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Duke Energy Intern. Peru Investments No. 1 Ltd. v. Republic of Peru

United States District Court, District of Columbia

November 19, 2012

DUKE ENERGY INTERNATIONAL PERU INVESTMENTS NO. 1 LTD., Petitioner,
v.
REPUBLIC OF PERU, Respondent.

Andrew H. Marks, Crowell & Moring LLP, Washington, DC, John N. Thomas, Crowell & Moring LLP, New York, NY, for Petitioner.

Griffith L. Green, Sidley Austin, LLP, Washington, DC, for Respondent.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Petitioner Duke Energy International Peru Investments No. 1 Ltd. (DEI) filed this action to confirm an Award issued by

Page 132

an international arbitrator pursuant to 22 U.S.C. ยง 1650a and Article 54 of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention). Respondent Republic of Peru moved to dismiss the action or, in the alternative, to remand the dispute to the arbitrator for further clarification. The Court denied the Motion in a Memorandum Opinion issued on September 14, 2012. See Duke Energy Intern. Peru Investments No. 1 Ltd. v. Republic of Peru, 892 F.Supp.2d 53, 2012 WL 4045191 (D.D.C. Sept. 14, 2012) ( DEI I ). Peru now seeks what amounts to a second bite at the apple and meets the same fate. The Court will thus confirm the Award of $2,740,218 in favor of DEI.

I. Procedural Background

The factual background to this matter is set forth in DEI I, see id. at 54-55, at *1, and will not be reiterated here. In previously moving to dismiss, Peru argued first that DEI's Petition should be dismissed for failure to state a claim " ‘ because the Petition acknowledges that Peru has paid the full amount of the award according to the intention of the ICSID Tribunal.’ " Id. at 56, at *3 (quoting Motion to Dismiss, ECF No. 10, at 6). It also argued " that the case should be remanded to the ICSID Tribunal for clarification because the underlying award is ambiguous inasmuch as the appropriate interest rate cannot be determined." Id. (citing Motion to Dismiss at 7). The Court disagreed on both points. See id. at 56-57, 58-59, at *3, *5.

After denying Peru's Motion, the Court held a status conference, in which it invited the parties to propose how next to proceed. DEI argued that the Court should simply confirm the award, having rejected Peru's objections. See Hrg. Tr. (Oct. 2, 2012) at 7. Peru, conversely, desired an opportunity for fuller briefing on Peruvian law. Id. at 4. The Court, while noting that DEI might well be right, permitted Peru a " limited opportunity" to present any other arguments against confirmation. Id. at 10.

Peru has thus filed a pleading styled " Motion to Deny Confirmation," see ECF Nos. 19-20, and DEI has cross-moved to enter an order confirming the award. See ECF No. 21.

II. Analysis

In its new Motion, Peru contends that the amended Article 38 of its Tax Code does not apply to the Award. Although the Court, in permitting additional briefing, did not foreclose any arguments Peru wished to make, it did not expect such briefing to act as a motion for reconsideration. Denying the clear applicability of Article 38 was a focus of Peru's earlier Motion to Dismiss, which the Court rejected. This new Motion should not be a vehicle for reargument of the same point.

Even if Peru's arguments were new, they would not succeed. This time around, Peru first maintains that Peruvian tax law distinguishes between " Assessment Resolutions" and " Orders to Pay" such that the assessment SUNAT levied on DEI was not a " document ... demanding the payment of a tax debt" for purposes of amended Article 38. See Mot. to Deny at 5. In the alternative, it contends that Article 38 does not apply at all because DEI itself was not a taxpayer; instead, DEI's subsidiary Egenor was. Id. at 8. Because the Award is clear on its face as to whether and how amended Article 38 applies, the Court again rejects these arguments.

As was the case when this Court considered Peru's Motion to Dismiss, the question presented is a narrow one: whether the ICSID Award is sufficiently clear for this Court to determine ...


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