Pao Tatneft v. Ukraine ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2021 Decided December 28, 2021
No. 20-7091
PAO TATNEFT,
APPELLEE
v.
UKRAINE, C/O MR. PAVLO PETRENKO, MINISTER OF JUSTICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00582)
Maria Kostytska argued the cause for appellant. With her
on the briefs was Geoffrey P. Eaton.
Mark E. McDonald argued the cause for appellee. With
him on the brief were Jonathan I. Blackman and Matthew D.
Slater.
Before: SRINIVASAN, Chief Judge, and HENDERSON,
Circuit Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Pao Tatneft
(Tatneft), a Russian company, filed a petition in district court
to confirm and enforce its arbitral award against Ukraine. The
district court granted the petition, rejecting Ukraine’s
arguments that the court should have declined to enforce the
award under The Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York
Convention), June 10, 1958, 21 U.S.T. 2517, and should have
dismissed the petition on the basis of forum non conveniens. As
explained infra, we agree with the district court and affirm its
judgment.
I. BACKGROUND
In July 1995, the Republic of Tatarstan (Tatarstan) and
Ukraine founded the CJSC Ukrtatnafta Transnational Financial
and Industrial Oil Company (Ukrtatnafta), a joint-stock
company that owns and operates Kremenchug, a Ukrainian oil
refinery. Ukrtatnafta had three major shareholders: Tatarstan,
Tatneft and Ukraine. Tatneft had close ties to the Russian
government and Tatarstan is a Russian republic—i.e., one of
Russia’s federated states. To ensure equal ownership between
Russian and Ukrainian interests, Ukraine owned half of
Ukrtatnafta and the two Russian entities, Tatneft and Tatarstan,
owned the other half. Securing their respective ownership
stakes, Ukraine agreed to contribute the oil refinery, Tatarstan,
the rights to its region’s oil deposits and Tatneft, $180.9 million
in oil-related capital assets. Ukraine contributed the oil refinery
but Tatneft and Tatarstan failed to make their promised
contributions. Tatneft instead contributed $31 million in cash
and had its ownership stake reduced by 57%, as approved by
Ukrtatnafta’s shareholders.
In 1998 and 1999, Ukrtatnafta sold share offerings to
AmRuz Trading Co. (AmRuz) and Seagroup International Inc.
3
(Seagroup). AmRuz and Seagroup agreed to issue promissory
notes in exchange for the shares. Media sources have since
reported that, at the time of the transaction with Ukrtatnafta,
Tatneft executives owned AmRuz and Seagroup. AmRuz,
Seagroup, Tatarstan and Tatneft then entered into a Russian
voting alliance, eventually formalized through an agreement in
October 2006, that controlled 55.7% of Ukrtatnafta’s shares.
Beginning in 2001, private and public Ukrainian actors
challenged AmRuz and Seagroup’s share purchases, arguing
that Ukrainian law prohibited the purchase of shares with
promissory notes. While this litigation was ongoing, Tatneft
purchased AmRuz and Seagroup. After a series of lawsuits, the
Kyiv (Ukraine) Economic Court invalidated the share
purchases and ordered AmRuz and Seagroup to return their
shares to Ukrtatnafta.
A Ukraine conglomerate, the Privat Group, then acquired
a small share in Ukrtatnafta. The Privat Group initiated further
litigation that resulted in the Economic Court of the Poltava
Region, another Ukrainian court, forcing Ukrtatnafta to sell the
returned shares at auction. The court did not inform Tatneft,
AmRuz or Seagroup about the impending sale. The Privat
Group was the sole bidder and purchased the shares.
On May 21, 2008, Tatneft served Ukraine with a Notice of
Arbitration and Statement of Claim pursuant to the Russia–
Ukraine Bilateral Investment Treaty. See Russia–Ukraine
Bilateral Investment Treaty, Russ.-Ukr., Nov. 27, 1998.
Tatneft claimed that Ukraine, including the Ukrainian courts,
improperly facilitated the Privat Group’s acquisition of
Ukrtatnafta shares and sought damages for unpaid oil
deliveries. In accordance with the Russia–Ukraine Bilateral
Investment Treaty, each party appointed an arbitrator. Id. art.
4
10. The party-appointed arbitrators then appointed the third
arbitrator, Professor Francisco Orrego Vicuña.
