United States District Court, D. Columbia.
December 11, 2013
BELIZE SOCIAL DEVELOPMENT LIMITED, Petitioner,
THE GOVERNMENT OF BELIZE, Respondent
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For BELIZE SOCIAL DEVELOPMENT LIMITED, Petitioner: Joseph S. Hall, Kenneth Chris Todd, LEAD ATTORNEYS, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, PLLC, Washington, DC; Dana C. MacGrath, Louis B. Kimmelman, PRO HAC VICE, SIDLEY AUSTIN, LLP, New York, NY.
For GOVERNMENT OF BELIZE, Respondent: Creighton R. Magid, LEAD ATTORNEY, DORSEY & WHITNEY LLP, Washington, DC; Juan C. Basombrio, PRO HAC VICE, DORSEY & WHITNEY LLP, Costa Mesa, CA.
RICHARD J. LEON, United States District Judge.
[##1, 15, 47]
Petitioner Belize Social Development Limited (" petitioner" or " BSDL" ) brings this action against respondent the Government of Belize (" respondent" or " GOB" ), seeking the confirmation and enforcement of a foreign arbitral award pursuant to § 207 of the Federal Arbitration Act (" FAA" ), 9 U.S.C. § 207, and Article III of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (" New York Convention" or " N.Y. Conv." ). Before the Court are petitioner's Petition to Confirm Arbitration Award
and to Enter Judgment [Dkt. #1] and respondent's Motion to Stay Action or, in the Alternative, Dismiss Petition [Dkt. #15]. Upon consideration of the pleadings, relevant law, and the entire record, the petition to confirm and enter judgment is GRANTED, and the motion to stay or dismiss is DENIED.
A. Accommodation Agreements
On September 19, 2005, respondent GOB and Belize Telecommunications Limited (" BTL" ) entered into the first of four " Government Telecommunications Accommodation Agreement[s] . . . to improve telecommunications for the people of Belize and better accommodate the GOB's telecommunications needs." Pet'r's Mem. of Points and Authorities in Supp. of Pet. to Confirm Arb. Award & Enter J. (" Pet'r's Mem." ) at 2 [Dkt. #1-1]; Resp't's Mem. in Supp. of Mot. to Stay Action or, in the Alt., Dismiss Pet. (" Resp't's Mem." ) at 5-6 [Dkt. #15]. As part of the agreements (hereinafter, " original agreements" ), BTL would acquire certain properties owned by GOB for 19,200,000 Belize dollars. Pet'r's Mem. at 2. In exchange, GOB would give BTL preferential tax treatment, exempt BTL from import duties on goods and equipment, guarantee BTL a minimum rate of return on investments, pay any shortfall that may occur between the minimum rate of return and the actual rate of return, and allow BTL to control the use of " Voice Over Internet Protocol." Id. ; see also Pet. to Confirm Arb. Award & Enter J., Ex. A (" Final Award" or " LCIA Award" ) at 20-23 [Dkt. #1-3] (explaining class license holders and their customers were not permitted to use voice over internet protocol services unless permitted by the individual license holder (BTL)).
The Accommodation Agreements also contained a clause which provided that any dispute would be referred to and resolved by arbitration under the London Court of International Arbitration (" LCIA" ) Rules. Pet'r's Mem. at 4. Over the next few years, the parties amended the original agreement three times and on May 29, 2007, under the third agreement, Belize Telemedia Limited (" Telemedia" ) " assumed all of BTL's rights and obligations under the Accommodation Agreement." Id. at 3.
On February 8, 2008, Dean Barrow was appointed the new Prime Minister of Belize and his administration refused to acknowledge Telemedia's rights as set forth in the Accommodation Agreements or to comply with its obligations under the agreements. Id. at 5. Telemedia, on the other hand, complied with its obligations under the Accommodation Agreements by purchasing GOB properties for 19,200,000 Belize dollars. Id.
B. Arbitration Proceedings in the LCIA
Telemedia submitted a request for arbitration to the LCIA on May 9, 2008, claiming multiple breaches of the Accommodation Agreements. Pet'r's Mem. at 6. The LCIA appointed a Tribunal comprised of three distinguished arbitrators to govern the arbitration proceedings. Id. at 7. GOB refused to participate in the arbitration proceedings, id. at 8; Resp't's Prelim. Resp. at 6, and on March 18, 2009, following
a three day evidentiary hearing, " the Tribunal unanimously ruled in favor of Telemedia and issued its Final Award," which granted Telemedia both declaratory and monetary relief, Pet'r's Mem. at 8; Resp't's Mem. at 8. The Tribunal found that: (i) the Accommodation Agreements are legal and binding under Belize law, (ii) " GOB . . . violated numerous provisions of the Accommodation Agreement[s]," and (iii) " Telemedia was entitled to relief." Pet'r's Mem. at 9.
