LLC Energoalliance v. Republic of Moldova ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LLC SPC STILEKS,
Petitioner,
v. Case No. 14-cv-01921 (CRC)
REPUBLIC OF MOLDOVA,
Respondent.
OPINION AND ORDER
This is a long-running dispute over energy supply contracts between a Ukrainian
electricity provider and a Moldovan state-owned utility dating back to 1999. This Court’s
involvement in the matter, however, began in 2014 when petitioner’s predecessor-in-interest,
LLC Energoalliance, moved to confirm a foreign arbitral award rendered in its favor, and against
the Republic of Moldova, by an ad hoc arbitral tribunal seated in Paris, France. After an
extended stay, this Court confirmed the award and entered judgment in favor of petitioner. See
LLC Komstroy v. Republic of Moldova, No. 14-cv-01921 (CRC), 2019 WL 3997385 (D.D.C.
Aug. 23, 2019). Moldova appealed to the D.C. Circuit, and the Circuit affirmed this Court’s
orders lifting its earlier stay, confirming the arbitral award, and awarding prejudgment interest.
LLC SPC Stileks v. Republic of Moldova, 985 F.3d 871 (D.C. Cir. 2021). However, rather than
affirming the judgment, the D.C. Circuit vacated the Court’s order converting the judgment
amount from Moldovan lei to U.S. dollars, and remanded for further consideration of that issue.
Id. at 883. On remand, both sides agree to denominate the award in Moldovan lei. Still before
the Court, however, is petitioner’s motion to determine the prejudgment interest rate and yet
another motion by Moldova for a stay pending the outcome of the still-ongoing proceedings in
France. For the reasons explained below, the Court will deny the motion for a stay and grant
prejudgment interest based on the average U.S. prime rate.
I. Background
The history of case is recounted in detail in this Court’s previous rulings and the D.C.
Circuit’s decision, LLC SPC Stileks v. Republic of Moldova, 985 F.3d 871 (D.C. Cir. 2021). In
brief, Ukrainian energy provider Energoalliance contracted with a series of intermediaries to sell
electricity to a state-owned Moldovan utility. When the utility fell behind on its payments,
Energoalliance tried to collect on the debt in Moldovan courts (unsuccessfully), and then via
arbitration proceedings in France (successfully).
In 2014, Energoalliance sought to confirm the arbitral award in the United States, filing
suit in this Court. Moldova responded by applying for a stay while it pursued set-aside
proceedings in the French courts. The Court granted the stay. Although Moldova was initially
successful before the Paris Court of Appeal, the Court of Cassation (France’s highest civil court)
reinstated the award and remanded the matter to the Paris Court of Appeal, where proceedings
are currently ongoing.
After the Court of Cassation sided with Energoalliance, LLC Komstroy (Energoalliance’s
successor-in-interest) moved this Court to lift the stay and confirm the award. The Court lifted
the stay, LLC Komstroy v. Republic of Moldova, No. 14-cv-01921 (CRC), 2018 WL 5993437(D.D.C. Nov. 13, 2018), and confirmed the award, LLC Komstroy, 2019 WL 3997385. The
Court also awarded Komstroy pre-judgment interest based on the average U.S. prime rate and
converted the award into U.S. dollars. LLC Komstroy v. Republic of Moldova, No. 14-cv-1921
(CRC), 2019 WL 4860826 (D.D.C. Oct. 2, 2019).
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Moldova appealed. The D.C. Circuit affirmed the Court’s lifting of its earlier stay and its
confirmation of the arbitral award. The Circuit vacated the judgment, however, and remanded
for this Court to consider whether Moldova had a settled expectation that the judgment would be
denominated in Moldovan lei instead of U.S. dollars. Stileks, 985 F.3d at 883.
On remand, the parties agree that the award is currently in full force and effect. Stay
Mot. at 4, ECF No. 89-1; Stay Opp. at 7, ECF No. 91. Reversing its prior position before this
Court and the D.C. Circuit, petitioner now consents to an award denominated in Moldovan lei
rather than U.S. dollars. See Joint Status Report (May 28, 2021), ECF No. 83. It has moved to
determine the prejudgment interest rate. See Pet’r Mot. to Determine Prejudgment Interest, ECF
No. 86. For its part, Moldova has once again moved for a stay pending the outcome of the
proceedings in France. Therefore, what is left for the Court to decide is whether to stay the case
pending the outcome of the proceedings in France, and in the absence of a stay, what interest rate
should be used to calculate the prejudgment interest. Both motions are ripe for the Court’s
consideration.