In an initial jurisdictional proceeding, Ukraine argued that
the arbitral tribunal lacked jurisdiction because Tatneft could
not raise claims on behalf of AmRuz and Seagroup. The
tribunal disagreed and affirmed its jurisdiction of the dispute.
The parties submitted merits arguments but before the tribunal
issued its final decision, both Tatneft’s law firm (Cleary
Gottlieb Steen & Hamilton LLP) and Ukraine’s law firm (King
& Spalding LLP) had appointed Vicuña as an arbitrator in
separate matters. The Russia–Ukraine Bilateral Investment
Treaty incorporates the United Nations Commission on
International Trade Law’s (UNCITRAL) arbitration rules. Id.
art. 9(2)(c). Under UNCITRAL rules, Vicuña had to notify all
parties to the Tatneft-Ukraine arbitration about his subsequent
appointments if the appointments raised “justifiable doubts”
about his impartiality. UNCITRAL Arbitration Rules, art. 9,
G.A. Res. 31/98, U.N. Doc. A/RES/31/98 (Dec. 15, 1976).
Vicuña did not inform either party that he had accepted an
arbitral appointment from the other party’s counsel.
The tribunal issued its “Final Award” in July 2014. Tatneft
v. Ukraine, 2017 WL 3311265 (July 19, 2014)
(Brower, Lalonde, Vicuña, Arbs.). It concluded that Ukraine
acted improperly, primarily due to the Ukrainian litigation’s
procedural defects, thereby depriving Tatneft of its shares in
Ukrtatnafta. It awarded Tatneft $112 million in damages and
denied Tatneft’s claims for unpaid oil deliveries. Ukraine
unsuccessfully attempted to annul the Final Award in the Court
of Appeal of Paris, which—as the arbitration panel sat in
France—had the power to annul the award under the New York
Convention. See New York Convention art. V(1)(e) (award
may be “set aside or suspended by a competent authority of the
country in which . . . that award was made”). In 2017 Tatneft
5
sued to enforce the Final Award, both in the United Kingdom
and in the United States District Court for the District of
Columbia. See id. art. IV(1) (party may apply “for recognition
and enforcement” of award). In district court, Ukraine moved
to dismiss Tatneft’s suit on the basis of Ukraine’s sovereign
immunity and under the doctrine of forum non conveniens. The
district court rejected both claims. It held that the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, did not
apply based on the FSIA’s arbitration exception, 28 U.S.C.
§ 1605(a)(6), as well as the waiver exception, id. § 1605(a)(1).
Tatneft v. Ukraine, 301 F. Supp. 3d 175, 190 (D.D.C. 2018).
Regarding the forum non conveniens ground, it held that “no
alter[n]ative forum . . . has jurisdiction to attach the
commercial property of a foreign nation located in the United
States.” Id. at 192–93. On interlocutory appeal, Jungquist v.
Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1025
(D.C. Cir. 1997) (collateral order doctrine extends to denial of
motion to dismiss on sovereign immunity ground), this court
affirmed the district court on the sovereign immunity claim and
declined to exercise pendent jurisdiction of the forum non
conveniens claim. Tatneft v. Ukraine, 771 F. App’x 9, 10 (D.C.
Cir. 2019) (per curiam), cert. denied sub nom. Ukraine v.
Tatneft, 140 S. Ct. 901 (2020).
On February 13, 2020, Ukraine moved for supplemental
briefing on whether AmRuz and Seagroup had illegally
purchased their shares with promissory notes. If true, the
parties presumably did not consent to arbitrate the dispute
pursuant to the Russia–Ukraine Bilateral Investment Treaty.
See art. 1 (no consent to arbitrate “illegal” investments). The
district court could then deny enforcement under the New York
Convention. See New York Convention art. V(1)(c) (court may
deny enforcement if parties have not consented to arbitration).
The district court denied the motion because Ukraine did not
explain its failure to make the argument timely.
