Commissions Import Export S.A. v. Republic of the Congo , 916 F. Supp. 2d 48 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
COMMISSIONS IMPORT EXPORT S.A., )
)
Plaintiff, )
)
v. ) Civil No. 12–743 (RCL)
)
THE REPUBLIC OF THE CONGO )
AND CAISSE CONGOLAISE )
D’AMORTISSEMENT, )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Commissions Import Export (“Commisimpex”) has uncovered a procedural
loophole in Chapter 2 of the Federal Arbitration Act (“FAA Ch. 2”), 9 U.S.C. §§ 201 et seq. Its
attempt to exploit this loophole raises a question of first impression in this Circuit: whether FAA
Ch. 2’s three-year statute of limitations on confirmation actions for foreign arbitral awards, 9
U.S.C. § 207, preempts a plaintiff from using the District of Columbia’s Uniform Foreign-
Country Money Judgments Recognition Act (“D.C. Recognition Act”), D.C. Code §§ 15–361 et
seq., to obtain a U.S. Court Judgment enforcing a foreign Judgment which enforces an otherwise
stale foreign arbitral award. Now before the Court is Commisimpex’s motion for summary
Judgment. ECF No. 37. Upon consideration of plaintiff’s motion, defendants’ opposition, ECF
No. 39, plaintiff’s reply, ECF No. 40, applicable law, and for reasons given below, the Court
finds that this maneuver is preempted, and will DENY plaintiff’s motion and DISMISS
plaintiff’s action with prejudice.
I. BACKGROUND AND PROCEDURAL HISTORY 1
This case arises out of a dispute over the repayment of debts owed under contracts
between Commisimpex and defendant the Republic of the Congo (“Congo”). Pl.’s Statement of
Material Facts (“Pl.’s Statement”) ¶ 2, ECF No. 37–1; Defs.’ Statement of Material Facts
(“Defs.’ Statement”) ¶ 2, ECF No. 39–1.
A. The 1992 Agreement
In 1992 the parties entered an agreement for the repayment of certain outstanding debts
under these contracts providing for arbitration under the Rules of the International Chamber of
Commerce (“ICC”). Pl.’s Statement ¶¶ 3–4; Defs.’ Statement ¶¶ 3–4. Pursuant to the 1992
agreement, defendant Caisse Congolaise d’Amortissement (“CCA”), a department of the
Congo’s Ministry of Economy, Finance and Planning, drew up promissory notes endorsed in
favor of Commisimpex, and the Congo issued a series of commitment letters agreeing to submit
disputes arising under the notes to arbitration in Paris, France, under rules of the ICC. Pl.’s
Statement ¶¶ 5–6; Defs.’ Statement ¶¶ 5–6.
B. The 2000 Arbitral Award
The Congo failed to satisfy its obligations under the 1992 agreement. Pl.’s Statement ¶ 7;
Defs.’ Statement ¶ 7. Commisimpex commenced arbitration in Paris with the ICC naming Congo
and CCA as respondents. Pl.’s Statement ¶¶ 7–8; Defs.’ Statement ¶¶ 7–8. Congo and CCA
defended against the arbitration, which resulted in an arbitral award of over $31 million in
Commisimpex’s favor. Pl.’s Statement ¶ 9; Defs.’ Statement ¶ 9; see also Enforceable Copy of
an Arbitration Award (“Award”), Dec. 7, 2000, Amended Compl., Ex. A, ECF No. 35–1.
1
For additional background, see Commissions Imp. Exp. S.A. v. Republic of the Congo, 11-cv-6176, 2012 WL
1468486 at *1 (S.D.N.Y. Apr. 27, 2012).
2
C. The 2009 English Court Judgment
The Congo failed to satisfy the 2000 award. Pl.’s Statement ¶ 12; Defs.’ Statement ¶ 12.
