Ministry of Defense & Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Defense Systems, Inc. , 665 F.3d 1091 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE MINISTRY OF DEFENSE AND 
SUPPORT FOR THE ARMED
FORCES OF THE ISLAMIC REPUBLIC OF
IRAN, as Successor in Interest to
the Ministry of War of the
Government of Iran, No. 99-56380
Plaintiff-Appellee,  D.C. No.
v. CV-98-01165-RMB
CUBIC DEFENSE SYSTEMS, INC., as
Successor in Interest to Cubic
International Sales Corporation,
Defendant-Appellant.

THE MINISTRY OF DEFENSE AND 
SUPPORT FOR THE ARMED
FORCES OF THE ISLAMIC REPUBLIC OF
IRAN, as Successor in Interest to
the Ministry of War of the No. 99-56444
Government of Iran,
Plaintiff-Appellant,  D.C. No.
CV-98-01165-RMB
v. OPINION
CUBIC DEFENSE SYSTEMS, INC., as
Successor in Interest to Cubic
International Sales Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, District Judge, Presiding
20991
20992 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
Argued and Submitted
February 8, 2011—Pasadena, California
Filed December 15, 2011
Before: Alex Kozinski, Chief Judge, Michael Daly Hawkins
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 20995
COUNSEL
Charles A. Bird (argued) and Michelle A. Herrera, Luce, For-
ward, Hamilton & Scripps LLP, San Diego, California, for
Cubic Defense Systems, Inc.
Mina Almassi, Los Altos Hills, California; Steven W.
Kerekes (argued), Pasadena, California, for the Ministry of
Defense and Support for the Armed Forces of the Islamic
Republic of Iran.
George W. Madison, General Counsel, U.S. Department of
the Treasury; Harold Hongju Koh, Legal Adviser, U.S.
Department of State; Tony West, Assistant Attorney General;
Laura E. Duffy, United States Attorney; Douglas N. Letter
and Lewis S. Yelin, Civil Division, U.S. Department of Jus-
tice, Washington, D.C., for amicus curiae United States.
OPINION
FISHER, Circuit Judge:
These appeals require us to decide whether confirmation of
an arbitration award in favor of the Ministry of Defense and
Support for the Armed Forces of the Islamic Republic of Iran
is “contrary to the public policy” of the United States under
20996 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
the Convention on the Recognition and Enforcement of For-
eign Arbitral Awards, known as the “New York Convention.”
We hold, consistent with the position of the United States as
amicus curiae, that confirmation of the award does not violate
any public policy of the United States. We also hold that the
district court’s judgment is a “money judgment” subject to
postjudgment interest, and that a district court has discretion
to award prejudgment interest and attorney’s fees in an action
to confirm an arbitration award under the Convention.
Accordingly, we affirm the judgment in part, vacate it in part
and remand to the district court for reconsideration of the
Ministry’s motions for prejudgment interest and attorney’s
fees.
Background
In 1977, Cubic International Sales Corporation, predecessor
in interest to appellant Cubic Defense Systems, Inc.
(“Cubic”), a United States corporation, contracted with the
Ministry of War of the government of Iran, predecessor of
appellee Ministry of Defense and Support for the Armed
Forces of the Islamic Republic of Iran (“Ministry”), for sale
and service of an air combat maneuvering range for use by
Iran’s military. The Iranian Revolution resulted in nonperfor-
mance of the contracts. Consequently, the parties agreed in
1979 that the contracts would be discontinued and that Cubic
would try to resell the equipment, with a later settlement of
the accounts. In 1981, Cubic sold a modified version of the
equipment to Canada.
In 1982, the Ministry filed breach of contract claims against
Cubic with the Iran-United States Claims Tribunal at the
Hague. In 1987, that tribunal issued an order stating that it
lacked jurisdiction to hear the matter. See Ministry of Nat’l
Def. of the Islamic Republic of Iran v. Gov’t of the United
States, 14 Iran-U.S. Cl. Trib. Rep. 276, 1987 WL 503814(1987).
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 20997
In 1991, the Ministry filed a request for arbitration before
the International Court of Arbitration of the International
Chamber of Commerce (ICC). The ICC, sitting in Switzer-
land, made a final award in those proceedings in May 1997.
The final award makes a net award of $2,808,519 plus pre-
award interest in favor of the Ministry. The ICC also directed
Cubic to reimburse the Ministry $60,000 for arbitration costs.
In June 1998, after Cubic failed to pay, the Ministry filed
a petition in federal district court to confirm the ICC’s award
under the New York Convention. See 9 U.S.C. § 207.1 The
district court issued an order granting the Ministry’s petition
in December 1998.