6
The district court then granted Tatneft’s petition on the
merits, enforcing the arbitral award under the New York
Convention. Pao Tatneft v. Ukraine, 2020 WL 4933621(D.D.C. Aug. 24, 2020). Ukraine had opposed enforcement
because Vicuña failed to disclose his outside appointments and
thus violated the UNCITRAL rule that he disclose any
appointment raising “justifiable doubts” about his impartiality,
UNCITRAL Arbitration Rules, art. 9, and because
enforcement violated the U.S. policy against illegality, see
United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484
U.S. 29, 42 (1987) (“a court may refuse to enforce contracts
that violate law or public policy”), as AmRuz’s and Seagroup’s
purchase of their shares via promissory notes allegedly violated
Ukrainian law. The district court rejected both arguments. On
the arbitrator bias claim, it held that Vicuña did not have an
obligation to disclose a “single” arbitral appointment and that
he had not evinced any partiality in ruling for Tatneft. Pao,
2020 WL 4933621, at *7–9. On the public policy-against-
illegality claim, it held that Ukraine failed to carry its
“substantial burden” because it did not identify a specific
public policy that enforcement would violate. Id. at *9–10.
Ukraine timely appealed. This court then held the appeal
in abeyance pending the district court’s decision regarding
prejudgment interest. Order of January 19, 2021 in Pao Tatneft
v. Ukraine, No. 20-7091 (D.C. Cir. 2021). The district court
subsequently awarded prejudgment interest and ordered
Ukraine to pay nearly $173 million in damages. Ukraine timely
filed an amended notice of appeal.
We have jurisdiction of the August 24, 2020 final order
pursuant to 28 U.S.C. § 1291. Our jurisdiction also extends to
the interlocutory rulings that preceded the district court’s entry
of final judgment. Ciralsky v. C.I.A., 355 F.3d 661, 668 (D.C.
7
Cir. 2004). We therefore also have jurisdiction of the March
19, 2018 interlocutory ruling on forum non conveniens.
II. ANALYSIS
Ukraine argues that the district court should have denied
enforcement under the New York Convention or, in the
alternative, should have dismissed the case on forum non
conveniens. The New York Convention in general requires
American courts to enforce international arbitral awards. See 9
U.S.C. § 207 (“court shall confirm [foreign arbitral] award[s]
unless it finds one of the grounds for refusal or deferral of
recognition or enforcement of the award specified in the [New
York] Convention”). Under the Convention, however, a court
may deny enforcement if “[t]he award deals with a difference
not contemplated by or not falling within the terms of the
submission to arbitration,” New York Convention, art. V(1)(c),
if “[t]he composition of the arbitral authority . . . was not in
accordance with the agreement of the parties,” id., art. V(1)(d),
or if enforcement would be “contrary to the public policy of
that [court’s] country,” id., art. V(2)(b). Under the forum non
conveniens doctrine, a court may decline to exercise
jurisdiction if it determines it is an inappropriate forum. Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 504–05 (1947).
“We review a district court’s confirmation of an arbitration
award for clear error with respect to questions of fact and de
novo with respect to questions of law.” Kurke v. Oscar Gruss
& Son, Inc., 454 F.3d 350, 355 (D.C. Cir. 2006). We review
the district court’s denial of supplemental briefing for abuse of
discretion. Cal. Valley Miwok Tribe v. United States, 515 F.3d
1262, 1266 (D.C. Cir. 2008). We also review a forum non
conveniens determination for abuse of discretion, keeping in
mind that “[t]here is a substantial presumption in favor of a
plaintiff’s choice of forum.” Agudas Chasidei Chabad of U.S.
8
v. Russian Fed’n, 528 F.3d 934, 950 (D.C. Cir. 2008). When a
foreign plaintiff seeks review in an American court, however,
the presumption applies with less force. Friends for All Child.,
Inc. v. Lockheed Aircraft Corp., 717 F.2d 602, 605 (D.C. Cir.
1983) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255–
56 (1981)).
A. NEW YORK CONVENTION
Ukraine makes three New York Convention arguments:
(1) the Convention’s exception to enforcement in Article
V(1)(c) applies to this dispute; (2) the district court exceeded
its authority under the Convention; and (3) the district court
incorrectly enforced the arbitral award, rejecting others of the
Convention’s exceptions to enforcement.
1. Whether enforcement of the arbitral award should
have been denied under New York Convention art.
(V)(1)(C)
Ukraine first argues that the arbitral award should not be
enforced because AmRuz and Seagroup acquired the disputed
shares in exchange for promissory notes in violation of
Ukrainian law. In the Russia–Ukraine Bilateral Investment
Treaty, the parties consented to arbitration regarding
“investments” but defined that term to exclude illegal
purchases. Russia–Ukraine Bilateral Investment Treaty art. 1.