Roughly nine years later, Commisimpex sought to enforce the Judgment in the Queen’s Bench
Division of the High Court of Justice, Commercial Court in London, England. Pl.’s Statement ¶¶
12–13; Defs.’ Statement ¶¶ 12–13. In July 2009 the English Court entered Judgment enforcing
the 2000 award, and augmented the amount of the award with additional “penalty interest” and
other costs. Pl.’s Statement 14–15; Defs.’ Statement 14–15; see also Order, Commissionss
Import Export S.A. v. Republic of the Congo, High Court of Justice, Queen’s Bench Division,
Commercial Court, 2009 Folio 804, July 10, 2009, Ex. B, Amended Compl. ECF No. 35–2. This
Judgment was subsequently amended and reduced to account for Commisimpex’s successful
seizure of assets elsewhere. See Pl.’s Statement ¶ 21; Order, Commissions Import Export S.A. v.
Republic of the Congo, High Court of Justice, Queen’s Bench Division, Commercial Court, 2009
Folio 804, Nov. 3, 2011, Ex. C, Amended Compl. ECF No. 35–3.
D. The Present Case
Two years later, and more than a decade after the 2000 award, Commisimpex filed an
action in the Southern District of New York seeking “recognition of the English Judgment . . .
pursuant to the Foreign Sovereign Immunities Act and the New York Uniform Foreign Country
Money Judgments Recognition Act,” N.Y. C.P.L.R. §§ 5301–5309 (McKinney). Commissions
Imp. Exp. S.A. v. Republic of the Congo, 11–cv–6176, 2012 WL 1468486 at *1 (S.D.N.Y. Apr.
27, 2012); see also Compl., Sept. 2, 2011, ECF No. 1. Judge Keenan found venue improper and
transferred the case to this district. Commissions Imp. Exp. S.A., 2012 WL 1468486 at *6.
After transfer, Commisimpex filed an amended and supplemental complaint, seeking
recognition of the 2009 English Judgment under the D.C. Recognition Act, D.C. Code §§ 15–
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361, et seq.; Amended Compl., June 22, 2012, ECF No. 35. 2 Commisimpex does not rely on the
FAA because, as it concedes, “any claim to enforce the Award directly would be time-barred by
operation of 9 U.S.C. § 207.” Pl.’s Mot. 14.
II. ANALYSIS
A. Summary Judgment Legal Standard
Summary Judgment is “appropriate where the pleadings and the record ‘show that there
is no genuine issue as to any material fact and that the moving party is entitled to Judgment as a
matter of law.’” TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 941 (D.C. Cir. 2007)
(quoting Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1041 (D.C. Cir. 2003) (quoting
Fed. R. Civ. P. 56(c))). A material fact is one that “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Actions to
enforce foreign Judgments under the D.C. Recognition Act are appropriately resolved on
summary Judgment. See, e.g., Cont’l Transfert Technique, Ltd. V. Fed. Gov’t of Nigeria, 800 F.
Supp. 2d 161, 164–65 (D.D.C. 2011).
B. Defendants Expressly Waived Sovereign Immunity
Foreign states are “immune from the jurisdiction of the courts of the United States and of
the States” except as provided in the Foreign Sovereign Immunities Act (“FSIA”). 28 U.S.C. §
1604. A “foreign state” within the meaning of FSIA is immune from this Court’s jurisdiction
unless one of the statute’s enumerated exceptions applies. Samantar v. Yousuf, 130 S. Ct. 2278,
2285 (2010). FSIA is the “sole basis for obtaining jurisdiction over a foreign state in federal
court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989).
A “foreign state” includes “a political subdivision of a foreign state or an agency or
instrumentality of a foreign state” and the Act defines the latter as “any entity . . . which is an
2
The case was subsequently reassigned by consent from Judge Jackson to the undersigned judge. ECF No. 42.
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organ of a foreign state or political subdivision thereof.” § 1603 (a)–(b). In the present case, it is
undisputed that Congo is a foreign state and CCA is an agency or instrumentality of a foreign
state. See Am. Supplemental Compl. ¶ 5; Answer to Am. Supplemental Compl. ¶ 5.
Accordingly, FSIA gives the “sole basis” for jurisdiction over both defendants. See Argentine
Rep., 488 U.S. at 439.
