Venco Imtiaz Construction Company v. Symbion Power LLC ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VENCO IMTIAZ CONSTRUCTION
COMPANY,
Plaintiff.
v. Civil Action No. 16-1737 (JDB)
SYMBION POWER LLC,
Defendant.
MEMORANDUM OPINION
A construction company and its subcontractor are engaged in a long-running dispute over
payment for a power plant construction project in Kabul, Afghanistan, between 2008 and 2010.
The subcontractor, Venco Imitiaz Construction Company (Venco), eventually won an arbitration
award requiring the contractor, Symbion Power LLC (Symbion), to pay $ 8.5 million for the work
that Venco performed. Venco now seeks enforcement of that award. Symbion challenges that
award here, and also in a separate court proceeding in the United Kingdom. For the reasons
explained below, the Court will grant Venco’s motion for enforcement of the award, deny
Symbion’s motion for a stay, and deny as moot Venco’s motion, in the alternative, for security.
BACKGROUND
In 2008, the U.S. Agency for International Development began funding a project to build
a power plant in Kabul. The delays and disagreements began shortly thereafter. The facts that
follow are undisputed, however, unless otherwise noted.
USAID hired a U.S.-based firm, The Louis Berger Group/Black & Veatch Special Projects
Corporation (LBG/BV) to manage the project. LBG/BV then hired Symbion as is its primary
contractor. Symbion in turn hired Venco as a subcontractor responsible for certain portions of the
1
plant construction, namely for the “power blocks” that would house the electrical generators.
Resp.’s Br. [ECF No. 7] at 3. LBG/BV and Symbion had a dispute over who was responsible for
construction delays (these disputes were unrelated to Venco’s work) and, as a result, LBG/BV
withheld payment from Symbion. Id. at 3–4; Pet.’s Br. [ECF No. 1-7] at 1. Symbion, in turn,
withheld payment from Venco. Resp.’s Br. at 4; Pet.’s Br. at 1. Symbion argues that its contract
with Venco permits this, i.e., that the contract conditions payment to Venco on Symbion’s receipt
of payment from LBG/BV. Resp.’s Br. at 6. Venco takes the opposite view. Pet.’s Br. at 2–3.
According to Symbion, in 2009 LBG/BV and Symbion began arbitration proceedings
before a Tribunal of the International Court of Arbitration (ICC), as provided for in their contract.
Resp.’s Br. at 5. That tribunal concluded that LBG/BV breached its contract and was not justified
in withholding payment from Symbion, but also found that under the terms of the contract,
Symbion could not rely on the invoices that it submitted as evidence that it was entitled to full
payment. See ICC Case No. 16383/VRO, Symbion Power LLC v. LBG/BV, Final Award (Oct.
24, 2012), Ex. 4 to Resp.’s Br. [ECF Nos. 7-7–7-13] (hereinafter “Prior Award”) at 171–73.
Instead, the tribunal found that Symbion was required to separately prove the value of its work
with evidence beyond the invoices, and was only entitled to payment for the amounts it could
separately prove. Id. Venco was not a party to that arbitration proceeding nor did it participate in
it in any way.
Separately, in 2013 Venco filed a request for arbitration with the ICC against Symbion, as
required by the arbitration clause in their contract. Pet.’s Br. at 3; Resp.’s Br. at 6. A three-
arbitrator panel was empaneled pursuant to ICC rules. Pet.’s Br. at 3–4; Resp.’s Br. at 6–7. Before
the panel, Venco argued that Symbion had breached its contract by failing to make the required
payments. Pet.’s Br. at 2–3; Resp.’s Br. at 6. Symbion argued that its payments to Venco were
2
predicated on receiving payment from LBG/BV, and also raised counterclaims against Venco for
tortious interference with contract, breach of the implied covenant of good faith and fair dealing,
and malicious prosecution and abuse of process. Resp.’s Br. at 6. LBG/BV was not a party to the
Venco–Symbion arbitration. The arbitration panel reviewed briefings, received written evidence,
and held an evidentiary hearing from November 2 through November 11, 2015, where it heard
testimony from fact and expert witnesses. See ICC Case No. 19335/AGF/ZF, Venco Imtiaz
Constr. Co. v. Symbion Power LLC, Final Award (Jul. 11, 2016), Ex. 2 to Pet.’s Br. [ECF No. 1-
2] (hereinafter “Final Award”) at 22–24. The panel ultimately issued an award on July 11, 2016,
finding almost entirely in Venco’s favor. See id. at 140–42. The panel ordered Symbion to pay
all unpaid invoices that Venco had submitted, plus interest, attorney’s fees, and the cost of
arbitration. Id. It also dismissed all of Symbion’s counterclaims. Id. In total, this amounted to
$ 8,462,516.78. Id.
