In Re the Arbitration of Certain Controversies Between Getma International & Republic of Guinea

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
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In the matter of the Arbitration of Certain )
Controversies Between )
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GETMA INTERNATIONAL, )
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Petitioner, ) Civil Action No. 14-1616 (RBW)
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and )
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THE REPUBLIC OF GUINEA, )
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Respondent. )
__________________________________________)
MEMORANDUM OPINION
Getma International (“Getma”), the petitioner, commenced this civil action against the
Republic of Guinea (“Guinea”), the respondent, seeking confirmation and enforcement of a
foreign arbitral award (“arbitral award” or “award”) pursuant to the Federal Arbitration Act, 9
U.S.C. § 201 (2012). See, e.g., Petition to Confirm Arbitration Award and to Enter Judgment
(“Confirm Pet.”) at 1. The Court previously stayed this case, pending the outcome of Guinea’s
attempt to have the award annulled. See In re Certain Controversies Between Getma Int’l &
Republic of Guinea (“In re Getma”), _ F. Supp. 3d _, _, 2015 WL 6735625, at *7 (D.D.C. 2015).
That stay was effectively lifted after the parties informed the Court that the award had been
annulled, see December 22, 2015 Joint Status Report at 1-2, ECF No. 29, whereupon the Court
ordered the parties to propose a briefing schedule concerning whether the Court should confirm
and enforce the award, notwithstanding the annulment, see January 5, 2016 Order, ECF No. 30.
Briefing has now been completed, and upon careful consideration of the parties’ submissions,1
the Court concludes that it cannot confirm and enforce the award.
I. BACKGROUND
The Court previously set out many of the facts underlying this case. In re Getma, _ F.
Supp. 3d at _, 2015 WL 6735625, at *1-2. The Court supplements that background as follows.
A. The Arbitration Proceeding
In October 2011, after the parties agreed to resolve their dispute before a foreign arbitral
tribunal (“arbitral tribunal” or “tribunal”)—composed of three arbitrators—concerning the
termination of the Concession Agreement pursuant to the Common Court of Justice and
Arbitration (“CCJA”) Arbitration Rules, 2 see id. at _, *1, the CCJA ordered that the parties pay
for certain fees and costs in advance of the arbitration, Declaration of Laurent Jaeger (“First
Jaeger Decl.”), ECF No. 18-5, Exhibit (“Ex.”) 4 (October 24, 2011 CCJA Order (“Oct. 24, 2011
CCJA Order”)) at 5-6, 3 which amounted to about €154,000, including approximately €62,000 in
arbitrators’ fees, see Confirm Mem. at 6; Confirm Opp’n at 6. After the tribunal was constituted
in early 2012, the tribunal sought permission from the Secretary General of the CCJA
1
In addition to Getma’s petition to confirm and enforce the arbitral award, the Court considered the following
submissions in rendering its decision: (1) Getma Revised Memorandum of Points and Authorities in Support of
Petition to Confirm Arbitration Award and to Enter Judgment (“Confirm Mem.”); (2) the Republic of Guinea’s
Revised Memorandum of Points and Authorities in Opposition to Getma International’s Petition to Confirm Award
(“Confirm Opp’n”); and (3) Getma International’s Revised Reply Memorandum in Further Support of Petition to
Confirm Arbitration Award and to Enter Judgment (“Confirm Reply”).
2
As the Court explained in its earlier opinion, the CCJA was established by the OHADA Treaty, which was signed
by certain West and Central African states (“OHADA member states”), including Guinea, generally to create a
uniform system of commercial dispute resolution. See In re Getma, _ F. Supp. 3d at _, 2015 WL 6735625, at *1 n.2.
The CCJA can administer arbitration proceedings instituted pursuant to the CCJA Arbitration Rules, as well as
review arbitral awards. See id.
3
In referencing the parties’ exhibits, the Court will use the page numbers assigned to the exhibits by the Court’s
electronic court filing (“ECF”) system.
2
(“Secretary General”) 4 on or about April 11, 2013, to contact the parties’ counsel about an
increase in the arbitrators’ fees. See, e.g., First Jaeger Decl., Ex. 29 (June 3, 2014 Letter From
Arbitral Tribunal to Secretary General (“June 3, 2014 Letter”)) at 12 (“If the Secretary General
finds the time to be opportune, the [t]ribunal can discuss . . . [the fees issue] with the [p]arties’
[c]ounsel.” (emphasis and quotation marks omitted)); First Jaeger Decl., Ex. 25 (August 1, 2013
CCJA Order (“Aug. 2013 CCJA Order”)) at 5 (“In light of the letter dated [April 11, 2013] from
the . . . [t]ribunal . . . to the Secretary General relative to the request that the [CCJA] revise the
global fee payable to the [t]ribunal upward to €450,000[.]”). The Secretary General permitted
the tribunal to do so on April 15, 2013. See, e.g., First Jaeger Decl., Ex. 29 (June 3, 2014 Letter)
at 12 (“[Y]ou may, as you have requested, bring this . . . [fees issue] to the [p]arties’ [c]ounsel
and keep me informed of the outcome.”); First Jaeger Decl., Ex. 25 (Aug. 2013 CCJA Order) at
5 (noting that the Secretary General sent a letter on April 15, 2013, to the arbitral tribunal
regarding request for increased arbitrators’ fees).
