Belize Social Development Limited v. Government of Belize , 5 F. Supp. 3d 25 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BELIZE SOCIAL DEVELOPMENT )
LIMITED, )
)
Petitioner, )
)
v_ ) Civil Case No. 09-2170 (RJL)
)
THE GOVERNMENT OF BELIZE, )
) F1LEo
Respondent. m ) DEC i § 2013
C!erk, U.S. District & Bankruptcy
MEMORANDUM OPINION Courts for the District ot Columbia
(December ~t[_, 2013) [##i, 15, 471
Petitioner Belize Social Development Limited ("petitioner” or "BSDL") brings
this action against respondent the Government of Belize ("respondent" or "GOB"),
seeking the confirmation and enforcement of a foreign arbitral award pursuant to § 207 of
the Federal Arbitration Act ("FAA"), 9 U.S.C. § 207, and Article III of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards ("New York
Convention" or "N.Y. Conv.").l Before the Court are petitioner’s Petition to Confirrn
Arbitration Award and to Enter Judgrnent [Dkt. #l] and respondent’s Motion to Stay
Action or, in the Aiternative, Dismiss Petition [Dkt. #15]. Upon consideration of the
pleadings, relevant law, and the entire record, the petition to confirm and enter judgment
is GRANTED, and the motion to stay or dismiss is DENIED.
l Openecz'for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (entered into force
for the U.S. Dee. 29, l970), available at http://treaties.un.org/doc/Treaties/ 1959/06/
19590607%2009-3S%ZOPM/Ch_XXH_O1 p.pdf.
FACTUAL BACKGROUND
A. Accommodation Agreements
C)n September 19, 2005, respondent GOB and Belize Telecommunications
Limited ("BTL")Z entered into the first of four "Government Telecommunications
Accommodation Agreement[s] . . . to improve telecommunications for the people of
Belize and better accommodate the GOB’s telecommunications needs." Pet’r’s Mem. of
Points and Authorities in Supp. of Pet. to Conf``irm Arb. Award & Enter J. ("Pet’r’s
Mem.") at 2 [Dkt. #l-l]; Resp’t’s Mem. in Supp. of Mot. to Stay Action or, in the Alt.,
Dismiss Pet. ("Resp’t’s Mem.") at 5~6 [Dkt. #15]. As part of the agreements
(hereinafter, "original agreements"), BTL would acquire certain properties owned by
GOB for 19,200,()00 Belize dollars. Pet’r’s Mem. at 2. In exchange, GOB would give
BTL preferential tax treatment, exempt BTL from import duties on goods and equipment,
guarantee BTL a minimum rate of return on investments, pay any shortfall that may
occur between the minimum rate of return and the actual rate of return, and allow BTL to
control the use of "Voice Over Internet Protocol." Ial.; see also Pet. to Confirm Arb.
Award & Enter J., Ex. A ("Final Award" or "LCIA Award") at 20-23 [Dkt. #l-3]
(explaining class license holders and their customers were not permitted to use voice over
internet protocol services unless permitted by the individual license holder (BTL)).
2 Belize Telecommunications Ltd. (now "Belize Teleinedia Limited") is owned by Lord
Michael Ashcroft, who is a member of the United Kingdom House of Lords and has dual
nationality in Belize. Resp’t’s Prelim. Resp. to Pet. to Coni``irm Arb. Award ("Resp’t’s
Prelim. Resp.") at 3 [Dkt. #16]. Hc is one of the wealthiest people in the United
Kingdom and Belize and is a major investor in Belize. Ia’.
2
The Accommodation Agreements also contained a clause which provided that any
dispute would be referred to and resolved by arbitration under the London Court of
international Arbitration ("LCIA") Rules. Pet’r’s Mem. at 4. Over the next few years,
the parties amended the original agreement three times and on May 29, 2007, under the
third agreement, Belize Telemedia Limited ("Telemedia") "assumed all of BTL’s rights
and obligations under the Accommodation Agreement." la’. at 3.
On February 8, 2008, Dean Barrow was appointed the new Prime Minister of
Belize and his administration refused to acknowledge Telemedia’s rights as set forth in
the Accommodation Agreements or to comply with its obligations under the agreements.
Ia’. at 5. Telemedia, on the other hand, complied with its obligations under the
Accommodation Agreements by purchasing GOB properties for 19,200,000 Belize
dollars. [cl
B. Arbitration Proceedings in the LCIA
Telemedia submitted a request for arbitration to the LCIA on May 9, 2008,
claiming multiple breaches of the Accommodation Agreements Pet’r’s Mem. at 6. The
LCIA appointed a Tribunal comprised of three distinguished arbitrators to govern the
arbitration proceedings. [a’. at 7. GOB refused to participate in the arbitration
proceedings, ia'. at 8; Resp’t’s Prelim. Resp. at 6, and on Mareh 18, 20()9, following a
three day evidentiary hearing, "the Tribunal unanimously ruled in favor of Telemedia and
issued its Final Award," which granted Telemedia both declaratory and monetary relief,
Pet’r’s Mem. at 8; Resp’t’s Mem. at 8. The Tribunal found that: (i) the Accommodation
Agreements are legal and binding under Belize law, (ii) "GOB . . . violated numerous
3
provisions of the Accommodation Agreement[s]," and (iii) "Telemedia was entitled to
relief." Pet’r’s Mem. at 9.
Two days after the Tribunal issued its Final Award, on Mareh 20, 2009, BSDL
was created in the British Virgin Islands. Resp’t’s Prelim. Resp. at 7. That same day,
Telemedia assigned to BSDL the monetary portion of the Tribunal’s Final Award, z'a’. at
7-8, thereby allowing BSDL "to enforce and receive the monetary portion of the Final
Award," Pet’r’s Mem. at 9.
C. Belize Litigation and GOB Legislation
In Belize, GOB filed a lawsuit against Telemedia on April 6, 2009, Pet’r’s Mem.
in Opp’n to Resp’t’s Mot. to Stay or Dismiss and in Supp. of Pet. To Conf``irrn Arb.
Award ("Pet’r’s Suppl. Mem.") at 3 [Dkt. #45], seeking a declaratory judgment that the
Tribunal’s arbitration award is "unenforceable and the Accommodation Agreements are
invalid as contrary to Belize law and public policy," Resp’t’s Prelim Resp. at 8.3 On July
20, 2009, the Belize Supreme Court issued a preliminary injunction barring Telemedia
and BSDL from enforcing the arbitration award until after the court issued its ruling in
the pending action. Ia’. at 9. The parties dispute whether that injunction remains valid
after the April 2009 lawsuit was discontinued and a February 2012 lawsuit instituted in
its place. See Resp’t’s Suppl. Br. at 3 [Dkt. #39] (claiming that "the injunction remains in
3 The lawsuit was captioned Attorney General v. Belize Telemealia Ltd. & Belize Socz``al
Development Ltd., Claim No. 317 of 2009. See Resp’t’s Mot. to Stay Action or, in the
Alt., Dismiss Pet. ("Resp’t’s Mot.") at 1 [Dkt. #15].
