Commissions Import Export S.A. v. Republic of the Congo

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2014 Decided July 11, 2014
No. 13-7004
COMMISSIONS IMPORT EXPORT S.A.,
APPELLANT
v.
REPUBLIC OF THE CONGO AND CAISSE CONGOLAISE
D'AMORTISSEMENT,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00743)
Francis A. Vasquez Jr. argued the cause for appellant. With
him on the briefs was Jack Landman Goldsmith III.
Boaz S. Morag argued the cause for appellees. With him on
the brief were Michael R. Lazerwitz and Jesse D.H. Sherrett.
Before: ROGERS, BROWN and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Commissions Import Export S.A.
(“the Company”) prevailed in 2000 in an arbitration in Paris,
France against the Republic of the Congo and Caisse Congolaise
2
d’Amortissement (collectively “the Congo”). For over eight
years, the Company sought with little success to collect on the
arbitral award pursuant, in part, to an international treaty known
as the New York Convention. After obtaining a judgment in
2009 from a court in England enforcing the arbitral award, the
Company sued in the United States to enforce the foreign
judgment under state law. The district court denied the
Company’s motion for summary judgment and dismissed the
complaint on the ground that the three-year period to confirm a
foreign arbitral award under Chapter 2 of the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 207, preempted the longer
period to enforce a foreign money judgment under the D.C.
Uniform Foreign-Country Money Judgments Recognition Act
(“D.C. Recognition Act”), D.C. Code § 15-369.
The Company maintains that FAA Chapter 2 and the D.C.
Recognition Act are two entirely separate regimes — one a
federal scheme for enforcing foreign arbitral awards, the other
a state regime for enforcing foreign court judgments — and that
the federal regime does not preempt the longer enforcement
period in the D.C. regime because the latter poses no obstacle to
the accomplishment of the purposes of the former. We invited
the United States to participate as amicus because an
international treaty is at issue, and the United States agrees with
our conclusion that the Company’s attempt to enforce the
foreign court judgment by a lawful, parallel enforcement scheme
does not stand as an obstacle to accomplishment of the purposes
of FAA Chapter 2. Accordingly, we reverse the dismissal of the
Company’s complaint and remand the case for further
proceedings.
I.
As background to the discussion of preemption, we
describe FAA Chapter 2 and the particular circumstances of this
3
case.
A.
Chapter 2 of the FAA implements the United Nations
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T.
2517, 330 U.N.T.S. 38, otherwise known as the “New York
Convention.” See 9 U.S.C. §§ 201–208; Scherk v. Alberto-
Culver Co., 417 U.S. 506, 520 n.15 (1974); TermoRio S.A.
E.S.P. Grp., LLC v. Electranta S.P., 487 F.3d 928, 933–34 (D.C.
Cir. 2007). The Convention is a multilateral treaty that, with
exceptions, obligates participating countries to honor
international commercial arbitration agreements and to
recognize and enforce arbitral awards rendered pursuant to such
agreements. See N.Y. Conv’n Arts. I, II, III; see also S. EXEC.
REP. NO. 10, at 3–4 (1968) (testimony of Amb. Richard D.
Kearney, Office of the Legal Adviser, Dep’t of State). The
United States did not join the New York Convention when it
was opened for signature in 1958, but did finally join in 1970
when Congress enacted the Act To Implement the Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards, Pub. L. No. 91-368, 84 Stat. 692 (1970) (“Foreign
Arbitral Awards Convention Act”), as Chapter 2 of the FAA.
Chapter 2 provides in 9 U.S.C. § 201 that the Convention
“shall be enforced in United States courts in accordance with
this chapter,” and in section 202 limits the application of the
Convention to international commercial disputes. It establishes
a federal forum for disputes concerning arbitrations falling under
the Convention, see id. §§ 203–204, while providing an optional
right of removal by defendants for Convention-related disputes
pending in a state court, see id. § 205. It also provides for a
court to compel arbitration and appoint arbitrators. See id.
§ 206. Of significance here, it imposes a time limit for seeking
confirmation of an arbitral award. Section 207 provides:
4
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.
Finally, Chapter 2 provides that Chapter 1, regarding non-
Convention domestic arbitration, has residual application where
there is no conflict with Chapter 2 or the New York Convention
as ratified. See id. § 208.
B.
