On 21 October 2026, the United States District Court for the District of New Jersey (the “Court”) denied an application by the Malawi Communications Regulatory Authority (“MACRA”) to confirm arbitral awards against Precisely Software Incorporated (“Precisely”). The Court held that Precisely had not been given proper notice of the arbitration and had established a defence to enforcement under Article V(1)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). The decision illustrates the serious consequences of proceeding with arbitration after learning that attempts to notify the opposing party have failed.[1]
Facts
On 14 June 2010, MACRA entered into a Master Services Agreement (the “MSA”) with Agilis, a Delaware corporation that subsequently merged into Precisely, transferring its liabilities to Precisely. The MSA concerned the supply of a telecommunications monitoring system for Malawi. Technical difficulties led to a further agreement in 2015 (the “2015 Agreement”) and an implementation agreement in 2018. The 2015 Agreement provided for negotiation, followed by mediation and, if mediation was unsuccessful, arbitration in Malawi under the Malawi Arbitration Act and Malawian law.[2]
The MSA and the 2015 Agreement designated 1 Research Court, Suite 370, Rockville, Maryland 20850 as the address for notices to Precisely. They specified delivery in person, by international express courier, or by registered or certified mail with return receipt requested. Changes to the designated address required written notice. Email was not an agreed method of notice.[3]
MACRA alleged that a functional system had never been supplied and commenced arbitration in 2022 after attempts at negotiation and mediation. Its initial arbitration notice was sent by email to Rawlvan Bennett (“Bennett”), who had signed the agreements. Precisely maintained that Bennett was no longer an employee or officer after 21 March 2021. An arbitrator was appointed by the President of the Malawi Law Society, and Precisely did not participate in the arbitration. After receiving no response to an email concerning the preliminary hearing, the arbitrator directed MACRA to give notice by courier.[4]
The first courier attempt used an address different from the contractual address and failed. Later attempts included the contractual suite and another purported address in Johannesburg, but those deliveries also failed. MACRA was informed of the delivery failures and relied additionally on unsuccessful telephone calls. The arbitration nevertheless proceeded in Precisely’s absence. Following an evidentiary hearing on 7 March 2023, the arbitrator issued an award finding Precisely liable for breach of contract. After a further hearing, a separate award dated 22 November 2023 granted MACRA USD 8,577,057.30 in damages and interest, together with USD 26,495.31 in arbitration costs.[5]
On 28 February 2025, MACRA petitioned the Court for confirmation. Precisely opposed enforcement on the grounds that it had not received proper notice and had been deprived of the opportunity to present its case.[6]
Issues
The principal issue was whether Precisely had established a ground for refusing enforcement under Article V(1)(b) of the New York Convention. This required the Court to determine whether MACRA’s emails and unsuccessful delivery attempts amounted to proper notice, having regard to the contractual notice provisions and MACRA’s knowledge that delivery had failed. The Court also considered whether Precisely’s failure to provide an updated address excused MACRA’s conduct, whether the arbitrator’s finding of adequate notice precluded an independent judicial assessment, and whether Precisely had demonstrated prejudice if such proof was required.[7]
Holding
The Court denied the petition because Precisely had established the defence under Article V(1)(b). Applying United States due process standards, it held that notice had to be reasonably calculated, in all the circumstances, to inform Precisely of the proceedings and afford it an opportunity to present its objections. Actual receipt was not indispensable. However, MACRA’s use of email outside the agreed notice methods, together with unsuccessful deliveries and inadequate follow-up after learning of those failures, did not satisfy the applicable standard.[8]
Precisely’s failure to update its address did not relieve MACRA of its notice obligations. Nor did the arbitrator’s acceptance of notice displace the Court’s responsibility to determine whether a defence under the New York Convention had been established. Assuming that separate proof of prejudice was necessary, Precisely had shown it through the lost opportunity to participate in the arbitrator’s appointment, present its case and challenge MACRA’s case. The Court therefore refused confirmation of the awards.[9]
Reasoning
Chapter 2 of the Federal Arbitration Act (the “FAA”) implements the New York Convention in the United States. The Court began from section 207 of the FAA, which requires confirmation unless a ground for refusal or deferral under the New York Convention is established. Once the party seeking enforcement supplies the award and the underlying agreement, the resisting party bears a heavy burden of proving an applicable defence. The Court recognised that Article V defences must be construed narrowly, but that Article V(1)(b) protects a party’s opportunity to be heard. The parties agreed that United States due process standards governed that inquiry, notwithstanding the arbitration’s connection with Malawi.[10]