4
place"); Pet’r’s Suppl. Mem. at 4 (claiming that "the Belize Supreme Court ordered . . .
the discharge of the injunction").4
GOB also enacted legislation in 2009 to assume control over telecommunications
in Belize and obtained 94% of Telemedia’s shares as part of that legislation. Resp’t’s
Prelim. Resp. at 9; Resp’t’s Suppl. Br. at l2. In 20l0, the Belize Supreme Court of
Judicature (Amendment) Act ("SCJA") made it a criminal offense punishable by fine,
imprisonment of at least five years, or both "to disobey or fail to comply with an
injunction" issued by the Belize Supreme Court. Pet’r’s Suppl. Mem. at 5. GOB also
made it a crime for BSDL and its counsel to respond to the pleadings that GOB had
already filed in this case. ]d. ln August 2012, "the Belize Court of Appeal struck down
several sections of the SCJA as unconstitutional," including the sections giving SCJA
extraterritorial effects and the sections imposing criminal penalties. Id. at 6.
4 GOB’s April 2009 lawsuit was discontinued because "the Claim had not been served
within the required period and had expired." Decl. of Eamon H. Courtenay ("Courtenay
Decl."), Ex. B (Apr. l9, 2012 Order of the Belize Supreme Court) [Dkt. #45-8]; see also
Courtenay Decl. 11 9 [Dkt. #45-6]. The Order discontinuing the case also explicitly
discharged the injunction against BSDL. [a’. Ex. B 11 3. In GOB’s February 2012 suit-
Allorrzey General v. Belize Socz``al Developmem‘ Lzd., Claim No. 140 of20l2~the court
entered an injunction, but it expired on Mareh 29, 20l2. See Courtenay Decl. W 10-13
& Ex. C. jj 6. As of February 2013, that case was still pending before the Belize Supreme
Court. See z``a’. jj 15', Tr. ofOral Arg., Feb. 25, 2013 ("Tr.") at 45-46.
5 'l``he SCJA purported "to have extraterritorial effect, making it a criminal offense if any
person, whether in Belize or elsewhere, directly or indirectly ‘instigates, commands,
counsels, procures, solicits, advises or in any manner whatsoever aids, facilitates or
encourages’ violation of an injunction or similar order issued by the Supreme Court of
Belize." Pet.’s Suppl. Mem. at 5.
D. United States Litigation
BSDL filed its petition in this Court on November 17, 2009. ()n ()ctober 18,
20l0, this court stayed the proceeding pending resolution of the case in Belize. Ia’. at 7.
BSDL appealed the stay order and, alternatively, sought a writ of mandamus. ]d.
The United States Court of Appeals for the District of Columbia Circuit granted
the writ of mandamus and held that this court’s indefinite "stay order as issued exceeded
the proper exercise of authority of the district court." Belize Soc. Dev. Lta’. v. Gov ’l of
Belz``ze, 668 F.3d 724, 727 (D.C. Cir. 2012), cert a’em'eo’, 133 S. Ct. 274 (2012). In
addition, the D.C. Circuit held that this case is governed by the New York Convention,
and litigation in Belize is irrelevant to enforcement of the arbitration award in this
proceeding. See z``d. at 730 ("[T]he pending action in Belize has no preclusive effect on
the district court’s disposition of the petition to enforce pursuant to the FAA and the New
York Convention . . . ."). The case was remanded, and I was instructed to "conduct
further proceedings not inconsistent with [the] opinion." Ia’. at 734 (intemal quotation
marks omitted).
LEGAL ANALYSIS
At oral argument, BSDL took the position that "in the world of foreign arbitration
awards that are brought to the United States for confirmation under 9 USC section 207,
this is what you would call run of the mill," and that "the D.C. Circuit has given . . . a
very clear template as to what is to be done, because section 207 says that when an award
is brought for confirmation, the District Court shall confirm unless one of the grounds for
either stay or non-enforcement under the [New York] convention is established." Tr. at
20. This is in line with my reading of our Circuit Court’s opinion in this case:
[T]he FAA, by codifying the New York Convention, provides
a carefully structured scheme for the enforcement of foreign
arbitral awards and represents an "emphatie federal policy in
favor of arbitral dispute resolution," which "applies with
special force in the field of international commerce." The
plain terms of the FAA instruct a district court reviewing a
foreign arbitral award to "confirm the award unless it j”zna’s
one of the grounds for refusal or deferral of recognition or
enforcement . . . specified in the [New York] Convention."
Belize Soc. Dev. Ltd., 668 F.3d at 733 (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymoulh, lnc., 473 U.S. 614, 631 (1985), and 9 U.S.C. § 207).6
GOB nevertheless argues that, even after the Circuit Court’s ruling, there are at
least five distinct grounds on which 1 could dismiss the petition, including lack of subject
matter jurisdiction, lack of standing, and forum non conveniens See Resp’t’s Suppl. Br.
at 1-26; Resp’t’s Mem. at 15-45; Oral Arg. Tr. at 4-19. I am confident that if this ease
raised such significant jurisdictional and justiciability concerns, our Circuit Court would
have flagged them, rather than emphasizing that "the district court’s task [is] to review
and grant BSDL’s petition to confirm the Final Award absent a finding that an
enumerated exception to enforcement specified in the New York Convention applie[s]."
Belize Soc. Dev. Ltd., 668 F.3d at 733. Still, in an abundance of caution, I will consider
6 This case does not involve "a number of complex factual and legal issues" warranting
dismissal. Resp’t’s Suppl. Br. at 12. Even if``I accepted the notion that a petition can be
denied solely because it is complex, 1 would not do so here. Indeed, the length of this
opinion is a result of the sheer number of meritless arguments that GOB has raised, not
their complexity!
each of GOB’s grounds for dismissal before turning to GOB’s five arguments for why 1
should deny the petition on its merits. See Resp’t’s Suppl. Br. at 26-43.
1n short, 1 am not persuaded by any of GOB’S asserted bases for dismissing or
denying BSDL’s petition, and 1 will therefore grant the petition, confirm the arbitration
award, and enter judgment in BSDL’s favor.
I. GROUNDS FOR DISMISSING THE PETlTION
A. Jurisdiction and Immunity Under Foreign Sovereign Immunities Act
This Court has subject matter jurisdiction over "any nonjury civil action against a
foreign state . . . as to any claim for relief in personam with respect to which the foreign
state is not entitled to immunity either under [the Foreign Sovereign Immunities Act
("FSIA")] or under any applicable international agreement." 28 U.S.C. § 1330(a). GOB
takes the position that it is entitled to sovereign immunity under the FSIA because it has
never waived immunity and none of the FSIA exceptions apply. See Resp’t’s Mem. at
37-41. GOB is mistaken.