In the 1980s, the Company entered into contracts with the
Republic of the Congo to perform public works and supply
materials. The contracts were financed through supplier credits
extended by Caisse Congolaise d’Amortissement (“CCA”) that
were formalized through promissory notes issued by CCA and
guaranteed by the Republic of the Congo. In 1992, the parties
signed an agreement for the repayment over ten years in equal,
consecutive monthly payments of certain outstanding debts
owed to the Company under the contracts. Article 10 provided
that any disputes arising from or relating to the agreement would
be resolved by final binding arbitration under the Rules of the
International Chamber of Commerce (“ICC”). CCA drew up
promissory notes endorsed in favor of the Company, and in
1993 the Republic of the Congo issued a series of commitment
letters; each commitment letter contained an irrevocable waiver
of immunity from legal proceedings or execution and a
commitment to submit all disputes to ICC arbitration in Paris,
France, governed by French law.
When the Congo failed to pay the promised amounts as they
5
came due, and did not respond to the Company’s formal demand
for payment, the Company filed a request in 1998 for arbitration
with the International Court of Arbitration of the ICC and the
matter was submitted to arbitration. On December 3, 2000, the
arbitral tribunal in Paris issued a final award in favor of the
Company (“the Award”). The Award included outstanding
principal owed under the agreement, interest, penalty interest on
various promissory notes, and costs. The Award was summarily
confirmed by the Tribunal de Grande Instance of Paris on
December 12, 2000, and was upheld on May 23, 2002 by the
Court of Appeals of Paris after the Congo appealed to rescind
the Award. The Company filed eleven judicial enforcement
proceedings to enforce the Award in France, as well as 82 non-
judicial bailiff actions.
The Company also obtained judicial recognition of the
Award pursuant to the New York Convention in Belgium and
Sweden, but obtained no recovery on the amounts owed. On
June 17, 2009, the Company initiated proceedings pursuant to
the Convention in the Queen’s Bench Division of the High
Court of Justice, Commercial Court in London, England. The
High Court entered an order on July 10, 2009, ruling that the
Award was enforceable in the same manner as a judgment under
section 101 of the 1996 Arbitration Act of England, and
recalculating the amount due to include additional interest and
other costs (“the English Judgment”). Under English law, the
judgment became final, conclusive, and enforceable on March
2, 2010, and remains enforceable for six years from that date.
See Declaration of John Arthur Higham, Q.C. ¶¶ 13, 17. The
High Court amended the judgment on November 1, 2011 to
account for the Company’s successful seizure of French Francs
in partial satisfaction of the Award.
Shortly before, on September 2, 2011, the Company filed a
complaint in the federal court in the Southern District of New
6
York to recognize and enforce the English Judgment under the
New York Uniform Foreign Country Money-Judgments
Recognition Act, N.Y. C.P.L.R. Article 53. That court
transferred the case to the federal court in the District of
Columbia, see 9 U.S.C. § 204, and the Company amended and
supplemented its complaint to recognize and enforce the English
Judgment under the D.C. Recognition Act. The D.C.
Recognition Act provides that “[a]n action to recognize a
foreign-country judgment” must be commenced before the
judgment expires in the rendering country or within 15 years of
the judgment’s becoming effective in the foreign country,
whichever is earlier. D.C. Code § 15-369. “[A] court of the
District of Columbia,” subject to limited exceptions, “shall
recognize a foreign-country judgment” that “[g]rants or denies
recovery of a sum of money” and is final, conclusive, and
enforceable where rendered. Id. §§ 15-363(a)(1)–(2); 15-
363(b); 15-364(a).
The district court denied the Company’s motion for
summary judgment and dismissed the complaint on the ground
that the three-year period for confirmation of foreign arbitral
awards in 9 U.S.C. § 207 preempted the D.C. statute’s longer
enforcement period for foreign money judgments, D.C. Code
§ 15-369. See Commissions Import Export S.A. v. Republic of
Congo, 916 F. Supp. 2d 48, 55 (D.D.C. 2013). The Company
appeals, and this court has jurisdiction in view of the Congo’s
waiver of any claim of sovereign immunity in the commitment
letters that accompanied the promissory notes. See 28 U.S.C.
§ 1605(a)(1). Our review is de novo. See, e.g., Indep. Bankers
Ass’n of Am. v. Farm Credit Admin., 164 F.3d 661, 666 (D.C.