The Ministry subsequently filed a motion for prejudgment
interest covering the period between the ICC’s final award
and the district court’s confirmation. The motion also
requested attorney’s fees based on Cubic’s alleged failure to
comply with the ICC’s decision. The district court denied the
motion, concluding that prejudgment interest and attorney’s
fees were unavailable in an action to confirm a foreign arbi-
tration award under the Convention.
The district court entered judgment in August 1999. Cubic
timely appealed confirmation of the award, and the Ministry
timely cross appealed denial of prejudgment interest and
attorney’s fees. Proceedings were suspended pending litiga-
tion over whether certain judgment creditors of Iran could
attach the Ministry’s judgment. That litigation has now been
concluded. See Ministry of Def. & Support for Armed Forces
1
Confirmation is a summary proceeding that converts a final arbitration
award into a judgment of the court. See Yusuf Ahmed Alghanim & Sons
v. Toys “R” Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997). Once the award is
confirmed, the judgment has the same force and effect of a judgment in
a civil action and may be enforced by the means available to enforce any
other judgment. See AIG Baker Sterling Heights, LLC v. Am. Multi-
Cinema, Inc., 579 F.3d 1268, 1273 (11th Cir. 2009) (applying 9 U.S.C.
§ 13).
20998 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
of Islamic Republic of Iran v. Cubic Def. Sys., Inc., 236 F.
Supp. 2d 1140 (S.D. Cal. 2002), aff’d, 385 F.3d 1206 (9th Cir.
2004), vacated and remanded, 546 U.S. 450 (2006),
remanded to, 495 F.3d 1024 (9th Cir. 2007), rev’d, 556 U.S.
366 (2009), remanded to, 569 F.3d 1004 (9th Cir. 2009).
Following oral argument in February 2011, we invited the
United States to express its view on whether confirmation of
the ICC’s award would be contrary to the public policy of the
United States under Article V(2)(b) of the Convention. The
United States filed an amicus brief supporting affirmance. We
then directed the parties to file supplemental briefs addressing
the United States’ brief, which they have done. These appeals
accordingly are ripe for decision.
DISCUSSION
Cubic argues that the district court erred by confirming the
ICC’s award because confirmation is contrary to the public
policy of the United States and, in the alternative, because the
award has not yet become binding on the parties. Cubic also
argues that the district court’s judgment is not subject to post-
judgment interest because the district court did not specify the
dollar amount of the confirmed award. On cross appeal, the
Ministry argues that the district court abused its discretion by
denying its motion for prejudgment interest and attorney’s
fees. We address these arguments in turn.
I.
[1] Confirmation of foreign arbitration awards is governed
by the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517,
known as the New York Convention, and federal law imple-
menting the Convention, 9 U.S.C. §§ 201-208. Section 207
provides:
Within three years after an arbitral award falling
under the Convention is made, any party to the arbi-
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 20999
tration may apply to any court having jurisdiction
under this chapter for an order confirming the award
as against any other party to the arbitration. The
court shall confirm the award unless it finds one of
the grounds for refusal or deferral of recognition or
enforcement of the award specified in the said Con-
vention.
9 U.S.C. § 207.
[2] The seven grounds for refusing to confirm an award are
set out in Article V of the Convention.2 These defenses are
2
Article V states:
1. Recognition and enforcement of the award may be refused, at
the request of the party against whom it is invoked, only if that
party furnishes to the competent authority where the recognition
and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were,
under the law applicable to them, under some incapacity, or the
said agreement is not valid under the law to which the parties
have subjected it or, failing any indication thereon, under the law
of the country where the award was made; or
(b) The party against whom the award is invoked was not given
proper notice of the appointment of the arbitrator or of the arbi-
tration proceedings or was otherwise unable to present his case;
or
(c) The award deals with a difference not contemplated by or not
falling within the terms of the submission to arbitration, or it con-
tains decisions on matters beyond the scope of the submission to
arbitration, provided that, if the decisions on matters submitted to
arbitration can be separated from those not so submitted, that part
of the award which contains decisions on matters submitted to
arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral proce-
dure was not in accordance with the agreement of the parties, or,
failing such agreement, was not in accordance with the law of the
country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has
been set aside or suspended by a competent authority of the coun-
try in which, or under the law of which, that award was made.
21000 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
construed narrowly, and the party opposing recognition or
enforcement bears the burden of establishing that a defense
applies. See Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832,
836 (9th Cir. 2010).
