Court Rejects Attempt to Discovery to Support Challenge to Arbitration Award

Posted: September 23, 2026 / Written by: Thomas A. Kissane / Categories Arbitration, Discovery/Disclosure, Fraud/Misrepresentation

Court Rejects Attempt to Discovery to Support Challenge to Arbitration Award

On March 2, 2026, Justice Joel M. Cohen of the New York County Commercial Division denied a petition to vacate an arbitration award and a related request for discovery, holding that the petitioner could not use the vacatur proceeding to revisit discovery issues that the arbitral tribunal had considered and rejected. The case is Shell NA LNG LLC v. Venture Global Calcasieu Pass, LLC, Index No. 659637/2025.

The dispute arose from an agreement under which Venture Global Calcasieu Pass, LLC (“VGCP”) agreed to sell liquefied natural gas to Shell from its Calcasieu Pass facility. Shell commenced an ICC arbitration alleging that VGCP breached the agreement by failing to declare the facility’s Commercial Operation Date (“COD”) in October 2022, which would have triggered VGCP’s obligation to sell LNG to Shell at the contract price. Following extensive discovery and a two-week evidentiary hearing, the tribunal unanimously rejected Shell’s claim.

Shell sought to vacate the award on the ground that VGCP had procured it through fraud or misconduct. Shell relied on testimony from an independent engineer that Shell claimed had suggested the existence of written communications concerning when the COD should be declared, and argued that VGCP’s counsel had misrepresented to the tribunal that no responsive communications had been withheld. Shell also sought discovery under CPLR 408 to determine whether such communications existed.

The Court denied discovery, emphasizing that Shell was essentially seeking the same discovery that the tribunal had twice rejected during the arbitration. Justice Cohen explained that arbitrators have substantial discretion over discovery and were in a better position than the Court to evaluate both the independent engineer’s testimony and counsel’s representations. Allowing Shell to pursue the same discovery after the award would improperly permit judicial second-guessing of the tribunal’s procedural rulings and give Shell what the Court characterized as a “third bite at the apple.” Slip op., p. 12.

The Court also rejected Shell’s fraud-based challenge to the award, which required, among other things, clear and convincing proof that fraud occurred and that it was material to an issue in the arbitration. The independent engineer’s testimony was equivocal and did not establish that responsive written communications had been withheld, and the statements of VGCP’s counsel likewise did not establish a knowing misrepresentation. The Court further found that Shell had not shown that any of the claimed communications would have been material to the tribunal’s decision, which rested on several independent grounds. The Court therefore denied the petition and confirmed the award. Id., pp. 14-17.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning the confirmation or vacatur of arbitration awards.