 17, 2015 BB Exhibit F : Report on the Amended Proposal of The Fuller Landau Group Inc. dated August 21, 2015 CC Exhibit G : Doug Smith s letter to Alison Warner of the Court of Appeal of Ontario dated October 1, 2015 PAGE(S) Endorsement of Mr. Justice Penny made August 17, Endorsement of Mr. Justice Penny made October 30, 2015 together with a typewritten transcription

8 1 Court File No Estate No.: ONTARIO SUPERIOR COURT OF JUSTICE (IN BANKRUPTCY AND INSOLVENCY) [COMMERCIAL LIST] IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED AND IN THE MATTER OF THE PROPOSAL OF COGENT FIBRE INC. AFFIDAVIT OF KAZUSHI FUKUDA (Sworn August, 2015) I, Kazushi Fukuda, of Narashino-City, Chiba-Prefecture, Japan, MAKE OATH AND SAY AS FOLLOWS: 1. I am the Executive Officer & Group Leader of the Tramp Chartering Group with NS United Kaiun Kaisha, Ltd. ("NSU") and as such I have personal knowledge of the matters deposed herein, save and except where stated to be based on information and belief, in which case I do verily believe the same to be true. 2. This Affidavit is made in support of a motion for the termination of the time for Cogent Fibre Inc. ("CFI") to file a proposal in respect of proceedings (the "Proposal Proceedings") commenced by CFI pursuant to a Notice of Intention to Make a Proposal dated July 15, 2015 ("NOI") filed by CFI pursuant to section 50.40) of the Bankruptcy and Insolvency Act ("BIA"). 3. Unless otherwise indicated herein, all monetary amounts referred to are in Canadian dollars.

9 NS UNITED KAIUN KAISHA, LTD. ("NSU") 4. NSU is a Japanese corporation whose registered office is Otemachi First Square West Tower 21F, 22F, 5-1, Otemachi 1-chome, Chiyoda-ku Tokyo , Japan. As will be discussed below, NSU is a significant creditor of CFI. CFI is currently indebted to NSU in the amount of US$11,606, The business of NSU includes: land and sea transportation and vessel ownership; shipping agency for land, air and marine transportation; sales, lease, repair, and maintenance of vessels; manufacturing, sales, and maintenance of shipping equipment; and real estate operations. COGENT FIBRE INC ("CFI") 6. Cogent Fibre Inc. ("CFI") is a privately held Ontario Company, incorporated pursuant to the laws of Canada and extra-provincially registered in Ontario with an office located at 338 Davenport Road, Suite 102, Toronto, Ontario. Attached hereto and marked as Exhibit "A" is a Corporation Profile Report dated July 21, 2015 for CFI. 7. Donald R. McClure and Robert M. Mantrop are officers and directors of CFI. 8. CFI is a wholly owned subsidiary of Cogent Biomass Inc. ("Biomass"), a holding company organized under Canadian law. Attached hereto and marked as Exhibit "B" is a Corporate Profile Report dated July 24, 2015 for Biomass. Mr. McClure and Mr. Mantrop hold Biomass's stock through holding companies. 9. The business of CFI, when it was a going concern, included the marketing, exporting and shipping of woodchips from the eastern seaboard of the United States to its clients worldwide. THE DEBT 10. On May 28, 2008, NSU and CFI entered into a five-year continuous-voyage contract (the "CVC") pursuant to which CFI contracted to charter the Daishin Maru, a cargo ship owned by

10 3-3 - NSU (the "Ship"). The CVC provided that the Ship would carry woodchips from Savannah, Georgia to Turkey, or on any other route of CFI's choosing, subject to NSU's approval, at a rate of $0.60 per cubic foot. 11. A dispute arose between NSU and CFI over the dry-docking schedule for the Ship, and NSU, over CFI's objections, eventually decided to dry-dock the Ship from September 7, 2011 to October 16, 2011 in Ukraine. 12. After the dry-docking of the Ship was complete, CFI refused to provide NSU with further cargo and stated to NSU that no cargo would be available for the Ship until late November or mid-december CFI suggested that the Ship complete mitigation voyages, but NSU, relying on a clause in the CVC providing that if no port declaration is made the Ship should be directed to Savannah, directed the Ship to Savannah Georgia to await CFI's cargo. 14. The Ship arrived in Savannah Georgia on November 5, At that point, CFI told NSU that no cargo would be available for the Ship until mid-december. 15. On December 21, 2011, after the Ship had spent several weeks in Savannah Georgia and NSU had made six requests to CFI for cargo, NSU terminated the CVC and withdrew the Ship. 16. On February I, 2012 NSU commenced arbitration proceedings against CFI (the "Arbitration Proceedings") in which it asserted a claim for US$13,780, plus interest and attorneys' fees while CFI brought. a counter-claim for lost earnings of US$15,285,951 or, in the alternative, US$13,645,338 arising from NSU's alleged breach of the CVC. 17. The Arbitration Proceedings took place over the following three years and involved ten evidentiary hearings before a panel of three arbitrators (the "Arbitration Panel"). 18. On January 23, 2015, the Arbitration Panel issued its final (33-page) decision, unanimously ruling that CFI had breached the CVC in October 2011 when it refused to provide