If AmRuz and Seagroup in fact acquired their shares through
illegal purchases, the parties’ consent to arbitrate would be
vitiated. The district court could therefore have declined to
enforce the arbitral award under the Convention. See New York
Convention art. V(1)(c) (court may deny enforcement if “[t]he
award deals with a difference not contemplated by or not
falling within the terms of the submission to arbitration”). The
district court declined to reach this argument because Ukraine
9
did not timely raise it. We likewise decline to reach the
argument.
Ukraine did not make this argument in its initial responses
to Tatneft’s petition to confirm the arbitral award. By asserting
that AmRuz and Seagroup acquired shares in violation of
Ukrainian law, Ukraine alleged the necessary condition for the
claim. But Ukraine did not connect the dots and explain how
Article V(1)(c) of the New York Convention therefore allows
the district court not to enforce the arbitral award. “It is not
enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work.”
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005).
Ukraine admitted by implication that it failed to raise the
argument when it moved for supplemental briefing on the
question. The district court denied that motion. As the district
court explained, Ukraine offered no reason that it could not
have raised the argument much earlier in the litigation. On
appeal, Ukraine claims that supplemental briefing would have
been “helpful” or “efficient.” As noted, we review a denial of
supplemental briefing under the abuse of discretion standard.
Cal. Valley Miwok Tribe, 515 F.3d at 1266. We do “not
substitute our judgment for that of the trial court, . . .
determining whether we would have reached the same
conclusion.” Standing Rock Sioux Tribe v. U.S. Army Corps of
Eng’rs, 985 F.3d 1032, 1053 (D.C. Cir. 2021) (citation and
internal quotation marks omitted). We instead review whether
the district court exceeded its “range of choice” or made a
“mistake of law.” United States v. Volvo Powertrain Corp.,758
F.3d 330, 345 (D.C. Cir. 2014) (citation omitted). The district
court neither exceeded its discretion nor made legal error when
it denied Ukraine’s motion for supplemental briefing, made
years after the parties had initially briefed the merits.
10
Although we have discretion to consider an issue for the
first time on appeal, we exercise it only in “exceptional
circumstances.” Roosevelt v. E.I. Du Pont de Nemours & Co.,
958 F.2d 416, 419 n.5 (D.C. Cir. 1992). No such circumstance
exists here. Ukraine contends that a significant monetary
judgment against a foreign government could upset
international relations but we have not accepted that argument
if the judgment would not threaten the stability of the foreign
government. See Acree v. Republic of Iraq, 370 F.3d 41, 58
(D.C. Cir. 2004) (“The circumstances of this case are even
more extraordinary when one considers the stakes: Appellees
have obtained a nearly-billion dollar default judgment against
a foreign government whose present and future stability has
become a central preoccupation of the United States’ foreign
policy.”). The record reflects that Ukraine can pay the $173
million judgment without risking a collapse.
2. Whether the district court exceeded its authority
under the New York Convention
Ukraine next argues that the district court exceeded its
authority under the Convention by modifying the Final Award.
Although the Convention plainly authorizes the district court
to recognize and enforce an arbitral award, New York
Convention art. III; see also 9 U.S.C. §§ 201, 207, other courts
have held that they lack the power to modify an arbitral award.
See Gulf Petro Trading Co. v. Nigerian Nat’l Petroleum Corp.,
512 F.3d 742, 747 (5th Cir. 2008) (court lacks subject-matter
jurisdiction over “claims seeking to . . . modify a foreign
arbitral award”).
The “modification” Ukraine challenges arises from the
Final Award’s provision of differing principal damages in its
analysis section and in its “dispositif.” In French law, the
dispositif is “the operative provisions of the judgment.” See
11
Dispositif, ENCYCLOPEDIC DICTIONARY OF INTERNATIONAL
LAW (3d ed. 2009). Accordingly, Ukraine argues, the district
court necessarily “modified” the Final Award by choosing the
award amount included in the dispositif and, in effect,
nullifying the portion of the analysis that includes different
principal damages. For its part, Tatneft disputes that the Final
Award has any inconsistency and contends that this court
should treat the “dispositif” as the binding provision.