On August 8, 2016, Symbion filed a motion in the United Kingdom to set aside the award.
Venco, in turn, filed the instant motion in this Court to confirm and enforce the award. Petition
[ECF No. 1]. Symbion not only opposes Venco’s motion, but also filed a motion asking this Court
to stay further proceedings pending the outcome of the U.K. proceedings. Resp.’s Br. at 1–2.
Symbion’s primary argument is that the arbitration proceeding at issue here interpreted the contract
in a manner inconsistent with the prior arbitration award between Symbion and LBG/BV, and
therefore enforcement of the award in this Court would violate the public policy of issue
preclusion. Id. at 1. Venco opposes Symbion’s motion for a stay, but in the alternative, requests
that if a stay is granted, that Symbion be required to post security in the full amount of the
arbitration award. Pet.’s Reply & Opp’n [ECF No. 13] at 1. Symbion opposes the request for
security. Resp.’s Reply [ECF No. 17] at 1.
3
Since the parties completed briefing in this matter, the U.K. High Court of Justice in
London, England, has dismissed Symbion’s challenge to the arbitral award. See Symbion Power
LLC v. Venco Imtiaz Constr. Co., [2017] EWHC 348 (TCC) (March 10, 2017), Ex. 1 to Status
Report [ECF No. 22-1]. Based on the parties’ representation during a hearing before this Court on
April 18, 2017, Symbion intends to seek leave to appeal that decision. This Court has not been
advised of the time frame in which the U.K. appellate court would grant or deny leave to appeal,
or of the time frame in which that court might issue a judgment on the merits, should leave to
appeal be granted.
LEGAL STANDARD
Venco seeks enforcement of its arbitration award under the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards. See Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of June 10, 1958 (“New York Convention”), 21
U.S.T. 2517, codified at 9 U.S.C. §§ 201–08. Under the New York Convention, which is codified
as part of the Federal Arbitration Act (FAA), a “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 Convention.” Id. § 207. The FAA therefore “‘reflects an emphatic federal policy in favor of
arbitral dispute resolution.’” Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 533 (2012)
(per curiam) (quoting KPMG LLP v. Cocchi, 565 U.S. 18, 21 (2011)). This emphatic federal
policy is equally true in enforcing foreign arbitration awards. See TermoRio S.A. E.S.P. v.
Electranta S.P., 487 F.3d 928, 933–34 (D.C. Cir. 2007) (citing Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985)); see also Newco Ltd. v. Gov’t of Belize, 650
F. App’x 14, 16 (D.C. Cir. 2016) (nonprecedential).
One of the enumerated grounds for a court to decline to enforce an award is if “[t]he
4
recognition or enforcement of the award would be contrary to the public policy of [the] country”
where enforcement is sought. New York Convention, art. V(2)(b). Wary of the potentially vast
possibilities of this exception, “courts have been careful not to stretch the compass of ‘public
policy.’” TermRio, 487 F.3d at 938. Rather, the “public policy defense is to be construed narrowly
to be applied only where enforcement would violate the [United States’] most basic notions of
morality and justice.” Id. (quoting Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan
Gas Bumi Negara, 364 F.3d 274, 306 (5th Cir. 2004)); see also Enron Nigeria Power Holding, Ltd.
v. Fed. Republic of Nigeria, 844 F.3d 281, 289 (D.C. Cir. 2016); Belize Bank Ltd. v. Gov’t of
Belize, 852 F.3d 1107, 1111 (D.C. Cir. 2017); cf. Nat’l R.R. Passenger Corp. v. Fraternal Order
of Police, No. 16-7004, slip op. at 9 (D.C. Cir. Apr. 28, 2017) (describing similar public policy
exception in Railway Labor Act as only applicable when “arbitration award . . . transgresses well
defined and dominant laws and legal precedents” (internal quotation marks omitted)). Here,
Symbion, as the party challenging enforcement of the award, “‘bears the burden of proof’ of
meeting this exacting standard.” Belize Bank, 852 F.3d at 1111.
