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Republic of Argentina v. BG Group PLC

June 7, 2010

REPUBLIC OF ARGENTINA, PLAINTIFF,
v.
BG GROUP PLC, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The Republic of Argentina ("Argentina"), the petitioner in this case, seeks to vacate or modify an arbitral award (the "Award") rendered against it and in favor of respondent BG Group PLC ("BG Group") under the Federal Arbitration Act, 9 U.S.C. §§ 1-14 (2006) (the "FAA"). Petition to Vacate or Modify Arbitration Award (the "Petition" or "Pet'r's Pet.") ¶ 3. In response, BG Group filed a cross-motion to confirm the Award under the FAA and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, available at 1970 WL 104417 (the "New York Convention" or the "Convention"), which was ratified by Congress and codified at 9 U.S.C. §§ 201-08 (2006). Cross-Motion for Recognition and Enforcement of Arbitral Award (the "Resp't's Cross-Mot.") at 1. After carefully considering Argentina's petition to vacate or modify the Award, BG Group's cross-motion to confirm the Award, and all relevant documents and exhibits attached to those submissions,*fn1 the Court concludes for the reasons below that it must deny Argentina's petition to vacate or modify the Award.

I. Background

During the late 1980s and early 1990s, Argentina undertook a "wide [economic] reformation process," which included entering into numerous bilateral investment treaties with various foreign nations in the hopes of attracting foreign investors. Resp't's Cross-Mot. at 1; Pet'r's Pet. ¶ 13. One of the treaties entered into during this period was the Agreement for the Promotion and Protection of Investments, Arg.-U.K., Dec. 11, 1990, 1765 U.N.T.S. 33 (the "Investment Treaty"), between Argentina and the United Kingdom. Resp't's Cross-Mot. at 1; Pet'r's Pet. ¶ 13. Similar to other bilateral investment treaties, the Investment Treaty was designed to ensure foreign investors that they would be treated fairly and equitably, to provide them with "full protection and security," and to restrict the host country "from expropriating the assets of such investors without just compensation." Resp't's Cross-Mot. at 1. To address any disputes arising from these investments, Argentina and the United Kingdom agreed to a twotiered system of dispute resolution in which the dispute could be submitted to a "competent tribunal" of the country "in whose territory the investment was made," after which the matter could be referred to arbitration under certain conditions, or the dispute could be submitted directly to international arbitration. Investment Treaty, art. 8(2).*fn2

Also as part of its economic reforms, Argentina enacted several measures in an effort "to reduce inflation and the public deficit," including "privatization of certain state[-]owned companies in many sectors[,] including the gas transportation and distribution industry." Pet'r's Pet. ¶ 15. As part of these efforts, Argentina divided its gas transportation and distribution industry, Gas del Estado, Sociedad del Estado, into two transportation companies and eight distribution companies. Id. ¶ 18. BG Group, a United Kingdom company, invested in one of the eight distribution companies, MetroGAS, through a consortium of investors known as Gas Argentino, S.A. Id. ¶ 20. Eventually, BG Group acquired a 54.67% interest in Gas Argentino, S.A., which in turn owned 70% of MetroGAS. Id. ¶ 21.

In 2001, after a period of exceptional economic growth, Argentina began to experience an economic crisis. Pet'r's Pet. at 6-7. In its efforts to respond to this predicament, Argentina enacted an emergency law in 2002, implementing regulatory measures that negatively impacted BG Group's investment in MetroGAS. Id.; Resp't's Cross-Mot. at 2. Pursuant to the Investment Treaty, BG Group initiated international arbitration proceedings on April 25, 2003.*fn3 Resp't's Cross-Mot. at 2; Pet'r's Pet. ¶ 6. An arbitral panel commenced proceedings in New York and Washington, D.C. beginning in July of 2006. Pet'r's Pet. ¶ 4.

