LLC SPC Stileks v. Republic of Moldova

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2020 Decided January 15, 2021
No. 19-7106
LLC SPC STILEKS,
APPELLEE
v.
THE REPUBLIC OF MOLDOVA ,
APPELLANT
Consolidated with 19-7142
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01921)
George C. Grasso argued the cause and filed the briefs for
appellant.
Gene M. Burd argued the cause and filed the brief for
appellee.
Before: HENDERSON and ROGERS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON , Circuit Judge: This appeal
arises from a long-running dispute between the Republic of
Moldova and a Ukrainian energy provider called
Energoalliance. For the better part of 1999 and 2000,
Energoalliance sold electricity to a Moldovan state-owned
utility. After the utility failed to pay its bill in full,
Energoalliance alleged that Moldova violated its obligations
under the Energy Charter Treaty. An arbitration panel agreed
and a company called Stileks—which company, through a
series of corporate transactions, owns the right to
Energoalliance’s arbitration award—now attempts to recover.
Stileks and Moldova are proceeding against each other in
multiple forums. In this court, the main issue is whether the
district court correctly confirmed the arbitration award which,
with interest, now exceeds $58 million. We uphold
confirmation of the award but remand for the district court to
consider whether Moldova had a settled expectation that an
adverse judgment would be denominated in Moldovan lei
rather than U.S. dollars.
I. Background
Ukraine and Moldova have highly interconnected
electrical systems—a legacy of the years when both states were
subject to direction from Moscow. When the Soviet Union
collapsed, contracts and treaties replaced central planning. An
example is the Energy Charter Treaty (ECT), a multilateral
agreement signed by governments on both sides of the old Iron
Curtain, including Ukraine and Moldova. See Energy Charter
Treaty, Dec. 17, 1994, 2080 U.N.T.S. 95 [hereinafter ECT]. Its
purpose is to encourage and protect cross-border investment in
the energy industry.
3
In 1999, Energoalliance signed a series of contracts to sell
electricity to Moldtranselectro, a utility owned by the Republic
of Moldova. These were not ordinary sales contracts.
Ukrenergo, a Ukrainian state-owned utility, sold electricity to
Energoalliance, which sold it to a British Virgin Islands (BVI)
entity called Derimen Properties; that entity sold it to
Moldtranselectro. The agreements were structured this way
because Energoalliance wanted to avoid certain implications of
the Ukrainian government’s currency controls. But
Energoalliance still assumed the risk of non-payment by
Moldtranselectro in May 2000—after Moldtranselectro had
fallen behind on its payments—and Derimen assigned the debt
to Energoalliance.
Energoalliance sought recourse in Moldovan courts to
collect this debt. These decade-long proceedings were
unsuccessful, due in significant part to the Moldovan
government’s actions. To give one example, the government
transferred most of Moldtranselectro’s assets to several new
state-owned entities, leaving the old utility with financial
obligations and few tangible assets. Energoalliance claimed
Moldova’s actions violated the ECT. Unable to reach an
amicable resolution, Energoalliance initiated arbitration
proceedings under the rules of the United Nations Commission
on International Trade Law (UNCITRAL) pursuant to Article
26 of the ECT.
In the summer of 2012, a three-day arbitral proceeding
took place in Paris. On October 23 of the following year, the
tribunal issued an award in favor of Energoalliance in the
amount of some 593 million Moldovan lei in damages and
interest plus 540,000 U.S. dollars in attorneys’ fees and costs.
Energoalliance soon began enforcement proceedings in
multiple jurisdictions, including the United States, where it
filed a petition to confirm the arbitral award pursuant to 9
4
U.S.C. § 207. Confirmation is the process by which an
arbitration award is converted to a legal judgment. Once
Energoalliance had a judgment in hand, it could go about
enforcing the arbitration award by, for example, attaching
Moldova’s commercial assets in the United States.