ANALYSIS
I. Issue Preclusion And The Public Policy Exception
Symbion argues that the earlier arbitration award between Symbion and LBG/BV should
have had a preclusive effect on the subsequent arbitration award between Symbion and Venco,
and that enforcing this later award would violate the public policy of issue preclusion. In
particular, Symbion argues that the LBG/BV award determined that a contractor (such as Venco)
could not rely only on invoices to establish damages, and instead must prove the actual value of
the work performed. See Resp.’s Br. at 9.
Issue preclusion (sometimes known as collateral estoppel) “bars ‘successive litigation of
5
an issue of fact or law actually litigated and resolved in a valid court determination essential to the
prior judgment,’ even if the issue recurs in the context of a different claim.” Taylor v. Sturgell,
553 U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)); see also
Southern Pac. R. Co. v. United States, 168 U.S. 1, 48–49 (1897) (defining issue preclusion as the
“general principle . . . that a right, question, or fact distinctly put in issue, and directly determined
by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent
suit between the same parties or their privies”). Issue preclusion is “[a] fundamental precept of
common-law adjudication” that saves litigants “from the expense and vexation attending multiple
lawsuits” and “fosters reliance on judicial action by minimizing the possibility of inconsistent
decisions.” Montana v. United States, 440 U.S. 147, 153–54 (1979).
Symbion argues that because issue preclusion is a “fundamental precept of common-law
adjudication,” id. at 153, it is therefore one of the “most basic notions of morality and justice,”
TermRio, 487 F.3d at 938. But a “public policy” sufficient to fall within the exception to the
Convention must be “well defined and dominant . . . and not from general considerations of
supposed public interests.” BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233, 250
(D.D.C. 2015), aff’d, 650 F. App’x 17 (D.C. Cir. 2016). Symbion has cited no cases, nor can the
Court find any, holding that the general policy of issue preclusion is such a “basic notion of
morality and justice” as to justify nonenforcement of an arbitration award under the public policy
exception. The Court doubts that it is.
However, even if the Court assumes that issue preclusion generally is a public policy goal
that requires nonenforcement of an award, there are several reasons why the Court is skeptical that
its application here would advance the policies behind issue preclusion. First and foremost, Venco
was not a party to the arbitration between Symbion and LBG/BV. Symbion argues that “it is
6
settled law that even a nonparty to a prior proceeding may be collaterally estopped from re-
litigating issues conclusively determined in a prior proceeding,” citing a litany of cases from 1986
through 2005. See Resp.’s Br. at 4. But Symbion ignores the fact that the Supreme Court weighed
in on the issue in 2008 in Taylor v. Sturgell. There, the Supreme Court explained that far from
being “settled law,” the case law governing when a litigant could face preclusion based on a prior
suit where it was a nonparty was “far from consistent.” Taylor, 553 U.S. at 895–96 (citing 18A
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4457 (2d ed. 2002), at
513 (describing nonparty preclusion as lacking a “clear or coherent theory”)). More importantly,
the Court went on to explain that nonparty preclusion is only appropriate in extremely narrow
circumstances, lest the due process rights of the nonparty be violated. See id. at 897–98. The
Court instead outlined six grounds under which a nonparty could be precluded in a future action.
See id. at 904.
These six categories are as follows. First, when the nonparty in the first action (who is a
party in the second action) agrees to be bound by the prior judgment. Id. at 893. Second, where
the nonparty has a pre-existing “substantive legal relationship[]” with a party that is bound by the
first action, such as a successive property owner, where the former property owner was bound by
the first action. Id. at 894 (internal quotation marks omitted). Third, where the nonparty was
“‘adequately represented by someone with the same interests who [wa]s a party’ to the [prior]
suit,” such as a trustee or a guardian. Id. (first alteration in original) (quoting Richards v. Jefferson
County, 517 U.S. 793, 798 (1996)). Fourth and fifth, when the nonparty and a party in the first
suit are functionally each other’s proxies. This might happen either because the nonparty was
pulling the strings in the first action, or because the party from the first action is calling the shots
in the second action. Id. at 895. And sixth, where there is a special statutory scheme, such as
7
bankruptcy, that “‘expressly foreclose[s] successive litigation by nonlitigants.’” Id. (quoting
Martin v. Wilks, 490 U.S. 755, 762 n.2 (2001)).
The Supreme Court notably rejected any doctrine that “extend[s] nonparty preclusion
beyond . . . the proper bounds” delineated by those six categories. Id. at 904. Indeed, it explained
that its decisions “emphasize the fundamental nature of the general rule that a litigant is not bound
by a judgment to which she was not a party.” Id. at 898; see also Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 327 n.7 (1979) (“It is a violation of due process for a judgment to be binding
on a litigant who was not a party or a privy and therefore has never had an opportunity to be
heard.”)