Two days after the Tribunal issued its Final Award, on March 20, 2009, BSDL was created in the British Virgin Islands. Resp't's Prelim. Resp. at 7. That same day, Telemedia assigned to BSDL the monetary portion of the Tribunal's Final Award, id. at 7-8, thereby allowing BSDL " to enforce and receive the monetary portion of the Final Award," Pet'r's Mem. at 9.
C. Belize Litigation and GOB Legislation
In Belize, GOB filed a lawsuit against Telemedia on April 6, 2009, Pet'r's Mem. in Opp'n to Resp't's Mot. to Stay or Dismiss and in Supp. of Pet. To Confirm Arb. Award (" Pet'r's Suppl. Mem." ) at 3 [Dkt. #45], seeking a declaratory judgment that the Tribunal's arbitration award is " unenforceable and the Accommodation Agreements are invalid as contrary to Belize law and public policy," Resp't's Prelim Resp. at 8. On July 20, 2009, the Belize Supreme Court issued a preliminary injunction barring Telemedia and BSDL from enforcing the arbitration award until after the court issued its ruling in the pending action. Id. at 9. The parties dispute whether that injunction remains valid after the April 2009 lawsuit was discontinued and a February 2012 lawsuit instituted in its place. See Resp't's Suppl. Br. at 3 [Dkt. #39] (claiming that " the injunction remains in place" ); Pet'r's Suppl. Mem. at 4 (claiming that " the Belize Supreme Court ordered . . . the discharge of the injunction" ).
GOB also enacted legislation in 2009 to assume control over telecommunications in Belize and obtained 94% of Telemedia's shares as part of that legislation. Resp't's Prelim. Resp. at 9; Resp't's Suppl. Br. at 12. In 2010, the Belize Supreme Court of Judicature (Amendment) Act (" SCJA" ) made it a criminal offense punishable by fine, imprisonment of at least five years, or both " to disobey or fail to comply with an injunction" issued by the Belize Supreme Court. Pet'r's Suppl. Mem. at 5. GOB also made it a crime for BSDL and its counsel to respond to the pleadings that GOB had already filed in this case. Id. In August 2012, " the Belize Court of Appeal struck down several sections of the SCJA as unconstitutional," including the sections giving
SCJA extraterritorial effect  and the sections imposing criminal penalties. Id. at 6.
D. United States Litigation
BSDL filed its petition in this Court on November 17, 2009. On October 18, 2010, this court stayed the proceeding pending resolution of the case in Belize. Id. at 7. BSDL appealed the stay order and, alternatively, sought a writ of mandamus. Id.
The United States Court of Appeals for the District of Columbia Circuit granted the writ of mandamus and held that this court's indefinite " stay order as issued exceeded the proper exercise of authority of the district court." Belize Soc. Dev. Ltd. v. Gov't of Belize, 668 F.3d 724, 727, 399 U.S.App. D.C. 179 (D.C. Cir. 2012), cert denied, 133 S.Ct. 274, 184 L.Ed.2d 150 (2012). In addition, the D.C. Circuit held that this case is governed by the New York Convention, and litigation in Belize is irrelevant to enforcement of the arbitration award in this proceeding. See id. at 730 (" [T]he pending action in Belize has no preclusive effect on the district court's disposition of the petition to enforce pursuant to the FAA and the New York Convention . . . ." ). The case was remanded, and I was instructed to " conduct further proceedings not inconsistent with [the] opinion." Id. at 734 (internal quotation marks omitted).
At oral argument, BSDL took the position that " in the world of foreign arbitration awards that are brought to the United States for confirmation under 9 USC section 207, this is what you would call run of the mill," and that " the D.C. Circuit has given . . . a very clear template as to what is to be done, because section 207 says that when an award is brought for confirmation, the District Court shall confirm unless one of the grounds for either stay or non-enforcement under the [New York] convention is established." Tr. at 20. This is in line with my reading of our Circuit Court's opinion in this case:
[T]he FAA, by codifying the New York Convention, provides a carefully structured scheme for the enforcement of foreign arbitral awards and represents an " emphatic federal policy in favor of arbitral dispute resolution," which " applies with special force in the field of international commerce." The plain terms of the FAA instruct a district court reviewing a foreign arbitral award to " confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement . . . specified in the [New York] Convention."
