KIMBA M. WOOD, District Judge.
On August 5, 2011, this Court entered a judgment against the Government of the Lao People's Democratic Republic ("Respondent") enforcing a $57 million arbitral award in favor of Thai-Lao Lignite (Thailand) Co., Ltd. ("TLL") and Hongsa Lignite (Lao PDR), Co. Ltd. ("HLL") (collectively,
This case concerns a dispute between TLL, HLL, and Respondent arising out of a Project Development Agreement ("PDA") that TLL and Respondent entered into on July 22, 1994. In Article 14.1(i) of the PDA, TLL and Respondent agreed to submit any dispute arising out of the PDA to arbitration in Kuala Lumpur, Malaysia. The PDA further provided that
(Id. art. 14.1(vi)). Respondent affirmatively waived sovereign immunity "from jurisdiction, attachment (both before and after judgment), and execution to which it might otherwise be entitled in any action or proceeding relating in any way to this Agreement." (Id., art. 14.2.).
On October 5, 2006, Respondent sent Petitioners a Notice of Termination of the PDA; on July 26, 2007, Petitioners initiated arbitration. Petitioners contended that Respondent violated the PDA by improperly seeking to terminate it without cause, and without following the procedures for termination outlined in the agreement. Respondent argued that neither TLL nor HLL had standing to bring this claim. The arbitral panel concluded that both TLL and HLL had standing to bring the claim under the PDA because TLL was a signatory to the PDA, and HLL was an "intended beneficiary" of the PDA.
The panel further concluded that Respondent had breached the PDA by improperly terminating it, and thus that Petitioners were entitled, under the PDA, to damages, including "TLL's total investment cost plus a premium and consideration of the Lenders and Investors." (Id. art. 15.1). The panel determined that "total investment cost" meant "the total amount of money that [TLL and HLL] together, on behalf of TLL, reasonably and unavoidably actually expended out-ofpocket in the normal course of preparation
In New York, Petitioners initially filed their petition to confirm the award in the Supreme Court of the State of New York, New York County, Commercial Division, on June 8, 2010. On July 9, 2010, Respondent removed the case to this Court. On October 1, 2010, Respondent filed a motion to dismiss and asked the Court to stay its consideration of the petition pursuant to Article VI of the New York Convention, pending the outcome of a proceeding to set aside the arbitral award that Respondent had filed in Malaysia. On October 13, 2010, Respondent withdrew the portion of its motion that sought a stay. On August 3, 2011, this Court denied Respondent's motion to dismiss and granted Petitioners' petition to confirm the arbitral award. The Second Circuit Court of Appeals affirmed, and the U.S. Supreme Court denied certiorari.
On October 19, 2010, Respondent initiated proceedings to set aside the arbitral award in the High Court of Malaya at Kuala Lumpur. Under Malaysian law, a challenge to an arbitral award must be made within ninety days of receipt of the award. (Reply Decl. of Grace Xavier, Ex. B, at 29). The High Court dismissed the action because it was filed nine months after the award was issued. The High Court declined to exercise its discretion to waive the timeliness requirement, finding that the delay was "inordinate ... as the [Respondent] had adequate legal representation." (Malaysian High Court Judgment of April 15, 2011, at 8 [Dkt. No. 83-3]).
The Malaysian Court of Appeal reversed, holding that Respondent "should not be prejudiced by the fact that it was not conversant with local law requirements and did not receive adequate advice from its legal advisors to enable the application to set aside the award to be made within time in Malaysia." (Malaysian Court of Appeal Judgment of July 26, 2011, at 13 [Dkt. No 83-5]). The Court of Appeal remanded the case to the High Court to decide the merits of the petition.