Here, the only potentially applicable category is the third: that Venco was adequately
represented by a party in the prior arbitration that had the same interests. The Supreme Court
applied this theory of nonparty preclusion in Taylor. There, it explained that the litigant in the first
suit could not have adequately represented the nonparty in that proceeding because “nothing in the
record indicates that [the party in the first suit] understood himself to be suing on [the nonparty’s]
behalf, that [the nonparty] even knew of [the party’s] suit, or that the Wyoming District Court took
special care to protect [the nonparty’s] interests.” 553 U.S. at 905; see also id. at 900 (“A party's
representation of a nonparty is ‘adequate’ for preclusion purposes only if, at a minimum: (1) The
interests of the nonparty and her representative are aligned; and (2) either the party understood
herself to be acting in a representative capacity or the original court took care to protect the
interests of the nonparty. In addition, adequate representation sometimes requires (3) notice of the
original suit to the persons alleged to have been represented”) (internal citations omitted).
Symbion argues that Venco’s interests were adequately represented in the first arbitration
proceeding by Symbion itself. Symbion contends that its position with respect to LBG/BV is
8
identical to Venco’s relationship to Symbion: that of a subcontractor to a contractor seeking
payment for work performed. But as in Taylor, “nothing in the record indicates that [Symbion]
understood [itself] to be [proceeding] on [Venco’s] behalf.” Id. at 905. In fact, quite the opposite:
during the evidentiary hearing in the arbitration challenged here, Symbion’s CEO, Paul Hinks,
testified that Venco was not informed of the prior arbitration, and that at the time Symbion viewed
Venco as adverse to its interests:
[Arbitrator]: And do you know whether Symbion or its lawyers ever asked
[Venco] to participate in the prior arbitration?
Hinks: No, we wouldn’t have done it at that stage because of what position [Venco] had
taken. Clearly, on the other side.
[Arbitrator]: At that point, you were adverse to [Venco], correct?
Hinks: Yes. It was clear that [Venco] was with [LBG/BV]. They were in cahoots.
Hearing Tr., Ex. A, Pet.’s Reply & Opp’n [ECF No. 13-1] at 1403:16–1404:7. Thus Symbion is
left in the untenable position of arguing that it represented Venco’s interests at the same time that
it was adverse to those interests. Moreover, there is nothing in the prior award indicating that the
tribunal took special care to protect Venco’s interests.
Symbion’s argument therefore fails. A nonparty cannot be adequately represented by a
party whose interests are adverse. See Taylor, 553 U.S. at 900. Indeed, to conclude otherwise
would raise serious due process concerns. See Kourtis v. Cameron, 419 F.3d 989, 998 (9th Cir.
2005) (“a conflict of interest between a non-party and his purported representative forecloses the
possibility of privity because a nonparty cannot be adequately represented by a person with whom
he is in conflict”), abrogated in part by Taylor, 553 U.S. at 892 n.3. 1
But the Court need not actually decide whether or not issue preclusion should have bound
1
Even if Venco were in privity with Symbion in the earlier arbitration, issue preclusion of a nonparty based
on a prior arbitration proceeding (rather than a court proceeding) might raise separate due process concerns.
Arbitration is a private dispute resolution mechanism, and while there is a strong public policy in favor of enforcing
arbitration awards between parties who have agreed to that arbitration, very different concerns could arise when
enforcing a decision against a litigant who never consented to the first arbitration.
9
the second tribunal to the decisions of the first. For purposes of determining whether a public
policy of issue preclusion requires this Court to set aside the award, it is enough to say that the
Court has grave concerns over whether issue preclusion is even applicable in this instance—and
thus Symbion has not demonstrated that the “most basic notions of morality and justice” require
nonenforcement. 2 The Court therefore concludes that the public policy exception to the New York
Convention does not apply, and the Court is therefore obligated to enforce the arbitral award
against Symbion.
II. The U.K. Proceedings, The Requested Stay, and the Requested Security Bond
In August 2016 Symbion challenged the arbitration award in the U.K. High Court of Justice
in London, England. Before this Court, it asks, in the alternative, for a stay pending the outcome
of those proceedings. The High Court of Justice denied Symbion’s challenge and ruled in favor
of Venco. See Symbion Power LLC v. Venco Imtiaz Constr. Co., [2017] EWHC 348 (TCC)
(March 10, 2017). Symbion has indicated that it is seeking leave to appeal that decision.