Under the FSIA, a foreign sovereign enjoys no immunity from a suit "to confirm
an award made pursuant to [] an agreement to arbitrate, if . . . the agreement or award is
or may be governed by a treaty or other international agreement in force for the United
States calling for the recognition and enforcement of arbitral awards." 28 U.S.C.
§ 1605(a)(6)(B). The LClA’s award in this case is clearly governed by the New York
Convention because both England (where the arbitration took place) and the United
States are parties to the Convention. Belize Soc. Dev. Lta’., 668 F.3d at 731 n.3. Bclize’s
status under the convention is irrelevant. Id. Moreover, it is well settled that an action to
8
confirm an arbitration award under the New York Convention falls squarely within the
ambit of the § 1605(a)(6)(B) immunity exception Creighz‘on Ltd. v. Gov ’t of the State of
Qatar, 181 F.3d 118, 123-24 (D.C. Cir. 1999); see also Cont’l Transfert Technique Lta’.
v. Feal. Gov ’t ofNigeria, 697 F. Supp. 2d 46, 55-56 (D.D.C. 2010) (applying 28 U.S.C.
§ 1605(a)(6) in case involving dispute between a foreign sovcreign, Nigeria, and one of
its own nationals, a Nigerian corporation). Thus, this Court has subject matter
jurisdiction.7
GOB challenges the application of § 1605(a)(6), claiming that the LClA’s final
arbitral award is unenforceable because the Accommodation Agreements containing the
arbitration clause "are void ab initio under Belizean law." See Resp’t’s Suppl. Br. at 25;
see also Final Award 11 17 (quoting relevant arbitration clause). 1 agree with my
colleague, Judge Boasberg, who recently noted a lack of authority for the proposition
"that the Court must conduct [] an independent, a’e novo determination of the arbitrability
of a dispute to satisfy the FSlA’s arbitration exception." Chevron Corp. v. Republic of
Equaa’or, --- F. Supp. 2d ----, 2013 WL 2449172, at *3 (D.D.C. June 6, 2013). 1ndeed,
the FSIA jurisdictional inquiry is a "cabined" one that focuses on the authority of the
7 Any argument that this Court lacks personal jurisdiction over GOB is also meritless.
See Resp’t’s Mem. at 41-43. "[U]nder the FSIA, subject matter jurisdiction plus service
of process equals personal jurisdiction." Practical Concepts, Inc. v. Repul)lic ofBolivia,
81 1 F.2d 1543, 1548 n.ll (D.C. Cir. 1987) (internal quotation marks omitted); see also
28 U.S.C. § 1330(b); cf GSS Grp. Lta’ v. Nat’l PortAuth., 680 F.3d 805, 809 (D.C. Cir.
2012) ("[F]oreign sovereigns and their extensively-controlled instrumentalities are not
‘persons’ under the Fifth Amendment's Due Process Clause-and thus have no right to
assert a personal jurisdiction defense." (citing Price v. Socialist People ’s Libyan Arab
Jamahirz``ya, 294 F.3d 82, 95-96 (D.C. Cir. 2002))). GGB does not dispute that it was
served process. See Oral Arg. Tr. at 23 (unrefuted argument by BSDL that "[t]here is no
dispute about service.").
court, not the contractual rights and obligations of the parties. See ia’. at *4 (citing
Creighton Ltd., 181 F.3d at 24). And regardless of whether 1 consider contract validity
now, the question will be addressed anyway-as it always is, though under a deferential
standard, see ia’. at *5-when 1 turn to the Article V(l )(a) exception to the New York
Convention, see infra Part I1.B.8
B. Forum N0n Conveniens
GOB also argues for dismissal based on the relative inconvenience of litigating in
this forum. See Resp’t’s Mem. at 26-28; Resp’t’s Suppl. Br. at 5-l3. Under the doctrine
of forum non conveniens, 1 "must decide (l) whether an adequate altemative forum for
the dispute is available and, if so, (2) whether a balancing of private and public interest
factors strongly favors dismissal." Agudas Cnasia’ez`` Chabao' of U.S. v_ Russian Fea’ ’n,
528 F.3d 934, 950 (D.C. Cir. 2008) (citing Pz``per Aircraft Co. v. Reyno, 454 U.S. 235,
255 n,22 (1981)). The balancing of private and public interests occurs only if an adequate
alternative forum exists. Ial.
Unfortunately for GOB, there is no adequate alternative forum for this case
because "only a court of the United States (or of one of them) may attach the commercial
property of a foreign nation located in the United States." TMR Energy Ltd. v. State
Prop. Fund ofUkraine, 411 F.3d 296, 303 (D.C. Cir. 2005). Even if GOB has no
attachable property in the United States at this time, Resp’t’s Suppl. Br, at 8, "it may own
8 GOB also argues that the assignment between Telemedia and BSDL is void, so GOB
remains immune to suits brought by BSDL. See Resp’t’s Suppl. Br. at 25-26. But GOB
cites no case~and 1 am aware of none-in which a foreign state’s amenability to suit
under the FSIA turns on the validity of an assignment to the plaintiff.
10
property here in the future, and [B SDL’s] having a judgment in hand will expedite the
process of attachment," TMR Energy, 411 F.3d at 303. This is the controlling law in our
Circuit, and 1 will therefore apply it faithf``ully.9 Because GOB’s forum non conveniens
argument falters at the first step, 1 need not consider the second.
C. International Comity and Abstention
Convenience aside, GOB also urges me to dismiss BSDL’s petition on
international comity and abstention grounds for the following reasons: Belize is not a
signatory to the New York Convention, this matter is already before the courts of Belize,
Belize has a greater interest in the outcome of the case, and there are conflicts of law
between the United States and Belize. See Resp’t’s Mem. at 24-26; Resp’t’s Suppl. Br.
at 13~19. The Circuit Court’s decision remanding this case essentially forecloses these
arguments, as the Court held that litigation in Belize "has no preclusive effect on the
district court’s disposition of the petition to enforce," Belize Soc. Dev. Ltd., 668 F.3d at
730, and "[t]he fact that Belize is not a party to the New York Convention is irrelevant,"
ial. at 731 n.3. Our Circuit Court, of course, was well aware that courts in Belize were
reaching conflicting decisions regarding the enforceability of the Final Award, see id. at
9 TMR Energy is binding, unlike Second Circuit case law, see Resp’t’s Me1n. at 26-28
(citing ]n re Arbitration Between Monegasque a’e Reassurances S.A.M. v. Nak Naftogaz
ofU/craine, 311 F.3d 488 (2d Cir. 2002)); Resp’t’s Suppl. Br. at 6-10 (citing Figueirea’o
Ferraz E Engenharz'a a’e Projeto Llcla. v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011)),
and unlike an "in the alternative" decision rendered by another judge of this court that
was not affirmed (or even considered) on appeal, Resp’t’s Mem. at 28 (citing TermoRio
S.A. E.S.P. v. Electrzfz``caa’ora DelAt/antz``co S.A. E.S.P., 421 F. Supp. 2d 87 (D.D.C.