Belize Soc. Dev. Ltd., 668 F.3d at 733 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), and 9 U.S.C. § 207).
GOB nevertheless argues that, even after the Circuit Court's ruling, there are at least five distinct grounds on which I could dismiss the petition, including lack of subject matter jurisdiction, lack of standing,
and forum non conveniens. See Resp't's Suppl. Br. at 1-26; Resp't's Mem. at 15-45; Oral Arg. Tr. at 4-19. I am confident that if this case raised such significant jurisdictional and justiciability concerns, our Circuit Court would have flagged them, rather than emphasizing that " the district court's task [is] to review and grant BSDL's petition to confirm the Final Award absent a finding that an enumerated exception to enforcement specified in the New York Convention applie[s]." Belize Soc. Dev. Ltd., 668 F.3d at 733. Still, in an abundance of caution, I will consider each of GOB's grounds for dismissal before turning to GOB's five arguments for why I should deny the petition on its merits. See Resp't's Suppl. Br. at 26-43.
In short, I am not persuaded by any of GOB's asserted bases for dismissing or denying BSDL's petition, and I will therefore grant the petition, confirm the arbitration award, and enter judgment in BSDL's favor.
I. GROUNDS FOR DISMISSING THE PETITION
A. Jurisdiction and Immunity Under Foreign Sovereign Immunities Act
This Court has subject matter jurisdiction over " any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under [the Foreign Sovereign Immunities Act (" FSIA" )] or under any applicable international agreement." 28 U.S.C. § 1330(a). GOB takes the position that it is entitled to sovereign immunity under the FSIA because it has never waived immunity and none of the FSIA exceptions apply. See Resp't's Mem. at 37-41. GOB is mistaken.
Under the FSIA, a foreign sovereign enjoys no immunity from a suit " to confirm an award made pursuant to  an agreement to arbitrate, if . . . the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards." 28 U.S.C. § 1605(a)(6)(B). The LCIA's award in this case is clearly governed by the New York Convention because both England (where the arbitration took place) and the United States are parties to the Convention. Belize Soc. Dev. Ltd., 668 F.3d at 731 n.3. Belize's status under the convention is irrelevant. Id. Moreover, it is well settled that an action to confirm an arbitration award under the New York Convention falls squarely within the ambit of the § 1605(a)(6)(B) immunity exception. Creighton Ltd. v. Gov't of the State of Qatar, 181 F.3d 118, 123-24, 337 U.S.App. D.C. 7 (D.C. Cir. 1999); see also Cont'l Transfert Technique Ltd. v. Fed. Gov't of Nigeria, 697 F.Supp.2d 46, 55-56 (D.D.C. 2010) (applying 28 U.S.C. § 1605(a)(6) in case involving dispute between a foreign sovereign, Nigeria, and one of its own nationals, a Nigerian corporation). Thus, this Court has subject matter jurisdiction.
GOB challenges the application of § 1605(a)(6), claiming that the LCIA's
final arbitral award is unenforceable because the Accommodation Agreements containing the arbitration clause " are void ab initio under Belizean law." See Resp't's Suppl. Br. at 25; see also Final Award ¶ 17 (quoting relevant arbitration clause). I agree with my colleague, Judge Boasberg, who recently noted a lack of authority for the proposition " that the Court must conduct  an independent, de novo determination of the arbitrability of a dispute to satisfy the FSIA's arbitration exception." Chevron Corp. v. Republic of Equador, 949 F.Supp.2d 57, 2013 WL 2449172, at *3 (D.D.C. June 6, 2013). Indeed, the FSIA jurisdictional inquiry is a " cabined" one that focuses on the authority of the court, not the contractual rights and obligations of the parties. See [WL] at *4 (citing Creighton Ltd., 181 F.3d at 124). And regardless of whether I consider contract validity now, the question will be addressed anyway--as it always is, though under a deferential standard, see
[WL] at *5--when I turn to the Article V(l)(a) exception to the New York Convention, see infra Part II.B.