On April 22, 2013, the arbitral tribunal contacted the parties about increasing the
arbitrators’ fees from approximately €62,000 to approximately €450,000. First Jaeger Decl., Ex.
14 (April 22, 2013 Letter From Arbitral Tribunal to the Parties) at 5-6 (“Given the size of the
dispute and of the questions raised, the arbitrators believe that in order to enable them to properly
perform their duties, the overall fee of the arbitral [t]ribunal should be fixed at €450,000. The
[t]ribunal wishes to obtain any comments from the parties with respect to this estimate.”).
By May 10, 2013, the parties had responded to the arbitral tribunal, informing it that they
had “no comments” regarding the request for increased arbitrators’ fees. First Jaeger Decl., Ex.
4
The parties do not explain the responsibilities of the Secretary General to the Court, but the record suggests that
the Secretary General generally performs administrative tasks for the CCJA and serves as a liaison between the
arbitral tribunal and the CCJA.
3
18 (May 3, 2013 Letter From Getma to Arbitral Tribunal) at 4; First Jaeger Decl., Ex. 19 (May
10, 2013 Letter From Guinea to Arbitral Tribunal) at 5; see also First Jaeger Decl., Ex. 16 (May
10, 2013 Letter From Arbitral Tribunal to Parties (“May 10, 2013 Letter”)) at 5. The tribunal
interpreted the parties’ silence on the fee issue as “hav[ing] no objection to [the] fee revision,”
First Jaeger Decl., Ex. 16 (May 10, 2013 Letter) at 5, and sought the parties’ confirmation of this
interpretation. Id. at 6. The parties eventually agreed to the tribunal’s solicitation for increased
arbitrators’ fees in June 2013. See First Jaeger Decl., Ex. 23. (June 25, 2013 and June 28, 2013
Emails (“June 2013 Emails”)) at 5. The tribunal then immediately notified the Secretary General
of the parties’ consent to increased arbitrators’ fees, and the Secretary General informed the
tribunal that he would “contact the [CCJA] soon to adjust the fees of the . . . [tribunal].” Second
Declaration of Cédric Fischer (“Second Fischer Decl.”), ECF No. 25-13, Ex. 11 (June 28, 2013
Email From Secretary General to Arbitral Tribunal (“June 28, 2013 Letter”)) at 2.
However, on August 1, 2013, the CCJA denied the arbitral tribunal’s attempt to revise
and increase the arbitrators’ fees that the CCJA initially ordered, citing 1999 CCJA precedent.
See First Jaeger Decl., Ex. 25 (Aug. 2013 CCJA Order) at 5-6. In pertinent part, the 1999 CCJA
precedent states:
The [CCJA] shall determine the arbitrator’s fees pursuant to [a fixed schedule], or
at its discretion where the amount in controversy has not been stated.
If the circumstances of the case render it necessary on an exceptional basis, the
[CCJA] may set the arbitrator’s fees at an amount that is greater or less than the
amount that would result from application of the scale. . . .
When it sets the arbitrator’s fees, the [CCJA] shall take into consideration the
work done by arbitrator, the time spent, the speed of proceedings[,] and the
complexity of the dispute, so as to reach a figure within the limits provided for, or
above or below such limits under . . . exceptional circumstances . . . .
4
Where a matter is submitted to more than one arbitrator, the [CCJA] may, at its
discretion, increase the amount set aside for payment of fees, generally up to a
limit of three times that provided for a single arbitrator. . . .
The arbitrator’s fees and expenses are set exclusively by the Court, in accordance
with the provisions of the Rules of Arbitration. Any separate arrangement
between the parties and the arbitrators concerning their fees is null and void.
First Jaeger Decl., Ex. 26 (February 3, 1999 CCJA Order (“Feb. 3, 1999 CCJA Order”)) at 7-8.
Despite the CCJA’s August 2013 order, Getma lobbied the CCJA on September 19,
2013, to reconsider its decision denying the arbitral tribunal’s demand for increased fees. 5 See
First Jaeger Decl., Ex. 30 (September 19, 2013 Letter From Getma to CCJA (“Sept. 19, 2013
Letter”)) at 6-8. Shortly thereafter, on October 3, 2013, the CCJA again declined to increase the
initial arbitrators’ fees, relying on the same 1999 CCJA precedent that it cited in its August 2013
order. First Jaeger Decl., Ex. 31 (October 3, 2013 CCJA Order (“Oct. 3, 2013 CCJA Order”)) at
5-6.