But Moldova was not ready to concede. In its view, the
tribunal lacked jurisdiction to arbitrate the dispute because the
byzantine arrangement that Energoalliance struck with
Derimen to avoid Ukrainian currency controls was not an
“investment” within the meaning of the ECT. Moldova made
this and other arguments to the Paris Court of Appeal, seeking
to annul the award. The Paris court agreed with Moldova and
annulled the arbitration award on Moldova’s jurisdictional
theory. Energoalliance appealed to France’s highest civil
court, the Court of Cassation. In March 2018, that court
vacated the Paris court’s judgment, reinstated the award and
remanded Moldova’s annulment application to the Paris court.
Back to the United States. After Moldova filed its
annulment application with the Paris court, it submitted a letter
to the U.S. District Court for the District of Columbia,
requesting a stay pending resolution of its application. Before
the district court could rule, the Paris court had ruled in
Moldova’s favor. The tables now turned, a company called
Komstroy—by this point the successor-in-interest to
Energoalliance—consented to Moldova’s request for stay
pending Komstroy’s appeal to the Court of Cassation. The
district court entered the stay. But in March 2018, after the
Court of Cassation reinstated the award, Energoalliance moved
to lift the stay and confirm the award. Moldova opposed lifting
the stay until the Paris court could resolve its remaining
challenges to the award. The district court sided with
Energoalliance, lifting the stay. See LLC Komstroy v. Republic
5
of Moldova, No. 14-cv-01921, 2018 WL 5993437, at *4
(D.D.C. Nov. 13, 2018).
Once the substantive confirmation proceedings were
underway, Moldova argued for dismissal on grounds of
sovereign immunity, forum non conveniens and various
defenses under the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York
Convention), June 10, 1958, 21 U.S.T. 2517. The district court
rejected each argument and confirmed the arbitral award. See
LLC Komstroy v. Republic of Moldova, No. 14-cv-01921, 2019
WL 3997385, at *14 (D.D.C. Aug. 23, 2019). It also awarded
Komstroy prejudgment interest and ordered that the resulting
judgment be converted from Moldovan lei into U.S. dollars.
Pursuant to the district court’s instructions, Komstroy filed a
proposed order of judgment, calculating a total judgment
amount. Rather than responding to Komstroy’s calculations,
Moldova filed a notice of appeal and a response, arguing that
the appeal divested the district court of jurisdiction. The
district court confirmed its jurisdiction and entered a judgment
in favor of Komstroy. See LLC Komstroy v. Republic of
Moldova, No. 14-cv-1921, 2019 WL 4860826, at *1 (D.D.C.
Oct. 2, 2019). Moldova now appeals the district court’s stay-
lifting order, the confirmation of the arbitral award and the final
judgment. The judgment is defended by Stileks, Komstroy’s
assignee in bankruptcy.
II. Analysis
This appeal presents four major issues. First, Moldova
claims that the district court lacked jurisdiction under the
Foreign Sovereign Immunities Act. Second, even if the district
court had jurisdiction, Moldova says that it was error to
confirm the arbitral award during the pendency of certain
foreign proceedings. We reject both of these arguments and
6
affirm the district court’s confirmation of the award. 1 The third
and fourth issues deal with how the district court calculated and
denominated its judgment. Moldova argues that the district
court should not have awarded prejudgment interest and that,
in any event, the judgment and any interest should have been
denominated in Moldovan lei instead of U.S. dollars. We think
the district court did not abuse its discretion in awarding
prejudgment interest to appropriately compensate Stileks for
the time value of money. When it converted the award to U.S.
dollars without considering Moldova’s settled expectation that
the award would be payable in Moldovan lei, however, we
believe it abused its discretion. We vacate that portion of its
order and remand for evaluation of Moldova’s reliance
interests.
1
Moldova makes two additional arguments that do not require
sustained discussion. First, it argues that the district court should
have dismissed the case under the forum non conveniens doctrine.