On remand, the Malaysian High Court set aside the arbitral award. The High Court agreed with Respondent that the arbitrators had exceeded their jurisdiction and thereby violated § 37(1)(a)(iv) and (v) of Malaysia's Arbitration Act of 2005. Under § 37(1)(a)(iv), an arbitral award may be set aside if the award deals with a dispute not contemplated by, or not falling within, the terms of the arbitral agreement; under § 37(1)(a)(v), an award may be set aside if the award contains decisions on matters beyond the scope of the arbitral agreement. (Malaysian High Court Judgment of March 1, 2013, at 10-11 [Dkt. No. 271-10]). The High Court found that the arbitrators had exceeded the jurisdiction granted to them by the PDA by (1) assuming jurisdiction over disputes concerning two contracts the parties had entered into before the PDA was created, (id. at 52-63);
In light of the Malaysian High Court's ruling setting aside the arbitral award, Respondent moves, pursuant to Federal Rule of Civil Procedure 60(b)(5) and Article (V)(1)(e) of the New York Convention, for an order vacating this Court's August 5, 2011, judgment. Respondent argues that the New York Convention calls for vacatur under the circumstances of this case, and that under Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd., 191 F.3d 194 (2d Cir.1999), vacatur is required absent extraordinary circumstances not present here. Petitioners urge the Court to deny Respondent's motion, arguing that (1) Respondent's inequitable conduct precludes it from seeking equitable relief under Rule 60(b); (2) neither the New York Convention nor Second Circuit case law requires vacatur; and (3) there are adequate reasons for this Court not to defer to the Malaysian judgment.
The New York Convention "provides a carefully crafted framework for the enforcement of international arbitral awards." TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C.Cir. 2007). The Second Circuit has explained that
Yusuf Ahmed Alghanim & Sons v. Toys "R" Us, Inc., 126 F.3d 15, 23 (2d Cir.1997). "Under the Convention, `the country in which, or under the [arbitration] law of which, [an] award was made' is said to have primary jurisdiction over the arbitration award. All other signatory States are secondary jurisdictions ..." Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan
Article V(1)(e) of the New York Convention provides that recognition and enforcement of an arbitral award by a court with secondary jurisdiction over an arbitral award "may be refused, at the request of the party against whom it is invoked" if the award "has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made." "Pursuant to this provision of the Convention, a secondary Contracting State normally may not enforce an arbitration award that has been lawfully set aside by a `competent authority' in the primary Contracting State." TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C.Cir.2007). Petitioners do not contest that the Malaysian High Court is a "competent authority" as defined by Article V(1)(e); rather, Petitioners argue that this Court has the discretion not to defer to the Malaysian court's decision.
There are few decisions defining the scope of the discretion a court with secondary jurisdiction has to enforce an arbitral award that has been vacated by a court with primary jurisdiction over the award. Only two Circuit Courts of Appeal have addressed the issue, the Second Circuit Court of Appeals in Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd., 191 F.3d 194 (2d Cir.1999) and the D.C. Circuit Court of Appeals in TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C.Cir.2007).
In Baker Marine, the Second Circuit Court of Appeals held that where a court with primary jurisdiction over an arbitral award issues a decision setting aside the award, U.S. courts will honor that decision in the absence of an "adequate reason" not to do so. In Baker Marine, three companies agreed to arbitrate any of their business disputes in Nigeria, under the laws of Nigeria. 191 F.3d at 195. Arbitration ensued and resulted in two awards to Baker Marine of a total of $2.98 million. Id. at 196. Baker Marine sought enforcement of the arbitral awards in Nigeria, but the Nigerian courts set aside the awards. Id. In one case, the Nigerian court found that "the arbitrators had improperly awarded punitive damages, gone beyond the scope of the submissions, incorrectly admitted parole evidence, and made inconsistent awards, among other things." Id. In another case, the Nigerian court found that the award was not supported by the evidence. Id. Baker Marine then brought an action in the Northern District of New York seeking confirmation of the awards. Id. The district court denied Baker Marine's petition, "concluding that under the Convention and principles of comity, it would not be proper to enforce a foreign arbitral award ... when such an award has been set aside by the Nigerian Courts." Id. (quotation marks omitted). The Second Circuit affirmed. Id. at 198.