B. Forum Non Conveniens
GOB also argues for dismissal based on the relative inconvenience of litigating in this forum. See Resp't's Mem. at 26-28; Resp't's Suppl. Br. at 5-13. Under the doctrine of forum non conveniens, I " must decide (1) whether an adequate alternative forum for the dispute is available and, if so, (2) whether a balancing of private and public interest factors strongly favors dismissal." Agudas Chasidei Chabad of U.S. v. Russian Fed'n, 528 F.3d 934, 950, 381 U.S.App. D.C. 316 (D.C. Cir. 2008) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). The balancing of private and public interests occurs only if an adequate alternative forum exists. Id.
Unfortunately for GOB, there is no adequate alternative forum for this case because " only a court of the United States (or of one of them) may attach the commercial property of a foreign nation located in the United States." TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303, 366 U.S.App. D.C. 320 (D.C. Cir. 2005). Even if GOB has no attachable property in the United States at this time, Resp't's Suppl. Br. at 8, " it may own property here in the future, and [BSDL's] having a judgment in hand will expedite the process of attachment," TMR Energy, 411 F.3d at 303. This is the controlling law in our Circuit, and I will therefore apply it faithfully. Because GOB's forum non conveniens argument falters at the first step, I need not consider the second.
C. International Comity and Abstention
Convenience aside, GOB also urges me to dismiss BSDL's petition on
international comity and abstention grounds for the following reasons: Belize is not a signatory to the New York Convention, this matter is already before the courts of Belize, Belize has a greater interest in the outcome of the case, and there are conflicts of law between the United States and Belize. See Resp't's Mem. at 24-26; Resp't's Suppl. Br. at 13-19. The Circuit Court's decision remanding this case essentially forecloses these arguments, as the Court held that litigation in Belize " has no preclusive effect on the district court's disposition of the petition to enforce," Belize Soc. Dev. Ltd., 668 F.3d at 730, and " [t]he fact that Belize is not a party to the New York Convention is irrelevant," id. at 731 n.3. Our Circuit Court, of course, was well aware that courts in Belize were reaching conflicting decisions regarding the enforceability of the Final Award, see id. at 728-29, and it instructed me to proceed with enforcement anyway. Regardless of whether our Circuit Court's " holding has the potential for straining relations between the United States and Belize," Resp't's Suppl. Br. at 17, I am, in the final analysis, bound by that decision.
According to GOB, BSDL lacks standing to enforce the arbitration award because Telemedia did not validly assign BSDL the right to the monetary portion of the award. GOB challenges the assignment both under the terms of the Accommodation Agreement, see Resp't's Mem. at 33-34; Resp't's Prelim. Resp. at 16-17; Resp't's Suppl. Br. at 20-21, and under Belizean law, see Resp't's Suppl. Br. at 21-22 (citing Belizean case law and regulations). Neither of these arguments is persuasive.
First, Section 19 of the Accommodation Agreement, on which GOB bases its entire Accommodation Agreement argument, was " deleted in its entirety" and replaced by a new provision on January 1, 2008, more than a year before the March 20, 2009 Telemedia-BSDL assignment even took place. See Decl. of Louis B. Kimmelman (" Kimmelman Decl." ), Ex. E
¶ ¶ 7.2, 7.3 (Settlement Deed dated Jan. 7, 2008) [Dkt. #1-7], amending Kimmelman Decl., Ex. B § 19 (" Accommodation Agreement" ) [Dkt. #1-4]. Paragraph 7.3 of the Settlement Deed, which was in effect at the relevant time, contains none of the terms in Section 19 that GOB claims were offended by the assignment.
Second, GOB's reliance on the law of Belize is misplaced. By its own terms, the assignment " is governed by English law and shall be construed in accordance with English law." See Decl. of Stephen J. Ruzika (" Ruzika Decl." ), Ex. C ¶ 3.6 (Deed of Assignment) [Dkt. #1-19]. Curiously, GOB does not address English law at all in its briefs, whereas BSDL has provided a thorough expert opinion, which explains that the assignment " complies with the requirements of section 136 of the [English] Law of Property Act 1925" and " is sufficient to transfer the [monetary portion of the arbitration award] from Telemedia to BSDL pursuant to both section 136 and equity." Op. of Marcus Smith QC on English Law (" Smith Op." ) ¶ 15 [Dkt. #45-16]; see also id. ¶ ¶ 10-14. Moreover, BSDL's expert details why " nothing in either section 19 [of the Accommodation Agreement] or in section 7.3 [of the Settlement Deed] . . . prevent[s] the assignment." Id. ¶ 9; see also id. at 6-8. Finding no basis to discredit BSDL's expert or to treat the assignment as invalid, I am satisfied that BSDL has standing.