But in TMR Energy Ltd. v. State Prop. Fund of Ukraine, we said that
forum non conveniens is not available in proceedings to confirm a
foreign arbitral award because only U.S. courts can attach foreign
commercial assets found within the United States. See 411 F.3d 296,
303–04 (D.C. Cir. 2005). Moldova asks us to reconsider TMR
Energy in light of the Second Circuit’s reasoning that “the adequacy
of the alternate forum depends on whether there are some assets of
the defendant in the alternate forum, not whether the precise asset
located here can be executed upon there.” Figueiredo Ferraz E
Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384, 391
(2d Cir. 2011) (emphasis added). Regardless of whether we find
Figueiredo persuasive, we are bound by our precedent. Second,
Moldova reasserts its arguments that it was denied due process
during the arbitral proceedings, which is a defense to confirmation
under Article V(1)(b) of the New York Convention. But the district
court ably refuted Moldova’s due process arguments, see LLC
Komstroy v. Republic of Moldova, No. 14-cv-01921, 2019 WL
3997385, at *7–9 (D.D.C. Aug. 23, 2019), and we affirm its analysis.
7
A.
In 1976, the Congress enacted the Foreign Sovereign
Immunities Act (FSIA). Under the FSIA, foreign governments
are generally immune from the jurisdiction of federal and state
courts. See 28 U.S.C. § 1604. But the FSIA also established
various exceptions, see 28 U.S.C. § 1605 (general exceptions),
id at § 1607 (exception for counterclaims), which provide “the
sole basis for obtaining jurisdiction over a foreign state in our
courts.” Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 434 (1989).
The district court determined that it had jurisdiction under
the so-called “arbitration exception.” See 28 U.S.C. §
1605(a)(6). Our first task is to determine whether that
exception applies. See Creighton Ltd. v. Gov’t of State of
Qatar, 181 F.3d 118, 121 (D.C. Cir. 1999). 2 We review the
2
Creighton states that the moving party must also demonstrate
“a basis upon which a court in the United States may enforce a
foreign arbitral award.” 181 F.3d at 121. That requirement is plainly
satisfied. The New York Convention allows for “the recognition and
enforcement of arbitral awards” made in countries that are parties to
the Convention. See art. I, ¶ 1. Under the Federal Arbitration Act,
the New York Convention is federal law, see 9 U.S.C. § 201, and
“[a]n action or proceeding falling under the Convention shall be
deemed to arise under the laws and treaties of the United States,” id.§ 203. Because Komstroy moved to confirm an arbitral award that
was rendered in France, a party to the Convention, we may enforce
the award under U.S. law. See Restatement (Third) of Foreign
Relations Law § 487 cmt. B (1987) (“the critical element is the place
of the award” not the “citizenship or domicile of the parties to the
arbitration”); accord Creighton, 181 F.3d at 121; Belize Soc. Dev.
Ltd. v. Gov’t of Belize, 668 F.3d 724, 731 n.3 (D.C. Cir. 2012).
8
district court’s determination de novo. See Kirkham v. Societe
Air France, 429 F.3d 288, 291 (D.C. Cir. 2005).
Under the FSIA’s arbitration exception, a foreign state is
not immune from jurisdiction of U.S. courts in any case:
in which the action is brought . . . to confirm an
award made pursuant to such 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). In Chevron Corp. v. Republic of
Ecuador, we clarified that jurisdiction under the arbitration
exception requires more than a claim invoking an arbitration
award. See 795 F.3d 200, 204 (D.C. Cir. 2015). Rather, the
existence of an arbitration agreement, an arbitration award and
a treaty governing the award are all jurisdictional facts that
must be established. See id.; cf. Agudas Chasidei Chabad of
U.S. v. Russian Federation, 528 F.3d 934, 940–41 (D.C. Cir.
2008).
