AMY BERMAN JACKSON, United States District Judge.
Petitioner Africard Company, Ltd. ("Africard") has filed a petition to confirm an arbitration award against respondent, the Republic of Niger, pursuant to Section 207 of the Federal Arbitration Act, 9 U.S.C. § 207. Pet. to Confirm Foreign Arb. Award & to Enter J. [Dkt. # 1] ("Pet.") ¶ 1. The petition arises from Niger's 2011
Africard ultimately referred the dispute to arbitration in Abidjan, Côte d'Ivoire.
Africard filed its petition to confirm the arbitration award on February 4, 2016. Pet. After Niger was served, and failed to timely answer, the Clerk of Court entered a default against it. Clerk's Entry of Default [Dkt. # 13]. On May 13, 2016, Africard filed a motion for default judgment. Mot. for Default J. as to Repub. of Niger & Confirmation of Arb. Award [Dkt. # 14] ("Mot."); Mem. of Law in Supp. of Mot. [Dkt. # 14] ("Mem."). Though Africard served Niger with a copy of the motion, Niger did not respond. Because the record indicated that counsel for Africard had been contacted by an attorney who conveyed a request on behalf of Niger but also indicated that he had not been retained to defend this action, see Decl. of Mark D. Beckett [Dkt. # 14-21], on July 7, 2016, the Court entered an order asking petitioner to update the Court on whether it had any further contact with that lawyer. Min. Order (July 7, 2016). Petitioner responded, noting that it had received no further communications from Niger's attorneys on this matter, and it informed the Court that Niger's application to set aside the arbitration award had been denied. Status Report (July 19, 2016) [Dkt. # 22].
Under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq., a court shall not enter a default judgment against a foreign state "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e). This standard is identical to the standard for entry of default judgments against the United States under Federal Rule of Civil Procedure 55(d). Hill v. Repub. of Iraq, 328 F.3d 680, 683 (D.C.Cir.2003). As a result, the court cannot treat the allegations asserted in the petition as true, and must "inquire further before entering judgment against parties in default." Rimkus v. Islamic Repub. of Iran, 750 F.Supp.2d 163, 171 (D.D.C.2010). Upon evaluating petitioner's claim, though, the court "may accept the plaintiff's uncontroverted factual allegations if they are supported by documentary and affidavit evidence."
Before the Court may consider whether Africard is entitled to a default judgment in this matter, it must assess whether it has subject matter jurisdiction over this dispute. Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.").
The Federal Arbitration Act ("FAA") codifies an international convention known as the New York Convention into U.S. law. 9 U.S.C. § 201 et seq. Section 202 of the FAA specifies that: "[a]n arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial ... falls under the [New York] Convention." 9 U.S.C. § 202. The "district courts of the United States ... shall have original jurisdiction over [an action or proceeding falling under the Convention], regardless of the amount in controversy." 9 U.S.C. § 203.
As the Second Circuit has explained, a court will have subject matter jurisdiction under the FAA when: "(1) there is a written agreement; (2) the writing provides for arbitration in the territory of a signatory of the convention; (3) the subject matter is commercial; and (4) the subject matter is not entirely domestic in scope." U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 146 (2d Cir.2001).
Africard has identified a written agreement — the "Agreement for the Production of Biometric and Electronic Passports (E-Passports) in the Republic of Niger" — that governed the parties' conduct in this case. Ex. 3 to Mot. [Dkt. # 14-4] ("Agreement").
The dispute in this case, which arises out of a service contract between a company and a government to provide biometric and electronic passports, Mem. at 11, clearly "arise[s] out of or in connection with commerce." See Belize, 794 F.3d at 104.
Because the Court finds that each of the four factors of the U.S. Titan test have been met, it finds that it has jurisdiction under the FAA. The next question to consider is whether Niger nonetheless enjoys foreign sovereign immunity in this enforcement action under the Foreign Sovereign Immunities Act. See Creighton Ltd., 181 F.3d at 121.
The Foreign Sovereign Immunities Act ("FSIA") is the "sole basis for obtaining jurisdiction over a foreign state in the courts of [the United States]." Belize, 794 F.3d at 101, quoting Argentine Repub. v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Under the FSIA, 28 U.S.C. § 1602 et seq., "a foreign state is presumptively immune from the jurisdiction of United States courts," and "unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). Because "subject matter jurisdiction in any such action depends on the existence of one of the specified exceptions ... [a]t the threshold of every action in a district court against a foreign state ... the court must satisfy itself that one of the exceptions applies." Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493-94, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983); see also Belize, 794 F.3d at 101 (describing the FSIA's terms as "absolute").
Arbitral awards that are subject to the New York Convention fall under the "treaty" exception to the FSIA. That exception provides that:
28 U.S.C. § 1605. It is well settled that the New York Convention gives rise to jurisdiction
The Court next considers whether Niger is properly on notice of this lawsuit. The FSIA requires that foreign states must be served in one of the following ways:
28 U.S.C. § 1608(a).
Service in this case must be made under 28 U.S.C. § 1608(a)(3), because there is no evidence that any special arrangements apply. Africard's attorney submitted a declaration which states that:
Decl. of Christopher D. Man, Ex. 1 to Mot. [Dkt # 14] ("Man Decl.") ¶ 27. The Clerk of Court mailed "[o]ne copy of the summons, complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by registered mail, return receipt requested, to the head of the ministry of foreign affairs, pursuant to the provisions of 28 U.S.C. § 1608(a)(3)." Certificate of Mailing [Dkt. # 9] at 1. That is all that is required under the FSIA.