B Failure to Join a Required Party Under Rule 19
I am also satisfied that there are no necessary parties missing from this case. Under Federal Rule of Civil Procedure 19, a case may be dismissed only if an absent party is " required" in the litigation, the absent party cannot be joined, and equitable factors weigh in favor of dismissal. Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1495-96, 326 U.S.App. D.C. 139 (D.C. Cir. 1997) (citing Fed.R.Civ.P. 19(a), (b)); see also Fed.R.Civ.P. 12(b)(7) (allowing motion to dismiss for " failure to join a party under Rule 19" ). A party is " required" if:
(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1).
GOB contends that Telemedia and its former majority shareholder, Dunkeld International Investments Ltd. (" Dunkeld" ), are indispensable parties because
Dunkeld has brought a separate claim in Belize " assert[ing] damages from the non-payment of the same Arbitration Award that BSDL seeks to collect," Resp't's Mem. at 44; see also id. at 43-45; Resp't's Suppl. Br. at 23-25, and because Telemedia " is the beneficiary of the award on its face and . . . the purported assignment [from Telemedia to BSDL] was invalid," Resp't's Suppl. Br. at 24. These arguments are meritless.
There is no evidence in the record that Dunkeld has ever asserted the right to enforce the LCIA arbitration award. To the contrary, Dunkeld's December 4, 2009 Notice of Arbitration--which GOB cites as the sole piece of evidence that Dunkeld has claimed an interest in the award--explicitly states that " [o]n 20 March 2009 Telemedia assigned the benefit of the LCIA Award . . . insofar as it orders the payment of certain damages and costs by [GOB] to Telemedia, to [BSDL]." Decl. of Gian C. Ghandi (" Ghandi Decl." ), Ex. 8 ¶ 7.13 (Notice of Arbitration) [Dkt. #15-10]. And as already discussed, Telemedia in fact did assign to BSDL its right to the monetary portion of the arbitral award, as well as the right to enforce that award. See supra Part I.D; see also Ruzika Deck, Ex. C ¶ 1.3 (" [T]he Assignee shall have the sole right to enforce any and all rights which accrue in respect of the [damages and costs awarded by the LCIA] against [GOB]." ). Dunkeld obviously agrees that there is a valid assignment.
As a matter of both English and U.S. law, not to mention common sense, an absent party that has assigned its legal rights is not " required" in litigation brought by the assignee to enforce those rights. See Smith Op. ¶ 11 (" BSDL can claim the [award] in its own name . . . ." ); Primax Recoveries, Inc. v. Lee, 260 F.Supp.2d 43, 51 (D.D.C. 2003) (" In light of [an assignee-]plaintiff's claim that it is the sole possessor of the rights being asserted against defendant, it is difficult to see how the Court will be unable to accord relief in the absence of [an assignor] or how defendant will incur multiple or inconsistent obligations by reasons of the claimed interest." ). Conversely, an attempt by Telemedia or its former shareholder to enforce rights that it has assigned away would be patently frivolous under English law (which, again, governs the assignment agreement) unless BSDL were joined as a party in that case. See Smith Op., Ex. K ¶ 58 (" When there has
been an assignment that takes effect in equity, the general rule is that it is the equitable assignee who has the right to sue, because it is the equitable assignee who is beneficially entitled to the thing in action. The assignor will not be allowed to maintain an action regarding the thing in action unless the assignee is joined as a party to the claim. " (emphases added)). GOB offers no evidence that BSDL has ever signaled a willingness to assist Telemedia or Dunkeld in bringing duplicitous lawsuits to enforce the arbitration award. Telemedia and Dunkeld therefore have no " legally protected interest" worthy of recognition under Rule 19(a)(1)(B). See Wach v. Byrne, Goldenberg & Hamilton, PLLC, 910 F.Supp.2d 162, 170 (D.D.C. 2012) ( " legally protected interest" excludes claims that are " patently frivolous" (quoting Davis v. United States, 192 F.3d 951, 959 (10th Cir. 1999); citing Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992))).