Here, only one jurisdictional fact is in dispute: whether
Energoalliance’s award was made pursuant to the ECT.3
Stileks has produced copies of the ECT, the notices of
3
There is no disagreement that Moldova is a party to the ECT,
which provides for arbitration of certain disputes. Nor is there doubt
that the New York Convention, ratified by the United States, calls
for the enforcement of arbitral awards. See Creighton, 181 F.3d at123–24 (New York Convention “is exactly the sort of treaty
Congress intended to include in the arbitration exception” (quoting
Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1018 (2d
Cir. 1993))).
9
arbitration and the tribunal’s decision. In Chevron, we said that
the petitioners, by producing similar documents, demonstrated
that the arbitration exception applied. See 795 F.3d at 204.
Moldova counters that the ECT did not give the arbitral
tribunal jurisdiction of the dispute and thus the resulting award
was not “made pursuant to such an agreement to arbitrate.” 28
U.S.C. § 1605(a)(6). Its argument goes something like this:
the ECT protects “investments” but Derimen’s claim against
Moldtranselectro was not an investment within the meaning of
the ECT because Derimen, a BVI entity, was not a qualifying
investor. Under Moldova’s jurisdictional theory, Stileks’ filed
documentation is insufficient. Although the ECT may
establish that Moldova agreed to arbitrate certain disputes, it
does not prove that it agreed to arbitrate this particular dispute;
similarly, the tribunal’s decision demonstrates only that it
purported to make an award pursuant to the ECT, not that it in
fact did so.
If Moldova is correct, it might have a defense to
confirmation under the New York Convention, which provides
for non-recognition of an award 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.” See
New York Convention, art. V(1)(c). We have held, however,
that the arbitrability of a dispute is not a jurisdictional question
under the FSIA. See Chevron, 795 F.3d at 205–06. Moldova’s
brief uses Article V(1)(c) to bolster its claim of sovereign
immunity, and, in so doing, it “conflates the jurisdictional
standard of the FSIA with the standard for review under the
New York Convention.” Id. at 205. The FSIA’s arbitration
exception therefore applies and we reject Moldova’s immunity
claim. We construe Moldova’s arbitrability argument as a
defense under Article V(1)(c) of the Convention.
10
Before passing on the merits of that defense, we must
answer a question that is logically antecedent: Who Decides?
Moldova says that we should decide whether Energoalliance’s
claim was arbitrable under the ECT. And indeed, the
background understanding is that courts, not arbitrators, decide
questions of arbitrability. See BG Grp., PLC v. Republic of
Argentina, 572 U.S. 25, 34 (2014). That understanding is
overcome, however, if “the parties clearly and unmistakably
provide otherwise.” Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 83 (2002) (internal quotations omitted). If
arbitrability itself is delegated to the arbitrators, “the court’s
standard for reviewing the arbitrator’s decision about that
matter should not differ from the standard courts apply when
they review any other matter that parties have agreed to
arbitrate.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
943 (1995). That standard is more than mere deference. A
recent, unanimous opinion of the Supreme Court drove this
point home. If an agreement assigns the arbitrability
determinations to an arbitrator, “a court possesses no power to
decide the arbitrability issue,” even if it thinks the argument for
arbitrability is “wholly groundless.” Henry Schein, Inc. v.
Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019).4
Moldova agreed to assign arbitrability determinations to
the tribunal. Under Article 26 of the ECT, all parties agree to
arbitration under UNCITRAL’s rules. See ECT, art. 26(4)(b).
Those rules state that the “arbitral tribunal shall have the power
to rule on its own jurisdiction.” UNCITRAL Arbitration
4
Citing three cases from sister circuits, Moldova asks us to
apply the “wholly groundless” exception. Each of these cases was
abrogated—by name—in Henry Schein. See 139 S. Ct. at 528–29
(abrogating, inter alia, Douglas v. Regions Bank, 757 F.3d 460 (5th
Cir. 2014); Turi v. Main St. Adoption Servs., LLP, 633 F.3d 496 (6th
Cir. 2011); and Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366 (Fed.
Cir. 2006)).