II. Analysis
A. Moldova’s Stay Motion
1. Legal Standard
The parties disagree at the outset about what standard governs the Court’s consideration
of Moldova’s motion for a stay. Petitioner argues the standard under Federal Rule of Civil
Procedure 62 applies because this Court is “constructively” in the post-judgment phase. Stay
Opp. at 1. Under Rule 62, a stay may be obtained “any time after judgment is entered” by
“providing a bond or other security.” Fed. R. Civ. P. 62(b). For a post-judgment stay without a
bond, the Court must balance four equitable factors, including whether the applicant has made a
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“strong showing” that he or she is likely to succeed on the merits, whether irreparable injury
would result absent a stay, and whether the balance of equities and the public interest favor a stay
of the judgment. Pao Tatneft v. Ukraine, No. CV 17-582 (CKK), 2021 WL 2209460, at *5
(D.D.C. June 1, 2021) (discussing the “traditional test” for determining whether to grant a stay
without a bond found in Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Moldova submits that the Rule 62 standard does not apply. Moldova argues that because
the D.C. Circuit vacated this Court’s October 2, 2019, order entering the judgment against it,
there is effectively no judgment in the case. Stay Reply at 3–4, ECF No. 93. Moldova instead
suggests that the factors found in Europcar Italia, S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310(2d Cir. 1998) apply, because Moldova is seeking a stay pending the outcome of parallel
proceedings in France to set aside the arbitral award. Stay Mot. at 6–7, ECF No. 89-1; Stay
Reply at 3; see Europcar, 156 F.3d at 316–18.
The Court agrees with Moldova. Although there is admittedly not much left for the Court
to decide in this matter, we are not in the “post-judgment” phase, either literally, or, as petitioner
suggests, “constructively.” The order entering judgment on October 2, 2019 was vacated, and
this Court has not entered another judgment in the interim. See ECF Nos. 66, 75. And, as the
parties are aware from their briefing on the topic, the Court must still decide what interest rate
should be used to compute the prejudgment interest on the award before it can calculate the
amount of judgment. Therefore, the Court will consider Moldova’s motion for a stay under the
Europcar factors. 1
1
If the Hilton test did apply, however, the Court would still not grant Moldova a stay
without bond. Moldova has not made a “strong showing” of its likelihood of success on the
merits, as the D.C. Circuit has already affirmed this Court’s confirmation of the award. Nor has
Moldova shown “irreparable injur[y]” absent a stay. Tatneft, 2021 WL 2209460, at *5. For
4
2. Europcar Factors
“Under the New York Convention, a district court may, if it considers it proper,
adjourn—that is, impose a stay of—confirmation proceedings if an application to vacate the
award has been made in another jurisdiction.” Stileks, 985 F.3d at 879 (internal quotation marks
omitted). Under Europcar, there are six factors a district court should consider before deciding
to grant a stay:
(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;
(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 that could tend to shift the balance in favor of or
against adjournment.
reasons substantially similar to those discussed below under the Europcar factors, the harm to
petitioner and the public interest in the recognition and enforcement of international arbitral
awards also weigh against stay under the Hilton test. Therefore, the Court would deny the
motion regardless of which standard applies.
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Europcar, 156 F.3d at 317–18. The D.C. Circuit has held that the first two of these factors are
the most important, and a district court would “abuse its discretion” if it failed to consider them.
Stileks, 985 F.3d at 880.
The first factor does not favor a stay. The overarching goals of arbitration are the
“expeditious resolution of disputes and the avoidance of protracted and expensive litigation.”
Europcar, 156 F.3d at 317. Petitioner initiated arbitration proceedings against Moldova over ten
years ago and brought this case to confirm the award in 2014. As this Court noted when it lifted
the first stay in this case in 2018, “this is hardly an ‘expeditious resolution’ of the dispute.” LLC
Komstroy, 2018 WL 5993437, at *3 (quoting Hardy Exploration & Prod. (India), Inc. v. Gov’t of
India, Ministry of Petroleum & Nat. Gas, 314 F. Supp. 3d 95, 106 (D.D.C. 2018)). The further
delay since that time does not favor Moldova. Accordingly, this factor weighs against a stay.
The second factor concerns the status of the foreign proceedings and the estimated time
for their resolution. This factor also weighs against stay.