11 cargo for the Ship, and that it was therefore liable for damages resulting from the breach. The panel split two to one on the issue of damages. The majority awarded US$11,606, to NSU (the "Arbitration Award"). 19. In March of 2015 NSU filed a petition with the United States District Court for the Southern District of New York (the "District Court") seeking confirmation of the Arbitration Award. CFI opposed the petition and sought to have the Arbitration Award vacated. 20. On July 14, 2015 the District Court issued an Opinion and Order (the "Confirmation Opinion") granting NSU's petition, confirming the Arbitration Award and dismissing CFI's motion to vacate the Arbitration Award. Attached hereto and marked as Exhibit "C" is a copy of the Confirmation Opinion. 21. Judgment in the amount of US$11,606, in accordance with the Confirmation Opinion was entered by the District Court on July 16, 2015 (the "Judgment"). Attached hereto and marked as Exhibit "D" is a copy of the Judgment. 22. The value of the Judgment in Canadian dollars is $15,015, based upon the Bank of Canada noon exchange rate in effect at the date of the filing of the NOI. THE PROPOSAL PROCEEDINGS 23. The day following the release of the Confirmation Opinion, CFI filed the NOI with the Office of the Superintendent of Bankruptcy. Attached as Exhibit "E" is a copy of the NOI. 24. The NOI provided that The Fuller Landau Group Inc. ("Fuller Landau") had consented to act as proposal trustee (the "Proposal Trustee"). Appended to the NOI was a consent signed by Mr. Ken Pearl of Fuller Landau. 25. Also appended to the NOI was a list of CFI's creditors. NSU is the only creditor listed on the list of creditors appended to the NOI with a claim listed in the amount of $15,524,400.

12 CFI prepared cash flow forecasts for CFI from July 16, 2015 to October 9, 2015 (the "Cash Flow Statement"). Attadhed as Exhibit "F" is a copy of the Cash Flow Statement. 27. The Cash Flow Statement stated an opening balance on July 16, 2015 of $328,845 and forecasted weekly cash disbursements of $25,000 in professional fees with no cash receipts for a closing balance on October 9, 2015 of $176,845. The Cash Flow Statement also stated that the cash balance included approximately US$241,000 due from Biomass, which funds could be made available for professional fees. 28. By way of a motion heard on July 17, 2015 in the Ontario Superior Court (Commercial List) CFI sought and obtained an order authorizing CFI to act as foreign representative in respect of the Proposal Proceedings. NSU was not served with a copy of CFI's motion record in respect of this motion. Attached as Exhibit "G" is a copy of CFI's Notice of Motion dated July 16, Attached as Exhibit "H" is a copy of the unworn affidavit of Robert Mantrop (with exhibits) dated July 16, 2015 (the "Mantrop Affidavit") in support of CFI's motion. Attached as Exhibit "I" is a copy of the order of the Honourable Justice Pattillo dated July 17, 2015, inter alia, authorizing CFI to act as the foreign representative in respect of the Proposal Proceedings. 29. In the Mantrop Affidavit, Mr. Mantrop stated that CFI's management had decided to "wind down" CFI's business before the filing of the NOI. 30. In the Mantrop Affidavit, Mr. Mantrop also stated that CFI intended to commence proceedings in the United States (the "Chapter 15 Proceedings") to seek recognition of the Proposal Proceedings pursuant to chapter 15 of title 11 of the United States Bankruptcy Code (the "Bankruptcy Code"). THE CHAPTER 15 PROCEEDINGS 31. CFI commenced the Chapter 15 Proceedings on July 17, 2015 by filing a Verified Petition for Recognition of the Proposal Proceedings in the United States Bankruptcy Court, Southern District of New York (the "Chapter 15 Petition"). Attached as Exhibit "J" is a copy of the Chapter 15 Petition.

13 -6-1(b In the Chapter 15 Petition, CFI indicated that the number of its creditors are between 1 and 49 in number that its assets are valued between US$500,000 to US$1,000, Appended to the Chapter 15 Petition was a Declaration of Petitioner signed by Mr. Mantrop on July 17, 2015 (the "Mantrop Declaration"). Attached as Exhibit "K" is a copy of the Mantrop Declaration. 34. The Mantrop Declaration states at paragraph 11 that CFI's sole source of financing was Biomass, which periodically funded CFI on a secured basis. 35. The Mantrop Declaration also referred, at paragraph 19, to claims asserted against it in December of by Nippon Yusen Kaisha, Tokyo ("NYK") another Japanese maritime transportation services company in the amount of US$2,700, On July 20, 2015 made by United States Bankruptcy Judge Stuart M. Bernstein of the United States Bankruptcy Court, Southern District of New York (the "US Bankruptcy Court") entered a provisional order (the "Status Quo Order") preserving the status quo in the United States until such time as the US Bankruptcy Court holds a hearing to determine whether to recognize the Proposal Proceedings as a either a foreign main proceeding or a foreign nonmain proceeding. Attached and marked as Exhibit "L" is a copy of the Status Quo Order. 37. The Status Quo Order specifically preserves NSU's right to challenge recognition of the Proposal Proceedings in the United States. Currently, NSU intends to challenge recognition of Proposal Proceedings on all applicable bases, including, but not limited to (i) the Proposal Proceedings do not qualify as a foreign main proceeding because Canada is not CFI's "center of main interest" and (ii) the Proposal Proceedings do not qualify as a foreign non-main proceeding because CFI does not have an "establishment" in Canada. OTHER CREDITORS OF CFI 38. I am advised by Roger Jaipargas, a partner with Borden Ladner Gervais LLP ("BLG"), Canadian counsel to NSU, that he caused a search to be conducted for notices of intention to give