11
Rules, art. 23, ¶ 1 (rev. 2010 ed.). In Chevron, we said that the
parties’ adoption of UNCITRAL’s arbitration rules was “clear
and unmistakable evidence that the parties agreed to arbitrate
arbitrability.” 795 F.3d at 208 (quoting Oracle Am., Inc. v.
Myriad Grp. A.G., 724 F.3d 1069, 1077 (9th Cir. 2013)).
The conjunction of Chevron and Henry Schein means that
we must accept the arbitral tribunal’s determination that
Energoalliance’s claim fell within the ECT. It makes no
difference that Henry Schein dealt with a domestic,
commercial contract and the ECT is an international treaty.
“[A] treaty is a contract, though between nations. Its
interpretation normally is, like a contract’s interpretation, a
matter of determining the parties’ intent.” BG Group, 572 U.S.
at 37.
Moldova’s only counterargument is that “the ECT is not
applicable to the dispute.” In other words, the ECT’s
incorporation of the UNCITRAL rules is not controlling
because Stileks’ claim does not fall within the ECT. This is
unadorned question-begging. Whether the ECT applies to the
dispute and whether the tribunal had jurisdiction under the
ECT are different ways of framing the same question. The
tribunal’s jurisdictional grant derived from Moldova’s
signature on the treaty itself, and—under our law—it is up to
the tribunal to determine what the treaty means. We thus have
no authority to delve into the merits of Moldova’s argument.
Admittedly, this analysis sits uncomfortably alongside the
general principle that legal issues relating to defenses under the
New York Convention are reviewed de novo. See TMR Energy
Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 304 (D.C.
Cir. 2005). Here, however, the question that receives de novo
review is whether the arbitrability decision was delegated to
the arbitrators. It was. As a consequence, it is the only
12
question that receives de novo review. Cf. BG Group, 572 U.S.
at 29 (rejecting de novo review of a treaty’s “local litigation
requirement” in favor of deference to the arbitrator’s
determination). We therefore reject Moldova’s argument that
the tribunal lacked jurisdiction.
B.
Under the New York Convention, a district court may, “if
it considers it proper,” adjourn—that is, impose a stay of—
confirmation proceedings if an application to vacate the award
has been made in another jurisdiction. New York Convention,
art. VI. In Europcar Italia, S.p.A. v. Maiellano Tours, Inc., the
Second Circuit enumerated six factors that district courts
should consider when making adjournment decisions. See 156
F.3d 310, 317–18 (2d Cir. 1998). Applying the Europcar
factors, the district court lifted the stay it entered in April 2016.
Moldova argues that, given pendency of its case in the Paris
Court of Appeal, this was error.
We have yet to pronounce the standard of review for a
district court’s grant or denial of a motion to stay confirmation
proceedings under the New York Convention. That said, we
agree with the Second Circuit that “in light of the permissive
language of Article VI of the Convention and a district court’s
general discretion in managing its own caseload and suspense
docket,” the appropriate standard of review is abuse of
discretion. Id. at 316–17. Applying that standard, we affirm
the district court’s stay-lifting order.
We view the Europcar decision as the first federal
appellate opinion to subject the adjournment clause to a
sustained analysis. Under Europcar, a district court deciding
an adjournment motion under the New York Convention
should consider:
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(1) the general objectives of arbitration—the
expeditious resolution of disputes and the
avoidance of protracted and expensive
litigation;
(2) the status of the foreign proceedings and the
estimated time for those proceedings to be
resolved;
(3) whether the award sought to be enforced
will receive greater scrutiny in the foreign
proceedings under a less deferential standard of
review;
(4) the characteristics of the foreign
proceedings including (i) whether they were
brought to enforce an award (which would tend
to weigh in favor of a stay) or to set the award
aside (which would tend to weigh in favor of
enforcement); (ii) whether they were initiated
before the underlying enforcement proceeding
so as to raise concerns of international comity;
(iii) whether they were initiated by the party
now seeking to enforce the award in federal
court; and (iv) whether they were initiated
under circumstances indicating an intent to
hinder or delay resolution of the dispute;
(5) a balance of the possible hardships to each
of the parties . . . ; and
(6) any other circumstances that could tend to
shift the balance in favor of or against
adjournment.