II. GROUNDS FOR DENYING THE PETITION 
A. Failure to Produce Copies of Arbitral Award and Accommodation Agreement (Article IV(1))
GOB claims that BSDL's petition should be denied because it does not comply with Article IV of the New York Convention, which requires the petitioner, " at the time of the application, [to] supply: (a) The duly authenticated original award or a duly certified copy thereof; [and] (b) The original agreement [to arbitrate] or a duly certified copy thereof." Resp't's Suppl. Br. at 27 (quoting Article IV(1)). BSDL concedes that it did not provide original or duly certified copies of original documents, but says that " signed copies . . . that were certified to be 'true and correct' copies 'under penalty of perjury'" are enough. Pet'r's Suppl. Mem. at 17-18 (citing Dkt. ##1-3, 1-4).
I agree with another judge who characterized an argument like GOB's as " grasping at straws, attempting to persuade the Court to refuse to confirm the award on the basis of a mere technicality." Arbitration Between Overseas Cosmos, Inc. v. NR Vessel Corp., No. 97 CIV. 5898(DC), 1997 WL 757041, at *5 (S.D.N.Y. Dec. 8, 1997). The purpose of Article IV's " original . . . or duly certified copy" requirement is to require the petitioner to prove that the relevant documents exist. See id. Like the respondent in Overseas Cosmos, GOB challenges only the enforceability--not the existence or genuineness --of the arbitration agreement or award;  therefore, sworn and
certified copies of these documents are " sufficient to satisfy the requirements of Article IV." Id.; see also Cont'l Grain Co. v. Foremost Farms Inc., No. 97 Civ. 0848 (DC), 1998 WL 132805, at *2 (S.D.N.Y. Mar. 23, 1998). Under these circumstances, reading Article IV to require anything more would create a rule that is " unnecessarily restrictive and at odds with a common sense reading of the provision." Bergesen v. Joseph Muller Corp., 710 F.2d 928, 934 (2d Cir. 1983).
B. Invalidity of Accommodation Agreement (Article V(l)(a)) Next, GOB argues that the arbitration award is unenforceable because " the alleged arbitration agreement [between GOB and BTL] is invalid under the laws of Belize." See Resp't's Suppl. Br. at 28 (citing N.Y. Conv. Art. V(l)(a)). In truth, however, GOB does not challenge the legality of the arbitration agreement as a stand-alone provision; rather, GOB fires attacks on at least a dozen other provisions of the Accommodation Agreements. See id. at 28-38; Resp't's Prelim. Resp. at 26-36.
Unfortunately for GOB, it is well-settled law that " an arbitration provision is severable from the remainder of the contract." Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (holding that arbitrator should decide whether contract containing arbitration clause was void ab initio because terms other than the arbitration clause violated state law and rendered the contract " criminal on its face" ). Absent a direct challenge to the arbitration clause itself, the clause remains " enforceable apart from the remainder of the contract," and GOB's challenge to the validity of the contracts " should . . . be considered by an arbitrator, not a court." Id. 446; see also id. at 449 (" [A] challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator." (emphases added)); Nanosolutions, LLC v. Prajza, 793 F.Supp.2d 46, 54-55 (D.D.C. 2011) (" [T]he FAA prohibits a district court from considering . . . challenges [to] the contract as a whole." ). Moreover, the New York Convention instructs contracting states to " recognize an agreement in writing under which the parties undertake to submit to arbitration," with " agreement in writing" defined to include " an arbitral clause in a contract." N.Y. Conv. Art. II(1), (2) (emphasis added). Thus, the " agreement in writing" that must be valid under the convention is the arbitration clause, not the entire contract containing the clause.
Section 15.2 of the Accommodation Agreement reflects the parties' clear intent to arbitrate " [a]ny dispute arising out of or in connection with this Agreement including any question regarding its existence, validity or termination." GOB offers no basis under Belizean law, or any other law, for this Court to find that particular clause invalid.