On April 30, 2014, the arbitral tribunal informed the parties that it had resolved the
parties’ dispute and would issue an award that included a demand for €450,000 in arbitrators’
fees. First Jaeger Decl., Ex. 45 (April 30, 2014 Letter From Arbitral Tribunal to Parties (“Apr.
30, 2014 Letter”)) at 9. On or about May 19, 2014, the Secretary General contacted the tribunal,
notifying it that the Secretary General was in receipt of the tribunal’s April 30, 2014
communication to the parties. First Jaeger Decl., Ex. 47 (May 19, 2014 Email from Secretary
General to Arbitral Tribunal (“May 19, 2014 Email”)) at 5. After recognizing that the award
would include a demand for increased arbitrators’ fees, and notwithstanding the CCJA’s
5
Following the CCJA’s August 2013 order, the tribunal apparently continued to contact the CCJA about the fees
issue in September 2013. See Second Fischer Decl., Ex. 14 (September 16, 2013 Letter From Arbitral Tribunal to
CCJA (“Sept. 16, 2013 Letter”)) at 2; see also First Jaeger Decl., Ex. 29 (June 3, 2014 Letter) at 13; First Jaeger
Decl., Ex. 31 (October 3, 2013 CCJA Order (“Oct. 3, 2013 CCJA Order”)) at 6 (considering two letters written in
September 2013 from the tribunal to the CCJA).
5
previous orders rejecting such a demand, the Secretary General “formally prohibited” the
tribunal from seeking any increased arbitrators’ fees. 6 Id.; see also First Jaeger Decl., Ex. 48
(May 20, 2014 Letter From Secretary General to Getma (“May 20, 2014 Letter”)) at 6 (“I call
your attention to the fact that, if the final award includes the payment of the amount of €450,000
to the arbitrators, in accordance with the invalid arrangement, the award will potentially be
subject to invalidation by . . . [the CCJA].”). The tribunal ultimately issued an award in favor of
Getma, 7 which did not include an increase in the arbitrators’ fees. See First Jaeger Decl., Ex. 49
(May 22, 2014 – May 23, 2014 Emails (“May 2014 Emails”)) at 6.
After the arbitral tribunal issued the award, the tribunal continued to express its
frustration with the CCJA over the CCJA’s repeated refusal to allow the tribunal to seek
increased arbitrators’ fees from the parties. First Jaeger Decl., Ex. 29 (June 3, 2014 Letter) at 10-
16. And somehow, the tribunal eventually collected half of the increased arbitrators’ fees from
Getma (approximately €225,000) in September 2014. See First Jaeger Decl., Ex. 51 (September
22, 2014 Letter From Arbitral Tribunal to Parties (“Sept. 22, 2014”)) at 4; Confirm Mem. at 14;
Confirm Opp’n at 15; see also First Jaeger Decl., Ex. 50 (August 27, 2014 Letter From Arbitral
Tribunal to Parties (“Aug. 27, 2014 Letter”)) at 4. But Guinea declined to follow suit and pay
any increased arbitrators’ fees, reneging on its promise to do so earlier. See First Jaeger Decl.,
Ex. 51 (Sept. 22, 2014) at 4; Second Fischer Decl., Ex. 16 (May 19, 2014 Letter From Guinea to
Secretary General (“May 19, 2014 Letter”)) at 2-3.
6
In addition to the August 2013 and October 2013 orders, the CCJA apparently denied the arbitral tribunal’s
request for increased arbitrators’ fees two additional times. See First Jaeger Decl., Ex. 29 (June 3, 2014 Letter) at 13
(“Unfortunately, the [CCJA] confirmed its position a fourth time on [April 14, 2014].”).
7
The award was approximately €39 million. See In re Getma, _ F. Supp. 3d at _, 2015 WL 6735625, at *1.
6
B. The Annulment Proceeding
“In July 2014, Guinea filed an annulment petition with the CCJA, seeking to have the
CCJA set aside the arbitral award.” In re Getma, _ F. Supp. 3d at _, 2015 WL 6735625, at *2.
That petition was successful, as the CCJA, sitting en banc, annulled the arbitral award on the
ground that the arbitral tribunal violated the CCJA Arbitration Rules, and thus, the tribunal’s
“mission” to conduct the arbitration proceeding in accordance with those rules, in seeking
increased arbitrators’ fees from the parties, which only the CCJA had authority to order the
parties to do. See Confirm Mem. at 15, 39-40; Confirm Opp’n at 16, 33; see also Joint Status
Report, Ex. A (December 1, 2015 CCJA Order (“Dec. 1, 2015 CCJA Order”)) at 13-15. Despite
the annulment of the award, Getma has petitioned the Court to confirm and enforce the award.