2006), aj"a' on other grouna’s, 487 F.3d 928, 932 (D.C. Cir. 2007).
ll
728-29, and it instructed me to proceed with enforcement anyway. m Regardless of
whether our Circuit Court’s "holding has the potential for straining relations between the
United States and Belize," Resp’t’s Suppl. Br. at 17, 1 am, in the final analysis, bound by
that decision.ll
D. Standing
According to GOB, BSDL lacks standing to enforce the arbitration award because
Telemedia did not validly assign BSDL the right to the monetary portion of the award.
GOB challenges the assignment both under the terms of the Accommodation Agreement,
see Resp’t’s Mem. at 33~34; Resp’t’s Prelim. Resp. at 16~17; Resp’t’s Suppl. Br. at 20-
m 1 am also not convinced that there really is a "true conflict" between U.S. and Belizean
law. See Resp’t’s Suppl. Br. at 18-19. The Court of Appeal of Belize has held that,
because Belize is not party to the New York Convention, "there is no legal obligation on
the part of Belize to recognize and enforce domestically arbitral awards within the
contemplation of the New York Convention in accordance with Article 3 of that
instrument." Decl. of Michael C. Young, S.C. ("Young Decl."), Ex. K at 11 76 (Att’y Gen.
ofBelize v. BCB Holdings Ltd., Civ. App. No. 4 of 2011 (Aug. 8, 2012)) [Dkt. #39-12]
(emphasis added). Our Circuit Court has, to my knowledge, never addressed whether
Belize ’s courts must enforce awards under the New York Convention; it has merely held
that this Court is required to do so unless a Convention exception applies. See Belize
Soc. Dev. Ltd., 668 F.3d at 733.
ll GOB ignores that "the central precept of comity teaches that, when possible the
decisions of foreign tribunals should be given ejfect in domestic courts, since recognition
fosters international cooperation and encourages reciprocity, thereby promoting
predictability and stability." Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731
F.2d 909, 937 (D.C. Cir. 1984) (emphasis added). The LClA--located in England, a
fellow signatory to the New York Convention-rendered a decision in BSDL’sfavor,
and 1 will not dismiss this enforcement petition on the backwards notion that doing so
will somehow advance the courts’ interest in fostering intemational cooperation and
reciprocity with foreign governments and their legal tribunals.
12
21, and under Belizean law, see Resp’t’s Suppl. Br. at 21~22 (citing Belizean case law
and regulations).lz Neither of these arguments is persuasive.
First, Section 19 of the Accommodation Agreement, on which GOB bases its
entire Accommodation Agreement argument, was "deleted in its entirety" and replaced
by a new provision on january 1, 2008, more than a year before the Mareh 20, 2009
Telemedia-BSDL assignment even took place. See Decl. of Louis B. Kimmelman
("Kimmelman Decl."), Ex. E 1111 7.2, 7.3 (Sett1ement Deed dated Jan. 7, 2008) [Dkt. #l-
7], czrnending Kimmelman Decl., Ex. B § 19 ("Accommodation Agreement") [Dkt. #1~4].
Paragraph 7.3 of the Settlement Deed, which was in effect at the relevant time, contains
none of the terms in Section 19 that GOB claims were offended by the assignment.
Second, GOB’s reliance on the law of Belize is misplaced. By its own terms, the
assignment "is governed by English law and shall be construed in accordance with
English law.” See Decl. of Stephen J. Ruzika ("Ruzika Decl."), Ex. C 11 3.6 (Deed of
Assignment) [Dkt. #1-19].]3 Curiously, GOB does not address English law at all in its
briefs, whereas BSDL has provided a thorough expert opinion, which explains that the
'2 GOB does not dispute that under the New York Convention, an assignee can enforce
an arbitration award in favor of the assignor. See, e.g., Global Distressed Alpha Fund ]
LP v. Red Sea Flour Mills Co. Ltd,, 725 F. Supp. 2d 198 (D.D.C. 2010).
13 Precedent from this Circuit and others favors application of the law that the parties to a
contract agreed would apply. See, e.g., Telenor Mobile Commc ’ns AS v. Storm LLC, 584
F.3d 396, 411 n.1 1 (2d Cir. 2009) (in action to enforce arbitration award under New York
Convention, applying New York law pursuant to choice-of-law clause in agreement);
Asz``a N. Am. Eastbound Rate Agree)nent v. BJI Indus., Inc., 923 F. Supp. 4, 4 (D.D.C.
1996) (applying Hong Kong law in arbitration enforcement case because "‘[u]nder
American law, contractual choice-of-law provisions arc usually honored."’ (quoting
Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763, 767 (D.C. Cir. 1992))).
13
assignment "complies with the requirements of section 136 of the [English] Law of
Property Act 1925" and "is sufficient to transfer the [monetary portion of the arbitration
award] from Telemedia to BSDL pursuant to both section 136 and equity." Op. of
Marcus Smith QC on English Law ("Smith Op.") 11 15 [Dkt. #45-16]; see also id. 1111 10-
14. Moreover, BSDL’s expert details why "nothing in either section 19 [of the
Accommodation Agreement] or in section 7.3 [of the Settlement Deed] . . . prevent[s] the
assignment." Id. 11 9; see also id. at 6~8. Finding no basis to discredit BSDL’s expert or
to treat the assignment as invalid, 1 am satisfied that BSDL has standing."
E. Failure to Join a Required Party Under Rule 19
1 am also satisfied that there are no necessary parties missing from this case.
Under F ederal Rule of Civil Procedure 19, a case may be dismissed only if an absent
party is "required" in the litigation, the absent party cannot be joined, and equitable
factors weigh in favor of dismissal. Cherokee Nation of Gkla. v. Babbitt, 117 F.3d 1489,
1495-96 (D.C. Cir. 1997) (citing FED. R. Civ. P. 19(a), (b)); see also FED. R. C1v.P.
l2(b)(7) (allowing motion to dismiss for "failure to join a party under Rule 19"). A party
is "required" if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the
action and is so situated that disposing of the action in the
person’s absence may:
14 As already explained, it is irrelevant that "BTL intends to file an action in the Belize
Supreme Court seeking a declaration that the purported assignment between [Telemedia]
and BSDL was void ab initio." Resp’t’s Suppl. Br. at 23; see Belize Soc. Dev. Ltd., 668
F.3d at 730.