Cubic invokes two of these defenses here, arguing that
“recognition or enforcement of the award would be contrary
to the public policy of [the United States],” and, in the alter-
native, that the “award has not yet become binding on the par-
ties.” N.Y. Convention, art. V(1)(e), V(2)(b). Although Cubic
did not raise these issues in the district court, we exercise our
discretion to consider them for the first time on appeal
because they are purely questions of law and do not depend
on further factual development of the record. See Hesse v.
Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010). We hold that
neither defense applies, and accordingly affirm the district
court’s confirmation of the ICC’s award.
A.
1.
[3] Cubic argues that confirmation of the award would be
contrary to the public policy of the United States. The Con-
vention’s public policy defense, Article V(2)(b), states:
Recognition and enforcement of an arbitral award
may . . . be refused if the competent authority in the
country where recognition and enforcement is sought
2. Recognition and enforcement of an arbitral award may also be
refused if the competent authority in the country where recogni-
tion and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settle-
ment by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be con-
trary to the public policy of that country.
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21001
finds that . . . (b) The recognition or enforcement of
the award would be contrary to the public policy of
that country.
N.Y. Convention, art. V(2).
[4] In recognition of a presumption favoring upholding
international arbitration awards under the Convention, this
defense is “construed narrowly.” Parsons & Whittemore
Overseas Co. v. Societe Generale De L’Industrie Du Papier
(RAKTA), 508 F.2d 969, 974 (2d Cir. 1974). It applies only
when confirmation or enforcement of a foreign arbitration
award “would violate the forum state’s most basic notions of
morality and justice.” Id.; accord TermoRio S.A. E.S.P. v.
Electranta S.P., 487 F.3d 928, 938 (D.C. Cir. 2007); Admart
AG v. Stephen & Mary Birch Found., Inc., 457 F.3d 302, 308
(3d Cir. 2006); Karaha Bodas Co., L.L.C. v. Perusahaan Per-
tambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 306
(5th Cir. 2004); Slaney v. Int’l. Amateur Athletic Fed’n, 244
F.3d 580, 593 (7th Cir. 2001); M & C Corp. v. Erwin Behr
GmbH & Co., KG, 87 F.3d 844, 851 n.2 (6th Cir. 1996).
Although this defense is frequently raised, it “has rarely been
successful.” Andrew M. Campbell, Annotation, Refusal to
Enforce Foreign Arbitration Awards on Public Policy
Grounds, 144 A.L.R. Fed. 481 (1998 & supp.) (collecting
cases).
2.
Cubic argues that confirmation of the ICC’s award “is con-
trary to a fundamental public policy of the United States
against trade and financial transactions with the Islamic
Republic of Iran.” As evidence of this policy, Cubic points to
the sanctions the United States has imposed on Iran, including
the Iranian Assets Control Regulations, 31 C.F.R. pt. 535, the
Iranian Transactions Regulations, 31 C.F.R. pt. 560, and the
Weapons of Mass Destruction Proliferators Sanctions Regula-
tions (WMD Sanctions Regulations), 31 C.F.R. pt. 544.
21002 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
Cubic argues that these sanctions regimes are relevant to
the public policy analysis for two related reasons. First, the
sanctions prohibit Cubic from paying the ICC’s award unless
the Treasury Department’s Office of Foreign Assets Control
(OFAC) issues a specific license.3 Cubic contends that the
existence of a policy prohibiting payment of the award is suf-
ficient to demonstrate the existence of a fundamental public
policy against confirmation of the award as well. Second,
even though the sanctions do not specifically prohibit confir-
mation of the award, Cubic sees them as evidence of a com-
prehensive United States policy against trade, investment and
economic support for Iran that makes even confirmation of
the ICC’s award repugnant to the public policy of the United
States.
In support of this latter argument, Cubic cites Bassidji v.
Goe, 413 F.3d 928 (9th Cir. 2005), where we considered the
scope and purposes of the Iranian Transactions Regulations
— a set of sanctions prohibiting virtually all trade with and
investment in Iran by a United States person. See 31 C.F.R.
§§ 560.201-560.210. Bassidji described the regulations as “a
means toward the larger end of exerting economic pressure on
Iran,” in order to induce Iran to abandon policies that the
United States deems adverse to its interests. Bassidji, 413
U.S. at 934-35. Having thus defined the underlying purposes
of the regulations broadly, we suggested that virtually any
“transfer of wealth to Iran,” or any “payment [that] would
3
See 31 C.F.R. § 560.510(a) (providing that OFAC may issue specific
licenses “on a case-by-case basis” to authorize transactions related to “the
payment of awards of a tribunal” that resolve disputes between the Gov-
ernment of Iran and United States nationals); see also id. § 544.507(c)
(requiring a specific license for “the enforcement of any . . . judgment . . .
purporting to transfer” property of a designated person subject to U.S.
jurisdiction); Designation of Iran’s Islamic Revolutionary Guard Corps
(IRGC) and Ministry of Defense and Armed Forces Logistics (MODAFL)
Pursuant to Executive Order 13,382, 72 Fed. Reg. 71,991 (Dec. 19, 2007)
(making the Ministry a designated person under the WMD Sanctions Reg-
ulations).