II. LEGAL STANDARD
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June
10, 1958, also known as the “New York Convention,” is enforced through the Federal
Arbitration Act, 9 U.S.C. § 201 (2012). See, e.g., G.E. Transp. S.P.A. v. Republic of Albania,
693 F. Supp. 2d 132, 136 & n.5 (D.D.C. 2010). The New York Convention authorizes the
recipient of a foreign arbitral award to seek confirmation and enforcement of the award in federal
court. See 9 U.S.C. §§ 202, 207. The New York Convention provides that a 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.” Id. § 207. Such grounds include
the following: incapacity of the parties; invalidity of the underlying agreement; deficient notice
of the arbitration proceedings; an award beyond the scope of the arbitration agreement; improper
composition of the arbitration panel; and an award that has not yet become binding, or has been
set aside or suspended by a competent authority of the country in which, or under the law of
7
which, that award was made. TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 934-35
(D.C. Cir. 2007).
III. ANALYSIS
Getma generally contends that the annulment of the arbitral award was “repugnant to
U.S. public policy” because it “violat[ed] basic notions of justice,” and the Court should,
therefore, confirm and enforce the award. Confirm Mem. at 26. The New York Convention
does confer upon courts the discretion to enforce an annulled award, but that discretion is
“narrowly” confined and may only be exercised “where enforcement would violate the . . .
[United States’] most basic notions of morality and justice.” TermoRio, 487 F.3d at 938. This
standard is “high and infrequently met,” except in “clear-cut cases.” Id. (quoting Tahan v.
Hodgson, 662 F.2d 862, 866 n.17 (D.C. Cir. 1981)); see also Gold Reserve Inc. v. Bolivarian
Republic of Venezuela, _ F. Supp. 3d _, _, 2015 WL 7428532, at *14 (D.D.C. 2015)
(“[V]iolations of the most basic notions of morality and justice is a high bar . . . .”). The District
of Columbia Circuit has explained that the “test of public policy cannot be simply whether . . . [a
court] would set aside an arbitration award if the award had been made and enforcement had
been sought . . . [in the United States].” TermoRio, 487 F.3d at 938. The New York Convention
“contemplates that different . . . [countries] may have different grounds for setting aside
arbitration awards.” Id. Courts “must be very careful in weighing notions of ‘public policy’ in
determining whether to credit the judgment of a [foreign] court in . . . vacating an arbitration
award.” Id. The New York Convention “does not endorse a regime” in which courts “routinely
second-guess the judgment” of a foreign court with competent jurisdiction to annul an arbitral
award. Id. at 937. Where a foreign court has annulled an arbitral award, a court in this country
may only ignore that annulment on “limited . . . occasions” where extraordinary circumstances
8
have been presented. Id. at 938. For example, “[i]n the classic formulation, a judgment that
‘tends clearly’ to undermine the public interest, the public confidence in the administration of the
law, or security for individual rights of personal liberty or of private property is against public
policy.” Id. (quoting Ackermann v. Levine, 788 F.2d 830, 841 (2d Cir. 1986)). On the other
hand, “erroneous legal reasoning or misapplication of law is generally not a violation of public
policy within the meaning of the New York Convention.” Gold Reserve, _ F. Supp. 3d. at _,
2015 WL 7428532, at *14 (quoting Karaha Bodas Co., LLC v. Perusahaan Pertambangan
Minyak Dan Gas Bumi Negara, 364 F.3d 274, 306 (5th Cir. 2004)).
None of Getma’s public policy-oriented contentions compel the Court to go against the
grain and ignore the CCJA’s annulment of the arbitral award. The parties agreed to be bound by
the CCJA Arbitration Rules. Confirm Pet., Declaration of Cédric Fischer (“First Fischer Decl.”),
ECF No. 1-1, Ex. 2 (Concession Agreement) at 3 (“[Any] . . . claim, dispute or difference will be
permanently and irrevocably settled through arbitration proceedings subject to the . . . [CCJA
Arbitration Rules].”). According to those rules, the CCJA is the highest court of review. See In
re Getma, _ F. Supp. 3d at _, 2015 WL 6735625, at *1 n.2. The CCJA ordered the arbitral
tribunal on multiple occasions to abandon its efforts to solicit increased arbitrators’ fees from the
parties. See First Jaeger Decl., Ex. 31 (Oct. 3, 2013 CCJA Order) at 5-6; First Jaeger Decl., Ex.