We need not reach the question of how to interpret a
contradictory arbitral award because the Final Award is not
internally inconsistent. The arbitral tribunal calculated the total
amount that Tatneft paid for its 22.7% equity stake in
Ukrtatnafta ($112 million) as one measure of the total value of
Tatneft’s shares. J.A. 245–46. Other estimates—including the
amount the Privat Group paid for its shares—confirmed the
$112 million evaluation. J.A. 245. The arbitral panel applied
the evaluation for the total 22.7% shareholding to both the
“14.09% indirect shareholding . . . which [Tatneft] held
through AmRuz and Seagroup” and Tatneft’s “8.61% direct
shareholding in Ukrtatnafta.” J.A. 249. Accordingly, the
arbitral panel held “that interest shall begin to accrue on the
amount of US$ 68.44 million [from the date Tatneft was
deprived of its indirect shareholdings], and on the amount of
US$ 43.56 million [from the date Tatneft was deprived of its
direct shareholdings].” J.A. 249. Ukraine argues that the Final
Award elsewhere defines the principal sums as $81 million and
$31 million—the amounts Tatneft in fact paid for its indirect
and direct shareholdings, with a higher per share price for the
indirect transaction. But the arbitral tribunal did not award
damages to restore what Tatneft paid for its shares. Instead, it
estimated the per share value of Ukrtatnafta itself (in part by
looking at what Tatneft paid, on average, per share) and
awarded damages according to the estimated value of the
taking from Tatneft. Because the Final Award does not reflect
12
any award inconsistency, the district court did not exceed its
jurisdiction by issuing its enforcement judgment.
3. Whether other New York Convention enforcement
exceptions apply
Ukraine also argues that the district court mistakenly
enforced the arbitral award, in spite of the New York
Convention’s “public policy” and “improper composition”
exceptions. See 9 U.S.C. § 207 (“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
[New York] Convention.”). We reject both arguments.
A. Public Policy Exception (New York Convention art.
V(2)(b))
Ukraine contends that the district court erroneously
enforced the award because enforcement would violate the
U.S. policy against illegality. See New York Convention, art.
V(2)(b) (court may deny enforcement if “enforcement of the
award would be contrary to the public policy of [the court’s]
country”). “The public policy defense is to be construed
narrowly to be applied only where enforcement would violate
the forum state’s most basic notions of morality and justice.”
TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 938
(D.C. Cir. 2007) (citation omitted). Ukraine asserts that
AmRuz and Seagroup acquired their shares in Ukrtatnafta
using promissory notes in violation of Ukrainian law. Ukraine
thus argues that the district court should decline to enforce the
award under Article V(2)(b) because enforcement would
violate U.S. policy. Even assuming arguendo that AmRuz and
Seagroup’s share purchases violated Ukrainian law,
enforcement did not violate U.S. public policy.
13
Ukraine’s argument fails because the U.S. does not have a
policy against enforcing arbitral awards predicated on
underlying violations of foreign law. Under the common law,
a court “may refuse to enforce contracts that violate law or
public policy.” United Paperworkers, 484 U.S. at 42. As
applied to a domestic arbitral award, the doctrine extends to an
“arbitrator’s interpretation of . . . [a] contract[] . . . where the
contract as interpreted would violate” a public policy. Id. at 43(emphasis in original). But a party does not necessarily
“found[] a cause of action upon an immoral or illegal act” if it
seeks to enforce an arbitral award as to which some underlying
activity was illegal. Cf. id. at 43–45 (court enforced arbitration
decision reinstating employee discharged for illegal drug use).
The parties have already litigated and arbitrated their claims on
the merits; now they argue about whether the U.S. can enforce
the award. If Ukraine wanted to raise claims about the illegality
of the share purchases and the arbitral panel’s jurisdiction, it
had the opportunity to raise those claims before the arbitral
panel. See Chevron Corp. v. Ecuador, 795 F.3d 200, 208 (D.C.
Cir. 2015) (parties “consented to allow the arbitral tribunal to
decide issues of arbitrability—including whether [the parties]
had ‘investments’ within the meaning of the treaty”). We need
consider only whether U.S. public policy would be violated by
enforcing the arbitral award. Because Ukraine does not offer
any argument that the arbitration tribunal interpreted the
Russia–Ukraine Bilateral Investment Treaty in such a manner
as to violate U.S. public policy, the district court was without
authority to apply the New York Convention’s public policy
exception.
B. Improper Composition Exception (New York
Convention art. V(1)(d))
Ukraine next argues that the district court should have
denied enforcement because Vicuña failed to disclose that
14
Tatneft’s law firm appointed him to another arbitration panel.