14
(i) as a practical matter impair or impede the person’s
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
FED.R. Civ.P. l9(a)(1).
GOB contends that Telemedia and its former majority shareholder, Dunkeld
1ntemational investments Ltd. ("Dunkeld"), are indispensable parties because Dunkeld
has brought a separate claim in Belize "assert[ing] damages from the non-payment of the
same Arbitration Award that BSDL seeks to collect," Resp’t’s Mem. at 44; see also id. at
43-45; Resp’t’s Suppl. Br. at 23-25, and because Telemedia "is the beneficiary of the
award on its face and . . . the purported assignment [from Telemedia to BSDL] was
invalid," Resp’t’s Suppl. Br. at 24. These arguments are meritless.
There is no evidence in the record that Dunkeld has ever asserted the right to
enforce the LCIA arbitration award. To the contrary, Dunkeld’s December 4, 2009
Notice of Arbitration'which GOB cites as the sole piece of evidence that Dunkeld has
claimed an interest in the award_explicitly states that "[o]n 20 Mareh 2009 Telemedia
assigned the benefit of the LCIA Award . . . insofar as it orders the payment of certain
damages and costs by [GOB] to Telemedia, to [BSDL]." Decl. of Gian C. Ghandi
("Ghandi Decl."), Ex. 8 1 7.13 (Notice of Arbitration) [Dkt. #15-10]. And as already
discussed, Telemedia in fact did assign to BSDL its right to the monetary portion of the
arbitral award, as well as the right to enforce that award. See supra Part l.D; see also
Ruzika Decl., Ex. C 11 1.3 ("[T]he Assignee shall have the sole right to enforce any and
15
all rights which accrue in respect of the [damages and costs awarded by the LCl/\]
against [GOB]."). Dunkeld obviously agrees that there is a valid assignment.15
As a matter of both English and U.S. law, not to mention common sense, an absent
party that has assigned its legal rights is not "required" in litigation brought by the
assignee to enforce those rights. See Smith Op. 11 1 1 ("BSDL can claim the [award] in its
own name . . . ."); Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 51 (D.D.C. 2003)
("ln light of [an assignee-]plaintiff s claim that it is the sole possessor of the rights being
asserted against defendant, it is difficult to see how the Court will be unable to accord
relief in the absence of [an assignor] or how defendant will incur multiple or inconsistent
obligations by reasons of the claimed interest.").16 Conversely, an attempt by Telemedia
or its fenner shareholder to enforce rights that it has assigned away would be patently
15 Paragraph 7.33 of the Dunkeld-GOB Notice of Arbitration does not support GOB’s
argument that Dunkheld has asserted damages from the non-payment of the arbitration
award. See Resp’t’s Mem. at 43-44. Rather, it appears to reflect a disagreement about
whether GOB is entitled to deduct "sums allegedly due as arrears of taxes, duties and
charges" when compensating Dunkeld for its shares in Telemedia and whether "the
specified taxation rates and set-off provisions of the Accommodation Agreement" apply.
Gandhi Decl., Ex. 8 11 7.33. lt says nothing about Dunkeld’s or Telemedia’s right to
enforce the LCIA award itself.
GOB also grossly mischaracterizes the record when it says that "1n [a December
2009] letter, as a basis of its threatened claims against the GOB, Dunkeld asserts that the
GOB ‘has not complied with [the subject] LCIA award." Resp’t’s Suppl. Br. at 23. The
quoted statement about GOB’s non-compliance with the award is not in the letter from
Dunkeld’s counsel, see Ghandi Decl., Ex. 8 at 3-4, but rather is found ten pages into
Notice of Arbitration, which was attached to the letter, see id. 11 7.14. Moreover, it is
found in the "factual background to the dispute" section of the Notice, see id. 11 7, and is
not at all presented as "a basis of [Dunkeld’s] threatened claims."
16 Cf Capitol Med. Ctr. v. Amerigroup Md., Inc., 677 F. Supp. 2d 188, 193 n.7 (D.D.C.
2010) ("Unlike the plaintiff in [Primax], [plaintiff] has not assumed the rights of the
absent party.").
16
frivolous under English law (which, again, governs the assignment agreement) unless
BSDL were joined as a party in that case. See Smith Op., Ex. K 11 58 ("When there has
been an assignment that takes effect in equity, the general rule is that it is the equitable
assignee who has the right to sue, because it is the equitable assignee who is beneficially
entitled to the thing in action. T he assignor will not be allowed to maintain an action
regarding the thing in action unless the assignee is joined as a party to the claim."
(emphases added)). GOB offers no evidence that BSDL has ever signaled a willingness
to assist Telemedia or Dunkeld in bringing duplicitous lawsuits to enforce the arbitration
award. Telemedia and Dunkeld therefore have no "legally protected interest" worthy of
recognition under Rule 19(a)(1)(B). See Wach v. Byrne, Goldenberg & Harnilton, PLLC,
910 F. Supp. 2d 162, 170 (D.D.C. 2012) ("legally protected interest" excludes claims that
are "patent1y frivolous" (quoting Davis v. United States, 192 F.3d 951, 959 (l0th Cir.
1999); citing Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992))).
11. GRoUNi)s FoR DENYING THE PET1T1oN"
A. Failure to Produce Copies of Arbitral Award and Accommodation
Agreement (Article IV(l))
GOB claims that BSDL’s petition should be denied because it does not comply
with Article 1V of the New York Convention, which requires the petitioner, "at the time
11 1 note that under the New York Convention, "[r]ecognition and enforcement of the
award may [not must] be refused . . . only if" the opposing party proves that certain
conditions are met. Art. V(l) (emphasis added). As 1 will explain at length, 1 find that
none of those conditions are met; however, even if 1 am mistaken, 1 would still exercise
any discretion that 1 have to recognize and enforce the award in BSDL’s favor, as 1
believe that is consistent with our federal treaty obligations and policies favoring arbitral
dispute resolution, deference to arbitrators, and comity with fellow treaty signatories.
17
of the application, [to] supply: (a) The duly authenticated original award or a duly
certified copy thereof; [and] (b) The original agreement [to arbitrate] or a duly certified
copy thereof." Resp’t’s Suppl. Br. at 27 (quoting Article lV( 1)). BSDL concedes that it
did not provide original or duly certified copies of original documents, but says that
"signed copies . . . that were certified to be ‘true and correct’ copies ‘under penalty of
perjury"’ are enough. Pet’r’s Suppl. Mem. at 17-18 (citing Dkt. ##1-3, l-4).