25 (Aug. 2013 CCJA Order) at 5-6. In doing so, the CCJA relied on its own precedent, as well
as its arbitration rules, which unambiguously supports the position that the determination of
arbitrators’ fees is the exclusive province of the CCJA, and neither the tribunal nor the parties
could invade that authority. First Jaeger Decl., Ex. 26 (Feb. 3, 1999 CCJA Order) at 8 (“The
arbitrator’s fees and expenses are set exclusively by the Court, in accordance with the provisions
of the Rules of Arbitration. Any separate arrangement between the parties and the arbitrators
9
concerning their fees is null and void.” (emphasis added)). Yet, the tribunal seemingly ignored
that authority by defying the CCJA’s orders and pursuing increased arbitrators’ fees with the
parties.
Getma faults the CCJA for allegedly having initially “encouraged” the arbitral tribunal to
consult with and solicit an agreement from the parties regarding increased arbitrators’ fees, only
to reverse its position subsequently. Confirm Mem. at 29, 34-36, 41-42; see also First Jaeger
Decl., Ex. 29 (June 3, 2014 Letter) at 12 (Secretary General permitting arbitral tribunal to contact
parties about increasing arbitrators’ fees and requesting it to apprise the Secretary General about
any communications on the subject); First Jaeger Decl., Ex. 31 (Oct. 3, 2013 CCJA Order) at 5-
6; First Jaeger Decl., Ex. 25 (Aug. 2013 CCJA Order) at 5-6. The Court is unconvinced that the
annulment decision under these circumstances—albeit somewhat unusual—violated the most
basic notions of justice. First, only the Secretary General permitted the tribunal to contact the
parties about increasing the arbitrators’ fees. First Jaeger Decl., Ex. 29 (June 3, 2014 Letter) at
12. Getma cannot dispute that the CCJA, and not the Secretary General, has the ultimate
authority and discretion to increase the arbitrators’ fees. See, e.g., First Jaeger Decl., Ex. 26
(Feb. 3, 1999 CCJA Order) at 8. Second, to characterize the Secretary General’s communication
with the tribunal as “encouragement” is not entirely accurate. The Secretary General permitted
the tribunal to open discussions with the parties about increasing the arbitrators’ fees and asked
to be kept informed of the “outcome” of those discussions. See First Jaeger Decl., Ex. 29 (June
3, 2014 Letter) at 12. The Secretary General never affirmatively represented that the CCJA
would eventually approve any agreement that the tribunal solicited—he merely informed the
tribunal that he would contact the CCJA about revising the arbitrators’ fees. See Second Fischer
Decl., Ex. 11 (June 28, 2013 Letter) at 2. Third, even under the assumption that the Secretary
10
General’s communication with the tribunal served as a proxy for the CCJA’s tacit consent to
solicit additional arbitrators’ fees from the parties, the CCJA’s later rescission of that approval
was entirely consistent with CCJA precedent. 8 See First Jaeger Decl., Ex. 26 (Feb. 3, 1999
CCJA Order) at 8. And such conduct is not repugnant to United States public policy, especially
where courts in this country are free to reconsider and change their rulings when the
circumstances demand that result, such as when controlling precedent has been overlooked. See,
e.g., Fed. R. Civ. P. 54(b); Loumiet v. United States, 65 F. Supp. 3d 19, 24 (D.D.C. 2014) (“A
motion to reconsider brought under Rule 54(b) may be granted ‘as justice requires.’
Considerations a court may take into account under this standard include whether the court
‘patently’ misunderstood a party, made a decision beyond the adversarial issues presented to the
court, made an error in failing to consider controlling decisions or data, or whether a controlling
or significant change in the law or facts has occurred since the submission of the issue to the
Court.” (emphasis added) (quoting Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101
(D.D.C. 2005))). There is no substantive difference between the CCJA’s decision to rescind its
purported approval of the increased arbitrators’ fees and a court’s decision to reconsider and
amend its earlier ruling. Fourth, Getma conflates expectations with obligations. Although
Getma recognizes that the CCJA Arbitration Rules “expressly permit” the arbitrators’ fees to be
adjusted and the CCJA may have “contemplate[d]” an upward adjustment of those fees, Confirm
Mem. at 33, that authorization does not impose an obligation on the CCJA to increase the
arbitrators’ fees, see First Jaeger Decl., Ex. 26 (Feb. 3, 1999 CCJA Order) at 7 (“The Court shall
8
Getma criticizes the CCJA for failing to conduct a more extensive inquiry that could have likely led it to increase
the arbitrators’ fees. See Confirm Mem. at 34-35. This criticism presents no opportunity to ignore the annulment of
the award on public policy grounds. See Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434,
1446 (11th Cir. 1998) (“The [New York] Convention does not, however, include a defense against enforcement of
an award on the ground that the award is ‘arbitrary and capricious.’”).
11
determine the arbitrator’s fees pursuant to [a fixed schedule], or at its discretion where the
amount in controversy has not been stated. If the circumstances of the case render it necessary
on an exceptional basis, the Court may set the arbitrator’s fees at an amount that is greater or less
than the amount that would result from application of the scale.” (emphasis added)); see also
First Jaeger Decl., Ex. 2 (CCJA Arbitration Rules) at 15-16 (“The costs of arbitration shall
include . . . the fees of the arbitrator and administrative expenses determined by the [CCJA] . . . .