FSIA provides that “a foreign state shall not be immune from the jurisdiction of courts of
the United States or of the States in any case . . . in which the foreign state has waived its
immunity either explicitly or by implication . . . .” § 1605(a)(1). Commisimpex argues, and
defendants concede, that defendants explicitly waived their immunity to suit in their 1992
agreement. Pl.’s Mot. 7–12; Defs.’ Opp’n 41. Commisimpex points to the following language
which appears in each of defendants’ 1992 commitment letters:
This undertaking is considered as a commercial instrument governed by commercial law
and is constituted for commercial purposes. It follows that the signatory hereof
irrevocably and on a final basis waives the right to invoke any immunity from legal
proceedings as well as any immunity from execution in the context of the settlement in
the context of the settlement of a dispute relating to the undertakings which are the
subject hereof.
Pl.’s Mot. 9; Pl.’s Statement ¶ 6 (citing Commitment Letters Nos. 75, 78, 85, 88, 95, 99, 105 &
108, ECF Nos. 37–21, 37–22, 37–23, 37–24, 37–25, 37–26, 37–27 & 37–28). This language
expressly waives defendants’ sovereign immunity pursuant to § 1605(a)(1). Moreover,
defendants concede that they waived their sovereign immunity and “do not deny that this Court
has jurisdiction to adjudicate Commisimpex’s cause of action for recognition of the English
Order . . . .” Defs.’ Opp’n 41. The Court has subject matter jurisdiction. 3
3
Commisimpex also raises numerous alternative grounds for jurisdiction and waiver of immunity. See Pl.’s Mot. 6–
16. Having found jurisdiction, the Court will not pursue these alternative theories.
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C. FAA Ch. 2 Preempts Commisimpex’s Maneuver
Commisimpex’s sole cause of action relies on the D.C. Recognition Act, D.C. Code §§
15–361, et seq.; see Am. Supplemental Compl. ¶¶ 19–24, which requires courts in the District of
Columbia to “recognize a foreign-country Judgment” as long as it “[g]rants or denies recovery of
a sum of money,” is “Final,” “Conclusive,” and “Enforceable” “[u]nder the law of the foreign
country where rendered,” and certain additional conditions are met. See, e.g., D.C. Code §§ 15–
363, 364(a)–(b). Commisimpex argues that this obligates the Court to enforce the 2009 English
Judgment enforcing the 2000 Award. See Amended Compl. ¶¶ 2, 20–22.
Defendants insist that the 2009 English Judgment fails to meet certain statutory
conditions, see Def.’s Opp’n 35–38, but the Court need not address these issues. Assuming all
statutory conditions were satisfied, enforcement of the 2009 English Judgment under the D.C.
Recognition Act is preempted because it would create “an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress” as expressed in FAA Ch. 2. See
Arizona v. United States, 132 S. Ct. 2492, 2501 (2012).
1. “Purposes and Objectives” Preemption
The Supremacy Clause of the U.S. Constitution provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2. “[S]tate laws are preempted when they conflict with federal law.”
Arizona, 132 S. Ct. at 2501. Such a conflict arises, inter alia, where the state law “stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Arizona, 132 S. Ct. at 2501 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). “What is a
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sufficient obstacle is a matter of Judgment, to be informed by examining the federal statute as a
whole and identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363, 373 (2000). “[T]he entire scheme of the statute must . . . be considered and that
which needs must be implied is of no less force than that which is expressed.” Id. (quoting
Savage v. Jones, 225 U.S. 501, 533 (1912).
For instance, in Arizona v. United States, the Court held that a federal law governing the
employment of illegal aliens preempted an Arizona provision making it a criminal offense for an
unauthorized alien to work in Arizona. 132 S. Ct. at 2503–04. The federal scheme included an
escalating series of civil and criminal penalties for employers of illegal aliens but did not impose
any criminal penalties on the aliens. Id. at 2504. The Court looked to the “text, structure, and
history” of the federal statute and concluded that “Congress decided it would be inappropriate to
impose criminal penalties on aliens who seek or engage in unauthorized employment.” Id. at
2504–05. Accordingly, the Arizona statute “involve[d] a conflict in the method of enforcement”
and was held preempted. Id. 2505.