Cir. 1999); Waterview Mgmt. Co. v. FDIC, 105 F.3d 696, 699
(D.C. Cir. 1997).
II.
It is “[a] fundamental principle of the Constitution . . . that
7
Congress has the power to preempt state law.” Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 372 (2000); U.S. CONST.,
art. VI, cl. 2. In some cases, preemption occurs because
Congress has provided for it expressly; in the face of an express
preemption provision, “[t]here is no doubt” that federal law
prevails. Arizona v. United States, 132 S. Ct. 2492, 2500
(2012). But even without an express preemption provision,
“[s]tate law must also give way to federal law in at least two
other circumstances.” Id. at 2501. First, “the States are
precluded from regulating conduct in a field that Congress,
acting within its proper authority, has determined must be
regulated by its exclusive governance.” Id. Second, “state laws
are preempted when they conflict with federal law.” Id.The Supreme Court has observed in the domestic arbitration
context that “[t]he FAA contains no express pre-emptive
provision, nor does it reflect a congressional intent to occupy the
entire field of arbitration.” Volt Info. Sciences, Inc. v. Bd. of
Trustees of the Leland Stanford Junior Univ., 489 U.S. 468, 477
(1989). Accordingly, as the parties agree, this case is governed
by the conflict preemption doctrine set forth in Hines v.
Davidowitz, 312 U.S. 54 (1941). Pursuant to Hines, federal law
will preempt state law where “under the circumstances of [a]
particular case, [the challenged state] law stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress.” 312 U.S. at 67. “What is a 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, 530 U.S. at 373; see also Wyeth v.
Levine, 555 U.S. 555, 565 (2009). Because what “must be
implied is of no less force than that which is expressed,” Crosby,
530 U.S. at 373 (quotation marks and citation omitted), federal
law may preempt state law even if the conflict between the two
is not facially apparent — as when, for example, the federal and
state laws govern different subject matters, see, e.g., Perez v.
Campbell, 402 U.S. 637 (1971). Furthermore, federal law may
8
preempt state law even if both pursue the same ends because “a
conflict in technique can be fully as disruptive to the system
Congress enacted as conflict in overt policy,” Arizona, 132 S.
Ct. at 2505 (quotation marks, alterations, and citation omitted);
see Crosby, 530 U.S. at 379. In accord with these general
principles, Hines preemption analysis entails two steps: first,
identifying the purposes of the federal statute; and second,
determining what, if any, obstacles are posed by the challenged
state law. Traditional preemption principles apply to District of
Columbia laws. See, e.g., Wash. Serv. Contractors Coal. v. Dist.
of Columbia, 54 F.3d 811, 813, 815 (D.C. Cir. 1995).
A.
The basic purpose of FAA Chapter 2 was to implement the
New York Convention. “The goal of the Convention, and the
principal purpose underlying [the United States’] adoption and
implementation of it, was 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, 417 U.S. at 520
n.15; see TermoRio S.A. E.S.P. Grp., 487 F.3d at 933–34. In
implementing the Convention, Congress addressed what a
former chairman of the ICC described as “the needs of
international trade for a rapid, simplified, efficient and
inexpensive procedure for eliminating disputes and
disagreements in business transactions.” Robert Briner &
Virginia Hamilton, The History and General Purpose of the
Convention, in ENFORCEMENT OF ARBITRATION AGREEMENTS
AND INTERNATIONAL ARBITRAL AWARDS 3, 14 (Emmanuel
Gaillard & Domenico Di Pietro eds., 2008) (hereinafter “Briner
& Hamilton”). But at the same time, Congress limited the scope
of the Convention’s application. As the Seventh Circuit
explained, “[t]he concern for an unintended effect on domestic
laws, which had counseled against the participation of the
United States in 1958, was addressed in the implementation.”
9
Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co.,
500 F.3d 571, 577 (7th Cir. 2007). Section 202 limited disputes
“falling under the Convention” to commercial relationships
involving a foreign party or having a “reasonable relation with
one or more foreign states.” 9 U.S.C. § 202; see S. REP. NO. 91-
702, at 6 (1970) (Kearney testimony). So, “although the
Convention would displace certain domestic laws, it would do
so only in the narrow context of truly international disputes.”
Certain Underwriters, 500 F.3d at 577.