1 agree with another judge who characterized an argument like GOB’s as
"grasping at straws, attempting to persuade the Court to refuse to confirm the award on
the basis of a mere technicality." Arbitration Between Overseas Cosmos, Inc. v. NR
Vessel Corp,, No. 97 CIV. 5898(DC), 1997 WL 757041, at *5 (S.D.N.Y. Dec. 8, 1997).18
The purpose of Article lV’s "original . . . or duly certified copy" requirement is to require
the petitioner to prove that the relevant documents exist. See id. Like the respondent in
Overseas Cosrnos, GOB challenges only the enforceability_not the existence or
genuineness_of the arbitration agreement or award;19 therefore, sworn and certified
copies of these documents are "sufficient to satisfy the requirements of Article IV." Id.;
see also Cont’l Grain Co. v. Foremost Farms lnc., No. 97 Civ. 0848 (DC), 1998 WL
18 1n many, if not most, arbitration-confirmation cases, the respondent does not even raise
an Article 1V arguinent, and my colleagues routinely confirm arbitral awards relying on
documents sworn and certified by petitioner’s counsel. See, e.g., Chevron Corp., 2013
WL 2449172 at *6; id., CA No. 12-1247 (JEB), Decl. ofEdward G. Kehoe & Exs. 1-5
[Dkt. ##4 to 4-5]; Int’l Trading & 1ndus. Inv. Co. v. DynCorp Aerospace Tech., 763 F.
Supp. 2d 12, 31 (D.D.C. 2011); id., CA No. 09-791 (RBW), Decl. of Christopher R. Hart
& Exs. A, B [Dkt. ##l-2, 1-41.
19 Petitioner’s counsel presented originals at the February 25, 2013 oral argument, see Tr.
at 20, and respondent did not dispute their existence or authenticity.
18
132805, at *2 (S.D.N.Y. Mar. 23, 1998). Under these circumstances, reading Article 1V
to require anything more would create a rule that is "unnecessarily restrictive and at odds
with a common sense reading of the provision." Bergesen v. Joseph Muller Corp., 710
F.za 923, 934 (2d Cir. 1983).2°
B. Invalidity of Accommodation Agreement (Article V(l)(a))
Next, GOB argues that the arbitration award is unenforceable because "the alleged
arbitration agreement [between GOB and BTL] is invalid under the laws of Belize." See
Resp’t’s Suppl. Br. at 28 (citing N.Y. Conv. Art. V(l)(a)). 1n truth, however, GOB does
not challenge the legality of the arbitration agreement as a stand-alone provision; rather,
GOB fires attacks on at least a dozen other provisions of the Accommodation
Agreements. See id. at 28-38; Resp’t’s Prelim. Resp. at 26-36.
Unfortunately for GOB, it is well-settled law that "an arbitration provision is
severable from the remainder of the contract." Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 445 (2006) (holding that arbitrator should decide whether
contract containing arbitration clause was void ab initio because terms other than the
arbitration clause violated state law and rendered the contract "criminal on its face").
Absent a direct challenge to the arbitration clause itself, the clause remains "enforceable
apart from the remainder of the contract," and GOB’s challenge to the validity of the
contracts "should . . . be considered by an arbitrator, not a court." Id. 446; see also id. at
211 This case is unlike Czarina, L.L.C. v. W.F. Poe Syndicate, where the court held that an
"unsigned, unexecuted sample wording" of an arbitration clause was not sufficient. 358
F.3d 1286, 1289 (1 lth Cir. 2004). BSDL’s copies of the arbitration agreement and award
are signed, executed, and in final form. See Accommodation Agreement at 25; Final
Award at 109.
19
449 ("[A] challenge to the validity of the contract as a whole, and not specifically to the
arbitration clause, must go to the arbitrator." (emphases added)); Nanosolutions, LLC v.
Prajza, 793 F. Supp. 2d 46, 54~55 (D.D.C. 2011) ("[T]he FAA prohibits a district court
from considering . . . challenges [to] the contract as a whole.").21 Moreover, the New
York Convention instructs contracting states to "recognize an agreement in writing under
which the parties undertake to submit to arbitration," with "agreement in writing" defined
to include "an arbitral clause in a contract." N.Y. Conv. Art. 11(1), (2) (einphasis added).
Thus, the "agreement in writing" that must be valid under the convention is the
arbitration clause, not the entire contract containing the clause,
Section 15.2 of the Accommodation Agreement reflects the parties’ clear intent to
arbitrate "[a]ny dispute arising out of or in connection with this Agreement including any
question regarding its existence, validity or termination." GOB offers no basis under
Belizean law, or any other law, for this Court to find that particular clause invalid.zz
21 The LCIA considered the validity of the Accommodation Agreement, see Final Award
1111 146-176, and found it "valid and enforceable against the present [GOB]," id. 11 176.
22 GOB relies heavily on the Third Circuit’s opinion in China Minmetals Materials
[mport & Export Co., Ltd. v. Chi Mei Corp., but in that case, the respondent claimed that
the entire agreement containing the arbitration clause had been forged and thus the parties
had never agreed to arbitrate, 334 F.3d 274, 277 (3d Cir. 2003). The court framed the
question before it as "whether a foreign arbitration award might be enforceable regardless
of the validity of the arbitration clause on which the foreign body rested its jurisdiction."
]d. at 279 (emphasis added). Answering in the negative, the court held "that a district
court should refuse to enforce an arbitration award under the Convention where the
parties did not reach a valid agreement to arbitrate." Id. at 286 (emphasis added); see
also id. at 284 ("[T]he district court here had an obligation to determine independently
the existence of an agreement to arbitrate . . . ." (emphasis added)).
Given the particular facts before the court, 1 read China Minmetals as consistent
with Buckeye, which distinguished between "[t]he issue of the contract’s validity," which
20
C. The Inappropriateness of Arbitration (Articles V(1)(c) and V(Z)(a))
The New York Convention allows for enforcement of an arbitral award to be
refused if "[t]he award deals with a difference not contemplated by or not falling within
the terms of the submission to arbitration, or it contains decisions on matters beyond the
scope of the submission to arbitration," Art. V(l)(c), or if "[t]he subject matter of the
difference is not capable of settlement by arbitration under the law of th[e] country"
being asked to recognize and enforce the award, Art. V(2)(a). GOB contends that these
articles apply because the LCIA Award and its enforcement violate the internationally-
recognized common law revenue rule, see Resp’t’s Mem. at 19-24; Resp’t’s Prelim.
Resp. at 12-16, 36-38; Resp’t’s Suppl. Br. at 38-40, as well as the United States’
political question and act of state doctrines and principles of comity,23 see Resp’t’s
Prelim. Resp. at 38~39; Resp’t’s Suppl. Br. at 40. According to GOB, U.S. courts cannot
resolve disputes like the one between GOB and Telemedia, so an arbitrator in the United
States could not settle such a case either. See Resp’t’s Suppl. Br. at 40.21
is not for the court to resolve, and "the issue [of] whether any agreement between the
alleged obligor and obligee was ever concluded," which the courts might be allowed to
consider. Buckeye, 546 U.S. at 444 n.l. 1n this case, GOB alleges that "[t]he illegality of
provisions in the Accommodation Agreement is wide and major," Young Decl. at 11 7
[Dkt. #39-1], but unlike the respondent in China Minmetals, GOB does not challenge the
very existence of an agreement to arbitrate between two parties who had the authority and
capacity to contract on behalf of their principals, see Buckeye, 546 U.S. at 444 n. 1.