Where the circumstances of the case make it exceptionally necessary, the [CCJA] may fix the
fees of the arbitrator at an amount more or less than that of the normal rate.” (emphasis added)).
At worse, the CCJA conceivably abused its discretion—but even such a transgression would be
an insufficient ground to ignore the annulment. See infra.
Getma posits that the CCJA’s refusal to increase the arbitrators’ fees was an attempt by
the CCJA to “sabotage the arbitration,” as its refusal to increase the arbitrators’ fees threatened
the possibility that the arbitral tribunal would “suspend its work” and “forestall issuance of an
award adverse to [an] OHADA member [state].” Confirm Mem. at 35. This conspiracy theory
is not only speculative, but ill-conceived. 9 The theory presumes that the CCJA already would
have known the outcome of the arbitration proceeding whenever it rejected the tribunal’s request
to seek increased arbitrators’ fees from the parties. But nothing in the record suggests that the
CCJA based its orders on the outcome of the arbitration. Rather, the record demonstrates that the
CCJA rejected the tribunal’s request for increased arbitrators’ fees in August 2013 and October
2013, relying on CCJA precedent, see First Jaeger Decl., Ex. 31 (Oct. 3, 2013 CCJA Order) at 5-
9
Any suggestion that the CCJA is inherently biased in favor of OHADA member states is unfounded. See Confirm
Mem. at 34-35. In signing the Concession Agreement, Getma “had little trouble in deciding to litigate . . . [any
conceivable] breach of contract claim” according to the CCJA Arbitration Rules. TermoRio S.A. E.S.P. v.
Electrificadora Del Atlantico S.A. E.S.P., 421 F. Supp. 2d 87, 101 (D.D.C. 2006), aff’d sub nom. TermoRio, 487
F.3d at 930. “This action alone suggests considerable confidence and trust in the . . . [CCJA].” Id. In any event,
“[o]n a legal basis, it takes much more than an allegation that a decision was results-oriented to demonstrate that it
was ‘repugnant,’ particularly when, as here, the decision seems plausible on the merits.” Id. at 102.
12
6; First Jaeger Decl., Ex. 25 (Aug. 2013 CCJA Order) at 5-6, and that it possibly first learned
about the award against Guinea on or about January 2014, see First Jaeger Decl., Ex. 44 (March
17, 2014 Letter From Tribunal to Secretary General (“Mar. 17, 2014 Letter”)) at 5.
Getma argues that the CCJA should have honored the parties’ agreement to pay the
increased arbitrators’ fees. See Confirm Mem. at 36-39, 42. However, by the parties’ own
accord they were prohibited from doing so, as the Concession Agreement compelled the parties
to resolve disputes “through arbitration proceedings, subject to the . . . [CCJA Arbitration
Rules].” Confirm Pet., First Fischer Decl., Ex. 2 (Concession Agreement) at 3. And those rules
assign the fee-setting responsibility exclusively to the CCJA. First Jaeger Decl., Ex. 2 (CCJA
Arbitration Rules) at 15-16 (“The costs of arbitration shall include . . . the fees of the arbitrator
and administrative expenses determined by the [CCJA] . . . . Where the circumstances of the
case make it exceptionally necessary, the [CCJA] may fix the fees of the arbitrator at an amount
more or less than that of the normal rate.”); see also First Jaeger Decl., Ex. 26 (Feb. 3, 1999
CCJA Order) at 8 (“The arbitrator’s fees and expenses are set exclusively by the Court, in
accordance with the provisions of the Rules of Arbitration. Any separate arrangement between
the parties and the arbitrators concerning their fees is null and void.”). The fact that the CCJA
rejected the parties’ purported and concerted attempt to strip it of that responsibility is neither
unjust nor extraordinary. See Thai-Lao Lignite (Thailand) Co. v. Gov’t of Lao People’s
Democratic Republic, 997 F. Supp. 2d 214, 224 (S.D.N.Y. 2014) (rejecting public policy
challenge in part because agreement that permitted party to waive right of appeal was contrary to
law of foreign tribunal that had primary jurisdiction); see also TermoRio, 487 F.3d at 937
(foreign tribunal “necessarily may set aside an award on grounds that are not consistent with the
laws and policies” of this Court); Parsons & Whittemore Overseas Co. v. Societe Generale De
13
L’Industrie Du Papier (RAKTA), 508 F.2d 969, 975 (2d Cir. 1974) (“By agreeing to submit
disputes to arbitration, a party relinquishes his courtroom rights . . . in favor of arbitration ‘with
all of its well[-]known advantages and drawbacks.’” (quoting Wash.-Balt. Newspaper Guild v.