14 security under the Bank Act registered in the province of Ontario ("Bank Act Search") in respect of CFI and that no registrations were found. Attached and marked as Exhibit "M" is a copy of the Bank Act Search in respect of CFI. 39. I understand that CFI currently has no secured creditors. 40. I am also advised by Mr. Jaipargas that he caused a search to be conducted under the Personal Property Security Act (Ontario) ("PPSA Search") in respect of CFI. Attached and marked as Exhibit "N" is a copy of the PPSA search in respect of CFI. While the PPSA search shows a number of registrations against CFI, I understand that there are no amounts owing to any of the secured creditors with a registration against CFI. 41. I understand that the only other material creditor of CFI is Canada Revenue Agency, who is owed approximately $50,000. CURRENT STATUS 42. At the time of swearing of this affidavit, no proposal has been made by CFI to its creditors. 43. I understand that CFI intends to bring a motion, to be heard on August 12, 2015, pursuant to section 50.4(9) of the BIA to seek an extension of time to file a proposal. 44. As set forth above, the US Bankruptcy Court entered the provisional Status Quo Order pending a hearing on recognition of the Proposal Proceedings. The current deadline for NSU to file papers with the US Bankruptcy Court opposing recognition is August 5, A hearing to consider recognition of the Proposal Proceedings is currently scheduled to be held in front of the US Bankruptcy Court on August 10, 2015.

15 THE PROPOSAL PROCEEDINGS SHOULD BE 'TERMINATED 45. In light of the lack of financing, CFI's decision to wind down its operations and the size of NSU's claim relative to the claims of other creditors, there is no prospect that CFI can make a viable proposal or that it can make a proposal acceptable to its creditors. 46. There has been protracted litigation between NSU and CFI. The purpose of the filing of the NOI was to take advantage of the automatic stay to avoid execution on the judgment. This is confirmed in paragraph 18 of the Mantrap Declaration wherein it is stated, "CFI believes that NSU will expeditiously seek to record the Judgment and proceed with collection actions". NSU has lost all confidence in CFI's management and their intention or ability to make any reasonable or viable proposal. Accordingly, NSU is not prepared to support any proposal that may be filed by CFI. 47. NSU will not support any proposal made by CFI to its creditors and the continuation of the Proposal Proceedings will only delay the inevitable bankruptcy of CFI and degrade CFI's assets through the expenditure of professional fees. 48. The continuation of Proposal Proceedings can only work to the detriment of creditors and in particular to NSU, who is the largest creditor of CFI. The Proposal Proceedings should be terminated to allow a trustee in bankruptcy deal with the property of CFI in an organized and efficient manner for the benefit of those with a real economic stake in the property, primarily NSU.

16 9 13 NOTARIAL CERTIFICATE This is to certify that Kazushi Fukuda swore before me, in accordance with legal procedure, that the statement in the attached document is truthful, and he signed the said document in my very presence. Dated this 6 day of August, Kazushi Fukuda NS UNITED KATUN KAISITA, LTD, Address: NOTARY AUG, E 2015 SUBSCRIBED AND SWORN TO BEFORE ME t 1 S I/ f.! NOTARY SHIGEKUNI ONO

17 Attached to Affidavit 9 10 ) skstesagask goresksusok a 2 7 Lt ROW N S =- t 4 7-,y Fitilq44 -&4±VO-I-RAtiliElifriP_,it, &k.-0*e.- k:vt-o -c, Wito ffill4 -e, Ftfit,l'EoriEtk 7314., -eti) 6't L c_h, EE :-fl Lilco ct.0 -c, L- ti, Pala -. ( d 2 7 t 8 A 6 n, aaatts),\ -c- ATAV - if-tleilg,t,o)pkje-tr 3Z-1* ik,tma,j,mtx Fal.:71 ic -3,517 1c 1 1 e 1 e 1 a (2) 7S2[7 b 757AQxQ5 (A) hs aa (ir)

18 1? 11 L I hereby certify that the attached document is Exhibit "A" to my Affidavit. Kazushi Fukuda I hereby certify that the signature is the true signature of Mr. Kazushi Fukuda NS UNITED KAIUN KAISHA, LTD. AUG, 6, 2015 SUBSCRIBED AND SWORN TO BEFORE ME i2c. AT-Pk!, iffiri crii NOTARY SHIGEKUNI ONO

19 Attached to Exhibit A' 1? #g61?-51666(end (le) gegolegotl gt (ti) %PaVielLs% (A) PaargaggE (&) geteskielda (±) 3ILW.St-skarger4# en ii: WA 2 7 V- _45, fra I, N S n- --)-4 -,-. FitiE4*-44-`4±,i0-1-Rfflitit Hi Mt i't, 1 I MZIF)N.- il.-ft-d -C-, 0)M11-e, 4tit- isnoneft i73 A "t C; tt) 6 C: L 'It V 1. Pc _E., MEE tt: 12 t; fr.: a 7 ct ot, ttia-efiffito 7 WA 2 71EP 8 A 61E1, 4.MRS6Zit-3 tot 1 _-- ISIES1-tIEHX,LopPET R 3 1 t r9%.?all A LE-- --' 771 : t' :ij )-'; ij 1 11 a. 13 li i le i re li 20 11( I 1 ± (e.) 49RPSW6 MD zipaceeffilitil (A) aca9pps (&)?ffeepappic GM?h7h7 s7 c7 crt~57fi

20 Request ID: Province of Ontario ate Report Produced: 2015/07/21 Transaction ID: Ministry of Government Services Time Report Produced: 15:35:56 15:35:58 Category ID: UN/E UNIE Page: 1 CORPORATION PROFILE REPORT Ontario Corp Number Corporation Name Incorporation Date COGENT FIBRE INC. 2006/11/09 Jurisdiction Corporation Typo Corporation Status CANADA Former Jurisdiction FEDERAL CORP WITH SHARE REFER TO JURISDICTION Registered or Head Office Address 338 DAVENPORT ROAD Suite # TORONTO ONTARIO CANADA M5R 1K6 Principal Placo Place of Business In Ontario 338 DAVENPORT ROAD Suite # 102 TORONTO ONTARIO CANADA M5R 1K6 Activity Classification NOT AVAILABLE Date Amalgamated NOT APPLICABLE New Now Amal. Number NOT APPLICABLE Revival Date NOT APPLICABLE Transferred Out Date NOT APPLICABLE EP Licence Eff.Date NOT APPLICABLE Date Commencod Commenced In Ontario 2011/01/01 NOT APPLICABLE Amalgamation Md. NOT APPLICABLE Notice Date NOT APPLICABLE Lotter Date NOT APPLICABLE Continuation Date NOT APPLICABLE Cancel/inactive Cancel/Inactive Date NOT APPLICABLE EP Licence Torm.0 Torm.Dato ate NOT APPLICABLE Date Ceased in Ontario NOT APPLICABLE