When evaluating a motion to stay enforcement of an arbitration award pending a foreign
proceeding, courts generally look to the factors the Second Circuit identified in Europcar Italia,
S.P.A. v. Maiellano Tours, Inc., 156 F.3d 310, 317–18 (2d Cir. 1998). See, e.g., Getma Int’l v.
Republic of Guinea, 142 F. Supp. 3d 110, 114–15 (D.D.C. 2015); Gold Reserve Inc. v. Bolivarian
Republic of Venezuela, 146 F. Supp. 3d 112, 135 (D.D.C. 2015). Those factors are:
(1) the general objectives of arbitration—the expeditious resolution of disputes and the
avoidance of protracted and expensive litigation;
(2) the status of the foreign proceedings and the estimated time for those proceedings to be
resolved;
2
There are other reasons why issue preclusion might not apply in the second arbitration proceeding. For
example, it is not clear from the briefing whether the issue in the second arbitration proceeding was “actually litigated”
in the first arbitration, because the subcontracts at issue are not identical. Although both Symbion and Venco are
parties to the master contract with LBG/BV, the subcontract between Symbion and LBG/BV is different from the
subcontract between Symbion and Venco. However, the Court need not reach this issue.
10
(3) whether the award sought to be enforced will receive greater scrutiny in the foreign
proceedings under a less deferential standard of review;
(4) the characteristics of the foreign proceedings including (i) whether they were brought to
enforce an award (which would tend to weigh in favor of a stay) or to set the award aside
(which would tend to weigh in favor of enforcement); (ii) whether they were initiated
before the underlying enforcement proceeding so as to raise concerns of international
comity; (iii) whether they were initiated by the party now seeking to enforce the award in
federal court; and (iv) whether they were initiated under circumstances indicating an intent
to hinder or delay resolution of the dispute;
(5) a balance of the possible hardships to each of the parties . . . ; and
(6) any other circumstances[.]
Europcar, 156 F.3d at 317–18 (internal citations omitted). The Europcar court emphasized that a
stay “should not be lightly granted lest it encourage abusive tactics by the party that lost in
arbitration.” Id. at 317. Thus, because the “primary goal of the Convention is to facilitate the
recognition and enforcement of arbitral awards, the first and second factors” should have the most
weight. Id. at 318.
Here, the first and second factors both weigh in favor of enforcing the award and denying
a stay. This Court has already determined that enforcement is appropriate, and further delay would
lead to more protracted and expensive proceedings than have already occurred. Venco first
requested arbitration approximately four years ago, which is a length of time that courts often
consider long enough to justify immediate enforcement. See Chevron Corp. v. Republic of
Ecuador, 949 F. Supp. 2d 57, 72 (D.D.C. 2013) (six years between beginning of arbitration and
confirmation of award weighs in favor of denying a stay); G.E. Transp. S.P.A. v. Republic of
Albania, 693 F. Supp. 2d 132, 139 (D.D.C. 2010) (four year delay weighs in favor of denying a
stay).
In Getma International v. Republic of Guinea, the court disagreed, holding that while
denying the stay might promote a swift resolution in the short term, if a foreign court reached the
opposite conclusion, then unwinding the payments would lead to more extended litigation in the
11
long run. 142 F. Supp. 3d at 114. Thus, a court “cannot ‘overlook agreed-upon arbitral
procedures,’” i.e., the right of a party to challenge the award in court, “in favor of the enforcement
of an arbitration award.” Id. (quoting Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832, 841 (9th
Cir. 2010)) (some internal quotation marks omitted). But that court explained the risk of a foreign
court setting aside the award was particularly great because no foreign tribunal had yet ruled on
the matter—unlike in this case. See id. at 115. That brings us to the second factor.
The foreign proceeding here has completed its first phase—the High Court of Justice ruled
in favor of Venco. This suit is therefore unlike Getma on both the first and second factors.
Compare Getma Int’l, 142 F. Supp. 3d at 115–16 (finding second factor weighs in favor of stay
because no foreign tribunal had yet ruled on validity of award), with Chevron Corp., 949 F. Supp.
2d at 72, aff’d, 795 F.3d 200 (D.C. Cir. 2015) (finding the first and second factors weigh in favor
of enforcement because one foreign tribunal ruled in favor of the award), and G.E. Transp., 693 F.