Washington Post Co., 442 F.2d 1234, 1238 (D.C. Cir. 1971))). This rejection would be
permitted even where the arbitrators’ fees were dramatically lower than arbitrators’ fees
regulated by international tribunals other than the CCJA. 10 See Confirm Mem. at 33; see also
Parsons & Whittemore Overseas, 508 F.2d at 975. And to the extent that the parties could even
contract to circumvent these rules, see First Jaeger Decl., Ex. 26 (Feb. 3, 1999 CCJA Order),
they failed to do that here. The relevant part of the dispute resolution clause in the Concession
Agreement states that “[e]ach of the [p]arties will bear the cost of the arbitrator it appoints” and
that “other costs incurred for arbitration will be shared equally by the [p]arties.” Confirm Pet.,
First Fischer Decl., Ex. 2 (Concession Agreement) at 3. Thus, the plain language of the parties’
agreement does not indicate that the term “cost” is synonymous with the term “fee,” so this
portion of the dispute resolution clause on its face has no bearing on arbitrators’ fees.
Notwithstanding this uncertainty, and even under the assumption that “cost” and “fee” are
intended to be used synonymously, this portion of the dispute resolution clause does not affect
how the arbitrators’ fees would be determined—it only affects how the fees would be
apportioned among the parties after the fees are established. 11
10
The irony of Getma’s position is not lost on the Court—whereas most, if not all, parties would not complain
about being relieved of the obligation to pay €225,000 in legal fees, Getma is nevertheless insisting that it was
properly required to pay increased arbitrators’ fees, despite the CCJA’s orders to the contrary.
11
According to Getma, “the CCJA should have, at a minimum[,] informed the parties as a condition of
administering the case that they would not honor the parties’ contracting in their arbitration clause from the CCJA
fee provisions.” Confirm Mem. at 38. But, as the Court has just explained, the parties were not legally permitted
under either CCJA precedent or the CCJA Arbitration Rules to adjust the arbitrators’ fees, and even if they could,
they did not do so by the plain language of the Concession Agreement. And it is unclear why Getma believes that
the CCJA should have reviewed the parties’ arbitration clause before the arbitration proceeding commenced. The
(continued . . . )
14
Getma accuses Guinea—more specifically, the Guinean Minister of Justice (“Minister of
Justice”)—of improperly causing a Guinean judge, Fodé Kante, to be appointed to the CCJA for
the purpose of annulling the arbitral award and engaging in ex parte communications with Judge
Kante during the annulment proceeding. See Confirm Mem. at 26-28, 41. These accusations are
allegedly supported by a post-annulment interview with the Minister of Justice, wherein he
essentially represented that Judge Kante counseled him in secret as to how Guinea could present
a favorable case before the CCJA. See Third Declaration of Cédric Fischer (“Third Fischer
Decl.”), Ex. 8 (December 25, 2015 Guinean Minister of Justice Interview (“Dec. 25, 2015
Interview”)) at 11, 13-14, 16. To refute these charges, Guinea submits the affidavit of the
Minister of Justice. Confirm Opp’n, Declaration of Check Sako in Opposition to Getma’s
Petition to Confirm (“Sako Decl.”) ¶ 1. The Minister of Justice denies neither the interview nor
what he said in the interview. See id. ¶¶ 3, 8, 13. Instead, the Minister of Justice distances
himself from the interview, claiming that the representations that he made during the interview
were “wholly inaccurate.” Id. ¶¶ 3, 6. According to the Minister of Justice: Judge Kante was
appointed to the CCJA according to OHADA law with the approval of all OHAHA member
states, id. ¶¶ 4, 8, 10-11; Judge Kante’s appointment occurred “well after Guinea made its last
submission to the [CCJA] concerning” the annulment proceeding, id. ¶ 7, see also id. ¶¶ 16-17;
and no representative of Guinea communicated with Judge Kante during the annulment
proceeding, id. ¶¶ 6, 14. And the Minster of Justice represents that he “regret[s] . . . inflat[ing]
the role of the Ministry of Justice in obtaining a favorable result” before the CCJA. Id. ¶ 13.