Congress also set a three-year limit for seeking summary
confirmation of “an arbitral award falling under the
Convention.” 9 U.S.C. § 207. To understand the purpose of
section 207, “[c]ongressional intent is discerned primarily from
the statutory text.” CTS Corp . v. Waldburger, No. 13-339, slip
op. at 10 (U.S. June 9, 2014); see N.Y. State Conf. of Blue Cross
& Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655
(1995). The three year limit in section 207 applies specifically
to the confirmation of “arbitral award[s] falling under the
Convention,” and the court must “presume that [the] legislature
says in a statute what it means and means in a statute what it
says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253–54 (1992). Neither section 207 nor any other provision of
Chapter 2 mentions foreign court judgments. Nor is there a
reference to foreign court judgments in FAA Chapter 1, which
has residual application. As a matter of textual analysis, the
Company persuasively maintains that section 207’s “relatively
demanding statute of limitations is tied to its relatively generous
summary confirmation process,” Appellant’s Br. 43, and is best
read “as evincing an interest in finality in the specific context of
foreign award enforcement under the streamlined procedures of
FAA Chapter 2,” Reply Br. 15 (emphasis added).
Section 207 was modeled on a similar provision in FAA
Chapter 1, which provides that “any time within one year after
the award is made any party to the arbitration may apply to the
10
court so specified for an order confirming the award[.]” 9
U.S.C. § 9 (emphasis added); see H.R. REP. NO. 91-1181, at 4
(1970). The sole textual difference between section 9 and
section 207 is that the latter gives prevailing parties two
additional years in which to seek confirmation “to allow time
for . . . initial enforcement efforts outside the United States.” S.
REP. NO. 91-702, at 8 (1970) (Kearney testimony). The Congo
does not dispute the well-established proposition that the
permissively worded provision in section 9, which enables but
does not require a party to seek award enforcement pursuant to
the FAA, is tied exclusively to award enforcement procedures
under Chapter 1 and does not preempt longer enforcement
periods available under state law. See Hall St. Assocs., LLC v.
Mattel, Inc., 552 U.S. 576, 590 (2008); see also Photopaint
Techs., LLC v. Smartlens Corp., 335 F.3d 152, 159 (2d Cir.
2003); Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th
Cir. 1953). Although the context is different — Chapter 1
concerns domestic arbitration while Chapter 2 concerns
international arbitration — the use of identical language in the
two provisions suggests, absent contrary indication, that
Congress intended them to operate in a similar manner. See
Smith v. City of Jackson, Miss., 544 U.S. 228, 233 (2005) (citing
Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427,
428 (1973)). In other words, Chapter 2, like Chapter 1,
preserves a prevailing party’s option to pursue other
enforcement mechanisms if it so chooses.
The New York Convention does not limit the period for
enforcement of arbitral awards and includes no restriction
regarding foreign judgments. Under Article III of the
Convention, signatory countries may apply their own statutory
periods for the enforcement of arbitral awards, so long as such
periods are not unduly short, or may choose, as many countries
have, not to impose any time limit on enforcement. The
Convention also expressly preserves, under Article VII, arbitral
parties’ right to rely upon domestic laws that are more favorable
11
to award enforcement than are the terms of the Convention:
“The provisions of the present Convention shall not . . . deprive
any interested party of any right he may have to avail himself of
an arbitral award in the manner and to the extent allowed by the
law . . . of the country where such award is sought to be relied
upon.” N.Y. Conv’n Art. VII. As one oft-quoted academic-
practitioner has written, the underlying rationale of Article VII
is that the “Convention is aimed at facilitating recognition and
enforcement of foreign arbitral awards; if domestic law or other
treaties make recognition and enforcement easier, that regime
can be relied upon.” Albert Jan van den Berg, The New York
Convention of 1958: An Overview, in ENFORCEMENT OF
ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL
AWARDS 39, 66 (Emmanuel Gaillard & Domenico Di Pietro
eds., 2008). Article XI presumes that countries with a “federal
or non-unitary” structure of government may implement the
Convention in a manner that is internally non-uniform. Id. Art.
XI. Thus, the Convention sets minimum protections for the
enforcement of international commercial arbitration awards, but
does not limit treaty members from affording more protections
than the Convention requires. “The Convention . . . sets a
‘floor,’ but not a ‘ceiling,’ for enforcement of arbitral awards.”
Amicus United States Br. 7.