Id. at 317–18. These factors are not all equally weighted.
Because “the primary goal of the Convention is to facilitate the
recognition and enforcement of arbitral awards,” the Second
14
Circuit reasoned that the first and second factors should receive
additional heft. Id. at 318. Although our court has yet to
endorse the Europcar approach, it has been influential in the
district court. See, e.g., Hardy Expl. & Prod. (India), Inc. v.
Gov’t of India, Ministry of Petroleum & Nat. Gas, 314 F. Supp.
3d 95, 105–08 (D.D.C. 2018); Rusoro Mining Ltd. v.
Bolivarian Republic of Venezuela, 300 F. Supp. 3d 137, 149–
51 (D.D.C. 2018); Gold Reserve Inc. v. Bolivarian Republic of
Venezuela, 146 F. Supp. 3d 112, 134–37 (D.D.C. 2015);
Arbitration of Certain Controversies Bet. Getma Int’l &
Republic of Guinea, 142 F. Supp. 3d 110, 113–19 (D.D.C.
2015).
We agree with the Europcar court that a district court
would abuse its discretion if it failed to consider the first and
second factors. We think these factors directly implicate the
court’s responsibility to “balance the Convention’s policy
favoring confirmation of arbitral awards against the principle
of international comity embraced by the Convention.” Four
Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377
F.3d 1164, 1172 (11th Cir. 2004). Nevertheless, we doubt that
a six-factor balancing test—enforced by appellate review—is
consistent with the district court’s “broad discretion to stay
proceedings as an incident to its power to control its own
docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). And the
language of the New York Convention itself does nothing to
alter this background understanding; indeed, it is difficult to
conceive of a greater delegation of discretion than “if [the
court] considers it proper.” New York Convention, art. VI.
We thus focus our attention on the district court’s analysis
of the first two factors. It was in the summer of 2010—more
than 10 years ago—that Energoalliance handed Moldova a
notice of arbitration. As the district court noted, this is “hardly
an ‘expeditious resolution’ of the dispute.” LLC Komstroy,
15
2018 WL 5993437, at *3 (quoting Hardy Expl., 314 F. Supp.
3d at 106). Additionally, the previous appeal-reversal-remand
round at the Paris court and the Court of Cassation took over
four years. Id. at *4. Thus, failing to lift the stay might have
forced Stileks to sit on its award for several additional years.
Id.
In reply, Moldova simply asserts that it would be
“premature” to lift the stay because of the “high probability”
that the award will be overturned. The ipse dixit is insufficient;
Moldova points to no evidence of a fair probability—much less
a “high probability”—other than the fact of the remand itself.
And even were we inclined to trust Moldova’s
prognostications, its failure to address the district court’s
concerns about further delay means that it has spoken to only
one aspect of our inquiry. Moldova has plainly not met its
burden to demonstrate that the district court abused its
discretion.
C.
The United States Supreme Court has called payment of
appropriate interest “a dictate of natural justice” necessary “to
repair all the damages that accrue naturally” from the breach of
an obligation. Curtis v. Innerarity, 6 How. 146, 154 (1848).
Regarding a foreign arbitral award, there are three possible
categories of interest: pre-award, prejudgment (i.e., after the
arbitration award but before the award is converted into a U.S.
judgment) and post-judgment. Here, Moldova challenges the
district court’s decision to grant Komstroy prejudgment
interest. Applying the deferential abuse of discretion standard,
see Bucheit v. Palestine Liberation Org., 388 F.3d 346, 351
(D.C. Cir. 2004), we affirm.