“Recognition and enforcement of the award may be refused” if
“[t]he composition of the arbitral authority . . . was not in
accordance with the agreement of the parties.” New York
Convention, art. V(1)(d). The parties’ agreement incorporates
the UNCITRAL rules. See Russia–Ukraine Bilateral
Investment Treaty art. 9(2)(c) (“[T]he dispute shall be referred
to be considered by . . . an ad hoc arbitration tribunal in
accordance with the Arbitration Rules of the United Nations
Commission on International Trade Law (UNCITRAL).”). The
UNCITRAL rules require an arbitrator to disclose “any
circumstances likely to give rise to justifiable doubts as to his
impartiality or independence.” UNCITRAL Arbitration Rules,
art. 9. Accordingly, if Vicuña failed to disclose circumstances
creating “justifiable doubts” about his impartiality, the
“composition of the arbitral authority” would not have been “in
accordance with the agreement of the parties.” Unlike in the
domestic arbitral context, the district court did not need to find
that Vicuña in fact evinced “evident partiality.” Cf. Belize Bank
Ltd. v. Gov’t of Belize, 852 F.3d 1107, 1112 (D.C. Cir. 2017).1
We conclude that Ukraine has not shown that the
appointment “give[s] rise to justifiable doubts as to [Vicuña’s]
impartiality or independence.” Although an arbitrator should
promote openness in disclosing other arbitral appointments or
any outside contact with a party’s counsel, we do not interpret
the “justifiable doubts” standard to require a searching review
of an arbitrator’s ethics. Cf. id. at 1112 (“Article V(2)(b) does
not require a fly-specking of the ABA Model Rules of
1
We note that the district court read Belize Bank to hold that
parties may challenge an arbitrator’s bias only under New York
Convention art. V(2)(b) (public policy exception). Belize Bank
limited its analysis to the public policy exception simply because it
was the only claim that “warrant[ed] further discussion.” Belize
Bank, 852 F.3d at 1109.
15
Professional Conduct.”). And we do not think that Vicuña’s
failure to disclose raises any question of his impartiality.
In applying the “justifiable doubts” standard, we look to
the International Bar Association Guidelines on Conflicts of
Interest in International Arbitration (2004) (IBA Guidelines)
as authority on the ethics of international arbitrators. Cf., e.g.,
New Regency Prods., Inc. v. Nippon Herald Films, Inc., 501
F.3d 1101, 1110 (9th Cir. 2007) (court “considered” IBA
Guidelines). The IBA Guidelines identify conduct that will and
will not raise “justifiable doubts.” The “Red List” identifies
situations that “give rise to justifiable doubts as to the
arbitrator’s impartiality and independence.” IBA Guidelines pt.
II, § 2. The “Orange List” identifies situations that “may . . .
give rise to doubts as to the arbitrator's impartiality or
independence.” Id. pt. II, § 3. Situations not identified in the
Orange List, however, “are generally not subject to disclosure”
but might raise justifiable doubts depending on specific factual
circumstances. Id. pt. II, § 6. And the “Green List” identifies
“situations where no appearance of, and no actual, conflict of
interest exists from the relevant objective point of view. Thus,
the arbitrator has no duty to disclose situations falling within
the Green List.” Id. pt. II, § 7.
The IBA Guidelines do not address the specific conduct
here—accepting an arbitral appointment from one party’s
counsel—but the included examples suggest that Vicuña’s
conduct falls somewhere between the “Green List” and the
“Orange List.” The “Green List” includes “initial contact with
a party’s . . . counsel[,] prior to appointment” about
“availability and qualifications” to serve. Id. pt. II, art. 4.4.1.
The “Orange List” addresses circumstances in which an
“arbitrator has within the past three years been appointed as
arbitrator on two or more occasions by . . . an affiliate of one
of the parties,” including counsel, id. pt. II, art. 3.1.3, and
16
circumstances in which “[t]he arbitrator has, within the past
three years, been appointed on more than three occasions by
the same counsel, or the same law firm,” id. pt. II, art. 3.3.7.
Vicuña accepted only one appointment from Tatneft’s law firm
(indeed, neither law firm appointed Vicuña to this Tatneft-
Ukraine tribunal), leaving his conduct outside the “Orange
List.” But his conduct goes beyond the “Green List” because
his contact was not “limited to [discussing] the arbitrator’s
availability and qualifications to serve”—Vicuña in fact
accepted the appointment.