Neither does the legislative history of the Foreign Arbitral
Awards Convention Act indicate that Congress intended Chapter
2 of the FAA to govern not only arbitral awards but the
recognition of judgments as well. As explained by the State
Department’s Office of the Legal Adviser to the Senate Foreign
Relations Committee, although the general subject of arbitration
is within federal jurisdiction if it concerns foreign or interstate
commerce, “our purpose in adhering to the [New York]
Convention is for the beneficial effects it will produce for the
foreign commerce of the United States and not to make any
changes with respect to matters that are traditionally within the
jurisdiction of the 50 States of the Union.” Certain
12
Underwriters, 500 F.3d at 577 n.6 (quoting S. REP. NO. 91-702,
at 6 (1970) (Kearney testimony) (emphasis added)). In response
to the Committee Chairman’s question, “Does this [New York
Convention] seek in any way to extend Federal jurisdiction into
areas not now within Federal jurisdiction?” the answer by the
State Department was “No.” S. EXEC. REP. NO. 10, at 7 (1968)
(Kearney testimony). The opposition to signing the Treaty in
1958, because adherence “would entail interference with the
laws and judicial procedures of a substantial number of the
[domestic] States,” W.T.M. BEALE, OFFICIAL REPORT OF THE
U.S. DELEGATION TO THE UNITED NATIONS CONFERENCE ON
INTERNATIONAL COMMERCIAL ARBITRATION (1958), reprinted
in 19 AM. REV. INT’L ARB. 91, 115 (2008), was not overcome
until the “situation ha[d] changed rather dramatically,” S. EXEC.
REP. NO. 10, at 6 (1968) (Kearney testimony). Whatever one
may take away from the legislative history, it shows that
Congress was aware of the long-standing concerns relating to
interference with domestic state laws yet gave no clear
indication of an intent to bar alternative enforcement schemes.
The text of the Foreign Arbitral Awards Convention Act
and the circumstances of its enactment thus weigh in support of
concluding that Congress did not intend to speak beyond the
recognition and enforcement of arbitral awards. Permitting the
Company to have recourse to the D.C. Recognition Act to
enforce the English judgment, then, would appear to be
consistent with FAA Chapter 2’s objectives and to pose no
obstacle to the accomplishment of its purpose.
B.
The Congo suggests, however, that various obstacles to the
fulfillment of FAA Chapter 2’s purposes are created if the
English Judgment is enforced under the D.C. Recognition Act.
It maintains that the three-year period in 9 U.S.C. § 207embodies purposes of “uniformity” and “finality” that would be
frustrated by allowing recourse to the D.C. Recognition Act
13
after expiration of the three-year period. See Commissions
Import Export S.A., 916 F. Supp. 2d at 53, 55. As the Congo
sees it, “instead of a single, uniform three-year limitations
period, defendants would face a multitude of diverse limitations
. . . if litigants could recognize an award in a Convention
signatory with no limitations period and then bring that
judgment to the United States.” Appellees’ Br. 44–45
(quotation marks omitted). The Congo maintains that the
carefully crafted framework of Chapter 2 of the FAA provides
it “a defense to recognition and enforcement of the Award in the
United States that may not be overcome by the expedient of [the
Company] pursuing under state law the same relief as in an
action to enforce the Award itself.” Id. at 50. But, as shown,
neither the text, context, nor legislative history of the Foreign
Arbitral Awards Convention Act indicates that Congress
intended to promote uniformity and finality in the manner the
Congo proposes, cf. Arizona, 132 S. Ct. at 2504–05.
Even assuming 9 U.S.C. § 207 may “promote finality,
repose, and the efficient and prompt administration of justice,”
Appellee’s Br. 33 (citation omitted); see Commissions Import
Export S.A., 916 F. Supp. 2d at 54, 55, such an assumption
implies little about the intended scope of the provision. Because
international arbitration is undoubtedly within the United States’
federal legislative power, the fact that Congress acted at the
federal level to carry out its obligations under the New York
Convention does not, as the Congo suggests, indicate a
particular preference for national uniformity in this area. See
N.Y. Conv’n Art. XI. Indeed, the fact that section 205 provides
for permissive removal from state proceedings, 9 U.S.C. § 205,
further bolsters the conclusion that uniformity was not
Congress’s exclusive concern in enacting section 207.