In contrast, in Wyeth v. Levine, the Court found that the federal Food and Drug
Administration’s approval of a drug and its label’s warnings did not preempt a tort claim against
the drug company based on failure to warn. 555 U.S. 555 (2009). The drug company defendant
argued that Congress had intended to create “both a floor and a ceiling” for drug regulation, but
the Court’s survey of the long history of Congress’s legislation in this arena found no support for
this characterization. Congress legislated as it did only “to bolster consumer protection against
harmful products.” It “did not provide a federal remedy for consumers harmed by unsafe or
ineffective drugs” because “it determined that widely available state rights of action” such as the
one pursued by plaintiff in the case “provided appropriate relief for injured consumers.” Id. at
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574. Moreover, the Court noted that Congress enacted an express preemption provision in the
related arena of medical device tort suits, but had never, in the long history of regulation in this
arena, enacted such a provision for drug tort suits, and concluded that Congress’s “silence on the
issue, coupled with its certain awareness of the prevalence of state tort litigation, [was] powerful
evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug
safety and effectiveness.” Id. at 575.
Before addressing the central question—i.e. whether FAA Ch. 2 preempts
Commisimpex’s maneuever—this opinion first turns to provide a brief overview of that
legislation and the Convention it implemented.
2. FAA Ch. 2
The New York Convention was adopted in 1958 to “encourage the recognition and
enforcement of commercial arbitration agreements 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 (1974); see also
Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), T.I.A.S.
No. 6997, 21 U.S.T. 2517, 1970 WL 104417. “The Convention provides a carefully crafted
framework for the enforcement of international arbitral awards.” TermoRio S.A. E.S.P. v.
Electranta S.P., 487 F.3d 928, 935 (D.C. Cir. 2007). Two Articles are of particular relevance
here. First, Article III subjects recognition of international arbitral awards to the “rules of
procedure” of the territory in which recognition is sought. 4 New York Convention, Article III,
T.I.A.S. No. 6997, 21 U.S.T. 2517, 1970 WL 104417; see also TermoRio, 487 F.3d at 934.
Second, Article XI authorizes contracting federal or non-unitary states to choose to either
4
Commisimpex does not dispute that statutes of limitations qualify as “rules of procedure” duly enacted under the
Convention. See Pl.’s Mot. 14 (conceding that “any claim to enforce the Award directly would be time-barred by
operation of 9 U.S.C. § 207.”).
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implement the convention at the federal level or at the sub-national (i.e. state or province) level.
See New York Convention Article XI.
The Convention was made enforceable in the United States in 1970 through the
enactment of enabling legislation, codified as Chapter 2 of the FAA. See Act To Implement the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Pub. L. 91–368,
July 31, 1970, 84 Stat. 692 (codified at 9 U.S.C. §§ 201–208) (“The Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in
United States courts in accordance with this chapter,” § 201); see also Medellin v. Texas, 552
U.S. 491, 521 (2008) (citing this for the proposition that “Congress knows how to accord
domestic effect to international obligations when it desires such a result”).
By acting at the federal level, Congress ensured that the enforcement of foreign arbitral
awards in the United States would be governed by one set of uniform “rules of procedure,” rather
than a diversity of state ones as might have occurred pursuant to Article XI. Cf. Yugraneft Corp.
v. Rexx Mgmt. Corp., [2010] S.C.R. 649, para. 39 (Can.) (applying the province of Alberta’s
statute of limitations period for the confirmation of a New York Convention award).
Congress also adopted a “rule of procedure” pursuant to Article III:
Within three years after an arbitral award falling under the Convention is made, any party
to the arbitration 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 Convention.
9 U.S.C. § 207. “Courts addressing claims under the Arbitration Act have construed Section 207
to be a statute of limitations.” Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 28, 29 (D.D.C.