21 1 have already discussed comity in an earlier section. See supra Part I.C.
21 lt bears noting that GOB is incorrect when it says that "an arbitrator operating under
U.S. law cannot have any authority that is broader than a U.S. court would have."
Resp’t’s Suppl. Br. at 40. At least one court has explicitly found that "[a] ‘parochial
21
The LCIA considered the revenue rule and decided that it did not apply because
this is a contract case, not an action to enforce a foreign nation’s tax laws. See Final
Award 11 180.25 1 agree with its reasoning. "[T]he revenue rule is often stated as
prohibiting the collection of foreign tax claims," Pasquantino v. United States, 544 U.S.
349, 361 (2005) (emphasis added) (holding that revenue rule did not preclude wire fraud
prosecution of defendants who had engaged in smuggling to evade Canadian taxes). lt is
clear from the Supreme Court’s analysis in Pasquantino that the rule long ago derived
from "the rule against foreign penal enforcement" and the "analogy between foreign
revenue laws and penal laws." Id. 1n bringing the LCIA arbitration and this enforcement
action, Telemedia and BSDL are not attempting to enforce Belizean tax law or collect
any tax revenue. They are seeking to enforce a contract, and although that contract
contains tax-related provisions, the arbitration award and enforcement of that award do
not entail the enforcement of any foreign revenue law. Thus, the matters arbitrated were
contemplated by and within the terms and scope of the submission to arbitration, and they
refusal’ to enforce an arbitration agreement would frustrate th[e] purpose [of the New
York Convention], therefore, a court should compel arbitration even if the arbitrator
could make a ruling that an American court could not." Belship Navigation, Inc. v.
Sealift, Inc., 95 CIV. 2748 (RPP), 1995 WL 447656, at *6 (S.D.N.Y. 1995) (emphasis
added) (quoting and citing Mitsubishi Motors Corp., 473 U.S. at 629-31). 1n any event,
for the reasons that follow, the subject matter of this case could be heard in U.S. courts.
25 GOB characterizes the LClA’s discussion of the revenue rule as "one short paragraph"
that relies on "unidentified” authorities. Resp’t’s Mem. at 22. To the contrary, paragraph
180 of the award is one of the longest in the Final Award, and footnote 95 provides ample
support for the proposition that arbitrators can resolve tax issues in contract disputes.
22
relate to subject matter capable of settlement by arbitration in the United States. The
revenue rule provides no basis for declining enforcement.zé
As for the act of state doctrine, the FAA states that "[e]nforcement of arbitral
agreements, confirmation of arbitral awards, and execution upon judgments based on
orders confirming such awards shall not be refused on the basis of the Act of State
a@cin'ne.” 9 U.s.c. § is (emphasis aaa@513
U.S. 265, 272 (1995), it would be nonsensical for me to find that this case was "not
capable of settlement by arbitration" in the United States because of that very doctrine.
The political question doctrine, meanwhile, "is primarily a function of the
separation of powers" and should not be understood to mean that "every case or
controversy which touches foreign relations lies beyond judicial cognizance." Baker v.
Carr, 369 U.S. 186, 210-11 (1962). The subject matter of the controversy in this case-
the existence and enforceability of a contract between a state and a private party-raises
no separation of powers concerns, or any other political questions for that matter, that
26 GOB does not cite a single case in which a U.S. court declines to enforce a foreign
arbitral award based on the revenue rule.
21 "Although [9 U.S.C. § 15] is located in Chapter One of the FAA rather than in the
Convention-implementing Chapters Two and Three, Chapter One of the FAA applies to
actions brought under the New York . . . Convention[] unless it is ‘in conflict’ with
Chapter[] Two . . . [of] the Convention[] as ratified." Republic of Ecuador v.
ChevronTexaco Corp., 376 F. Supp. 2d 334, 366 (S.D.N.Y. 2005) (quoting 9 U.S.C. §
208), abrogation on other grounds recognized by Goel v. Ramachandran, 823 F. Supp.
2d 206, 215-16 (S.D.N.Y. 201 l). Section 15 does not appear to conflict with the New
York Convention or Chapter Two of the FAA, see id., and GOB offers no argument that
such a conflict exists.
23
would make it non-arbitrable under U.S. law. 1n fact, courts in our Circuit regularly
resolve contract disputes brought by private parties against foreign countries. See
McKesson, Corp. v. Islamic Republic of]ran, 672 F.3d 1066 (D.C. Cir. 2012); GulfRes.
Am., Inc. v. Republic ofCongo, 370 F.3d 65 (D.C. Cir. 2004); El-Hadad v. UnitedArab
Emirates, 216 F.3d 29 (D.C. Cir. 2000); Wye Oak Tech., Inc. v. Republic oflraq, --- F.
Supp. 2d ----, 2013 WL 1734436 (D.D.C. Apr. 23, 2013). Given the frequency with
which these cases arise-and the fact that GOB fails to cite even one such case decided
on political question grounds_it simply cannot be that the political question doctrine
bars U.S. courts from deciding any case in which a foreign government says that it
breached a contract or committed a tort for some political reason. That defense could
apply in every case of this sort, and yet, GOB cannot direct me to a single example of a
court accepting it.
Furthermore, GOB cannot challenge enforcement by first, raising arguments that
"depart from the law and enter the realm of political theory," and then, invoking the
political question doctrine. Republic of Philippines v. Westinhouse Elec. Corp., 774 F.
Supp. 143 8, 1465 (D.N.J. 1991).211 This case implicates no "political decisions that are by
their nature committed to the political branches to the exclusion of the judiciary,"
Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal quotation marks
211 See ia’. at 1464-65 (denying motion to dismiss on political-question grounds where
defendant argued that former president’s "de facto power negated the very existence of
fall relevant] laws," because such an argument "has no place in a court of law"). GOB
admits that its arguments are not legal in nature, see Resp’t’s Mem. at 32 ("[Resolving
this petition] is not merely a task of applying a foreign law."), but rather are "part of a
significant political controversy within Belize," id. at 30. A political controversy in
Belize, however, does not necessarily create a "political question" in the United States.
24
omitted), nor any "separation-of-powers concerns that would justify invocation of the
political question doctrine," de Csepel v. Republic of Hungary, 714 F.3d 591, 604 (D.C.