21 Request ID: Transaction ID: Category ID: UN/E Province of Ontario Ministry of Government Services Dale Date Report Produced: 2015/07/21 Time Report Produced: 16:35:56 15:35:56 Page: 2 CORPORATION PROFILE REPORT Ontario Corp Number Corporation Name COGENT FIBRE INC. INC, Corporate Name History REFER TO JURISDICTION Current Business Name(s) Exist: Expired Business Moss Name(s) Exist: NO NO Last Document Recorded Act/Code Description ' Form Date CIA INITIAL RETURN /91/ /01/11 THIS TI ils REPORT SET'S SETS OUT 001' THE Tilt MOST RECENT INFORMATION FILED BY Ti THE la CORPORATION ON OR AFTER JUNE , 1992, 1592, AND RECORDED IN PIE TILE ONTARIO 11USINESS BUSINESS INFORMATION SYSTEM AS AT TIIf_ THE DATE AND TIME OF PRINTING. ALL PERSONS WHO ARE RECORDED AS CURRENT DIRECTORS OR OFFICERS ARE INCLUDED IN THE LIST OP Or ADMINISTRATORS. ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE. The Issuanco Issuance of Ibis this report In oloctronic electronic form Is authorized by the Ministry of Government Somicos. Services,

22 Reque.st Request ID: Transaction ID: Category ID: UNIE UN/E Province of Ontario Ministry of Government Services Date Report Produced: 2015/ /07/21 Time Report Produced: 15:35:56 Page: 1 CORPORATION DOCUMENT LIST Ontario Corporation Number Corporation Name COGENT FIBRE INC. ACT/CODE DESCRIPTION FORM DATE (YY/MM/DD) CIA INITIAL RETURN PAF: WALKER, GRACE /01/ Tills REPORT SETS SETS OUT OUT ALL AU. DOCUMENTS FOR THE THE ABOVE CORPORATION WHICH HAVE BEEN FILED ON OR AFTER JUNE 27,1992, 27,1502, AND RECORDED IN IN TICE THE ONTARIO BUSINESS INFORMATION INFORmATiON SYSTEM AS AT THE DATE AND TIME OF PRINTING. ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE. ALL "PAP"(PERSON (person AUTHORIZING DOCUMENTLING) FILING 1 INFORMATION IS DISPLAYEI) DISPLAYED EXACTLY AS RECORDED I IN ONG'S, WHERE PAP IS NOT SIIOVVN SHOWN ACAINST AGAINST A DOCUMENT, THE INFORMATION HAS NOT BEEN RECORDED IN THE ONLIIS ONO'S DATABASE, Tho issuance of this report roport in oloctronto olocironic form is authorized by the Ministry of Government Services.

23 I hereby certify that the attached document is Exhibit "B" to my Affidavit. Kazushi Fukuda /s... 72_0 I hereby certify that the signature is the true signature of Mr. Kazushi Fukuda. NS'UNITED KAIUN KAMA, LTD..001\ GVIED s TAO 0 P I.. ; y 7.:A:Ca /v MITI AUG, SUBSCRIBED AND SWORN TO BEFORE ME NOTARY SHIGEKUNI ONO

24 Attached to Exhibit B aToT8e-5k5k5Te5r4 ((a) ge5tege-pagok (H) 56).-. cage (A) g6trote7667z (IR) gare66e-gok (i) t, )i F- i IN,._.) r6 1 a sj, 1 i i ; -.5 e, a i fi i i ; W.-A 2 7 flfl V4, *1- N S n- t 4 "--,y TiEtit -A- ±ctati- tickr MIEufriza, it.t70.-) a.ir_ti-o --c-, ntoffin-c, Faitria- onaa ffi x*----e tb L. - L & 'I I. it ±, iiii E tie I z- _ 't L, fa: a ct -0 -C, LI-LZcat 6 a * 2 7 If 8 A 6 H, rd-rek_.-30-c- ATtnIS - it IEH K A 0 P1/4] E.--1. T R 3 # I it' A -A:Mg Mtn?.& a A d _ L i , 'RI '4 ger6-649picitac (2I') YdshQb7lthsfi (a) 76dRfi7fi7Fh 2b (A) tfeafeis,fre4 (R) aseicw* Qv etweiststwmt 1

25 Request ID: Transaction ID: Category ID: UN/E Province of Ontario Ministry of Government Services Date Report Produced: 2015/07/ /07/29 Time Report Produced: 13:34:21 Page: 1 CORPORATION PROFILE REPORT Ontario Corp Number Corporation Name Amalgamation Date COGENT BIOMASS INC. 2046/12/ /12/21 Corporation Type ONTARIO BUSINESS CORP. Corporation Status ACTIVE Jurisdiction ONTARIO Former Jurisdiction NOT APPLICABLE Registered Office Address 338 DAVENPORT ROAD Suite # 102 TORONTO ONTARIO CANADA M5R 1K6 Mailing Address NOT AVAILABLE Date ate Amalgamated NOT APPLICABLE Now Amal. Number NOT APPLICABLE Revival Date NOT APPLICABLE Transferred Out Date NOT APPLICABLE EP Licence Eff.Date NOT APPLICABLE Number of Directors Date Commenced Cammencod Minimum Maximum In in Ontario Amalgamation Ind. A Notice Date NOT APPLICABLE Letter Date NOT APPLICABLE Continuation Dale NOT APPLICABLE Cancel/Inactive Date NOT APPLICABLE EP Licence Torm.Date NOT APPLICABLE Date Ceased In in Ontario Activity Classification NOT APPLICABLE NOT APPLICABLE NOT AVAILABLE