Even under a strict interpretation of the IBA Guidelines,
we think that Vicuña did not have a duty to disclose. Situations
not identified in the Orange List “are generally not subject to
disclosure.” IBA Guidelines, pt. II, § 6 (emphasis added).
Ukraine does not identify any additional reason to doubt
Vicuña’s impartiality, such as an unusually lucrative fee or an
unusually prestigious appointment. And we note that Vicuña
accepted a separate arbitral appointment from the law firms for
both parties, arguably relieving doubt about his impartiality.
Vicuña, a well-known arbitrator, followed an apparently
common practice. See Nat’l Indem. Co. v. IRB Brasil
Resseguros S.A., 164 F. Supp. 3d 457, 479–80 (S.D.N.Y. 2016)
(“it cannot be that selection and payment for a person’s services
as a party-arbitrator or umpire, without more, produces a
‘material or commercial financial relationship’ sufficient to
constitute disqualifying partiality [because if] it did, the entire
commercial arbitration system, which universally uses such
procedures, would be undermined”) (citation omitted), aff’d,
675 F. App’x 89 (2d Cir. 2017). Indeed, other courts have
found no ethical breach. The Court of Appeal of Paris
concluded that “a single appointment in the course of the seven
years that the arbitration lasted, which did not characterize a
history of business between this arbitrator and this law firm,
17
[did not have] the potential to raise a reasonable doubt about
the independence and impartiality of Mr Orrego Vicuña.” J.A.
349. The United Kingdom’s High Court of Justice “d[id] not
consider that it can at all be said that a single appointment in
the course of the seven years the arbitration lasted would or
might provide the basis for a reasonable apprehension about the
independence or impartiality of Professor Vicuña; and still less
that they were likely to give rise to justifiable doubts so as to
trigger the duty of disclosure.” J.A. 996. Nonetheless, we
emphasize the narrowness of our holding—Vicuña was not
required to disclose his appointment because it did not raise
“justifiable doubts” regarding his impartiality.
B. FORUM NON CONVENIENS
Finally, Ukraine maintains that the district court should
have dismissed the case under the doctrine of forum non
conveniens. “A forum non conveniens dismissal . . . is a
determination that the merits should be adjudicated elsewhere,”
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 432 (2007), “even when jurisdiction is [otherwise]
authorized,” see Gilbert, 330 U.S. at 507. “In deciding forum
non conveniens claims, a court must decide (1) whether an
adequate alternative forum for the dispute is available and, if
so, (2) whether a balancing of private and public interest factors
strongly favors dismissal.” Agudas Chasidei Chabad, 528 F.3d
at 950. Ukraine argues that the parties should litigate this case
in Ukraine, the locus of both the controversy and the major
portion of the assets with which Ukraine would satisfy any
judgment. But we have squarely held “that forum non
conveniens is not available in proceedings to confirm a foreign
arbitral award because only U.S. courts can attach foreign
commercial assets found within the United States.” LLC SPC
Stileks v. Republic of Moldova, 985 F.3d 871, 876 n.1 (D.C.
Cir. 2021) (citing TMR Energy Ltd. v. State Prop. Fund of
18
Ukraine, 411 F.3d 296, 303–04 (D.C. Cir. 2005)). For that
reason, no adequate alternative forum outside the U.S. exists.
The rule applies even if the defendant “currently has no
attachable property in the United States, [as] it may own
property here in the future.” TMR, 411 F.3d at 303.
Ukraine argues that our decisions in Moldova and TMR run
afoul of the Supreme Court’s Sinochem decision. In Sinochem,
a Chinese corporation successfully filed suit in the Guangzhou
Admiralty Court, China’s maritime court, against a Malaysian
shipping corporation. 549 U.S. at 426. The Malaysian shipping
corporation filed a countersuit in the Eastern District of
Pennsylvania seeking damages from the Chinese corporation
for negligent misrepresentations made in the Chinese court. Id.
at 427. The district court dismissed on the forum non
conveniens ground. Id. at 427. The Supreme Court recognized
that a district court may sometimes address a forum non
conveniens claim before affirming its jurisdiction because
resolving a forum non conveniens motion does not require the
court to assume a “substantive ‘law-declaring power.’” Id. at
433 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
584 (1999)). But Sinochem does not address the relevant issue
here: namely, whether an adequate alternative forum exists if a
party seeks to attach assets located in the U.S.
For the foregoing reasons, we affirm the judgment of the
district court enforcing the arbitration award against Ukraine.
So ordered.