Cir. 20l3) (internal quotation marks omitted) (holding that political question doctrine did
not bar suit by heirs of 1 ewish Hungarian art collector against Hungary for breach of
bailment agreements entered during World War 11).29
E. Suspension of the Award by a Competent Authority (Article V(])(e))
1n its initial motion to stay or dismiss and its preliminary response to BSDL’s
petition, GOB argued that 1 should decline to enforce the LCIA Award under Article
V(l)(e) of the New York Convention because "enforcement of the Award has been
suspended by a competent authority (Belize Supreme Court)." Resp’t’s Mem. at 15;
Resp’t’s Prelim. Resp. at 20~26. Our Circuit Court addressed Article V(l)(e), saying:
Because the arbitration occurred in London and under the
arbitral laws of England, the courts of England are the
competent authority with primary jurisdiction over the Final
Award; absent proceedings for setting aside or suspending the
Final Award in those courts, the [GOB] can offer no basis on
which to conclude that the stay of BSDL’s petition for
enforcement was properly issued under the FAA and New
York Convention.
Belize Soc. Dev. Ltd., 668 F.3d at 731 (emphases added). GOB has not sought or
obtained any relief in the English courts, so Article V(l)(e) does not apply.
29 1n its first filing, GOB raised the act of state and political question doctrines as grounds
for dismissing the case outright, rather than denying the petition under Article V(2)(a).
See Resp’t’s Mem. at 28-33. 1 reach the same outcome either way. This enforcement
action raises no greater act-of-state or political-question concerns than the underlying
arbitration does.
25
F. Public Policy (Article V(2)(b))
Finally, GOB urges the Court to refuse recognition and enforcement of the LCIA
Award on the basis that doing otherwise would be "contrary to the public policy" of the
United States. Resp’t’s Prelim. Resp. at 39-42; Resp’t’s Suppl. Br. at 41-43 (quoting
N.Y. Conv. Art. V(Z)(b)). As our Circuit Court has notcd, courts around the country
"have been very careful not to stretch the compass of ‘public policy,"’ applying the
defense "‘only where enforcement would violate the forum state’s most basic notions of
morality andjustice.’” TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 938 (D.C.
Cir. 2007) (quoting Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan
Gas BumiNegara, 364 F.3d 274, 306 (5th Cir. 20()4)).
GOB cites the Foreign Corrupt Practices Act as the "best evidence[]" that the
United States has "a strong public policy against corruption abroad." Resp’t’s Suppl. Br.
41. 1 agree with the general notion that the United States has a strong policy against
foreign corruption. But it also has a countervailing policy that 1 mentioned earlier-an
"‘emphatic federal policy in favor of arbitral dispute resolution"’ that "‘applies with
special force in the field of``intemational commerce."’ Belize Soc. Dev. Ltd., 668 F.3d at
733 (quoting Mitsubishi Motors Corp., 473 U.S. at 631). This is not the first time a court
has been confronted with conflicting po1icies, one weighing in favor of enforcing an
arbitral award and one weighing against it, and consistently, U.S. courts have enforced
arbitral awards in the face of public policy interests at least as weighty as the policy
against corruption abroad. See Agility Pub. Warehousing Co. K,S.C., Prof’l Contract
Admins., Inc. v. Supreme Foodservice GmbH, 495 F. App’x 149, 151 (2d Cir. 2012)
26
("[T]he [public policy] defense is frequently invoked but rarely successl``ul, particularly in
view of the strong United States policy favoring arbitration.").30 Accordingly, GOB has
failed to show that, on ba1ance, enforcing this award would so offend the United States’
"most basic notions of morality and justice" that Article V(2)(b) applies.31
III. AWARD
lt is "the norm" for courts enforcing arbitral awards to convert foreign currency
amounts into dollars, Cont’l Transfert Technique Ltd. v. Fed. Gov ’t of Nigeria, --- F.
Supp. 2d ----, 2013 WL 1201380, at *2 (D.D.C. Mar. 26, 2013), and 1 will follow that
norm. 1n addition, lwill exercise my discretion to award prejudgment interest because 1
find that doing so is "‘consistent with the underlying arbitration award,"’ which "grants
pre-award interest but is ‘silent’ on whether a party should recover post-award interest-
i.e., prejudgment interest." Id. at *8 (quoting Ministry of Def & Support for the Armed
Forces of the Islamic Republic of [ran, 665 F.3d at 1103). The prejudgment interest will
be calculated using the average daily prime rate between the date of the Final Award and
311 See also, e.g., Ministry of Def & Support for the Armed Forces of the Islamic Republic
ofIran v. Cubic Def Sys., 665 F.3d 1091, 1096-100 (9th Cir. 2011) (regulating trade
with lran); Steel Corp. ofPhilippines v. Int’l Steel Servs., Inc., 354 F. App’x 689, 694-95
(3d Cir. 2009) (preventing forum shopping); Belship Navigation, Inc., 1995 WL 447656,
at *6 (embargoing Cuba); Nat’l Oil Corp. v. Libyan Sun Oil Co., 733 F. Supp. 800, 819-
20 (D. Del. 1990) (cutting off funding to Libya); Brandeis [ntsel Ltd. v. Calabrian
Chems. Corp., 656 F. Supp. 160, 165 (S.D.N.Y. 1987) (remedying arbitrator’s "manifest
disregard" for law).
31 For reasons set forth in this Part and in Part 11.B. ("1nvalidity of Accommodation
Agrcement"), 1 find that additional briefing on a recent decision by the Caribbean Court
of Justice is unnecessary, as that court’s ruling would have no impact on my analysis. 1
therefore will DENY GOB’s Motion for Leave to Submit Additional Briefing [Dkt. #47].
27
the date of this opinion. Id. at 9.'12 Because the parties have not done so already, 1 will
direct them to submit proposed judgment amounts with all conversions and interest
calculations performed consistent with this opinion.
CONCLUSION
For all the foregoing reasons, petitioner’s Petition to Confirm Arbitration Award
and to Enter Judgment [Dkt. #1] is GRANTED and respondent’s Motion to Stay Action
or, in the Altcmative, Dismiss Petition [Dkt. #15] is DENIED. An appropriate order shall
accompany this Memorandum Opinion.
@a;aiiw
RICHARD JK@)N
United States District Judge
32 The "prime rate" is the "‘the rate that banks charge for short-term unsecured loans to
credit-worthy customers,"’ id. at *8 (quoting Oldham v. Korean Air Lines Co., Ltd., 127
F.3d 43, 54 (D.C. Cir. 1997)). Although the Final Award sets its own pre-award interest
rate, BSDL "off``ers absolutely no authority, nor any rcasoning, to explain why the interest
rate used by an arbitral panel for pre-award interest should be mimicked by a United
States district court when granting post-award, prejudgment interest." See id. at *9.
28