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21003
provide funds to the Iranian economy,” would violate the
“fundamental purposes,” if not necessarily the letter, of the
regulations. Id. at 935, 939.
3.
We are not persuaded by Cubic’s argument, which gives
too little weight to this country’s strong public policy in sup-
port of the recognition of foreign arbitration awards, and too
much weight to the regulatory restrictions governing payment
of the ICC’s award. For the reasons that follow, we conclude
that the Ministry, and the United States as amicus curiae, have
the better argument.
[5] Our analysis begins with the strong public policy favor-
ing confirmation of foreign arbitration awards. “The goal of
the Convention, and the principal purpose underlying Ameri-
can adoption and implementation of it, was to encourage the
recognition and enforcement of commercial arbitration agree-
ments in international contracts and to unify the standards by
which agreements to arbitrate are observed and arbitral
awards are enforced in the signatory countries.” Scherk v.
Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974). As we
have said before, “[t]he public policy in favor of international
arbitration is strong.” Ministry of Def. of the Islamic Republic
of Iran v. Gould, Inc., 969 F.2d 764, 770 (9th Cir. 1992)
(alteration in original) (quoting Fotochrome, Inc. v. Copal
Co., 517 F.2d 512, 516 (2d Cir. 1975)) (internal quotation
marks omitted). To prevail, therefore, Cubic must demon-
strate a countervailing public policy sufficient to overcome
this strong policy favoring confirmation of the ICC’s award.
Cubic has not met that “substantial” burden. Id.[6] First, although American relations with Iran are heavily
regulated, the applicable sanctions regulations “do not pre-
clude the confirmation of the ICC Award.” Br. of the United
States as Amicus Curiae 22. The Iranian Assets Control Regu-
lations, which the United States adopted in response to the
21004 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
seizure of American hostages in Tehran in 1979, block the
transfer of certain property in which Iran has an interest. A
general license, however, authorizes the transfer of property
interests acquired after January 1981, see 31 C.F.R.
§ 535.579(a), and the Supreme Court has already held that
Iran’s interests in this case are covered by that general license.
See Ministry of Def. & Support for the Armed Forces of the
Islamic Republic of Iran v. Elahi, 556 U.S. 366, 129 S. Ct.
1732, 1739 (2009). The Iranian Assets Control Regulations
accordingly do not prohibit payment, let alone confirmation,
of the ICC award.
[7] The Iranian Transactions Regulations and the WMD
Sanctions Regulations also permit confirmation of the award.
As noted, each of these sets of sanctions independently pro-
hibits payment of the ICC award without a specific license
issued by OFAC. See 31 C.F.R. §§ 544.507(c), 560.510(a)(3).
Neither regime, however, prohibits confirmation of the award.
[8] Second, although Cubic places great stock in the regu-
lations’ prohibition on payment (absent a license), there is a
great deal of difference between payment and confirmation.
See Br. of the United States as Amicus Curiae 22. Confirma-
tion, standing alone, transfers no wealth to Iran. Thus, even if
Cubic is correct that the United States has a fundamental pub-
lic policy against economic support for the government of
Iran, confirmation does not violate that policy. See Nat’l Oil
Corp. v. Libyan Sun Oil Co., 733 F. Supp. 800, 820 (D. Del.
1990) (“Although Sun Oil argues that confirmation of this
award would mean that U.S. dollars would end up financing
Qadhafi’s terrorist exploits, the Court has already pointed out
that the President is empowered to prevent any such transfer
through the Libyan Sanctions Regulations.”).
Third, the difference between confirmation and payment is
accentuated when, as in this case, payment is subject to
licensing rather than barred absolutely. We should not refuse
to confirm an arbitration award because payment is prohibited
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21005
when payment may in fact be authorized by the government’s
issuance of a specific license. According to the United States’
brief, “[i]f this Court affirms the confirmation of the award,
the Treasury Department can issue a license requiring Cubic
to make any payment satisfying the judgment into a blocked
account held in the Ministry’s name by a U.S. financial insti-
tution.” Br. of the United States as Amicus Curiae 3-4.4 The
possibility that OFAC could issue a license supports confir-
mation of the award. Cf. Belship Navigation, Inc. v. Sealift,
Inc., No. 95 CIV. 2748, 1995 WL 447656, at *6 (S.D.N.Y.