Baker Marine made two principal arguments on appeal. First, Baker Marine argued that "the awards were set aside by the Nigerian courts for reasons that would not be recognized under U.S. law as valid grounds for vacating an arbitration award, and that under Article VII [of the New York Convention], it may invoke this country's national arbitration law, notwithstanding the action of the Nigerian court." Id. at 196-97. The Second Circuit rejected Baker Marine's first argument, holding that
Id. at 197. Second, Baker Marine argued that the Article (V)(1)(e)'s use of the term "`may,' rather than a mandatory term implies that the court might have enforced the awards, notwithstanding the Nigerian judgments vacating them." Id. The Second Circuit also rejected this argument, stating that, "It is sufficient answer that Baker Marine has shown no adequate reason for refusing to recognize the judgments of the Nigerian court." Id.
In a footnote, the Second Circuit distinguished the facts in Baker Marine from the facts in In re Chromalloy Aeroservices, 939 F.Supp. 907 (D.D.C.1996) [hereinafter Chromalloy]. In Chromalloy, Egypt and a U.S. company (CAS) had entered into an agreement providing that disputes would be submitted to arbitration in Egypt and that the arbitral panel's decision "shall be final and binding and cannot be made subject to any appeal or other recourse." Id. at 908, 912. The arbitral panel ordered Egypt to pay CAS monetary damages. Id. at 908. CAS subsequently filed a petition in the District Court for the District of Columbia ("D.C. District Court") seeking enforcement of the arbitral award. Id. at 908. Shortly thereafter, Egypt filed an appeal with the Egyptian Court of Appeal seeking to set aside the award. Id. The Egyptian Court of Appeal suspended the award, and Egypt filed a motion in the D.C. District Court to dismiss CAS's petition to enforce the award. Id. The district court held that the arbitration award was valid and enforceable, because Egypt's appeal to the Egyptian Court of Appeal abrogated Egypt's contractual promise not to appeal the award, and recognizing the result of the appeal would violate the "U.S. public policy in favor of final and binding arbitration of commercial disputes." Id. at 913. The Second Circuit distinguished Chromalloy on its facts, emphasizing that, (1) unlike the petitioner in Chromalloy, Baker Marine was not a U.S. citizen and did not initially seek confirmation of the award in the U.S.; and (2) unlike Egypt, the companies in Baker Marine did not violate a promise in appealing the arbitral award. 191 F.3d at 197 n. 3.
The only other Circuit Court of Appeals that has considered the issue of enforcing a vacated, foreign arbitration award is the D.C. Circuit Court of Appeals in TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C.Cir.2007) [hereinafter Termo-Rio]. In TermoRio, the D.C. Circuit Court of Appeals held that normally a court sitting in secondary jurisdiction should not enforce an arbitral award vacated by a court with primary jurisdiction over the award, but that there are certain circumstances in which doing so may be appropriate. Id. at 936, 938. In that case, TermoRio S.A. E.S.P. ("TermoRio") and Electrificadora del Atlantico S.A. E.S.P. ("Electranta"), a Colombian public utility company, entered into a contract that provided for any dispute between the parties to be resolved by binding arbitration in Colombia. Id. at 930. An arbitral panel ordered Electranta to pay TermoRio damages, id. at 931, but subsequently Colombia's highest administrative court set aside the arbitration award on the ground that the arbitration clause in the parties' contract violated Colombian law, id. at 929. TermoRio then filed suit in the District Court for the District of Columbia seeking enforcement of the arbitral award. Id. The district court dismissed the action for failure to state a claim upon which relief could be granted and, in the alternative, on the ground of forum non conveniens. Id. at 929-30. The D.C. Circuit affirmed. Id. at 930.
Like Baker Marine, TermoRio argued that the "may" in Article V(1)(e) of the New York Convention gave U.S. courts
Id. at 939 (internal citation omitted).
