Arbitration Exception

Arbitration Exception in the United States

Enforcement of ICSID awards

There is a split amongst the district courts as to how to handle the procedure of converting an ICSID award into a U.S. judgment where the ICSID award is against a foreign state.

Certain courts have held that an ICSID award-holder need only file an ex parte petition to confirm the ICSID award against foreign states as a U.S. judgment. See, e.g., Mobil Cerro Negro Ltd. v. Bolivarian Republic of Venezuela, 1:14cv8163 (S.D.N.Y.); Tidewater Investment SRL v. Bolivarian Republic of Venezuela, Case 1:15cv01960 (S.D.N.Y.); Mimico, LLC v. Congo, 1:14cv1987 (D.D.C.). Those courts have permitted the ICSID awards to be converted into U.S. judgments against the foreign nations upon the mere request of the petitioner, without formal service of process or other advanced notice to the foreign state.

By contrast, certain other district courts have required the ICSID award holder to file a plenary lawsuit against the foreign state. See, e.g., OI European Group v. Venezuela, 1:15‑cv‑02178 (S.D.N.Y.), Dkt. 6; Micula v. Government of Romania, Case No. 1:14cv600 (D.D.C.) (4/16/15 order denying petition without prejudice and allowing Micula to file plenary action). Those courts require the ICSID award-holder to serve the foreign state and otherwise comply with the mandates set forth in the Foreign Sovereign Immunities Act (FSIA), the statute governing lawsuits against foreign states in the United States.

Arbitration Exception Cases

  • Africard v. Niger: On February 4, 2016, Africard Co., Ltd. filed a petition to confirm an arbitration award against the Republic of Niger in the U.S. District Court for the District of Columbia. See Case No. 1:16-cv-196, Dkt. 1.
  • Gold Reserve v. Venezuela: Case No. 1:14-cv-02014. While pending before the appellate court, and Gold Reserve has begun attachment-of-asset proceedings.  In Gold Reserve, Inc. v. Venezuela, , petitioner Gold Reserve, a Canadian mining company, sought to confirm its $700 million arbitral award against Venezuela in U.S. court. On November 20, 2015, the district court granted Gold Reserve’s request.
  • Miminco LLC v. Congo: On February 9, 2015, in Miminco LLC v. Democratic Republic of the Congo (“DRC”), 1:14-cv-01987, the U.S. District Court for the District of Columbia ordered a $13 million ICSID award against the DRC to be recognized.
  • Case Watch: BG Group PLC v. Republic of Argentina: Case No. 12-138 (Sup. Ct.), an arbitration case. The case was important to foreign states. In June 2013, the U.S. Supreme Court granted certiorari in BG Group PLC v. Republic of Argentina. The case involves interpretation of arbitration agreements.
  • Case Watch: Funnekotter v. Agricultural Development Bank of Zimbabwe. In Funnekotter v. Agricultural Development Bank of Zimbabwe, 2013 U.S. Dist. LEXIS 164496 (S.D.N.Y. Nov. 15, 2013), a group of plaintiffs won an ICSID arbitration against Zimbabwe for unlawful expropriation in violation of a bilateral investment treaty.

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