July 28, 1995) (“Any award that Belship might recover
through arbitration would be placed in a ‘blocked’ interest
bearing account until relations with Cuba improve to the point
where the funds may be released to Belship. Allowing arbitra-
tion to proceed will hardly violate the United States’ ‘most
basic notions of morality and justice.’ ”).
Fourth, the applicable regulations provide general licenses
authorizing legal representation of Iran in legal proceedings in
the United States relating to disputes between Iran and a
United States national. See 31 C.F.R. § 544.507(a)(3) (autho-
rizing “legal services to . . . persons whose . . . interests in
property are blocked,” for the “[i]nitiation and conduct of
domestic U.S. legal . . . proceedings in defense of property
interests subject to U.S. jurisdiction”); id. § 560.525(a)(3)
(authorizing the provision of legal services for the “[i]nitiation
and conduct of domestic United States legal . . . proceedings
on behalf of the Government of Iran”). Although these regula-
tions do not expressly authorize confirmation of foreign arbi-
tration awards in favor of Iran, they show that legal
proceedings to resolve disputes such as this one are, short of
payment of a judgment, not in conflict with United States
sanctions policy.
4
The United States explains that OFAC may issue a license requiring
Cubic to pay the award into an account where it would be used to offset
any liability the United States may have to Iran in connection with ongo-
ing proceedings in the Iran-U.S. Claims Tribunal regarding the Cubic con-
tracts. See Br. of the United States as Amicus Curiae 15.
21006 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
[9] Finally, as noted, the United States as amicus curiae
supports affirmance of the district court’s confirmation of the
ICC’s award. An expression of national policy is not neces-
sarily dispositive of the public policy issue under the Conven-
tion. See Parsons & Whittemore, 508 F.2d at 974 (“To read
the public policy defense as a parochial device protective of
national political interests would seriously undermine the
Convention’s utility.”). Nonetheless, given Cubic’s invocation
of our country’s fraught relationship with Iran as expressed
through various trade sanctions, the government’s confirma-
tion that the ICC’s award comports with the national and for-
eign policy of the United States is entitled to great weight. Cf.
Nat’l Oil Corp., 733 F. Supp. at 820 (“Given [that the current
Administration has given Libya permission to bring this
action], this Court simply cannot conclude that to confirm a
validly obtained, foreign arbitral award in favor of the Libyan
Government would violate the United States’ ‘most basic
notions of morality and justice.’ ”).
[10] For these reasons, we hold that confirmation of the
ICC’s award is not contrary to the public policy of the United
States under Article V(2)(b) of the New York Convention.
Cubic has not identified a public policy sufficient to over-
come the strong federal policy in favor of recognizing foreign
arbitration awards. See Br. of the United States as Amicus
Curiae 21.
4.
Cubic argues in the alternative that confirmation of the
ICC’s award is contrary to the public policy of the United
States because “affirmance of the judgment would put Cubic
in the nightmare position of being subject to an apparently
enforceable judgment when Cubic and any of its involved
agents would commit crimes by paying or allowing payment.”
Supplemental Br. of Cubic Def. Sys. 4.5 Cubic asserts that
5
Violations of the Iranian Transactions Regulations and WMD Sanc-
tions Regulations are subject to both civil and criminal penalties. See 50
U.S.C. § 1705; 31 C.F.R. §§ 544.701(a), 560.701(a).
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21007
“the mere existence of an unstayed judgment may threaten the
existence of the judgment debtor, e.g., by violating covenants
in core financing agreements.” Id. at 9.
There has, however, been no showing that the judgment is
unpayable; OFAC has discretion to issue a specific license,
and may do so. In any event, were a court to confirm an
unpayable arbitration award, we presume the affected party
could seek a stay of execution of judgment, avoiding the
“nightmare” Cubic fears. As a general matter, a “stay of exe-
cution is proper upon a showing that an immediate enforce-
ment of the judgment will result in unnecessary hardship to
the judgment debtor.” 30 Am. Jur. 2d Executions § 314
(2011); see also 33 C.J.S. Executions § 252 (2011) (“A court
may grant a stay in the furtherance of justice whenever it
would be unjust to further execute or enforce the judgment,
or where, although it is proper to enforce the judgment, there
is good reason why execution should be postponed.” (footnote
omitted)); cf. Hewlett-Packard Co., Inc. v. Berg, 61 F.3d 101,
105-06 (1st Cir. 1995) (holding that a district court has discre-
tion, in an action under the New York Convention, to stay
confirmation of an arbitration award for prudential reasons).