As a refresher, Moldova initiated set-aside proceedings before the Paris Court of Appeal
in 2013. Moldova contended that the arbitral tribunal lacked jurisdiction because
Energoalliance’s contract with Moldova did not constitute an ‘investment’ under the Energy
Charter Treaty (“ECT”). The Paris Court of Appeal agreed with Moldova and set aside the
award. The Court of Cassation thought otherwise and remanded to a new panel of the Paris
Court of Appeal to consider Moldova’s other arguments for setting aside the decision. See LLC
Komstroy 2018 WL 5993437, at *4. That is where things stood when this Court lifted its first
stay and confirmed the award.
Moldova then requested that the Paris Court of Appeal seek the opinion of the Court of
Justice of the European Union (“CJEU”) on “three distinct questions” of law related to the
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arbitral tribunal’s jurisdiction. Stay Mot. at 3. The CJEU issued its decision on September 2,
2021. See Notice of Filing of Decision, ECF No. 92-1. The CJEU sided with Moldova, ruling
that a contract for the supply of electricity is not an ‘investment’ under the ECT. Id.The parties are now poised to argue the impact of the CJEU decision before the Paris
Court of Appeal, with a hearing scheduled for March 2022. ECF No. 96 at 2. That decision will
be subject to another round of appeal to the Court of Cassation, which could last between twelve
and twenty-four months. See Declaration of Sara Nadeau-Seguin at 5, ECF No. 95-1. 2 The
French proceedings could conclude by April or May 2023 at the earliest but could easily stretch
into the spring of 2024 or beyond. See Stileks, 985 F.3d at 880 (noting “the previous appeal-
reversal-remand round at the Paris court and the Court of Cassation took over four years”).
Moldova argues this Court should enter a stay because the French courts “must apply”
the CJEU decision, “which will lead to a nullification of the Award in short order.” Stay Reply
at 5. Yet, it seems far from preordained that the Paris Court of Appeal will automatically
“convert” the CJEU’s decision into a judgment vacating the award, as Moldova suggests, or even
if it does, that this will happen “in short order.” For one, the Court of Cassation has already held
that the ad hoc tribunal correctly determined it had jurisdiction, in contrast to the CJEU ruling.
In addition, it is not obvious that the CJEU interpretation of the ECT would apply to the ECT’s
non-EU member signatories—like Moldova and Ukraine. While the CJEU decision is binding
on French courts as to matters of EU law, it is for Paris Court of Appeal to apply the law to the
specific facts of this case. Stay Opp. at 7. 3
2
Petitioner’s last appeal to the Court of Cassation in this matter took two years and four
months to resolve. See LLC Komstroy, 2018 WL 5993437, at *4.
3
The CJEU’s guidance states that “[w]hen ruling on the interpretation or validity of EU
law, the [CJEU] makes every effort to give a reply which will be of assistance in resolving the
7
Even if the Paris Court of Appeal agrees with Moldova and sets aside the award, that
decision will be subject to another round of appeal to the Court of Cassation. Those proceedings
could continue for two or three more years, much longer than the “few more months” Moldova
suggests. Stay Reply at 6. In light of the fact that the Court of Cassation has already ruled
against Moldova once, the Court sees no reason to further stay these proceedings. 4 See Belize
Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 731–32 (D.C. Cir. 2012) (“[A] court abuses its
discretion in ordering a stay of indefinite duration in the absence of a pressing need.”); see also
Tatneft v. Ukraine, 301 F. Supp. 3d 175, 198 (D.D.C. 2018), aff’d, 771 F. App’x 9 (D.C. Cir.
2019) (denying stay where there was “no foreseeable conclusion to Ukraine’s challenge of the
underlying Merits Award in the French Cassation Court”); Chevron Corp. v. Republic of
Ecuador, 949 F. Supp. 2d 57, 72 (D.D.C.), judgment entered, 987 F. Supp. 2d 82 (D.D.C. 2013)
(denying stay even though appeal of the award to the Dutch Supreme Court was in progress).
For those reasons, the second factor does not weigh in favor of granting Moldova a stay.
dispute in the main proceedings, but it is for the reviewing court or tribunal to draw case-specific
conclusions.” Stay Opp. at 7 (citing Court of Justice of the European Union, Recommendations
to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, ¶
11, 2019 O.J. (C 380) 4), available at https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=OJ:JOC_2019_380_R_0001).