26 Request ID: Province'of of Ontario Dale Report Produced: 2015/07/24 Transaction ID: Ministry of Government Services Time Report Produced: 13:34:21 Category ID: ID. UN1E UN/E Page: 2 CORPORATION PROFILE REPORT Ontario Corp Number Corporation Name COGENT BIOMASS INC, INC. Corporate Name History Effective Date COGENT BIOMASS INC. 2009/10/05 COGENT BIOMASS GROUP INC. 2006/12/21 Current Business Namo(s) Exist: Expired Business Name(s) Nam*, Exist: NO NO Amalgamating Corporations Corporation Name Corporate Number COGENT BIOMASS GROUP INC. INC, ONTARIO INC

27 20 20 L. LJ Request ID: Transaction ID: Category ID: UN(E UN/E Province Provtnce of Ontario Ministry of Government Services Date Report Produced: 2015/07/24 Time Report Produced: 13:34:21 Page; Page: A 2 CORPORATION PROFILE REPORT Ontario Corp Number Corporation Name COGENT BIOMASS INC. j r- Administrator; Name (individual (Individual!/ Corporation) DONALD MCCLURE Date Began First Director Address 338 DAVENPORT ROAD Suite Sults # 102 TORONTO ONTARIO CANADA M5R 1K6 2006/12/21 YES Designation Officer Typo Type Resident Canadian ci C DIRECTOR U rl rl rn

28 21 21 Request ID: Province of Ontario Date Report Produced: 2015/ /07/24 Transaction ID: Ministry of Government Services Time Report Produced: 13:34:22 Category ID: UN/E Page: CORPORATION DOCUMENT LIST Ontario Corporation Number Corporation Name COGENT BIOMASS INC DATE ACT/CODE DESCRIPTION FORM (YY1MM/DD) (YYIMM/DD) BCA ARTICLES OF AMENDMENT /10/05 BOA ARTICLES OF AMALGAMATION / /12/21 THIS REPORT OUT ALL DOCUMENTS FOR THE 277,11992 SETS ABOVE CORPORATION WHICH HAVE BEEN FILED ON OR AFTER JUNE , 27,1992, AND RECORDEDIN IN THE ONTARIOHE BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF PRINTIN, PRINTING. G ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE. ALL "PAP" WERSON (PERSON AUTHORIZING FILING) INFORMATION IS DISPLAYED DISPLAYE0 EXACTLY AS REcOapeo RECORDED I IN ONBIS. WHERE PAF IS NOT SHOWN AGAINST A DOCUMENT, THE1NFORMATION INFORMATION HAS NOT BEEN RECORDED IN THE ONBIS OEMS DATABASE. The Issuance of Di this report In electronic form Is authorized by the Ministry of Government Services.

29 22 24 r. I hereby certifythat the attached docunient is Exhibit "C'. to my davit. Kazushi Fukuda I hereby certify that the signature is the true signature of Mr. Kazushi Fulcuda., NS UNITED KAIUN KAISHA, LTD. is AUG SUBSCRIBED ADD SWORN. TO BEFORE ME ''..., tr..1±. la;?; ''AIOTA-1.11 SMIGEKUNI ONO '.

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31 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NS UNITED KAIUN KAISHA, LTD., Plaintiff, -v- COGENT FIBRE INC., Defendant. X USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC DATE FILED: 1 / t 4/01S 15 Civ, 1784 (PAE) OPINION & ORDER PAUL A. ENGELMAYER, District Judge: NS United Kaiun Kaisha, Ltd. ("NSU") petitions to confirm an arbitration award (the "Award") pursuant to 9 of the Federal Arbitration Act ("FAA" or "Act"), 9 U.S.C. 9. Respondent Cogent Fibre Inc. ("Cogent") opposes the petition and cross-moves to vacate the Award under 10 of the FAA. For the following reasons, NSU's petition to confirm the Award is granted, and Cogent's cross-motion to vacate the Award is denied. I. Background A, Factual Background' NSU, headquartered in Japan, provides international maritime transportation services for raw materials. See NSU Aff., Ex. 3 ("Award"), at 2. Cogent, a Canadian company, exports woodchips and woodchip pellets from American producers to consumers in Europe, mainly in Turkey. Id. at 3, These facts are drawn from the Petition to Recognize and Enforce Arbitration, Dkt, 1 ("Petition"), and the exhibits attached thereto; the affidavit filed by NSU, Dkt. 5 ("NSU Aff."); and the two declarations filed by the parties, Dkt. 9 ("Cogent Decl,"), Dkt. 14 ("NSU Decl.").