Supp. 2d 139 (same). Moreover, this Court has no way of knowing whether an appeal in the U.K.
proceeding will be permitted at all, much less how long any appeal might take, and is thus hesitant
to stay enforcement indefinitely. Thus both the first and second factors weigh in favor of enforcing
the award immediately, especially given that one U.K. court has already confirmed the award.
The third factor, however, weighs in favor of staying enforcement. As Venco concedes,
the U.K. Arbitration Act’s standard of review is slightly less deferential than that of the New York
Convention, giving that court more leeway to not enforce the award. See Pet.’s Reply & Opp’n at
27. This “weighs mildly in favor” of granting a stay. See Getma Int’l, 142 F. Supp. 2d at 116
(citing Interdigital Commc’ns Corp. v. Samsung Elecs. Co., 528 F. Supp. 2d 340, 361 (S.D.N.Y.
2007)).
12
The fourth factor does not weigh in favor of either party. On the one hand, “[Symbion]
initiated the foreign proceeding to set aside the award, which weighs against a stay.” Getma Int’l,
142 F. Supp. 2d at 116 (citing Chevron Corp., 949 F. Supp. 2d at 72). But on the other hand,
Symbion filed its suit in the U.K. first, which weighs in favor of a stay out of respect for
“international comity.” See Europcar, 156 F.3d at 318; Telcordia Techs., Inc. v. Telkom SA, Ltd.,
95 F. App’x 361, 362 (D.C. Cir. 2004) (nonprecedential). Venco asserts that Symbion only filed
the U.K. suit as a delay tactic, the next in a long line of similar obstructionist actions. Symbion
disagrees, and asserts the subcontract between Venco and Symbion specifically designates the
United Kingdom as the proper forum to challenge the award—and thus that Symbion’s suit is well
within its legal rights as agreed to by Venco. See Resp.’s Reply at 3. Based on the materials
submitted, “the Court cannot say that [Symbion’s actions] are so obviously either legitimate or
vexatious that this factor should sway its analysis.” Chevron Corp., 949 F. Supp. 2d at 72. Thus
the fourth factor is a wash.
The fifth factor, much like the second, weighs in favor of denying the stay. Although there
is a risk that the U.K. appellate court could set aside the award, on balance the need for prompt
enforcement of the award outweighs that risk. See id. at 72–73.
Finally, neither party has identified any additional information that is relevant to the
Court’s consideration, and hence, the sixth factor is not relevant.
In summary, the first and second factors, which are the most important, weigh in favor of
enforcement, as does the fifth. The third weighs against enforcement. Given this balance of the
factors, the Court finds that granting a stay would not be appropriate under the Europcar
framework.
13
CONCLUSION
For the reasons stated above, Venco’s petition to confirm the arbitral award will be granted,
and Symbion’s motion for a stay will be denied. 3 Venco’s alternative motion for security will be
denied as moot. A separate order has been issued on this date.
______________/s/
JOHN D. BATES
United States District Judge
Dated: May 31, 2017
3
Venco requests payment of (i) “$4,068,659, plus post-award interest at a rate of 4% per annum compounded
monthly from May 1, 2016 until full payment thereof”; (ii) past interest “in the sum of $1,243, 580.73, plus post-
award interest at the rate of 4% per annum, compounded monthly from May 1, 2016 until full payment thereof”; (iii)
$2,690,277 in legal costs of the arbitration proceeding, “plus post-award simple interest at a rate of 4% per annum
from July 12, 2016 until full payment thereof”; and (iv) $460,000 in payment for the costs of the arbitration, “plus
post-award simple interest at a rate of 4% per annum from July 12, 2016 until full payment thereof.” Pet.’s Br. at 10–
11. These are the same amounts and interest rates that are contained in the arbitration award. Award at 140–141.
Symbion does not contest that the tribunal ordered payment in these amounts and at these interests rates, nor does
Symbion raise any arguments that these interest rates are improper. Therefore, the Court will order the requested
payments.
Venco also requests that Symbion be ordered to pay its attorney’s fees and costs for this petition to confirm
the award. Pet.’s Br. at 11. However, Venco has not briefed this issue or provided any basis in statute, contract, or
this Court’s inherent authority for the Court to award attorney’s fees in this matter. Neither has Symbion responded
to this request in its briefing. The Court will therefore deny Venco’s request for attorney’s fees and costs incurred in
this civil action.
14