C. The Inappropriateness of Arbitration (Articles V(l)(c) and V(2)(a))
The New York Convention allows for enforcement of an arbitral award to be refused if " [t]he award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration," Art. V(l)(c), or if " [t]he subject matter of the difference is not capable of settlement by arbitration under the law of th[e] country" being asked to recognize and enforce the award, Art. V(2)(a). GOB contends that these articles apply because the LCIA Award and its enforcement violate the internationally-recognized common law revenue rule, see Resp't's Mem. at 19-24; Resp't's Prelim. Resp. at 12-16, 36-38; Resp't's Suppl. Br. at 38-40, as well as the United States' political question and act of state doctrines and principles of comity, see Resp't's Prelim. Resp. at 38-39; Resp't's Suppl. Br. at 40. According to GOB, U.S. courts cannot resolve disputes like the one between GOB and Telemedia, so an arbitrator in the United States could not settle such a case either. See Resp't's Suppl. Br. at 40.
The LCIA considered the revenue rule and decided that it did not apply because this is a contract case, not an action to enforce a foreign nation's tax laws. See Final Award ¶ 180. I agree with its reasoning. " [T]he revenue rule is often stated as prohibiting the collection of
foreign tax claims." Pasquantino v. United States, 544 U.S. 349, 361, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) (emphasis added) (holding that revenue rule did not preclude wire fraud prosecution of defendants who had engaged in smuggling to evade Canadian taxes). It is clear from the Supreme Court's analysis in Pasquantino that the rule long ago derived from " the rule against foreign penal enforcement" and the " analogy between foreign revenue laws and penal laws." Id. In bringing the LCIA arbitration and this enforcement action, Telemedia and BSDL are not attempting to enforce Belizean tax law or collect any tax revenue. They are seeking to enforce a contract, and although that contract contains tax-related provisions, the arbitration award and enforcement of that award do not entail the enforcement of any foreign revenue law. Thus, the matters arbitrated were contemplated by and within the terms and scope of the submission to arbitration, and they relate to subject matter capable of settlement by arbitration in the United States. The revenue rule provides no basis for declining enforcement.
As for the act of state doctrine, the FAA states that " [e]nforcement of arbitral agreements, confirmation of arbitral awards, and execution upon judgments based on orders confirming such awards shall not be refused on the basis of the Act of State doctrine. " 9 U.S.C. § 15 (emphasis added). Given that § 15 " eliminat[ed] the Act of State doctrine as a bar to arbitration," Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 272, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), it would be nonsensical for me to find that this case was " not capable of settlement by arbitration" in the United States because of that very doctrine.
The political question doctrine, meanwhile, " is primarily a function of the separation of powers" and should not be understood to mean that " every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, 369 U.S. 186, 210-11, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The subject matter of the controversy in this case--the existence and enforceability of a contract between a state and a private party--raises no separation of powers concerns, or any other political questions for that matter, that would make it non-arbitrable under U.S. law. In fact, courts in our Circuit regularly resolve contract disputes brought by private parties against foreign countries. See McKesson, Corp. v. Islamic Republic of Iran, 672 F.3d 1066, 400 U.S.App. D.C. 1 (D.C. Cir. 2012); Gulf Res. Am., Inc. v. Republic of Congo, 370 F.3d 65, 361 U.S.App. D.C. 434 (D.C. Cir. 2004); El-Hadadv. United Arab Emirates, 216 F.3d 29, 342 U.S.App. D.C. 138 (D.C. Cir. 2000); Wye Oak Tech., Inc. v. Republic of Iraq, __ F.Supp.2d __, 941 F.Supp.2d 53, 2013 WL 1734436 (D.D.C. Apr. 23, 2013). Given the frequency with which these cases arise--and the fact that GOB fails to cite even one such case decided on political question grounds--it simply cannot be that the political question doctrine bars U.S. courts
from deciding any case in which a foreign government says that it breached a contract or committed a tort for some political reason. That defense could apply in every case of this sort, and yet, GOB cannot direct me to a single example of a court accepting it.
Furthermore, GOB cannot challenge enforcement by first, raising arguments that " depart from the law and enter the realm of political theory," and then, invoking the political question doctrine. Republic of Philippines v. Westinghouse Electric Corp., 774 F.Supp. 1438, 1465 (D.N.J. 1991). This case implicates no " political decisions that are by their nature committed to the political branches to the exclusion of the judiciary," Schneider v. Kissinger, 412 F.3d 190, 193, 366 U.S.App. D.C. 408 (D.C. Cir. 2005) (internal quotation marks omitted), nor any " separation-of-powers concerns that would justify invocation of the political question doctrine," de Csepel v. Republic of Hungary, 714 F.3d 591, 604, 404 U.S.App. D.C. 358 (D.C. Cir. 2013) (internal quotation marks omitted) (holding that political question doctrine did not bar suit by heirs of Jewish Hungarian art collector against Hungary for breach of bailment agreements entered during World War II).