4
Moldova relies on Hulley Enterprises Ltd. v. Russian Fed’n, 502 F. Supp. 3d 144, 151
(D.D.C. 2020), in which the district court granted a stay pending the outcome of parallel
proceedings in the Netherlands. Unlike in Hulley, however, this Court has already assured itself
of jurisdiction and confirmed the award, and both determinations have been affirmed on appeal.
In Hulley, by contrast, the stay issued at a much earlier stage of the proceedings when the
outcome of the Dutch proceeding would be informative, could potentially save considerable
judicial resources, and could avoid inconsistent results across jurisdictions. This Court stands to
gain much less by way of judicial economy than did the district court in Hulley.
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The third factor—the level of scrutiny that the arbitral award will receive in the French
system compared to this Court—weighs modestly against a stay. In this Court’s 2018 decision
lifting the earlier stay in this case, it said:
The Paris Court of Appeal will review the ad hoc tribunal’s decision de
novo, which is more exacting than this Court’s deferential examination. . . . At
the same time, the Paris Court of Appeal may set aside the arbitral award only
on grounds narrower than those of Article V of the New York Convention, the
applicable standard in this case. . . . Moreover, the Cour de Cassation has
already concluded that one of Moldova’s arguments for setting aside the
award—that the ad hoc tribunal lacked jurisdiction—is without merit, leaving
just the argument that the arbitral award is contrary to public policy for
consideration. This reduces the likelihood that the arbitral award will be set aside
and thus counsels in favor of lifting the stay.
LLC Komstroy, 2018 WL 5993437, at *4 (citations omitted). These standards of review have
not changed. Although the CJEU decision appears to conflict with the Court of Cassation’s, the
grounds for setting aside an arbitral award in France remain narrower than the reasons this Court
considered under the New York Convention. 5 This factor, if it favors either party at all, tips the
scales against a stay.
The fourth factor combines the characteristics of the foreign proceedings, whether those
proceedings were brought to set aside the award, and whether they were initiated under
circumstances indicating an intent to delay resolution of the dispute. These factors have not
changed since the Court’s 2018 decision and come out a wash. See LLC Komstroy, 2018 WL
5993437, at *4. Just as before, Moldova initiated the set-aside proceedings in 2013 before
5
See Declaration of Benoit LeBars, ECF No. 16-2 (noting that an arbitral decision can
only be set aside in French courts for one of five reasons: (1) the tribunal wrongly declared that it
had or did not have jurisdiction, (2) the tribunal was improperly constituted, (3) the tribunal
issued a ruling without fulfilling its mandate, (4) the adversarial principle was not observed, or
(5) the recognition or enforcement of the award is contrary to international comity). The Court
of Cassation ruled on the first ground, in favor of petitioner.
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petitioner commenced this action. But Moldova is seeking to set aside the award, which weighs
against a stay. Therefore, this factor is neutral.
The fifth factor is the balance of hardships, which weighs slightly against a stay. In 2018,
this Court noted that this dispute began in the 1990s and the award was issued in 2013. Id. If the
Court were to stay proceedings now, the total delay could end up being more than a decade.
Although the Court is cognizant of the impact that the COVID-19 pandemic has had on
governments all over the world, including Moldova, Stay Mot. at 10–11, the burden of
Moldova’s non-payment appears to have led to the insolvency of both the original petitioner,
Energoalliance, and its successor, Komstroy. Stay Opp. at 6. Although petitioner will be
compensated for the delay by prejudgment interest, as discussed below, another lengthy delay
would certainly impose a burden.
For the reasons above, the Court finds the balance of the Europcar factors do not favor a
stay. Most crucially, the first two Europcar factors do not support granting a stay, as the delay in
this case has already been lengthy, and the parallel proceedings in France began in 2013 and
have yet to be resolved, with no obvious conclusion in sight. The remaining factors are either
neutral or do not favor a stay. Accordingly, the Court will deny Moldova’s motion to stay the
proceedings.
B. Prejudgment Interest
“Prejudgment interest is an element of complete compensation in U.S. law.” Stileks, 985
F.3d at 881 (cleaned up). The D.C. Circuit affirmed this Court’s decision to award prejudgment
interest. Id. at 881–82. Now that petitioner has agreed to an award denominated in Moldovan
lei, the only question left is what rate of prejudgment interest should apply to the award.