“The States’ coordinate role in government counsels against
reading federal laws to restrict States’ sovereign capacity to
regulate in areas of traditional state concern.” CTS Corp., No.
14
13-339, slip op. at 10 (U.S. June 9, 2014) (quoting FTC v.
Phoebe Putney Health Sys., Inc., 568 U.S. —, 133 S. Ct. 1003,
1016 (2013) (internal quotation marks and ellipsis omitted)).
State courts have long recognized the conceptual difference
between arbitral awards and foreign court judgments on arbitral
awards, compare Gilbert v. Burnstine, 174 N.E. 706, 707 (N.Y.
1931), with Skandinaviska Granit Aktiebolaget v. Weiss, 234
N.Y.S. 202, 204–08 (N.Y. App. Div. 1929), and treated foreign
court judgments on awards as enforceable under state law, see
Wright, Graham & Co. v. Hammond, 154 S.E. 649, 650 (Ga. Ct.
App. 1930); Skandinaviska Granit Aktiebolaget, 234 N.Y.S. at
204–08. Although an arbitral award and a court judgment
enforcing an award are “closely related,” Appellees’ Br. at 34,
they are nonetheless “distinct” from one another, Amicus United
States Br. 14, and that distinction has long been recognized, see
Briner & Hamilton at 6 (quoting ICC Council Res. (Nov. 6,
1925)). The United States accordingly emphasizes:
It is essential to recognize that a foreign court
judgment confirming an arbitral award is not governed
by the New York Convention or the Foreign Arbitral
Awards Convention Act. As a matter of U.S. law, the
mechanism for obtaining recognition and enforcement
of a foreign money judgment arising out of an arbitral
award has been understood to be distinct from an
action seeking recognition and enforcement of an
arbitral award. See, e.g., Seetransport Wiking Trader
Schiffarhtsgesellschaft MBH & Co.,
Kommanditgesellschaft v. Navimpex Centrala Navala,
989 F.2d 572, 582-583 (2d Cir. 1993). Enforcement of
a foreign court money judgment has traditionally been
governed by state law. See Restatement (Third) of
Foreign Relations Law of the United States § 481
comment a (1987); see also Nat’l Conf. of
Commissioners on Uniform State Laws, Uniform
Foreign Country Money Judgments Recognition Acts
15
(1962 & 2005).
Amicus United States Br. 14. The distinction between awards
and judgments is amplified here by the fact that the English
Judgment includes interest that the Company could not have
collected had its prior efforts to collect on the Award under the
Convention been successful.
As noted, the overriding purpose of FAA Chapter 2 is to
facilitate international commercial arbitration by ensuring that
valid arbitration agreements are honored and valid arbitral
awards are enforced. See Scherk, 417 U.S. at 520 n.15. The
“amendment of the Federal Arbitration Act” to include Chapter
2 reflects a congressional judgment that the “emphatic federal
policy in favor of arbitral dispute resolution . . . applies with
special force in the field of international commerce.” Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
631 (1985); see also BG Group, PLC v. Republic of Argentina,
134 S. Ct. 1198 (2014). That policy is not undermined — and
frequently will be advanced — through recourse to parallel
enforcement mechanisms that exist independently of the FAA.
See Amicus United States Br. 16 (quoting RESTATEMENT
(THIRD) OF U.S. LAW OF INTERNATIONAL COMMERCIAL
ARBITRATION, § 4-3(d), Reporter’s Notes g, Tentative Draft No.
2 (Apr. 16, 2012)); cf. Hall St. Assocs., 552 U.S. at 590. Of
course, the Congo is correct that merely sharing the same
“overarching objectives,” Appellees’ Br. 51, as federal law will
not necessarily save a state law from preemption if its methods
of achieving those objectives conflict with federal law. For
instance, in Arizona the Supreme Court held the state statute was
preempted to the extent that it imposed criminal penalties
contrary to Congress’s “comprehensive framework for
‘combating the employment of illegal aliens’” where the
legislative history indicated that Congress had “made a
deliberate choice not to impose criminal penalties on aliens who
seek . . . unauthorized employment.” 132 S. Ct. at 2504
16
(internal citation omitted); see Crosby, 530 U.S. at 378–80. No
such statutory intent or legislative history exists for FAA
Chapter 2 regarding the enforcement of foreign judgments. To
the extent the Congo relies on Volt Information Sciences, 489
U.S. at 478–79, involving a domestic arbitration agreement, to
support its contention that application of the D.C. Recognition
Act is contrary to the parties’ agreement French law would
apply to their arbitration, the choice of French law has no
bearing on subsequent proceedings to enforce an arbitral award
under the New York Convention.