1999) (collecting cases); see also id. (finding an award not confirmed within three years to be
“null and void”). Congress chose to impose a longer period for parties to seek enforcement of
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New York Convention awards than it already had in place for confirmation of domestic arbitral
awards. See 9 U.S.C. § 9 (one-year statute of limitations for confirmation of domestic awards).
Notably, the three-year period Congress settled on is far shorter than that imposed by many other
contracting states, some of which have no limitation period whatsoever. See, e.g., ICC,
International Court of Arbitration Bulletin: Guide to National Rules of Procedure for
Recognition and Enforcement of New York Convention Awards, app. D (2008 Special
Supplement) (listing the statutes of limitations for signatory states).
3. Commisimpex’s Maneuver Would Obstruct Congressional Purposes and
Objectives Implicit in FAA Ch. 2
The case hinges on whether Congress, when it enacted this legislation to enforce the New
York convention at the federal level and restricted the Convention’s applicability to actions
brought within three years of foreign arbitral awards, did so with any “purpose[] or objective[]”
which would be unduly obstructed by Commisimpex’s attempt to enforce a foreign Judgment
enforcing an otherwise untimely foreign arbitral award. See Arizona, 132 S. Ct. at 2501. This
Court finds two such purposes implicit in the statutory scheme, both of which reflect a
Congressional objective to protect the procedural interests of potential confirmation action
defendants.
(a) Procedural Uniformity: “The [New York] Convention provides a carefully crafted
framework for the enforcement of international arbitral awards.” TermoRio, 487 F.3d at 935.
Congress chose to make that “carefully crafted framework” applicable in this country’s courts by
enacting enabling legislation at the federal label, with uniform federal procedures to govern the
statute of limitations period, rather than allowing each state to determine individually the extent
to which it would recognize foreign arbitral awards. This choice evinces an interest in
procedural uniformity.
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Commisimpex’s maneuver would obstruct this interest in uniformity by outsourcing the
determination of timeliness to states and foreign parties. Here, for example, Commisimpex relies
on the D.C. Recognition Act, which imposes a statute of limitations measured by the earlier of
“the time during which the foreign-country Judgment is effective in the foreign country or 15
years from the date that the foreign-country Judgment became effective in the foreign country.”
D.C. Code § 15–369; cf. Pl.’s Mot. 13 n.10 (misstating the statute of limitations as “so long as
the Judgment remains in effect in the foreign country”). And in their initial filing in the Southern
District of New York, Commisimpex relied on a different, New York State law, which imposes
only the timeliness requirement of the foreign states where the Judgment was issued. See N.Y.
C.P.L.R. § 5302 (McKinney) (limiting recognition to Judgments which are, inter alia,
“enforceable where rendered”). Future litigants in Commisimpex’s position might well pursue
analogous causes of action in still other U.S. states and based on Judgments from other foreign
states with potentially different limitations periods. The result: instead of a single, uniform three-
year limitations period, defendants would face a multitude of diverse limitations.
Commisimpex’s maneuver therefore frustrates Congress’s objective in promoting procedural
uniformity.
(b) Finality. At the same time Congress chose to implement the New York Convention it
also chose to limit its applicability by imposing a three-year statute of limitations on
confirmation actions. See 9 U.S.C. § 207. This choice evinces a purpose of protecting potential
defendants’ interest in finality. “[S]tatutes of limitations are designed . . . to promote finality,
repose, and the efficient and prompt administration of justice.” AKM LLC dba Volks
Constructors v. Sec’y of Labor, 675 F.3d 752, 767 (D.C. Cir. 2012); see also Carter v.
Washington Metro. Area Transit Auth., 764 F.2d 854, 857 (D.C. Cir. 1985) (“[Statute of
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limitations] periods are established to cut off rights, justifiable or not, that might otherwise be
asserted and they must be strictly adhered to by the judiciary. Remedies for resulting inequities
are to be provided by Congress, not the courts.” (quoting Kavanagh v. Noble, 332 U.S. 535, 539
(1947)).