In affirming the district court's decision, the D.C. Circuit "generally subscribe[d] to the reasoning of the Second Circuit in Baker Marine," id. at 935, which it found "consistent with the view that, `[w]hen a competent foreign court has nullified a foreign arbitration award, United States courts should not go behind that decision absent extraordinary circumstances not present in this case,'" id. at 938 (citation omitted). The Court found that, "Because there is nothing in the record ... indicating that the proceedings before the [Colombian court] were tainted or that the judgment of that court is other than authentic, the District Court was, as it held, obliged to respect it." Id. at 930. Enforcing the award "would seriously undermine a principal precept of the New York Convention an arbitration award does not exist to be enforced in other Contracting States if it has been lawfully `set aside' by a competent authority in the State in which the award was made." Id. at 936.
The most recent decision concerning the enforcement of a vacated arbitral award was issued by Judge Hellerstein of this Court. In Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. ("COMMISA") v. PEMEX-Exploración y Producción ("PEP"), 962 F.Supp.2d 642 (S.D.N.Y.2013) (Hellerstein, J.) [hereinafter PEMEX], COMMISA and PEP, an instrumentality of Mexico, entered into two contracts that provided that disputes would be arbitrated. Id. at 644-45. Each party accused the other of breaching contractual obligations; after conciliation efforts failed, COMMISA initiated arbitration. Id. Two weeks later, PEP issued an administrative rescission of the contracts. Id. While the arbitration was under way, two new statutes were passed in Mexico. Id. at 647-48. The first statute gave the Tax and Administrative Court jurisdiction over any case challenging an administrative rescission (so long as the challenge was filed within 45 days of the purported rescission). Id. The second statute stated that challenges to administrative rescissions could no longer be arbitrated. Id. The arbitral panel issued an award in favor of COMMISA. Id. at 643-44. COMMISA subsequently sought and obtained an order from Judge Hellerstein confirming the award. Id. PEP appealed that order to the Second Circuit Court of Appeals, and concurrently filed proceedings in the Mexican courts to nullify the award. Id. In Mexico, PEP filed suit in the Fifth District
In light of the Eleventh Collegiate Court's decision, the Second Circuit Court of Appeals remanded the case to Judge Hellerstein to address what effect the nullification should have on the arbitral award and his decision confirming the award. Id. at 643-44. Article V of the Panama Convention, like Article V of the New York Convention, states that "recognition and execution of [the arbitral award] may be refused" if the award has been nullified by a "competent authority" of the state in which, or according to the law of which, the arbitration award was conducted. Id. at 657-58. Judge Hellerstein found that the use of the word "may" gave him some discretion, but noted that due to the Second Circuit's opinion in Baker Marine and the D.C. Circuit's opinion in TermoRio, that discretion was "narrow."
The use of the permissive "may" in Article (V)(1)(e) of the New York Convention gives this Court discretion to enforce a foreign arbitral award where the award has been nullified by a court in the
Petitioners fail to demonstrate that the circumstances of this case meet the "extraordinary circumstances" envisioned by TermoRio and found to exist by Judge Hellerstein in PEMEX. As described below, the alleged errors Petitioners point out in the proceedings before the Malaysian courts and in the judgments of those courts do not rise to the level of violating basic notions of justice such that the Court here should ignore comity considerations and disregard the Malaysian judgments.
Petitioners first argue that this Court should deny Respondent's motion "as a result of Respondent's longstanding pattern of inequitable conduct with respect to the award and this Court's proceedings." (Petitioners' Memorandum of Law in Opposition to Respondent's Motion to Vacate the Judgment Pursuant to Rule 60(b)(5), at 15 [Dkt. No. 273] [hereinafter Petitioners' Memo of Law]).
