OPINION AND ORDER
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.
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).
Among the exceptions is where the foreign state expressly or impliedly waives its sovereign immunity. 28 U.S.C. § 1605(a)(1).
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 contained no connection to the United States, the Court held that the United States was an available forum in which the Petitioner could seek to confirm its arbitration award pursuant to the Convention.
Id. at 826.
The instant case is similar to the facts and issues in Liberian Eastern Timber Corp. v. Republic of Liberia, 650 F. Supp. 73 (S.D.N.Y. 1986), in which the Republic of Liberia moved to vacate an ex parte judgment entered by an American court which enforced an arbitration award entered against it under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Investment Disputes Convention). Liberia claimed that the court which entered the ex parte judgment did not have jurisdiction under the FSIA and that Liberia did waive its sovereign immunity by entering into an agreement to arbitrate under the Investment Disputes Convention. However, Article 54 of the Investment Disputes Convention provided:
Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.
The Court ruled that, notwithstanding the fact that Liberia was a foreign state and the plaintiff company was a French entity, Liberia had impliedly waived its immunity to jurisdiction in the United States:
Liberia, as a signatory to the Convention, waived its sovereign immunity in the United States with respect to the enforcement of any arbitration award entered pursuant to the Convention. When it entered into the contract with [plaintiff company], with its specific provision that any dispute thereunder be settled by arbitration [pursuant to the terms of the Convention] . . . it invoked the provision contained in Article 54 of the Convention which requires enforcement of such an award by Contracting States. That action, and reading the treaty as a whole, leaves little doubt that the signatories to the Convention intended that awards made pursuant to its provisions be given full faith and credit in their respective jurisdictions subject to such rights as are reserved by signatories thereunder. Therefore, Liberia clearly contemplated the involvement of the courts of any of the Contracting States, including the United States as a signatory to the Convention, in enforcing the pecuniary obligations of the award.