The contractual notice provisions were central to the assessment. MACRA relied on its previous email dealings with Bennett, the absence of any indication that its emails had gone undelivered, and authority recognising that email can satisfy due process. The Court found these arguments insufficient in the circumstances. Email was not among the agreed notice methods. Moreover, the authority on which MACRA relied involved additional measures, including confirmed physical delivery and newspaper publication. The Court therefore rejected the suggestion that MACRA’s emails alone constituted proper notice under the parties’ agreements.[11]
The initial courier attempt presented two distinct address problems. MACRA stated that it had instructed DHL to send the preliminary hearing notice to One Research Court, Suite 450, whereas the agreements specified Suite 370. The DHL receipt, in turn, recorded a different street address: Suite 450, 1700 Rockville Pike. MACRA’s reliance on previous invoices and the address used during mediation did not establish that Precisely had agreed to change the contractual notice address. On 14 September 2022, DHL informed MACRA that delivery had failed because the receiver had refused the package. MACRA requested that the package be destroyed. After learning of the failed delivery, MACRA took no further step to notify Precisely before the preliminary hearing proceeded.[12]
The Court’s analysis of the delivery failures drew on Jones v. Flowers, a United States Supreme Court decision concerning notice before a tax sale. Under the principle applied by the Court, learning that notice has failed requires additional reasonable efforts to inform the recipient, where practicable. Although Jones arose in a different factual context, the Court considered its due process reasoning applicable to the notice defence under the New York Convention. An attempt that might initially appear reasonable cannot simply be treated as sufficient after the sender learns that it has failed.[13]
The later notices did not cure the problem. Attempts to deliver notice of the evidentiary hearing included both suites 370 and 450 at the Rockville address, as well as an address in Johannesburg. Nevertheless, DHL could not confirm delivery, and FedEx reported that Precisely’s offices could not be located at the stated addresses or were no longer there. An August 2023 notice concerning the assessment of costs also went undelivered. The Court did not prescribe precisely which additional steps MACRA should have taken, but identified ordinary mail, potentially benefiting from forwarding arrangements, as an example of a reasonable alternative. MACRA’s evidence of calls to unspecified telephone numbers did not establish adequate follow-up, particularly because it did not explain which numbers were called or their connection with Precisely.[14]
The Court also rejected MACRA’s reliance on Precisely’s failure to provide an updated address. That contractual failure did not excuse the obligation to give notice meeting the due process standard applicable under the New York Convention. The Court further noted that service in the confirmation proceedings had apparently been accomplished through Precisely’s registered agent. This supported its assessment of the practical availability of further notice efforts.[15]
The arbitrator’s own finding that MACRA had complied with the contractual notice procedure was not conclusive. The Court distinguished the prohibition on reviewing the merits of an arbitral decision from the judicial responsibility to determine whether a defence under the New York Convention had been proved. Adequacy of notice was itself one of the matters that the Court had to assess when deciding whether to enforce the awards.[16]
Finally, the Court addressed prejudice without deciding that it was invariably a separate requirement under Article V(1)(b). Even assuming such a requirement applied, Precisely had satisfied it. The inadequate notice prevented Precisely from participating in the appointment of the arbitrator, presenting its own case and challenging MACRA’s case. That loss of an opportunity to participate supported refusal of enforcement.[17]
Conclusion
The decision illustrates the importance of responding to failed notice attempts before proceeding in a party’s absence. Contractual notice provisions remain central, but sending a notice to the contractual address may be insufficient once the sender learns that delivery has failed. For a party seeking eventual enforcement in the United States, the lesson is to preserve a record showing both compliance with the agreed notice arrangements and reasonable further efforts responsive to known delivery failures.[18]
The ruling also demonstrates that an arbitrator’s acceptance of notice does not settle the issue for enforcement purposes. An enforcing court must independently determine whether the resisting party has established an Article V(1)(b) defence. Here, the consequence was denial of the confirmation petition in the United States. The Court did not annul the awards or determine the merits of the underlying contractual dispute.[19]
[1] Malawi Commc’ns Regul. Auth. v. Precisely Software Inc., No. 25-01574 (GC) (JBD), slip op. at 1, 6-7, 10-18 (D.N.J. Oct. 21, 2026).
[2] Id. at 2-3 & n.3.
[3] Id. at 3, 8-11.
[4] Id. at 3-4, 9-10.
[5] Id. at 4-5, 10, 13-15.
[6] Id. at 5-6.
[7] Id. at 6-9, 15-17 & n.9.
[8] Id. at 7, 9-17.
[9] Id. at 15-18 & n.9.
[10] Id. at 5-7.
[11] Id. at 8-10.
[12] Id. at 4, 10-12.
[13] Id. at 11-12 & n.8, citing Jones v. Flowers, 547 U.S. 220, 229, 234-36, 239 (2006).
[14] Malawi Commc’ns Regul. Auth., slip op. at 13-15.
[15] Id. at 15-16.
[16] Id. at 16 n.9.
[17] Id. at 17.
[18] See id. at 8-15.
[19] Id. at 16-18 & n.9.