32 2e25 2E On May 28, 2008, NSU and Cogent entered into a five-year continuous-voyage contract for Cogent to charter the Daishin Maw, Maru, a cargo ship Owned owned by NSU. See NSU Aff., Lx. Ex. 1 ("Charter" or "CVC"). The CVC provided that the Daishin Maru would carry woodchips from Savannah, Georgia to Igsas, Turkey or on any other route of Cogent's choosing, conditioned on NSU's approval at a rate of $0.60 per cubic foot. Id Cl. 1, 9. The CVC also detailed loading time allowances at the port of origin and set penalties to be incurred by Cogent for every day the ship would be delayed at port. Id. Cl. 4, 43. To resolve "any dispute or difference [that] should arise under th[e] Charter," the parties agreed to submit to binding arbitration by "three parties in the City of New York, one to be appointed by each of the parties hereto, the third by the two so chosen." Id. Cl. 5, The Charter also contained a dry-;docking docking clause. It gave NSU the option to dry-dock the Daishin Maru during the period covered by the Charter,2 on the conditions that Cogent be advised within six months of planned dry-docking and that the "period [] be mutually agreed between Owner and Charterers."3 Id. Cl, Cl. 55. After delivery of the Daishin Maru to Cogent on February 19, 2009, and more than 15 successful transatlantic voyages, NSU notified Cogent that the Daishin Maru would require dry-docking in August and September Award at 5. A dispute arose between NSU and Cogent over the dry-docking schedule for the ship, and NSU, 2 Dry-docking involves "remov[ing] [a ship] from the water to enable work to be performed on the exterior part of the ship below the waterline." Occupational. Occupational, Health and Safety Administration, Process: Dry Docking and Launching, available at SLTC/shipbuildingrepaiddrydocking.html SLTC/shipbuildingrepair/drydocking.html (last visited July 14, 2015). 3 The meaning of the term "period" as used in the clause was disputed during the arbitration. See Award at 16. Cogent argued that the term referred to the date on which the ship was to go into dry-dock; NSU argued that it referred to the duration the ship was to spend in dry-dock. Id. at 18. The panel majority found for NSU on this point. Id. 2

33 over Cogent's objections, eventually decided to dry-dock the Daishin Maru from September 7, 2011 to October 16, 2011 in Sevastopol, Ukraine. Id, Id. at 6. After dry-docking was complete, Cogent refused to provide NSU with cargo and stated that no cargo would be available until late November or mid-december Id. Cogent suggested that the Daishin Maru Mani complete mitigation voyages, but NSU, relying on a clause in the contract providing that if no port declaration is made, the ship should be directed to Savannah, directed the Daishin Maru to Savannah to await Cogent's cargo. Id. at 6 n.12. The ship arrived in Savannah on November 5, Id. Id, at 6. At that point, Cogent told NSU that no cargo would be available until mid-december. Id. On December 21, 2011, after several weeks in Savannah and six requests to Cogent for assurance that a cargo would be nominated, NSU terminated the Charter and withdrew the Daishin Marti. Maru. Id. at 7. NSU performed a total of 10 mitigation voyages in the Atlantic Ocean between December 27, 2011 and June 29, Id. at 25. On June 29, 2013, NSU sold the DaishiniVfaru, Maru. Id. at 8. B. Arbitration On February 1, 2012, NSU commenced arbitration against Cogent and appointed Manfred Arnold as arbitrator. arbitrator, NSU Decl. I 4. Cogent appointed Jack Berg as arbitrator, and in March 2012, the parties jointly appointed the chairman of the arbitration panel, David Martowski, Martowski. Id, at Over the next year and a half, the parties engaged in extensive discovery, presented more than 650 exhibits to the arbitrators, and, between May 2013 and January 2014, conducted 10 evidentiary hearings, hearings. Id. at 11T In April and May 2014, the parties submitted final briefs. Id. Id, at 12. NSU asserted a claim for $13,780, plus interest, attorneys' fees, and costs 3

34 against Cogent, while Cogent brought a counterclaim for lost earnings of $15,285,951 or, in the alternative, $13,645,338 arising from NSU's alleged breach of the CVC. Award at 1-2. On January 23, 2015, the panel issued its final (33-page) decision, unanimously finding that Cogent had breached the Charter in October 2011 when it refused to provide a cargo for the Daishin Maru, and that it was therefore liable for damages resulting from the breach. Id. at 18. The panel split two to one on the issue of damages. Id. The majority, consisting of Arnold and Martowski, id. at 33, awarded $11,606, to NSU, id. at 32. The award was composed of five elements; $9,933, in damages arising from Cogent's breach of the CVC, $571, in interest on those damages, $97, in arbitration costs borne by NSU, $113, in arbitrators' fees, and $889, in legal fees NSU paid during the arbitration. Id. Damages from the breach of the Charter were calculated for two separate periods: First, the majority awarded $1,324,836 in damages for the period between October 16, 2011 and December 26, 2011, when the ship left dry-docking and traveled to Savannah to wait for a cargo from Cogent. Id. at 25. Second, the majority awarded $8,609, in damages for the period between December 27, 2011 and June 29, 2013, when NSU performed mitigation voyages, which the majority found constituted reasonable mitigation efforts. Id. at 28. Berg, although agreeing as to Cogent's liability, dissented as to the damages awarded. Dkt. 5, Ex. 3, Appendix A ("Berg Dissent"), at 1. First, Berg disagreed with the amount awarded to NSU for the first period, between October 16, 2011 and December 26, Id. at 3. Berg found that because Cogent had warned NSU that no cargo would be available, and NSU knew the Daishin Maru would sit and wait for a non-existent cargo if it was directed to Savannah after dry-docking, the ship should have been directed to conduct mitigation voyages immediately. Id. 4