Cubic’s argument is therefore unpersuasive.
B.
[11] Cubic’s argument that the ICC award has not become
binding on the parties is similarly without merit. Under Arti-
cle V(1)(e) of the Convention:
Recognition and enforcement of the award may be
refused, at the request of the party against whom it
is invoked, only if that party furnishes to the compe-
tent authority where the recognition and enforcement
is sought, proof that . . . (e) The award has not yet
become binding on the parties, or has been set aside
or suspended by a competent authority of the country
21008 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
in which, or under the law of which, that award was
made.
N.Y. Convention, art. V(1). This defense may be invoked
when an action to confirm or enforce an arbitration award is
filed before the award has become final. See Publicis
Commc’n v. True N. Commc’ns, Inc., 206 F.3d 725, 728 (7th
Cir. 2000). An arbitration award becomes binding when “no
further recourse may be had to another arbitral tribunal (that
is, an appeals tribunal).” Fertilizer Corp. of India v. IDI
Mgmt., Inc., 517 F. Supp. 948, 958 (S.D. Ohio 1981) (quoting
G. Aksen, American Arbitration Accession Arrives in the Age
of Aquarius: United States Implements United Nations Con-
vention on the Recognition and Enforcement of Foreign Arbi-
tral Awards, 3 Sw. U. L. Rev. 1, 11 (1971)) (internal
quotation marks omitted). Cubic does not dispute that all arbi-
tration appeals have been exhausted here. The award has thus
“become binding,” and Article V(1)(e) does not apply.6
[12] In sum, neither the public policy defense nor the final-
ity defense applies. The district court thus properly granted
the Ministry’s petition for confirmation of the ICC’s award.
II.
[13] Cubic contends the district court’s judgment is not a
“money judgment” — and thus is not subject to postjudgment
6
Cubic argues that the award was not binding at the time of the district
court’s decision because (a) the award had not yet been confirmed, (b) an
unconfirmed award has the legal effect of a contract between the parties,
(c) a party’s performance under a contract can be excused when perfor-
mance has become impracticable and (d) performance is impracticable
here because it is prohibited by “a domestic or foreign governmental regu-
lation” in the form of U.S. regulations barring the payment of the award
to Iran without a specific license. Restatement (Second) of Contracts § 264
(1981). This argument rests on a misunderstanding of Article V(1)(e),
which imposes a finality requirement rather than incorporating common
law excuses for nonperformance of a contract.
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21009
interest — because it does not specify the dollar amount of
the arbitration award.7 The governing statute provides that
“[i]nterest shall be allowed on any money judgment in a civil
case recovered in a district court.” 28 U.S.C. § 1961(a). We
have not previously defined the term “money judgment.” The
Third Circuit has done so, however, and we find its definition
persuasive.
[14] Under this definition, a money judgment consists of
two elements: “(1) an identification of the parties for and
against whom judgment is being entered, and (2) a definite
and certain designation of the amount which plaintiff is owed
by defendant.” Penn Terra Ltd. v. Dep’t of Envtl. Res., 733
F.2d 267, 275 (3d Cir. 1984) (defining the term “money judg-
ment” for purposes of former Bankruptcy Code § 362(b)(5));
see also Eaves v. Cnty. of Cape May, 239 F.3d 527, 533 (3d
Cir. 2001) (extending Penn Terra’s definition to § 1961(a));
cf. In re Haugen, 998 F.2d 1442, 1448 (8th Cir. 1993)
(employing a similar definition).
[15] In EEOC v. Gurnee Inns, Inc., 956 F.2d 146 (7th Cir.
1992), the district court ordered the defendant to pay specified
sums to a number of employees, “less appropriate payroll
deductions.” Id. at 147. The Seventh Circuit rejected the
defendant’s argument that this was not a money judgment,
stating: “the awards did not lose their character as sums cer-
tain simply because they were subject to the mechanical task
of computing the payroll deductions.” Id. at 149. Here,
although the judgment does not spell out the amount of the
ICC’s award, a definite and certain designation of the amount
that Cubic owes the Ministry is readily discernible by looking
to the arbitration award itself. As the district court recognized,
the ICC ordered “Cubic to pay Iran $2,808,591 with simple
7
The judgment merely confirmed the arbitration award — stating “IT IS
ORDERED AND ADJUDGED plaintiff ’s petition to confirm foreign
arbitral award is granted.” It does not specify the dollar amount of the
award.