Commisimpex’s maneuver would interfere with this interest in finality by enabling
foreign-award holders to circumvent Congress’s time-limit. A party holding a stale but
otherwise valid foreign arbitral award might breathe new life into his U.S. confirmation claim by
obtaining Judgment enforcing the award in one of the many foreign jurisdictions that adopted a
longer statute of limitations period than provided in § 207—or in one of the several jurisdictions
which have no statute of limitations—and then proceeding under a U.S. state recognition law.
This would potentially eviscerate the protection Congress enacted through § 207 for many award
confirmation defendants. Such a result would upset the balance between promoting arbitration,
on the one hand, and protecting potential defenendants’ interest in finality that Congress struck
in the 1970 enabling legislation.
Because the maneuver would obstruct these two Congressional objectives, it violates the
Supremacy Clause and is preempted.
4. Commisimpex’s Arguments Against Preemption Fail
Commisimpex argues that Congress’s “principal” purpose in enacting the 1970 enabling
legislation was to promote “the recognition and enforcement of mutually agreed-upon arbitration
agreements, and the promotion of international dispute resolution,” Pl.’s Reply 18, and that its
maneuver furthers that purpose, since it “would help combat award evasion . . . and eliminate
further delays and costs.” Pl.’s Reply 19. But had Congress been solely concerned with
maximizing the enforceability of foreign arbitral awards, it would not have imposed a time-limit
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as it did in § 207. As shown above, Congress’s actions show that it was interested both in
promoting arbitration and protecting potential award confirmation defendants’ interests in
procedural fairness. Because Commisimpex’s maneuver undermines these latter interests, it is
preempted.
Commisimpex further argues that the FAA “contains no language supporting the
conclusion that it was intended to apply to foreign judgments.” Pl.’s Reply 13 (emphasis added).
But the inquiry here is to decipher Congress’s “purposes and objectives” in order to determine
whether these would be frustrated by Commisimpex’s maneuver and this requires interpreting
the full scheme Congress chose to enforce the New York Convention not merely reading each
word of the statute in isolation. See Crosby, 530 U.S. at 373 (The determination of “[w]hat is a
sufficient obstacle” for purposes of preemption “is a matter of Judgment, to be informed by
examining the federal statute as a whole and identifying its purpose and intended effects.”).
Though it is true that FAA Ch. 2 does not by its own explicit terms prohibit Commisimpex’s
maneuver, a fair reading the statutory regime evinces Congressional purposes of procedural
uniformity and finality for defendants, both of which would be undermined by the maneuver.
See Crosby, 530 U.S. at 373 (in evaluating whether a federal statute has preemptive effect, “the
entire scheme of the statute must . . . be considered and that which needs must be implied is of
no less force than that which is expressed.” (quoting Savage, 225 U.S. at 533)).
Moreover, Commisimpex’s argument from statutory silence is weaker than that advanced
and accepted by the Court in Wyeth. In that case, the Court found that Congress did not preempt
a state tort claim where it had failed to expressly preempt such a claim over a long period, where
it had “certain awareness of the prevalence” of such claims, and where it had also preempted a
closely related set of tort claims. Wyeth, 555 U.S. at 575. Unlike Wyeth, where Congress was
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aware of state tort suits and maintained longstanding silence as to the preemption of those suits
by federal drug regulations, there is no evidence here that Congress was actually aware of the
loophole Commisimpex now seeks to exploit. Nor has Congress acted to preempt any closely
related set of state claims, as it had in that case. An inference of intent drawn from
Congressional silence on this point would be unjustified.
Commisimpex also points to several non-binding cases purporting to support its theory
that foreign Judgments enforcing foreign arbitral awards are not preempted by the FAA. See
Pl.’s Mot. 13–15; Pl.’s Reply 15–18 (reviewing cases and concluding that “every court to have
considered the issue has found that the FAA applies only to the enforcement of arbitral awards,
not foreign Judgments”). However reliance on these cases is misplaced because none of these
cases directly address the preemption issue raised in this case. In Island Territory of Curacao v.