E. Suspension of the Award by a Competent Authority (Article V(l)(e))
In its initial motion to stay or dismiss and its preliminary response to BSDL's petition, GOB argued that I should decline to enforce the LCIA Award under Article V(l)(e) of the New York Convention because " enforcement of the Award has been suspended by a competent authority (Belize Supreme Court)." Resp't's Mem. at 15; Resp't's Prelim. Resp. at 20-26. Our Circuit Court addressed Article V(l)(e), saying:
Because the arbitration occurred in London and under the arbitral laws of England, the courts of England are the competent authority with primary jurisdiction over the Final Award; absent proceedings for setting aside or suspending the Final Award in those courts, the [GOB] can offer no basis on which to conclude that the stay of BSDL's petition for enforcement was properly issued under the FAA and New York Convention.
Belize Soc. Dev. Ltd., 668 F.3d at 731 (emphases added). GOB has not sought or obtained any relief in the English courts, so Article V(l)(e) does not apply.
F. Public Policy (Article V(2)(b))
Finally, GOB urges the Court to refuse recognition and enforcement of the LCIA Award on the basis that doing otherwise would be " contrary to the public policy" of the United States. Resp't's Prelim. Resp. at 39-42; Resp't's Suppl. Br. at 41-43 (quoting N.Y. Conv. Art. V(2)(b)). As our Circuit Court has noted, courts around
the country " have been very careful not to stretch the compass of 'public policy,'" applying the defense '" only where enforcement would violate the forum state's most basic notions of morality and justice.'" TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 938, 376 U.S.App. D.C. 242 (D.C. Cir. 2007) (quoting Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas BumiNegara, 364 F.3d 274, 306 (5th Cir. 2004)).
GOB cites the Foreign Corrupt Practices Act as the " best evidence" that the United States has " a strong public policy against corruption abroad." Resp't's Suppl. Br. 41.1 agree with the general notion that the United States has a strong policy against foreign corruption. But it also has a countervailing policy that I mentioned earlier--an '" emphatic federal policy in favor of arbitral dispute resolution" ' that '" applies with special force in the field of international commerce.'" Belize Soc. Dev. Ltd., 668 F.3d at 733 (quoting Mitsubishi Motors Corp., 473 U.S. at 631). This is not the first time a court has been confronted with conflicting policies, one weighing in favor of enforcing an arbitral award and one weighing against it, and consistently, U.S. courts have enforced arbitral awards in the face of public policy interests at least as weighty as the policy against corruption abroad. See Agility Pub. Warehousing Co. K.S.C., Prof'l Contract Admins., Inc. v. Supreme Foodservice GmbH, 495 F.Appx. 149, 151 (2d Cir. 2012) (" [T]he [public policy] defense is frequently invoked but rarely successful, particularly in view of the strong United States policy favoring arbitration." ). Accordingly, GOB has failed to show that, on balance, enforcing this award would so offend the United States' " most basic notions of morality and justice" that Article V(2)(b) applies.
It is " the norm" for courts enforcing arbitral awards to convert foreign currency amounts into dollars, Cont'l Transfert Technique Ltd. v. Fed. Gov't of Nigeria, 932 F.Supp.2d 153, 2013 WL 1201380, at *2 (D.D.C. 2013), and I will follow that norm. In addition, I will exercise my discretion to award prejudgment interest because I find that doing so is '" consistent with the underlying arbitration award,'" which " grants pre-award interest but is 'silent' on whether a party should recover post-award interest-- i.e., prejudgment interest." 932 F.Supp.2d 153, Id. at *8 (quoting Ministry of Def & Support for the Armed Forces of the Islamic Republic of Iran, 665 F.3d at 1103). The prejudgment interest will be calculated using the average daily prime rate between the date of the Final Award and the date of this opinion. 932 F.Supp.2d 153, Id. at 9.
Because the parties have not done so already, I will direct them to submit proposed judgment amounts with all conversions and interest calculations performed consistent with this opinion.
For all the foregoing reasons, petitioner's Petition to Confirm Arbitration Award and to Enter Judgment [Dkt. #1] is GRANTED and respondent's Motion to Stay Action or, in the Alternative, Dismiss Petition [Dkt. #15] is DENIED. An appropriate order shall accompany this Memorandum Opinion.