21010 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
interest of 12% per annum from September 24, 1991 until
May 5, 1997,” and “to reimburse Iran $60,000 which was
advanced by Iran” for the costs of arbitration. The district
court confirmed this award without modification. The judg-
ment therefore satisfies both elements of a money judgment.
[16] Cubic argues in the alternative that postjudgment
interest should be tolled because Cubic has been prevented,
through no fault of its own, from paying the judgment after
it was confirmed by the district court. This argument is fore-
closed by the plain language of § 1961, which provides that
“[i]nterest shall be allowed on any money judgment in a civil
case recovered in a district court.” 28 U.S.C. § 1961(a)
(emphasis added). This language is mandatory, not discretion-
ary. See Air Separation, Inc. v. Underwriters at Lloyd’s of
London, 45 F.3d 288, 290 (9th Cir. 1995). The Ministry is
therefore entitled to postjudgment interest.
III.
In its cross appeal, the Ministry argues that the district
court abused its discretion by denying the Ministry’s motion
for post-award, prejudgment interest covering the period fol-
lowing the ICC’s final award in May 1997. The district court
concluded it lacked authority to award prejudgment interest:
According to the Ninth Circuit, a district court’s “re-
view of a foreign arbitration award is quite circum-
scribed,” and, the district court has “little discretion.”
Ministry of Defense of the Islamic Republic of Iran
v. Gould, 969 F.2d 764, 770 (9th Cir. 1992). The
Convention does not provide for the award of inter-
est by a district court, but rather only provides for
the confirmation of the arbitral award. In this case,
the Award does provide for some pre-judgment
interest, and it is that which this Court confirmed.
However, Iran can point to no binding authority
under which this Court would be authorized to award
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21011
interest in addition to that already awarded by the
ICC. Neither the Convention, Congress’ implemen-
tation of that Convention under 9 U.S.C. § [§ ] 200-
208, nor binding case law authorize[s] the award of
pre-judgment interest by a district court reviewing an
arbitral award under the Convention.
We agree with the Ministry that the district court erred.
[17] The Second and Eleventh Circuits have held that post-
award, prejudgment interest is available in an action to con-
firm an arbitration award under the New York Convention.
See Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte
GmbH, 141 F.3d 1434, 1446-47 (11th Cir. 1998); Waterside
Ocean Navigation Co. v. Int’l Navigation Ltd., 737 F.2d 150,
153-54 (2d Cir. 1984).8 We find their reasoning persuasive.
First, “[w]hether to award prejudgment interest in cases
arising under federal law has in the absence of a statutory
directive been placed in the sound discretion of the district
courts.” Waterside Ocean Navigation, 737 F.2d at 153 (alter-
ation in original) (quoting Lodges 743 & 1746, Int’l Ass’n of
Machinists v. United Aircraft Corp., 534 F.2d 422, 446 (2d
Cir. 1975)) (internal quotation marks omitted); see also Frank
Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545,
1550 (9th Cir. 1989) (“[C]ourts may allow prejudgment inter-
est even though the governing statute is silent.”). This general
rule reflects the widely accepted, remedial purpose of pre-
judgment interest — which is to “compensat[e] the injured
party for the loss of the use of money he would otherwise
have had.” Frank Music, 886 F.2d at 1550.
Second, nothing in the federal statutes implementing the
Convention, or in the Convention itself, reveals any intention
on the part of Congress or the contracting states to preclude
post-award, prejudgment interest. “[T]he Convention is silent
8
We are not aware of any contrary authority.
21012 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
on the question of pre-judgment interest.” Waterside Ocean
Navigation, 737 F.2d at 154.
Third, although a court’s review of an arbitration award is
limited, nothing in the Convention or the implementing stat-
utes restricts the court’s jurisdiction over collateral issues
such as prejudgment interest. To be sure, a court’s review of
the award itself is minimal: the Convention requires a court
to “confirm the award unless it finds one of the grounds for
refusal or deferral of recognition or enforcement of the award
specified in the said Convention.” 9 U.S.C. § 207. Judicial
review of the award is therefore “ ‘quite circumscribed’ ” —
“[r]ather than review the merits of the underlying arbitration,
we review de novo only whether the party established a
defense under the Convention.” China Nat’l Metal Prods.
Imp./Exp. Co. v. Apex Digital, Inc., 379 F.3d 796, 799 (9th
Cir. 2004) (quoting Gould, 969 F.2d at 770). Actions under
the Convention, however, “arise under the laws and treaties of
the United States.” 9 U.S.C. § 203. Thus, as in other federal
question cases, whether to award prejudgment interest falls
within the district court’s discretion.