The Congo’s remaining points are likewise unpersuasive.
Permitting recourse to the D.C. Recognition Act would, the
Congo maintains, “attach[] a significance to the English
Judgment that is directly at odds with the FAA’s and the
Convention’s ‘carefully crafted framework for the enforcement
of international arbitration awards.’” Appellees’ Br. 35 (quoting
Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 729 (D.C.
Cir. 2012) (quoting TermoRio S.A. E.S.P. Grp., 487 F.3d at
935)). The Congo emphasizes that England is a “secondary
jurisdiction” with respect to the French arbitral award, and that
“court proceedings in another secondary jurisdiction have ‘no
preclusive effect’ in recognition proceedings in the United
States.” Id. at 36 (quoting Belize Soc. Dev. Ltd., 668 F.3d at
730); see also Karaha Bodas Co., LLC v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274,
308–10 (5th Cir. 2004). The Company acknowledges, however,
that its cause of action under the D.C. Recognition Act “does not
call for the [d]istrict [c]ourt automatically to accord preclusive
effect to the English Court’s determinations on the Award under
the Convention, but rather to assess the English Judgment under
the separate (and clearly distinct) factors for judgment
recognition under District of Columbia law.” Reply Br. 21–22.
The Congo’s contentions regarding the “limited territorial
effect” of the English Judgment and U.S. courts’ historical
reluctance to recognize “judgments on judgments,” Appellees’
17
Br. 36–37, 46, seem to present public policy arguments better
suited, at best, see Amicus U.S. Brief at 17 (citing Nat’l Conf.
of Comm’rs on Uniform State Laws, Uniform Foreign Country
Money Judgments Recognitions Act, § 4 cmt. (2005)), as
arguments to a court applying the D.C. Recognition Act than as
arguments for preemption.
The Congo further maintains that preemption of the D.C.
Recognition Act is supported by “a series of Supreme Court
decisions . . . preclud[ing] suits under state law that would
effectively deprive a defendant of a defense to liability, or deny
a benefit, afforded by a federal scheme.” Appellees’ Br. 47–48.
Yet those cases are of limited assistance because “the ultimate
touchstone in every pre-emption case” is necessarily “the
purpose of Congress.” Wyeth, 555 U.S. at 565. Determining
whether Congress intended a particular federal defense or
limitation to be available notwithstanding state law is a statute-
specific inquiry. There is no indication of such broad intent
here; thus, generalized comparisons to other cases applying
unrelated statutes are readily distinguishable. In any event, the
court is not presented with a case in which defenses under the
New York Convention were denied; the Congo invoked its
Convention defenses when it appealed, albeit unsuccessfully, in
the Paris Court of Appeals to rescind the Award for alleged non-
compliance with the adversary principle and international public
order on recognition and enforcement because the arbitrators
allegedly relied on forgeries or documents obtained by
fraudulent means; the French court rejected the Congo’s
Convention defenses.
C.
As the Supreme Court recently reemphasized, it is a “well-
established principle that it is incumbent upon the federal courts
to be certain of Congress’ intent before finding that federal law
overrides the usual constitutional balance of federal and state
powers.” Bond v. United States, 134 S. Ct. 2007, 2089 (2014)
18
(quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
Against the historical backdrop of state law on the enforcement
of foreign judgments, it is unlikely that Congress would have
intended its implementation of the New York Convention to
cover both arbitral awards and judgments without mentioning
the latter in FAA Chapter 2. Congress’s “silence on the issue
[of preemption], coupled with its certain awareness of the
prevalence of state [foreign money judgment enforcement
statutes], is powerful evidence that Congress did not intend
[FAA Chapter 2] to be the exclusive means of ensuring”
arbitration agreements and arbitral awards are enforced. Wyeth,
555 U.S. at 575 (citing Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 489 U.S. 141, 166–67 (1989)). An alternative
conclusion could frustrate the collection of debts determined
pursuant to the parties’ voluntary arbitration agreement, and it
seems unlikely this was Congress’s intent. The Company
pursued the enforcement remedy available under the
Convention, yet the debt remains unsatisfied. Its use of a lawful
parallel enforcement scheme does not present an obstacle to the
summary process Congress adopted in implementing the
Convention. Cf. POM Wonderful LLC v. Coca-Cola Co., No.
