[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-13039 ____________________ CORPORACION AIC, SA, Plaintiff-Appellant, versus HIDROELECTRICA SANTA RITA S.A., a Guatemalan company,

Defendant-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-20294-RNS ____________________ USCA11 Case: 20-13039 Date Filed: 05/27/2022 Page: 2 of 56

2 Opinion of the Court 20-13039

Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges. TJOFLAT, Circuit Judge: This case involves the interplay between the Federal Arbi- tration Act (“FAA”) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Conven- tion”). We believe that our Circuit is out of line with Supreme Court precedent, but we are powerless to change the course as a three-judge panel. As a result, today, we must affirm the District Court’s determination that it could not vacate an arbitral award under the New York Convention on the exceeding powers ground. In so doing, we hope that this case will be taken en banc where this Court may overturn Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte International GmbH, 921 F.3d 1291 (11th Cir. 2019), and Industrial Risk Insurers v. M.A.N. Gu- tehoffnungshutte GmbH, 141 F.3d 1434 (11th Cir. 1998), and hold that under a correct understanding of Supreme Court precedent the exceeding powers ground is a valid basis for vacatur under both the New York Convention and the FAA. Until an en banc panel of our Court takes up this issue, our hands are tied. I. In a nutshell, Corporacion AIC, SA (“AICSA”) and Hidroe- lectrica Santa Rita S.A. (“HSR”), two Guatemalan companies, signed a contract in March 2012 (and restated it in February 2013) for the construction of a hydroelectric power plant in Guatemala. USCA11 Case: 20-13039 Date Filed: 05/27/2022 Page: 3 of 56

20-13039 Opinion of the Court 3 Under the terms of the contract, AICSA was responsible for creat- ing a new power plant for HSR. However, in October 2013, AICSA had to discontinue the project because HSR issued a force majeure notice.1 Next, HSR sought reimbursement for the advance pay- ments it had made to AICSA and ultimately commenced arbitra- tion proceedings, as specified in the original contract, in the Inter- national Court of Arbitration to recover them. AICSA sought dis- missal of HSR’s claims and counterclaimed for damages, costs, re- imbursements for its subcontractor, and attorney’s fees and ex- penses. AICSA also sought to join one of its subcontractors to the proceeding. The arbitration was held in Miami, Florida, and a split, three-member arbitration panel denied AICSA’s request to join the subcontractor to the arbitration and, in short, ruled for HSR on the merits claims. The panel ordered AICSA to return about $7 million and about €435,000 to HSR in advance payments while allowing AICSA to keep what it had earned pursuant to the contract, about $2.5 million and about €700,000. Dissatisfied with the arbitration panel’s decision, AICSA ini- tiated a case in the District Court, seeking to vacate the arbitral award on the basis that the arbitration panel had exceeded its

1 A force majeure clause in a contract excuses performance in certain cases, covering “events that may or may not happen, but whether they do is ‘beyond the control of’” the contracting party. Stein v. Paradigm Mirasol, LLC, 586 F.3d 849, 858 (1