( . . . continued)
fees issue was only brought to the CCJA’s attention, through a letter to the Secretary General, on or about April
2013. The CCJA then issued an August 2013 Order, denying the request and explaining the reason for the denial.
Moreover, Getma should and could have known when it chose to abide by the CCJA Arbitration Rules that
arbitrators’ fees were set exclusively by the CCJA. See Parsons & Whittemore Overseas, 508 F.2d at 975
(agreement to arbitrate claims, includes potential “drawbacks” of arbitration (quoting Wash.-Balt. Newspaper Guild,
442 F.2d at 1238)).
15
The post-annulment conduct of the Minister of Justice certainly raises concern. The
Court, nevertheless, finds the Minister of Justice’s declaration credible and that the interview
was more likely the product of erroneous self-promotion rather than actual truth. There is no
dispute that Guinea’s last submission to the CCJA occurred approximately two months before
Judge Kante joined the CCJA and that Guinea was unable to supplement its submissions in any
substantive manner thereafter because the CCJA did not conduct oral arguments in the
annulment proceeding. Further, simply because Judge Kante was a Guinean judge is not alone
proof that he was biased in favor of annulling the award in favor of Guinea. 12 And Judge Kante
was only one judge on an en banc panel 13 that unanimously annulled the award consistent with
the August 2013 and October 2013 CCJA orders on the fees issue, as well as CCJA precedent
and the CCJA Arbitration Rules. See First Jaeger Decl., Ex. 31 (Oct. 3, 2013 CCJA Order) at 5-
6; First Jaeger Decl., Ex. 25 (Aug. 2013 CCJA Order) at 5-6; First Jaeger Decl., Ex. 26 (Feb. 3,
1999 CCJA Order); see also First Jaeger Decl., Ex. 48 (May 20, 2014 Letter) at 6 (“I call your
attention to the fact that, if the final award includes the payment of the amount of €450,000 to the
arbitrators, in accordance with the invalid arrangement, the award will potentially be subject to
invalidation by . . . [the CCJA].”).
Finally, Getma protests the annulment because it departs significantly from certain CCJA
precedent and arbitration rules. See Confirm Mem. at 39-41, 42. But, as the Court noted earlier,
12
Again, Getma agreed to an arbitration process that allowed Guinea to petition the CCJA to annul the award, and
thus, it could and should have known that the CCJA was composed of judges from OHADA member states and that
there was a possibility that a Guinean judge could preside over an annulment proceeding. See Parsons &
Whittemore Overseas, 508 F.2d at 975 (agreement to arbitrate claims, includes conceivable “drawbacks” of
arbitration (quoting Wash.-Balt. Newspaper Guild, 442 F.2d at 1238)); see also TermoRio, 421 F. Supp. 2d 87 at
101 (decision to arbitrate suggests trust in the arbitration process).
13
The Court declines to reach the extraordinary conclusion, in the absence of convincing evidence in the record,
that Judge Kane’s alleged bias in favor of Guinea, if any, tainted the other CCJA judges and their decision to annul
the award.
16
“erroneous legal reasoning or misapplication of law is generally not a violation of public policy
within the meaning of the New York Convention.” 14 Gold Reserve, _ F. Supp. 3d. at _, 2015
WL 7428532, at *14 (quoting Karaha Bodas, 364 F.3d at 306); see also Indus. Risk Insurers v.
M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1446 (11th Cir. 1998) (“The [New York]
Convention does not, however, include a defense against enforcement of an award on the ground
that the award is ‘arbitrary and capricious.’”); M & C Corp. v. Erwin Behr GmbH & Co., KG, 87
F.3d 844, 851 (6th Cir. 1996) (“Nor can review for a ‘manifest disregard of the law’ be
pigeonholed into the ‘violation of public policy’ basis for refusal to confirm an award contained
in . . . the New York Convention.”); Chevron Corp. v. Republic of Ecuador, 949 F. Supp. 2d 57,
71 (D.D.C. 2013) (explaining same), aff’d sub nom. Chevron Corp. v. Ecuador, 795 F.3d 200
(D.C. Cir. 2015).
IV. CONCLUSION
To be sure, the parties’ foreign arbitration process was not without some unusual events.
However, these events were the product of their arms’ length negotiation of the dispute
resolution clause in the Concession Agreement. The parties must bear the consequences of those
events unless the events violate the “most basic notions of morality and justice,” TermoRio, 487
F.3d at 938, which is a “high bar” to overcome, Gold Reserve, _ F. Supp. 3d at _, 2015 WL
7428532, at *14. Given the “emphatic federal policy in favor of arbitral dispute resolution . . .
that applies with special force in the field of international commerce,” the presumption favoring
such resolution has not been defeated. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 631 (1985). What Getma seeks in this case “would seriously undermine a
principal precept of the New York Convention: an arbitration award does not exist to be enforced
14
This reasoning applies with equal force to Getma’s objection to the CCJA’s failure to set arbitrators’ fees in
accordance with its own arbitrators’ fees schedule. See Confirm Mem. at 31-32.
17
in . . . [this Court] if it has been lawfully ‘set aside’ by a competent authority in the [foreign]
State in which the award was made.” TermoRio, 487 F.3d at 936. Therefore, the Court cannot
confirm and enforce the arbitral award that was annulled.
SO ORDERED on this 9th day of June, 2016. 15
REGGIE B. WALTON
United States District Judge
15
The Court has contemporaneously issued an Order consistent with this Memorandum Opinion.
18