Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

M.B.L. INTL. CONTRS., INC. v. REPUBLIC OF TRINIDAD

October 30, 1989

M.B.L. INTERNATIONAL CONTRACTORS, INC., et al., Petitioners,
v.
REPUBLIC OF TRINIDAD AND TOBAGO, Respondent


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 This matter is before the Court pursuant to Respondent's motion to dismiss with prejudice Petitioners' Petition to Confirm Arbitration Award for lack of subject matter and personal jurisdiction. Fed. Rules Civ. P 12(b)(1), (2).

 Statement of Facts

 Petitioner M.B.L. International Contractors, Inc. is a corporation incorporated under the laws of Canada and maintains its principal place of business in Windsor, Ontario, Canada, and Petitioner Alves Contracting Company Limited is a corporation organized under the laws of the Republic of Trinidad and Tobago and maintains its principal place of business in Trinidad, West Indies. Respondent Republic of Trinidad and Tobago is a foreign state as defined in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., and maintains an Office of Embassy in Washington, D.C.

 On December 22, 1981, Petitioners signed a commercial contract with Respondent in which Petitioners were to repair airfield pavements at Piarco International and Crown Point Airports in Trinidad and Tobago. Disputes arose between the parties in the course of performance of the contract. The parties agreed that the disputes should be resolved by final and binding arbitration and by an agreement dated September 3, 1985 the parties appointed Selby Wooding, Q.C., as arbitrator.

 On October 19, 1988 the parties agreed to resolve their disputes. On November 17, 1988 the arbitrator made an award and issued his written decision. On January 11, 1989 the Supreme Court of Judicature of Trinidad and Tobago entered an order allowing petitioners to enforce the November 17, 1988 award in the same manner as a judgment or order of the Court.

 Petitioners made demand upon Respondent for payment pursuant to the terms of the award but Respondent has not yet complied. Petitioners filed this action to confirm the arbitration award as the first step in enforcing that award against Respondent in the United States pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention), 9 U.S.C. § 201 et seq.

 Legal Analysis

 Respondent has moved that this Court dismiss Petitioners' action with prejudice pursuant to Fed.R.Civ.P. 12(b)(1), (2) on the ground that sovereign immunity precludes this Court's exercise of subject matter and personal jurisdiction over Respondent.

 The Foreign Sovereign Immunities Act (FSIA) provides that foreign states are immune from the jurisdiction of United States courts except as provided in 28 U.S.C. §§ 1605-1607. 28 U.S.C. § 1330(a). *fn1" Among the exceptions is where the foreign state expressly or impliedly waives its sovereign immunity. 28 U.S.C. § 1605(a)(1). *fn2"

 Petitioners contend that the Respondent impliedly waived its sovereign immunity by agreeing to submit this dispute to arbitration which is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Chapter II of the Federal Arbitration Act (the Convention). 9 U.S.C. § 201 et seq. Respondent concedes that it is a signatory to the Convention and that the Convention in fact applies to the arbitration in issue. Respondent's Motion to Dismiss Plaintiffs' Petition to Confirm Arbitration Award at 3 n. 3. However, Respondent contends that there is no waiver on the ground that the arbitration agreement provides that the law of Trinidad and Tobago governs the arbitration of the disputes.

 Respondent's reliance on Perez v. Bahamas, 482 F. Supp. 1208 (D.D.C. 1980), aff'd, 209 U.S. App. D.C. 193, 652 F.2d 186 (D.C.Cir.), cert. denied, 454 U.S. 865, 70 L. Ed. 2d 166, 102 S. Ct. 326 (1981), is misplaced. In Perez v. Bahamas, the Court held that a foreign state's willingness to submit a dispute to its own courts is not a waiver of immunity in United States courts. Id. at 1209-10. However, this decision simply stands for the well recognized principle that a foreign state can determine not only whether it can be sued but also where it can be sued. When the Bahamian government made clear that it was to submit its dispute to its own courts the clear negative implication was that it was not consenting to be sued in any other forum. In the instant case, however, the arbitration agreement contains no provision that the Respondent was willing to have the dispute settled only in its own courts. Rather, the agreement simply provides that the Respondent's law will apply to the dispute. Respondent's selection of its own law as the governing law for the underlying dispute is not tantamount to providing that only Respondent's courts can enforce the arbitration award.

 That Respondent's choice of law is not equivalent to a choice of forum is demonstrated in Ipitrade Int'l, S.A. v. Federal Republic of Nigeria, 465 F. Supp. 824 (D.D.C. 1978), where the Court held that Nigeria, who had signed the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, had waived its sovereign immunity because it had entered a commercial contract with Ipitrade International, S.A. which expressly provided that any dispute which arose under the contract would be submitted to arbitration and that the laws of Switzerland would govern. Id. at 826. Although in the instant case the Respondent selected its own law as the governing law rather than another country's law, this distinction is only of import if the choice of governing law is also to determine choice of forum. However, in Ipitrade Int'l, S.A. v. Federal Republic of Nigeria, the Court clearly did not treat Nigeria's consent to Swiss law as consent only to a Swiss forum. Notwithstanding that neither of the parties were related to the United States and the underlying dispute ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.