Argentina raised a number of objections at the outset of the arbitration. First, Argentina objected to the arbitral panel's jurisdiction to entertain BG Group's claims, arguing, inter alia, that the Investment Treaty authorizes recourse to arbitration "only where disputes have been submitted for 18 months to the competent tribunal of the State which hosts the decision," i.e., a competent tribunal in Argentina. Award ¶ 140. Second, Argentina challenged the arbitral panel's jurisdiction on the grounds that BG Group's claims were derivative in nature, and such claims "are proscribed by international law and by [Argentine] corporate law." Id. ¶ 191. Third, Argentina challenged the appointment of Albert Jan van den Berg to the arbitral panel, id. ¶ 8, alleging that Jan van den Berg had issued arbitrary and capricious rulings in previous arbitrations involving Argentina, Pet'r's Pet. ¶ 75-76. Each of these objections was rejected. Award ¶ 157 (finding that BG Group's claims were arbitrable); id. ¶ 205 (concluding that the arbitral panel "has jurisdiction to hear BG[ Group's] claims as they relate to its indirect shareholding in MetroGAS"); id. ¶ 11 (noting that the International Chamber of Commerce International Court of Arbitration (the "ICC Court") "had decided to reject [Argentina's] challenge [to] Professor Albert Jan van den Berg" to the arbitral panel).*fn4 Both parties then proceeded with the arbitration, and, on December 24, 2007, the arbitral panel unanimously ruled in favor of BG Group and issued an award in the amount of $185,285,485.85 plus costs, attorneys' fees, and interest. Pet'r's Pet. at 3. In its decision, the arbitral panel rejected numerous arguments raised by Argentina, one of which was its reliance on the "state of necessity" doctrine to exonerate it from liability.*fn5 Award ¶ 391. The arbitral panel then concluded that Argentina breached the Investment Treaty and awarded damages to BG Group based on the fair market value of its investment in MetroGAS. Id. ¶ 422.

Clearly unsatisfied with the outcome of the arbitration decision, Argentina filed its petition to vacate or modify the Award on March 21, 2008. In support of its prayer for relief, Argentina asserts the following arguments: (1) "[t]he [a]rbitrators exceeded their authority by disregarding [the] terms of [the] parties' agreement," Pet'r's Pet. ¶ 41; (2) "[t]he [a]rbitral [t]ribunal misunderstood applicable law . . . and failed to correctly apply [such law]," id. ¶ 61; (3) "[t]he International Court of Arbitration exceeded its authority by failing to disqualify [Jan van den] Berg from serving as [an] arbitrator," id. ¶ 69; (4) the award was procured by "corruption, fraud, or undue means," id. ¶¶ 79-80; and (5) the arbitral tribunal imposed a disproportionate and unfair award, id. ¶ 107. BG Group, in turn, argues that Argentina's claims are "without merit and must be dismissed." Resp't's Cross-Mot. at 16.*fn6 BG Group also moves to have the Award confirmed pursuant to 9 U.S.C. § 9 and Article IV of the New York Convention. Id. at 36.

II.Standard of Review

The Court's authority to vacate an arbitral award is governed by 9 U.S.C. § 10(a), which provides the following:

In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration-(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Additionally, the Court may modify or correct an arbitral award if (1) the movant can demonstrate that there "was an evident material miscalculation of figures[,] or an evident material mistake in the description of any person, thing, or property referred to in the award," (2) the arbitrator has rendered a decision "upon a matter not submitted to [him], unless it is a matter not affecting the merits of the decision upon the matter submitted," or (3) "the award is imperfect in matter of form not affecting the merits of the controversy." 9 U.S.C. § 11. The Supreme Court has held that the grounds enumerated in Sections 10(a) and 11 of the FAA are the exclusive means for vacating, modifying, or correcting an arbitral award.*fn7 Hall St. Assoc., LLC v. Mattel, Inc., 552 U.S. 576, 581 (2008).

In relying on these standards to determine whether vacatur or modification of the Award is warranted, the Court must remain mindful of the principle that "judicial review of arbitral awards is extremely limited," and that this Court "do[es] not sit to hear claims of factual or legal error by an arbitrator" in the same manner that an appeals court would review the decision of a lower court. Teamsters Local Union No. 61 v. United Parcel Serv., Inc., 272 F.3d 600, 604 (D.C. Cir. 2001) (quoting Kanuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C. Cir. 1991)). In fact, careful scrutiny of an arbitrator's decision would frustrate the FAA's "emphatic federal policy in favor of arbitral dispute resolution," Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985) (internal citation omitted)-a policy that "applies with special force in the field of international commerce," id.-by "undermining the goals of arbitration, namely, settling disputes efficiently and avoiding lengthy and expensive litigation," LaPrade v. Kidder, Peabody & Co., 94 F. Supp. 2d 2, 4-5 (D.D.C. 2000) (Sullivan, J.), aff'd 246 F.3d 702 (D.C. Cir. 2001). Instead, "a court must confirm an arbitration award where some colorable support for the ...


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