Fourth, in the absence of authority to grant post-award, pre-
judgment interest, the losing party in the arbitration has “an
incentive . . . to withhold payment” — a result contrary to the
purposes of the Convention. Nat’l Oil Corp., 733 F. Supp. at
821.
[18] For these reasons, we hold that federal law allows a
district court to award post-award, prejudgment interest in
actions under the New York Convention.
The district court’s discretion to award prejudgment inter-
est, of course, must be exercised in a manner consistent with
the underlying arbitration award. A court may not award pre-
judgment interest when the arbitration tribunal has determined
that such interest is not available. Here, however, the ICC
awarded pre-award interest from 1991 through the date of the
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21013
ICC’s final award in May 1997, and was silent on whether the
Ministry should recover post-award interest. The ICC there-
fore left this matter unresolved.
[19] Accordingly, we vacate the district court’s denial of
the Ministry’s motion for prejudgment interest and remand for
a determination whether, under the circumstances of this case,
the Ministry is entitled to post-award, prejudgment interest.
We express no opinion as to whether interest should be
required or, if so, at what rate.
IV.
The Ministry also argues that the district court abused its
discretion when it denied the Ministry’s motion for attorney’s
fees based on what it contends was Cubic’s wilful bad faith
in failing to abide by the ICC’s award.
As in the case of prejudgment interest, the district court
denied the request for attorney’s fees because it concluded
that it lacked the authority to award them. The court noted
that the Federal Rules of Civil Procedure require a motion for
attorney’s fees to “specify the judgment and the statute, rule,
or other grounds entitling the movant to the award.” Fed. R.
Civ. P. 54(d)(2). The court recognized that case law permits
an award of attorney’s fees in a proceeding to confirm a
domestic arbitration award, but said that “[n]either the Con-
vention, Congress’ implementation of that Convention under
9 U.S.C. § [§ ] 200-208, nor binding case law, authorize[s] the
award of attorney’s fees by a district court reviewing an arbi-
tral award under the Convention.”
[20] It is well settled, however, that even absent express
statutory authority, federal courts have authority to award
attorney’s fees when the losing party has acted in bad faith,
vexatiously, wantonly or for oppressive reasons. See Int’l
Union of Petroleum & Indus. Workers v. W. Indus. Maint.,
Inc., 707 F.2d 425, 428 (9th Cir. 1983). “[A]n unjustified
21014 MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE
refusal to abide by an arbitrator’s award,” moreover, “may
equate an act taken in bad faith, vexatiously or for oppressive
reasons.” Sheet Metal Workers’ Int’l Ass’n Local Union No.
359 v. Madison Indus., Inc., 84 F.3d 1186, 1192 (9th Cir.
1996) (alteration in original) (quoting Int’l Union of Petro-
leum & Indus. Workers, 707 F.2d at 428) (internal quotation
marks omitted). Nothing in the New York Convention, or the
federal statutes implementing it, expressly or impliedly
negates this authority. As we have noted, actions under the
Convention “arise under the laws and treaties of the United
States.” 9 U.S.C. § 203. Accordingly, we hold that federal law
permits an award of attorney’s fees in an action under the
Convention, as it does in other federal question cases.9
[21] Because the district court did not believe it had such
authority, it did not address the Ministry’s allegations that
Cubic unjustifiably refused to abide by the ICC’s award. As
in the case of prejudgment interest, we remand the request for
attorney’s fees to the district court for appropriate proceed-
ings. We express no opinion as to whether such fees are war-
ranted.
CONCLUSION
We affirm the district court’s confirmation of the ICC’s
award. We hold that the district court’s judgment is subject to
postjudgment interest. We vacate denial of the Ministry’s
motion for post-award, prejudgment interest and attorney’s
fees, and remand for reconsideration of the Ministry’s motion.
9
Cubic argues in the alternative that even if attorney’s fees can be
awarded in an action to confirm an international arbitration award, fees
should not be awarded here because the ICC declined to award attorney’s
fees. The ICC, applying the loser-pays provision in the parties’ contracts,
did not award fees because there was no prevailing party in the arbitration
proceedings. The ICC did not address whether fees could be awarded in
a future confirmation proceeding based on an alleged unjustified failure by
one party to abide by the terms of the award. Cubic’s argument is there-
fore without merit.
MINISTRY OF DEFENSE OF IRAN v. CUBIC DEFENSE 21015
The Ministry’s motion to strike portions of Cubic’s brief is
denied. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.