12-761, slip op. at 11 (U.S. June 12, 2014).
Our conclusion that FAA Chapter 2 does not preempt
enforcement of the English Judgment accords with the
longstanding position of the Second Circuit Court of Appeals,
the only other federal appeals court to have addressed the
relationship between 9 U.S.C. § 207 and state judgment
recognition laws. Shortly after the Foreign Arbitral Award
Convention Act was enacted, in Island Territory of Curacao v.
Solitron Devices, Inc., 489 F.2d 1313 (2d Cir. 1973), the Second
Circuit held that both the New York Convention and FAA
Chapter 2 “go only to the enforcement of a foreign arbitral
award and not to the enforcement of foreign judgments
confirming foreign arbitral awards,” id. at 1319. Subsequently,
in Seetransport Wiking Trader Schiffarhtsgesellschaft MBH &
19
Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 29
F.3d 79 (2d Cir. 1994) (“Seetransport II”), the Second Circuit
permitted the enforcement under the New York Uniform
Foreign Money-Judgments Recognition Act of a judgment of the
Paris Court of Appeals awarding the sums in an arbitral award
where, as here, the period for seeking confirmation of the award
under the FAA Chapter 2 had passed. The court had explained:
“[U]nlike the recognition of arbitral awards, which is governed
by federal law, the recognition of foreign judgments is governed
b y s t a t e l a w . ” S e e t r a n s p o r t Wi k i n g T r a d e r
Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v.
Navimpex Centrala Navala, 989 F.2d 572, 582 (2d Cir. 1993)
(“Seetransport I”) (citing REST. (THIRD) OF FOREIGN RELATIONS
LAW OF THE UNITED STATES § 481 cmt. a (1987)). The Congo’s
attempts to distinguish these cases are unpersuasive. For
instance, the Congo insists that Seetransport II “simply did not
address the preemption issue,” Appellees’ Br. 53, but that was
because the preemption issue had been resolved in Solitron
Devices, Inc., 489 F.2d at 1319, and the court had reaffirmed its
position, see Victrix Steamship Co. v. Salen Dry Cargo A.B., 825
F.2d 709, 713 n.2 (2d Cir. 1987); Waterside Ocean Navigation
Co., Inc. v. Int’l Navigation Ltd., 737 F.2d 150, 154 (2d Cir.
1984); Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 518 (2d
Cir. 1975). As the relevant facts here are virtually identical to
those in Seetransport, the reasoning of the Second Circuit is
instructive.
Our conclusion is also consistent with the presumption
against preemption, which demands that “in all pre-emption
cases, and particularly those in which Congress has legislated in
a field which the States have traditionally occupied” without
enacting an express preemption provision, the court must
assume “the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.” Wyeth, 555 U.S. at 565(alterations and quotation marks omitted); cf. Bond, 134 S. Ct.
20at 2089. As discussed, “the enforcement of foreign judgments
was, and remains, presumptively and primarily under the control
of the states.” Reply Br. 24; see RESTATEMENT (THIRD) OF
FOREIGN RELATIONS § 481 cmt. a (1987); see also Aetna Life
Ins. Co. v. Tremblay, 223 U.S. 185, 190 (1912); Johnston v.
Compagnie Generale Transatlantique, 152 N.E. 121, 123 (N.Y.
1926). Because “Congress does not cavalierly pre-empt state-
law causes of action,” Medtronic, Inc. v. Lohr, 518 U.S. 470,
485 (1996), the absence of a “clear and manifest” preemptive
purpose in FAA Chapter 2 reinforces the conclusion that
preemption is not warranted here.
Accordingly, we hold that the limitations period in FAA
Chapter 2, 9 U.S.C. § 207, does not preempt the longer
limitations period in the D.C. Recognition Act for enforcing a
foreign court judgment, D.C. Code § 15-369, and we reverse the
dismissal of the Company’s complaint. We remand the case for
the district court to determine whether the English Judgment is
enforceable under the D.C. Recognition Act. This court has no
occasion today to decide whether 9 U.S.C. § 207 preempts
longer State statutes of limitations related to State enforcement
of foreign arbitration awards.