The Court will not disregard comity considerations and refuse to recognize the Malaysian courts' judgments unless Petitioners can demonstrate that the process before the Malaysian courts "violated basic notions of justice." TermoRio, 487 F.3d at 930, 939. Petitioners present three arguments for refusing to recognize the Malaysian courts' judgments based on Respondent's inequitable conduct before those courts; however, none of these arguments
Petitioners first point out that Respondent "commenced a proceeding in Malaysia to set aside the award in violation of its express covenant not to commence such a proceeding and its covenant to abide by the award." (Petitioners' Memo of Law, at 16). Petitioners argue that "[a]t the very least, Respondent's undisputed breach of an express covenant not to bring a judicial challenge of the award should operate to bar Respondent from using the product of that breach to request extraordinary, equitable relief from this Court." (Id. at 20). However, the covenant in question here provided that, "The parties waive to the extent permitted by law any rights to appeal or any review of such award by any court or tribunal of competent jurisdiction." (PDA, art. 14.1(vi) (emphasis added)). Petitioners' argument is unavailing. The only courts competent to set aside the arbitral award are the courts of Malaysia, the country that has primary jurisdiction over the award, Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 287 (5th Cir.2004), and the only evidence before this Court with respect to whether Malaysian law allows a party to waive the right to seek judicial review of an arbitral award is the opinion of Grace Xavier, a research fellow at the University of Malaya in Kuala Lumpur, Malaysia, that Malaysian law does not permit such a waiver. See (Reply Declaration of Grace Xavier ¶ 3 ("In my opinion, as the authorities have shown, Malaysian law does not permit a waiver of a party's statutory right to seek review of an arbitration award.")).
Second, Petitioners argue that Respondent "based its action to set aside the award in Malaysia upon an affidavit made by an affiant who did not have personal — or in some cases,
Third, Petitioners point out that Respondent "requested an extension of time ... based on its allegation that it was not properly advised by its arbitration counsel, who it characterized as `foreign solicitors,' while neglecting to disclose ... that its arbitration counsel were qualified Malaysian litigators." (Petitioners' Memo of Law, at 16). Respondent does not contest
Petitioners next critique the decision of the Malaysian Court of Appeal. However, as in Baker Marine and TermoRio, Petitioners present no adequate reason for refusing to recognize the judgment of the Malaysian Court of Appeal.
Petitioners first take issue with the Malaysian Court of Appeal's decision to excuse Respondent's failure to file its action within the 90-day limitations period. Petitioners do not contend that the Malaysian Court of Appeal lacked the authority to excuse Respondent's delay; they contend that the Court's basis for excusing the delay — that Respondent's counsel failed to advise them of the limitations period — was unsupportable on the record because at least two of Respondent's attorneys were qualified to practice in Malaysia. "Petitioners pointed out to the Court of Appeal in an amicus brief that Respondent's `Singapore' lawyers were, in fact, qualified Malaysian practitioners," but "[t]he Court of Appeal ignored this." (Petitioners' Memo of Law, at 9 (citation omitted)). The Court of Appeal may have "ignored" this fact, or it may have considered it, and decided that it did not deserve particular weight because the main issue was whether Respondent's attorneys informed Respondent of the limitations period; even Malaysian lawyers may have failed to so inform Respondent. The Court of Appeal found that counsel had not informed Respondent of the limitations period. As described above, the affidavit submitted by Respondent provided an adequate basis for the Court of Appeal to make this determination.
Petitioners also take issue with the Court of Appeal's conclusion that Respondent acted promptly to commence the set-aside action once Respondent retained new counsel. Petitioners argue that the Court of Appeal lacked a basis to make that determination, because "the record of the Malaysian proceeding does not contain
Petitioners next argue that that the High Court's decision setting aside the arbitral award does not deserve deference.