Solitron Devices, Inc., the Second Circuit held that the FAA did not preempt the recognition of a
foreign Judgment which, itself, enforced a foreign arbitral award under New York state law. 489
F.2d 1313, 1319 (2d Cir. 1973); see also Pl.’s Reply 15–16 (discussing the case). However, that
case did not implicate § 207’s timeliness requirement. Although the court noted briefly that the
underlying arbitral award in that case “might not be enforceable qua award” on other grounds,
the court had no occasion to address any of the Congressional purposes and objectives behind the
timeliness requirement in § 207—purposes that would be frustrated by Commisimpex’s
maneuver in this case. See Solitron, 489 F.2d at 1319. Conversely, in Seetransport Wiking
Trader Schiffahrtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala
Navala, the Second Circuit first blocked an attempt to confirm a foreign arbitral award as
untimely under § 207, 989 F.2d 572, 576 (2d Cir. 1993), and then authorized the enforcement of
a foreign Judgment enforcing that award, 29 F.3d 79 (2d Cir. 1994). See also Pl.’s Mot. 13–15
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(discussing the case); Pl.’s Reply 16–18 (same). However, while the second opinion in this case
presented facts very similar to those of the present matter, the court failed to address preemption.
Seetransport, 29 F.3d at 81–82; see also Cont’l Transfert Technique, 800 F. Supp. 2d at 164–65
(enforcing under the D.C. Recognition Act an English Judgment based on an arbitral award, but
not addressing preemption). Accordingly, none of these cases provides persuasive authority
against preemption.
Finally, Commisimpex also points to legislative history of FAA Ch. 2. See Pl.’s Reply
14–15, 19. It points to an exchange between the Chairman of the Senate Foreign Relations
Committee and Richard Kearney, Chairman of the Secretary of State’s Advisory Committee on
Private International Law:
Chairman: Does this legislation have any effect whatever on State laws?
Mr. Kearney: No, Mr. Chairman, it does not. It concerns in effect solely the jurisdiction
of the Federal district courts.
Chairman: And it does not alter or change a citizen’s rights under State laws?
Mr. Kearney: Not at all.
Chairman: Does it in any way broaden Federal authority?
Mr. Kearney: Not basically. It provides for the right of removal to the district court from
the State court in a case that falls under the Convention, but what we are dealing with is
foreign commerce which now is fully within the ambit of Federal authority.
...
Chairman: So there is no possible opposition based upon the idea we are now reaching
out and subjecting citizens to further arbitrary intervention of the Federal authorities or
any other authorities in their private affairs. That is not justified; is that correct?
Mr. Kearney: That is correct.
S. Rep. No. 91–702, 91st Cong. 2d Sess at 10 (1970); see also Pl.’s Reply 14–15 (quoting and
discussing this passage.). Even setting aside the usual caveats about reading this type of
legislative history as a reliable signal of Congressional intent, this exchange is far too general to
dispute the Congressional purposes in promoting uniformity and finality evinced by the
legislation as described above. The exchange does not consider the time-limit imposed by § 207,
nor does it suggest that Congress contemplated the loophole that Commisimpex now seeks to
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exploit. Mr. Kearney’s statement that cases implicating “foreign commerce” are “now . . . fully
within the ambit of Federal authority” actually bolsters the Congressional purpose in procedural
uniformity, evinced by its choice to implement the New York Convention at the federal level,
rather than leaving it for individual states.
Commisimpex’s Complaint amounts to an attempt to circumvent the procedures
Congress established for the confirmation of New York Convention awards in the FAA.
Because this maneuver would “stand[] as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress,” see Arizona, 132 S. Ct. at 2501, it violates the
Supremacy Clause and is preempted.
III. CONCLUSION
Because the Court finds that Commisimpex’s attempt to circumvent the three year
limitations period in 9 U.S.C. § 207 by way of the D.C. Recognition Act is preempted, it will
DENY plaintiff’s motion for summary Judgment, and will further DISMISS plaintiff’s
Complaint with prejudice.
An Order will issue with this opinion.
Signed by Royce C. Lamberth, Chief Judge, on January 8, 2013.
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