10
Petitioner asks the Court to apply the interest rates prevailing in Moldova to the
Moldovan lei portion of the judgment. 6 Mot. at 1, ECF 86-1. Petitioner notes that the arbitral
tribunal used the “an average first-class borrower short-term credit bank rate prevailing in
Moldova . . . based on the rate reported by the National Bank of Moldova (‘NBM’).” Mot. at 3.
Petitioner argues that prejudgment interest should “be exercised in a manner consistent with the
underlying arbitration award.” Cont’l Transfert Technique Ltd. v. Fed. Gov’t of Nigeria, 932 F.
Supp. 2d 153, 164 (D.D.C. 2013); see Mot. at 4-5. According to petitioner, it would be
consistent with the arbitral award to apply the Moldovan interest rate instead of the prime rate.
Moldova, by contrast, urges this Court to apply the U.S. prime rate. Moldova argues that
the D.C. Circuit “did not vacate” the interest rate previously chosen for the prejudgment interest,
and therefore that aspect of this Court’s decision still governs. Opp. at 4, ECF No. 87. Moldova
also claims using the Moldovan rate would overcompensate the petitioner. Id. at 8.
The determination of “how to compute prejudgment interest is discretionary with the
district court.” Forman v. Korean Air Lines Co., 84 F.3d 446, 450 (D.C. Cir. 1996). Like other
circuits, the D.C. Circuit prefers the use of the prime rate in cases confirming foreign arbitral
awards. Cont’l Transfert, 932 F. Supp. 2d at 164–65. The prime rate is generally preferred when
calculating prejudgment interest for awards in U.S. dollars because it is the “market rate”—i.e.,
“what the victim must pay—either explicitly if it borrows money or implicitly if it finances
things out of cash on hand—and the rate the wrongdoer has available to it.” Matter of Oil Spill,
6
The arbitral tribunal awarded Energoalliance MLD 592,880,395 (which included MLD
195,547,212 as the amount of Energoalliance’s lost investment; MLD 357,916,008 in interest for
the period up to May 31, 2012; and MLD 39,417,175 in interest for the period between June 1,
2012 and the date of the Award). LLC Komstroy, 2019 WL 3997385, at *13. The tribunal also
awarded $540,000 (in USD) for attorneys’ fees and the cost of the arbitration. Id.11
954 F.2d 1279, 1332 (7th Cir. 1992). However, courts applying the prime rate are usually doing
so to an award denominated in U.S. dollars, as that is the “norm” in this jurisdiction. Cont’l
Transfert, 932 F. Supp. 2d at 158. The Restatement (Third) of Foreign Relations Law provides
that “[i]f no statutory rate of interest is applicable, the court may, in appropriate cases, order
interest to be based on the interest rate applicable at the principal financial center of the state
issuing the currency in which the judgment is payable.” Restatement (Third) of Foreign
Relations Law § 823 (1987) (emphasis added). 7 The Restatement suggests, then, that this Court
has the authority to do what Stileks asks, in appropriate cases, but it is not required to apply the
interest rate applicable at the NBM. Id.
Moreover, there is no requirement that the prejudgment interest exactly match the rate of
interest applied by the arbitral panel. In Cont’l Transfert, the D.C. Circuit affirmed the district
court’s use of the prime rate instead of the eighteen-percent interest rate used by the arbitral
panel. See 932 F. Supp. 2d at 165. Although the eighteen-percent rate was based on the
prevailing rate in Nigeria, and the award was originally denominated in Nigeran naira and British
pounds, the district court nevertheless adopted the prime rate. The D.C. Circuit affirmed,
reasoning that while the “district court may have had the authority to adopt a rate that better
approximates what a specific defendant might pay for an unsecured loan,” the choice of the
prime rate was “appropriate even though it ‘may miss the mark for any particular party.’” Cont’l
7
This Court has found examples of foreign-currency-denominated awards in which a
statutorily mandated or contractually agreed upon interest rate was applied. See, e.g., Mitsui &
Co. v. Oceantrawl Corp., 906 F. Supp. 202, 203 (S.D.N.Y. 1995) (award in Japanese yen,
statutory interest rate); Dye v. Kopiec, No. 16CV2952LGSKNF, 2019 WL 2527218, at *8
(S.D.N.Y. May 10, 2019) (interest in euros based on contractually-provided-for rate of 1%).
This Court has been unable to locate a case in which the district court entered a judgment in a
foreign currency and applied and interest rate based on the rates prevailing abroad, and Stileks
has not brought any such case to the Court’s attention.