Petitioners first complain that Respondent allegedly waived its jurisdictional objection when it stated that "the Tribunal is an appropriate forum to hear disputes arising out of the Prior Contracts" in a submission to the tribunal and the High Court committed error by failing to quote this alleged waiver. (Petitioners' Memo of Law, at 12). Petitioners' argument fails because although the High Court did not explicitly quote the Respondent's alleged waiver, the High Court did conduct an extensive analysis into (1) whether Respondent properly objected to the arbitral tribunal's jurisdiction, (Malaysian High Court Judgment of March 1, 2013, at 31-40), and (2) whether Respondent waived its jurisdictional objection, (id. at 41-52). Ultimately, the High Court held that, as a matter of Malaysian law, the Respondent (1) had properly objected to the arbitral tribunal's jurisdiction, (id. at 40), and (2) had not waived its jurisdictional objection, (id. at 49). Because Petitioners do not allege that the High Court's determination was contrary to Malaysian law or otherwise critique the determination, the Court finds that no violation of "basic notions of justice occurred."
Second, Petitioners take issue with the fact that the High Court failed to give preclusive effect to the rulings of this Court and the Second Circuit Court of Appeals on arbitral jurisdiction. (Petitioners' Memo of Law, at 11-12). This argument is unpersuasive, in that it fails to account for the fact that the Malaysian High Court was evaluating de novo whether the arbitrators had exceeded their jurisdiction, whereas this Court and the Second Circuit's decisions applied a deferential standard of review to this same issue. Compare (Decl. of Grace Xavier ¶ 11-12 ("[T]he Malaysian High Court applied a `de novo' standard and made an independent determination of whether the arbitrators had exceeded their jurisdiction. This is the same standard any Malaysian court would normally apply in these circumstances.")), with Thai-Lao I, 2011 WL 3516154, at *15 ("Respondent contends that the Panel's exceeding their jurisdiction presents an issue of arbitrability that the Court must review independently, without applying the deference ordinarily accorded to an arbitration panel's conclusions. The Court finds that an independent review of these issues is inappropriate...") (citation omitted), and Thai-Lao Lignite (Thailand) Co. Ltd. v. Gov't of Lao People's Democratic Republic, 492 Fed. Appx. at 152 ("[W]e find the district court did not abuse its discretion in applying a deferential standard of review in its analysis of the arbitral panel's decision.").
Last, Petitioners fault the High Court for not according any res judicata effect to the opinions upholding the award by this Court or the Second Circuit Court of Appeals. (Petitioners' Memo of Law, at 12-13). However, the Malaysian High Court had no obligation to grant res judicata effect to the decisions enforcing the arbitral award by courts of secondary jurisdiction. A decision by a court of secondary jurisdiction confirming an arbitral award "is not truly a decision on the merits; rather, it is an order to enforce an award resulting from litigation elsewhere, which is not necessarily given res judicata effect in foreign jurisdictions." Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 372 (5th Cir.2003).
Petitioners remaining arguments are meritless.
The facts of this case simply do not amount to the extraordinary circumstances contemplated by TermoRio. This is not a case in which the Respondent is an entity of Malaysia's government, which might raise a suspicion of the Malaysian courts' partiality; rather, Malaysia is a neutral, third country that the parties mutually chose as the seat of the arbitration. See Radu Lelutiu, Note, Managing Requests for Enforcement of Vacated Awards Under the New York Convention, 14 Am. Rev. Int'l Arb. 345, 351 (2003) (noting that "as in Chromalloy ... the breaching party is not infrequently a governmental entity in whose rescue national courts are eager to graciously aid"). This case is therefore distinguishable from both PEMEX and Chromalloy. In PEMEX, Judge Hellerstein found that the Mexican court's judgment violated basic notions of justice because (1) the court retroactively applied a law not in existence at the time the parties entered into their contract; and (2) the private party was left without a remedy to litigate the dispute that the arbitrators had decided in its favor, because by the time the court issued its opinion, the short limitations period in the correct forum had already ended. 962 F.Supp.2d at 657-59. Judge Hellerstein found the lack of remedy "particularly unjust" because the private party was therefore liable to the government instrumentality for damages "even though there [had] been no full hearing on the merits outside the arbitration." Id. at 660.
In contrast, the Malaysian High Court here set aside the arbitral award on a universally-recognized ground — that the arbitrators exceeded their jurisdiction. Furthermore the decision did not leave Petitioners here without a remedy.