Moldova’s primary argument is that the arbitral award
itself provides full compensation so prejudgment interest is
16
unnecessary. But confirmation petitions under the New York
Convention are “deemed to arise” under the laws of the United
States, 9 U.S.C. § 203, and “[p]rejudgment interest is an
element of complete compensation” in U.S. law, West Virginia
v. United States, 479 U.S. 305, 310 (1987); see also Matter of
Oil Spill by Amoco Cadiz, 954 F.2d 1279, 1331 (7th Cir. 1992)
(per curiam) (prejudgment interest is “an ordinary part of any
award under federal law”).
The primary purpose of prejudgment interest is “to
compensate the plaintiff for any delay in payment resulting
from the litigation.” Oldham v. Korean Air Lines Co., 127 F.3d
43, 54 (D.C. Cir. 1997). It also “promotes settlement and
deters any attempt to benefit unfairly from inevitable litigation
delay.” Moore v. CapitalCare, Inc., 461 F.3d 1, 13 (D.C. Cir.
2006) (awarding prejudgment interest to ERISA plaintiffs).
The second rationale is especially relevant in the arbitration
context, where expeditious resolution is a central objective.
Other circuits have argued that a decision to award
prejudgment interest “must be exercised in a manner consistent
with the underlying arbitration award.” Ministry of Def. of the
Islamic Republic of Iran v. Cubic Def. Sys., Inc., 665 F.3d
1091, 1103 (9th Cir. 2011); see also Waterside Ocean Nav. Co.
v. Int’l Nav. Ltd., 737 F.2d 150, 154 (2d Cir. 1984). Here,
although the arbitral award was silent on prejudgment interest,
the tribunal granted Energoalliance pre-award interest. It
reasoned that “the income which [Energoalliance] would have
received if this amount had been used in its commercial
activities is a part of [its] loss and is to be reimbursed by
[Moldova].” We can think of no reason that this same
reasoning should not apply to the award of prejudgment
interest here.
17
D.
Traditionally, U.S. courts render judgments in U.S.
dollars. See Restatement (Third) of Foreign Relations Law §
823 cmt. B (1987). Indeed, this court once believed that U.S.
dollar conversion was mandatory under the Coinage Act of
1792. See Int’l Silk Guild v. Rogers, 262 F.2d 219, 224 (D.C.
Cir. 1958) (“American courts are permitted to render
judgments only in dollars.”), superseded by statute as
recognized in Leidos, Inc. v. Hellenic Republic, 881 F.3d 213,
219 n.5 (D.C. Cir. 2018). Modern caselaw, however, has been
more accepting of foreign currency-denominated awards,
which are often desirable “when the commercial activity took
place in that currency.” Amoco Cadiz, 954 F.2d at 1328; see
also Restatement at § 823 cmt. B (“there is no impediment to
issuance by a court in the United States of a judgment
denominated in a foreign currency”).
Moldova claims that the district court abused its discretion
by rendering the award in U.S. dollars. Energoalliance asked
the arbitral tribunal for an award in Moldovan lei and later—
after the lei had depreciated substantially—asked the district
court for a dollar-denominated award. Had Energoalliance
requested a dollar-denominated award from the beginning,
Moldova might have been on notice and able to hedge against
the risk of a depreciating lei. We think the district court should
have considered the extent of Moldova’s reliance on
Energoalliance’s legal representations.
Our conclusion finds support from our decision in Leidos.
There, a defense contractor, Leidos, won confirmation of a
foreign arbitration award against a foreign state, Greece, and
thrice requested that the award be denominated in euros. See
881 F.3d at 219. But after a judgment was rendered in euros,
Leidos successfully moved under Rule 59(e) to convert the
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award to U.S. dollars. Id. at 215. Leidos’s about-face made it
impossible for Greece to protect itself against the risk of
exchange rate fluctuations by purchasing hedges. Id. at 219.
Because the “parties’ contract was in euros, the arbitral award
was in euros and Leidos repeatedly requested judgment in
euros,” we said that Greece had “a reasonable and settled
expectation that it would satisfy the judgment against it in
euros.” Id. (internal quotations omitted).
