[T]he Parties may cite law from any jurisdiction in their arguments to the Tribunal, but the arbitrators are empowered to decide FRAND terms and conditions for the Completed License in light of the evidence and arguments presented by the Parties based on a standard of what is fair, reasonable, and non-discriminatory.
Id. The parties consented to the non-exclusive jurisdiction of the courts in New York:
The Parties irrevocably consent to jurisdiction and venue of the state and federal courts in the State of New York (i) to the extent a dispute arising under this Agreement is not subject to the Arbitration or cannot be properly brought before the Arbitration Panel (e.g., a request for a TRO, or a judgment upon an arbitral award(s), which the Parties agree may be entered by such court), and (ii) such dispute can be properly brought before the state or federal courts in the State of New York.
If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V (1)(e), [namely, the country in which or under the law of which, that award was made] the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
New York Convention, art. VI. The Court of Appeals for the Second Circuit has noted the inherent tension between the arbitration goals of expedition and economy and granting a stay of an enforcement proceeding because a stay "impedes... the expeditious resolution of disputes and the avoidance of protracted and expensive litigation." Europcar, 156 F.3d at 317. "[W]hile an adjournment is appropriate in certain situations, a district court should not automatically stay enforcement proceedings on the ground that parallel proceedings are pending in the originating country." Nedagro B.V. v. Zao Konversbank, No. 02-cv-3946 (HB), 2003 WL 151997, at *6 (S.D.N.Y. Jan. 21, 2003). But "where there is a parallel annulment proceeding in the originating country and there is a possibility the award will be set aside, a district court may be acting improvidently by enforcing the award prior to the completion of the foreign proceedings." Europcar, 156 F.3d at 317.
(1) the general objectives of arbitration—the expeditious resolution of disputes and the avoidance of protracted and expensive litigation;
(2) the status of the foreign proceedings and the estimated time for those proceedings to be resolved;
(3) whether the award sought to be enforced will receive greater scrutiny in the foreign proceedings under a less deferential standard of review;
(4) the characteristics of the foreign proceedings including (i) whether they were brought to enforce an award (which would tend to weigh in favor of a stay) or to set the award aside (which would tend to weigh in favor of enforcement); (ii) whether they were initiated before the underlying enforcement proceeding so as to raise concerns of international comity; (iii) whether they were initiated by the party now seeking to enforce the award in federal court; and (iv) whether they were initiated under circumstances indicating an intent to hinder or delay resolution of the dispute;
(5) a balance of the possible hardships to each of the parties, keeping in mind that if enforcement is postponed under Article VI of the Convention, the party seeking enforcement may receive "suitable security" and that, under Article V of the Convention, an award should not be enforced if it is set aside or suspended in the originating country,...; and
(6) any other circumstances that could tend to shift the balance in favor of or against adjournment.
Id. at 317-18 (internal citations omitted). "[T]he first and second factors on the list should weigh more heavily in the district court's determination." Id. at 318. Huawei contends that its motion to stay the Enforcement Action satisfies each of these factors.
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