Because the Court finds that the process before the Malaysian courts and the judgments of those courts did not violate basic notions of justice, the Court GRANTS Respondent's motion to vacate.
Petitioners also urge the Court to order Respondent to post security as a condition of moving under Rule 60 or, "should the Court be inclined to grant the Motion to Vacate, it should require Respondent to post security as a condition for the entry of any order vacating the judgment, to ensure that the Judgment will be satisfied if (a) the Court's order vacating the judgment is reversed on appeal, and/or (b) the Malaysian High Court's judgment annulling the award is reversed or vacated on appeal." (Petitioners' Memo of Law, at
Section 1609 of the FSIA provides that
28 U.S.C. § 1609. Under section 1610(d), a foreign sovereign's property is not immune from attachment if it "has explicitly waived its immunity from attachment prior to judgment." Where a foreign sovereign has waived its sovereign immunity, its property may be attached only if the property is "used for a commercial activity in the United States." 28 U.S.C. § 1610(a).
In Banco de Seguros del Estado v. Mut. Marine Office, Inc., the Second Circuit found that an instrumentality of a foreign state could be required to post pre-hearing security because it had expressly waived its immunity and therefore met the exception in section 1610(d) of the FSIA. 344 F.3d 255, 260 (2d Cir.2003). Here, as in Banco, Respondent has affirmatively waived its sovereign immunity. Thai-Lao I, 2011 WL 3516154, at *7. However, "sovereign property must satisfy the statutory criteria laid out in Section 1610(a) `even if the foreign sovereign has waived its immunity.'" Thai Lao Lignite (Thailand) Co., Ltd. v. Gov't of Lao People's Democratic Republic, 10 Civ. 5256, 2013 WL 1703873, at *6 (S.D.N.Y. Apr. 19, 2013) (Wood, J.) (quoting Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 130 (2d Cir.2009)). "Thus, the property that is subject to attachment and execution must be `property in the United States of a foreign state' and must have been `used for a commercial activity' at the time the writ of attachment or execution is issued." Aurelius, 584 F.3d at 130.
Petitioners have conducted discovery into whether Respondent has attachable property in the U.S., (Branson Decl. ¶¶ 65-66; ¶¶ 67-71; ¶¶ 72-79 (describing discovery into Respondent's overflight fees, diplomatic accounts, hydropower project payments, and Central Bank records)), but have not yet identified any property that meets the requirements of § 1610(a). See Thai Lao Lignite (Thailand) Co., Ltd. v. Gov't of Lao People's Democratic Republic, 10 Civ. 5256, 2013 WL 1703873 (S.D.N.Y. Apr. 19, 2013) (Wood, J.) (finding Respondent's overflight fees immune from attachment under the FSIA); (Respondent's
Petitioners' argument that the New York Convention prevails over the FSIA is unavailing. Section 1609 of the FSIA states that the FSIA is "[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act." "The United States acceded to the New York Convention on September 30, 1970, and enacted the FSIA on October 21, 1976. Therefore, the New York Convention was an `existing international agreement' that was enacted before the adoption of the FSIA, and was ... incorporated by the FSIA." Skandia Am. Reinsurance Corp. v. Caja Nacional de Ahorro y Segoro, 96 Civ. 2301, 1997 WL 278054, at *4 (S.D.N.Y. May 23, 1997) (Wood, J.). The decisions Petitioners cite merely stand for the proposition that because the FSIA incorporates the New York Convention, a court may order a foreign sovereign to pay security under Article VI of the New York Convention, which explicitly grants a court discretion to require security pending the outcome of a set-aside action.
The Court therefore DENIES Petitioners' request to require Respondent to post security as a condition of moving under
For the foregoing reasons, Respondent's motion to vacate this Court's August 5, 2011, judgment is GRANTED. Petitioners' request that the Court order Respondent to post security is DENIED.
SO ORDERED.
21 U.S.T. at 2520.