The district court declined to apply Leidos on the ground
that the petitioner there did not request conversion until after
the district court’s judgment, whereas Komstroy requested
conversion before judgment. This distinction is accurate, as far
as it goes. A Rule 59(e) motion—which is filed after
judgment—is proper if there is a need to correct a “manifest
injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.
Cir. 1996) (per curiam) (internal quotations omitted). Leidos
held that there could be no manifest injustice if the petitioner
obtained an arbitration award in euros and requested a
judgment in euros, but later changed its mind. See 881 F.3d at
218. Strictly read, Leidos is more about Rule 59(e) motions
than the district court’s discretion to choose a currency
denomination in the first instance.
But the underlying logic of Leidos is applicable. The fact
that the petitioner requested an award in dollars after the
judgment was important because it determined the procedural
device used to make the request and the standard by which that
request was evaluated. Leidos did not, however, imbue
judgment day with a metaphysical significance in which
converting a judgment to U.S. dollars is proper if the request is
made pre-judgment and improper if made post-judgment. The
equitable consideration in Leidos was that the petitioner
unfairly delayed his request, disrupting the settled expectations
of the other party. Here, the district court should have
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considered whether Energoalliance took any actions that
created a settled expectation on Moldova’s part.
Energoalliance took at least two such actions. First, as the
arbitral tribunal made clear, Energoalliance requested an award
in U.S. dollars and then changed its mind and requested the
award in Moldovan lei:
Originally, the Claimant denominated its claim
(both with regard to the principal debt and the
interest) in US dollars. However later, it
changed its demands in its Alternative
Calculation Statement by denominating the
amounts in [lei]. . . . As far as the Arbitration
Court understands, the Claimant’s argument is
that any payments of Moldtranselectro to the
Claimant would be made in lei (in case of
monetary form of payments) therefore the most
accurate measurement of the Claimant’s loss
would be denominated in lei.
Second, Energoalliance’s November 2014 confirmation
petition in district court denominated the bulk of requested
relief in lei. Energoalliance’s first request for a dollar-
denominated award came in December 2018, more than five
years after its first request for an award in lei and more than
four years after its second such request.
We believe the district court wrongly focused on the most
recent request for dollars, noting only that granting dollar
conversion requests is “standard practice.” Allowing this
standard practice to override Moldova’s reliance interest lets
an arbitration winner make a riskless bet on the foreign
exchange market—always requesting the initial award in local
currency and then, during the course of U.S. confirmation
20
proceedings, seeking a dollar judgment if and only if the local
currency suffers relative depreciation.
As the district court recognized, the Moldovan lei had
depreciated significantly since the arbitral award was issued on
October 25, 2013. At the time of the arbitral award, the
currency exchange rate of lei to dollars was 12.9207 lei to 1
dollar. As of the date of the district court’s order, the rate was
17.8856 lei to 1 dollar. Thus, the Moldovan lei depreciated
nearly 30 per cent over the relevant period. But neither Stileks
nor the district court explained why Moldova alone should bear
the cost of currency depreciation. In sum, we conclude the
district court inadequately accounted for the reliance interests
Moldova may have reasonably developed based on
Energoalliance’s actions during arbitration.
For the foregoing reasons, we affirm the district court’s
November 13, 2018, stay-lifting order, as well as the portion of
the August 23, 2019, order confirming the arbitral award and
awarding prejudgment interest. However, the district court
should have considered whether Moldova had a settled
expectation that the award would be paid in Moldovan lei.
Thus, we vacate the October 2, 2019, order entering judgment
against Moldova in the amount of $58,591,058.50. On remand,
the district court should evaluate Moldova’s reliance interest,
if any, that may have been created by Energoalliance’s requests
for a lei-denominated award. In light of our remand, we do not
reach Moldova’s argument regarding the district court’s
continuing jurisdiction vel non based on Moldova’s appeal
notice.
So ordered.