In addition, it appears that Niger is aware of the pendency of this suit. As Africard's attorney avers in his declaration:
Man Decl. ¶ 38
Decl. of Mark D. Bennett [Dkt. # 14-21] ¶¶ 6, 8. On July 7, 2016, the Court ordered petitioner to submit a status report "to update the Court on whether it has had any further contact" with Dee, "or whether it has any further information regarding respondent's appearance in this matter." Min. Order (July 7, 2016). Petitioner responded that it had no further contact with Dee, nor did it have any additional information to provide. Status Report [Dkt. # 22] at 2. To this date, Niger has not taken any steps to defend this action or respond to the motion for default judgment.
"[F]oreign sovereigns and their extensively-controlled instrumentalities are not `persons' under the Fifth Amendment's Due Process Clause — and thus have no right to assert a personal jurisdiction defense." GSS Grp. Ltd v. Nat'l Port Auth., 680 F.3d 805, 809 (D.C.Cir.2012). Instead, the provisions of the FSIA determine whether a court can exercise personal jurisdiction over a foreign sovereign. A court can exercise personal jurisdiction over a foreign state with respect to "every claim for relief over which the district courts have [subject matter] jurisdiction ... where service has been made under section 1608." 28 U.S.C. § 1330(b). In other words, in the context of a suit against a foreign sovereign, "subject matter jurisdiction plus service of process equals personal jurisdiction." Practical Concepts, Inc. v. Repub. of Bolivia, 811 F.2d 1543, 1548 n. 11 (D.C.Cir.1987); see also Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 99 (D.C.Cir.2002) (holding that "the Fifth Amendment poses no obstacle to the decision of the United States government to subject Libya to personal jurisdiction in the federal courts"). Because the Court has concluded that it has subject matter jurisdiction to enforce the arbitral agreement, and that service was proper, it finds that it has personal jurisdiction over Niger as well.
Because the Court has jurisdiction over the dispute, it may consider the merits of the motion for a default judgment. Under the FAA, the Court is required to
Article V(1) of the New York Convention provides five grounds on which a Court can deny confirmation of an arbitral award, "at the request of the party against whom it is invoked":
The party resisting confirmation "bears the heavy burden of establishing that one of the grounds for denying confirmation in Article V applies." Gold Reserve, Inc. v. Bolivarian Repub. of Venezuela, 146 F.Supp.3d 112, 120 (D.D.C.2015). Given Niger's lack of appearance in this matter, it has not met its burden on any of those objections.
Article V(2) provides two additional grounds for denying recognition of an arbitral award, whether the respondent asserts them or not:
Neither of these objections appear on the face of the petition, either. This dispute appears to arise out of a breach of contract,
So, given the "little discretion" afforded to the Court to deny confirmation of an arbitral award, Belize, 668 F.3d at 727, Niger's lack of appearance in this matter, and Africard's compliance with the procedural requirements set forth in Article 1 of the New York Convention,
The Final Award ordered Niger to pay Africard the following amounts:
Award ¶ 64.
Africard requests that in granting judgment to it, the Court should convert the amount of the award, which was rendered in a foreign currency, to dollars. Mem. at 16. "Conversion of ... foreign currency amounts into dollars at judgment is the norm, rather than the exception." Cont'l Transfert Technique Ltd. v. Fed. Gov't of Nigeria, 932 F.Supp.2d 153, 158 (D.D.C.2013), citing Elite Entm't, Inc. v. Khela Bros. Entm't, Inc., 396 F.Supp.2d 680, 694 (E.D.Va.2005). "Courts in the United States ordinarily give judgment on causes of action arising in another state, or denominated in a foreign currency, in United States dollars, but they are not precluded from giving judgment in the currency in which the obligation is denominated or the loss was incurred." Restatement (Third) of Foreign Relations Law § 823(1). So, "if the foreign currency has depreciated since the injury or breach, judgment should be given at the rate of exchange applicable on the date of injury or breach." Id. § 823 cmt. c. But if, on the other hand, "the foreign currency has appreciated since the injury or breach, judgment should be given at the rate of exchange
The United States Department of Treasury reports exchange rates on a quarterly basis. For the quarter ending on June 30, 2016, 1 dollar equaled 590.6900 West African CFA Francs. Treasury Reported Rates of Exchange, https://www.fiscal.treasury.gov/fsreports/rpt/treasRptRateExch/currentRates.htm. For the quarter ending on September 30, 2014, which would apply to the arbitral award issued on December 6, 2014, 1 dollar equaled 516.6500. Since the exchange rate has depreciated since the date of the Final Award, the Court will use the higher amount. The results of the calculation are as follows:
Amount awarded Amount awarded Daily Date Days of Total with (in CFA Francs) 7 (in USD) 8 interest interest interest 11 interest rate 9 accrues 10 (in USD) 12 44,740,781 $86,597.85 0.0356% 4/15/2013 1261 $125,490.97 15,440,533,316 $29,885,867.25 0.0356% 4/15/2013 1261 $43,308,306.21 1,000,000,000 $1,935,546.31 0.0356% 12/6/2014 661 $2,391,221.63 156,747,299 $303,391.66 0.0000% $303,391.66
[
Adding all of those amounts, the total award will be $46,128,410.46.
For the reasons explained above, the Court finds that it has subject matter and personal jurisdiction over the Republic of Niger in this case. Under the Federal Arbitration Act, the Court will grant the petition to confirm the arbitral award, and the motion for a default judgment, and it will award judgment to Africard in the amount of $46,128,410.46.
A separate order will issue.