35 at 3-4. Accordingly, Berg found that the $1,324,836 in lost profits should have been reduced by the amount NSU could have saved in mitigation, rather than awarded in its entirety. Id. at 4. Second, Berg dissented from the award of $8,609, for the period between December 27, 2011 and June 29, Id. Berg explained that the evidence presented reflected that opportunities for voyages in the Pacific Ocean were more certain and profitable than in the Atlantic, and that NSU had purposefully kept the Daishin Maru in the Atlantic in anticipation of a future long-term charter with a third party. Id. Berg therefore concluded that NSU's mitigation efforts had been unreasonable, and that the damages awarded for the second time period should have been reduced by the amount NSU could have saved by engaging in reasonable mitigation. Id. Finally, Berg dissented from the award of attorneys' fees. Reviewing the four potential exceptions to the American Rule, i.e,, that each party pays its own fees regardless of the outcome in litigation, Berg found that none applied to the dispute, and so no attorneys' fees should have been granted. Id. at 5-6. C. Procedural History of This Action On March 10, 2015, NSU filed the Petition and a supporting memorandum of law. Dkt. 1 ("Petition"), 4 ("NSU Br.").. The Petition seeks confirmation of the arbitral award, plus interest to the date ofjudgment. Petition 20, On April 15, 2015, Cogent filed a cross-motion to vacate the award and a supporting memorandum of law and declaration. Dkt. 11 ("Cross-Motion"), 8 ("Cogent Br."), 9 ("Cogent Deer), Cogent raises three distinct challenges to the arbitral award, two of which mirror Berg's dissent from the majority's calculation of damages: First, Cogent argues that the Award was in manifest disregard of the law because the damage calculations failed to correctly account for the 5

36 mitigation efforts required of NSU. Cogent Br Second, it contends that the arbitration panel exceeded its authority in awarding attorneys' fees, Id. at 10. Third, Cogent challenges as fundarrientally unfair the procedure by which the arbitration was conducted, specifically, that the arbitrators authorized the parties to make submissions via , Id. at 14. Cogent accordingly seeks an order vacating the Award. Cross-Motion I. On April 28, 2015, NSU filed its reply memorandum of law in further support of the Petition and in opposition to the Cross-Motion, along with a declaration, Dkt. 13 ("NSU Reply Br."), 14 ("NSU Deel."). H. Applicable Legal Standards Under the FAA, a federal district court reviewing an arbitration award "can confirm and/or vacate the award, either in whole or in part." D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 104 (2d Cir. 2006). However, judicial review of arbitration awards is "'severely limited,' so as not to frustrate the 'twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation.'" Scandinavian Reins. Co. v, Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, (2d Cir. 2012) (citations omitted). The reviewing court owes "strong deference" to "arbitral awards and the arbitral process," Porzig v. Dresdner, Kleinwort, Benson, N Am, LLC, 497 F.3d 133, 138 (2d Cir. 2007), and so a party seeking to vacate an arbitral award "must clear a high hurdle," Stolt-Nielsen S.A. v. AnimalFeeds Int 'l Corp., 559 U.S. 662, 671 (2010). "It is not enough for petitioners to show that the panel committed an error or even a serious error." Id. Indeed, "Elf there is 'even a barely colorable justification for the outcome reached,' the court must confirm the arbitration award." Willemijn Houdstermaatschappij, BY v. Standard Microsystems Corp., 103 F.3d 9, 13 (2d Cir. 1997) (quoting Matter of Andros Campania 6

37 Maritima, S.A., 579 F.2d 691, 704 (2d pd Ch., Cir. 1978)). Courts have authority to vacate arbitration awards only in certain narrow, enumerated circumstances, such as "where there was evident partiality or corruption in the arbitrators" or "where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon. the subject matter submitted was not made." 9 U.S.C III. Discussion Cogent brings three separate challenges to the Award: It claims that (a) the arbitral panel- acted in manifest disregard of the law in assessing damages; (b) the panel exceeded its authority in awarding attorneys' fees; and (c) the arbitration procedure was fundamentally unfair. unfair, The Court addresses each argument in turn. A. Whether the Panel Manifestly Disregarded the Law in Awarding Damages Arbitral awards should be vacated under the manifest disregard standard "only in those exceedingly rare instances where some egregious impropriety on the part of the arbitrator is apparent." T. Co. Metals, LLC v. v, Dempsey Pipe & Supply, Inc., 592 F.3d 329, 339 (2d Cir. 2010) (citation omitted). To satisfy this standard, there must be "a showing that the. arbitrators knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it." Stolt-Nielsen Stolt-iVielsen S.A., 559 U.S. at 672 n.3. Such a review is thus "highly deferential to the arbitrators," in large part because a more flexible standard of review would "frustrate the basic purpose of arbitration, which is to dispose of disputes quickly and avoid the expense and delay of extended court proceedings." STMicroelectronics, N.V, NV, v. Credit Suisse Securities (USA) LLC, 648 F.3d 68, 78 (2d Cir. 2011) (citation omitted). Accordingly, an arbitral award should not be vacated "because of a simple 7

38 error in law or a failure by the arbitrators to understand or apply it," Id. A court should only vacate an award "when a party clearly demonstrates that the panel intentionally defied the law." law," Id. (emphasis added). Cogent argues that both components of the arbitration panel's damage award were calculated in manifest disregard of the law. The court addresses in order the two time periods reflected in the Award. Award at 25-28, Award for the October 16, 2011 to December 26, 2011 Period First, Cogent challenges the award of $1,324,836 for the time period spanning from October 16, 2011, the day the ship left dry-dock, to December 26, 2011, the last day before NSU withdrew from the CVC and commenced its mitigation voyages. Cogent argues, relying on Berg's dissent, that the panel majority ignored the fundamental principle that "a non-breaching party to a contract has the obligation to mitigate damages." damages," Cogent Br, Br. at 5. Rather than accounting for NSU's duty to mitigate its damages during the first time period, the majority stated only that Cogent's failure to mitigate argument "overlooks the fact that Charterer was in breach of the CVC and not NSU." Award at 25. Because the majority therefore did not deduct from its award the amount NSU could have saved by conducting mitigation during this period, Cogent argues, the award manifestly disregarded the law. Cogent is correct, and NSU does not dispute, that it is a "fundamental" principle of contract law that the non-breaching party to a contract has a duty to mitigate its damages, See, e.g., Restatement (Second) of Contracts 350; Tractebel Energy Marketing, Inc. v, AEP Power Marketing, Inc., 487 F.3d 89, 110 n,21 n.21 (2d Cir. 2007); Losei Realty Corp. v. City of qinew York, 8