12
Transfert, 603 F. App’x at 5 (quoting Forman, 84 F.3d at 45); see also Liberty Media Corp. v.
Vivendi Universal, S.A., No. 03 CIV. 2175 SAS, 2013 WL 105776, at *4 (S.D.N.Y. Jan. 9,
2013) (awarding judgment in euros and calculating prejudgment interest rate based on the
average rate of return for one-year Treasury bills).
The Court is not working from a blank slate, however. When it confirmed the award in
2019, this Court converted the award into USD and granted prejudgment interest based on the
prime rate. LLC Komstroy, 2019 WL 3997385, at *14. Neither petitioner nor Moldova
challenged the choice of the prime rate on appeal. Petitioner also could have requested an
alternative interest rate in 2018 in the event the Court did not grant its motion to convert the
award into USD, but it did not do so. See ECF Nos. 58; 63-1. Instead, this is the first time in
over seven years of litigation that petitioner has mentioned the interest rate applicable at the
NBM. And, as Moldova points out, petitioner initially requested the statutory rate of 6%,
“without any reference to whether the currency would affect the applicable rate” for prejudgment
interest. Opp. at 6, ECF No. 87 (citing ECF Nos. 1, 54); see also LLC Komstroy, 2019 WL
3997385, at *14 (noting that petitioner requested the statutory rate found in D.C. Code § 28-
3302). Therefore, petitioner has waived its argument for an alternative prejudgment interest rate.
Even if the argument was not waived, however, the Court would not find it appropriate in
this case to apply the rate prevailing at the NBM. The prime rate is preferred in cases confirming
international arbitral awards “because it best approximates ‘the market rate,’” Cont’l Transfert,
932 F. Supp. 2d at 165, and reflects “the rate banks charge for short-term unsecured loans to
creditworthy customers.” Forman, 84 F.3d at 451 (quoting Matter of Oil Spill, 954 F.2d at
1332). “The average prime rate . . . has been repeatedly held as appropriate by the D.C. Circuit;
indeed, the D.C. Circuit has found it ‘more appropriate’ than a fixed investment rate like the 6–
13
month Certificate of Deposit rate.” McKesson Corp. v. Islamic Republic of Iran, 116 F. Supp.
2d 13, 40–41 (D.D.C. 2000). Petitioner urges this Court to apply the rate prevailing at the NBM
but has not made a showing that that rate “best approximates” the market rate available to it.
Petitioner is by all accounts a Ukrainian financial player who has come to this litigation
relatively recently, after acquiring Komstroy’s rights in the award during bankruptcy proceedings
in 2019. See Sixth Declaration of V. Lych, ECF No. 84-2. Stileks has made no showing that it
had to take out loans at the Moldovan interest rate during the relevant time frame, or that it has
transacted any business related to Moldova aside from the purchase of Komstroy’s rights in the
award. The Court therefore discerns “no particular circumstances” that weigh in favor of the rate
Stileks proposes. Cont’l Transfert, 932 F. Supp. 2d at 165; see also McKesson Corp., 116 F.
Supp. 2d at 41 (using the prime rate where no circumstances in that case supported a departure
from Forman).
For all those reasons, the Court will apply prejudgment interest based on the average U.S.
prime interest rate between October 25, 2013 and November 16, 2021.
III. Conclusion
For the foregoing reasons, it is hereby
ORDERED that [89] Respondent’s Motion to Stay the Case is DENIED. It is further
ORDERED that [86] Petitioner’s Motion to Determine the Prejudgment Interest Rate is
GRANTED. It is further
ORDERED that for the purposes of determining prejudgment interest in the judgment
against the Republic of Moldova, the average daily U.S. prime rate compounded annually shall
apply to both the Moldovan lei denominated portion of the judgment and the U.S. dollar
denominated portion of the judgment. It is further
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ORDERED that Petitioner shall, by November 23, 2021, file a proposed order of
judgment reflecting the amount of the constituent parts of the Award, along with a brief
summary of its calculations of the interest applied consistent with this opinion. Prejudgment
interest shall be awarded from October 25, 2013 to November 16, 2021, after which the statutory
rate for post-judgment interest shall apply, pursuant to 28 U.S.C. § 1961. Moldova may respond
to the form of the proposed order and the associated calculations within seven days thereafter.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: November 16, 2021
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