39 N.E. 889, 902 (N.Y. 1930).4 Because the arbitration panel found that Cogent breached the Charter on October 16, 2011, NSU's duty to mitigate arose on that date. See White v. Farrell, 987 N.E.2d 244, 252 (N.Y. 2013) ("The time-of-the-breach rule is longstanding in New York, as illustrated by the preceding Cook's tour of appellate decisions from throughout the State and as early as 1916; [and] 'seems to be the rule everywhere' in the United States.") (internal citations omitted); Brushton-Moira Cent. Sch. Dist. v. Fred PI Ii Thomas Assocs., P.C., 692 N.E.2d 551, 554 (N.Y. 1998) ("[D]amages are properly ascertained at the time of breach.. [and] the injured party has a duty to mitigate damages."). The panel therefore should have addressed that duty and reduced the damage award accordingly. However, although the panel did not explicitly address NSU's duty to mitigate during the first time period in the damages portion of the Award, the panel indirectly addressed the issue in its discussion of liability. There, the majority appears to have concluded that NSU was reasonable in waiting until December 26, 2011 to begin its mitigation efforts. As the panel noted, Cogent did not unilaterally terminate the Charter on October 16, 2011; instead, it made vague assurances to NSU that a cargo would eventually be provided. Indeed, on October 19, 2011, NSU was told a cargo would be available in late November or mid-december Award at 6. When the Daishin Maru arrived in Savannah on November 5, 2011, NSU was told that no cargo would be available until mid-december. Id. Finally, in late November and early December, NSU made multiple requests for reassurance that a cargo would be provided, and Cogent failed to respond. Id. at 7. 4 The Charter does not contain a choice-of-law clause. In their briefs to the arbitral panel, however, the parties agreed that New York law applies. See NSU Decl., Ex. 4, at 49; Cogent Decl., Ex. 8, at 53. The Court therefore therefbre applies New York law here. 9

40 Although the parties' submissions do not indicate the average length of a spot mitigation voyage, NSU disclosed in its post-hearing submission to the arbitrators that the combined length of two of its post-december 2011 mitigation voyages was 93.4 days, or roughly 46.7 days each, each. NSU Decl., Ex. 3, at 23. Based on this evidence, the arbitrators could have reasonably concluded that NSU did not have sufficient time to procure and conduct a mitigation voyage between October 19, 2011, when the ship left dry-dock, and late November, when Cogent indicated it expected to have a cargo available; or between November 5, 2011, when NSU received notification of further delay, and mid-december, when Cogent had informed NSU that a cargo would be available. More importantly,.given the troubled relationship between Cogent and NSU after the drydocking dispute, it was also reasonable for NSU to be uncertain about whether the Charter had, been repudiated when Cogent refused to indicate a loading port on October 17, 2011, The arbitral panel, upon reviewing the charterer's duty to provide a cargo in voyage charters, cited approvingly to the Restatement of Contracts provisions on repudiation and requests for reassurance. Award at 20. The panel explained that "if a party is in doubt whether the charter has been repudiated, he is entitled to seek adequate, assurances of performance from his contractual partner." Id, Id. at 21 (quoting Rest. 2d Contracts). Accordingly, the arbitrators appear to have found it reasonable for NSU, in the face of the uncertainty created by Cogent's vague and shifting references to future availability of cargo, to direct its ship to Savannah and request reassurance that the Charter would not be terminated, rather than to assume that the Charter had been terminated and immediately undertake mitigation voyages. The panel's discussion of requests for reassurance in continuous voyage contracts relies on multiple arbitration awards as 10

41 well as on the Restatement of Contracts, Contracts. As such, it it provides more than a a "barely colorable". justification for its decision. Willemijn, 103 F.3d at 13. Moreover, Cogent has not shown that any error by the panel majority was a willful misapplication of the law. Cogent summarily declares that the majority "chose to ignore this fundamental legal principle," Cogent Br. 5, without providing any evidence of intentional misconduct. In fact, the panel noted earlier in the Award that Cogent had advised NSU to start mitigation voyages when the Daishin Maru left dry-docking on October 16, Id. at 23. And the panel's later statement that Cogent "overlook[ed] the fact that [it] was in breach of the CVC and not.nsii," NSU;" id. at 25, seems to be a direct response to Cogent's argument, Although the panel may have misunderstood Cogent's argument with respect to the mitigation efforts that NSU had a duty to undertake, see Cogent Decl., Ex. 10, at 70, it appears to have addressed what it perceived to be Cogent's argument, argument. Absent a demonstration that "the panel intentionally defied the law," STMicroelectronics, 648 F,RI F.3d at 78 (emphasis added), rather than merely failed to understand or apply it, the Court cannot vacate the Award for manifest disregard of the law. See Goldman Sachs Execution & Clearing, L.P. v..official Unsecured Creditors' Comm. of Bayou Grp., LLC, 491 F. App'x 201, 206 (2d (al Cir. 2012) (summary order) (declining to address whether arbitrators had erroneously.applied New York law because there was no showing that such error, if any, was intentional); Ihoterco Dc Intl Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, (2d Cir. Cir, 2003) (confirming award even though it "only arguably conforms to legal standards" because there was no "clear demonstration that the panel intentionally defied the law"), 11