United States District Court, D. Columbia
In the matter of the Arbitration of Certain Controversies Between GETMA INTERNATIONAL, Petitioner, and THE REPUBLIC OF GUINEA, Respondent
GETMA INTERNATIONAL, Petitioner: Ivan W. Bilaniuk, MCKENNA
LONG & ALDRIDGE, LLP, Washington, DC; Allen Barksdale Green,
DENTONS U.S. LLP, Washington, DC.
REPUBLIC OF GUINEA, Respondent: Jamie L. Shookman, LEAD
ATTORNEY, PRO HAC VICE, ORRICK, HERRINGTON & SUTCLIFFE, LLP,
New York, NY; Jeffrey M. Prokop, LEAD ATTORNEY, ORRICK,
HERRINGTON & SUTCLIFFE, LLP, Washington, DC; Brooke Daley,
ORRICK, HERRINGTON & SUTCLIFFE, LLP, Washington, DC.
B. WALTON, United States District Judge.
petitioner, Getma International (" Getma" ),
commenced this civil action against the respondent, the
Republic of Guinea (" Guinea" ), seeking
confirmation and enforcement of an arbitral award pursuant to
the Federal Arbitration Act, 9 U.S.C. § 201 (2012). See
Petition to Confirm Arbitration Award and to Enter Judgment
(" Confirm Pet." ) at 1; id. ¶ ¶ 1-2,
8-10, 32-41. Currently before the Court is Guinea's
motion to stay these proceedings, pending a foreign
proceeding that it instituted to annul the award. See
Respondent the Republic of Guinea's Motion to Stay This
Proceeding (" Stay Mot." ) at 1. Getma opposes the
motion and insists that, notwithstanding the foreign
annulment proceeding, the Court should confirm and enforce
the arbitral award. Opposition to Respondent's Motion to
stay (" Stay Opp'n" ) at 1. Upon careful
consideration of the parties' submissions, the Court
concludes that it must grant Guinea's motion.
The Arbitration Proceeding
2008, Getma and Guinea entered into a Concession Agreement
(or the " Agreement" ) for Getma to develop
Guinea's main port in Conakry, Guinea's capital city.
Confirm Pet. ¶ 13; see also Confirm Opp'n at 1, 7.
The Agreement was amended in 2009, to " clarif[y]
certain contractual obligations, including a new schedule of
payments and work." Confirm Pet. ¶ 14. The
amendment " left unchanged the general terms and
conditions of the Agreement[,] including the dispute
resolution provision." Id. In March 2011,
Guinea terminated the Agreement, id. ¶ 15; see also
Confirm Opp'n at 2, 10, and " signed a new
[C]oncession [A]greement with a different company,"
Confirm Pet. ¶ 16; see
also Confirm Opp'n at 10. Shortly thereafter, Getma
invoked the dispute resolution clause in the Agreement to
recover damages for Guinea's conduct. See Confirm Pet.
¶ ¶ 16-20; see also Confirm Opp'n. at 2, 11.
dispute resolution clause provides that any contractual
disputes between the parties would be resolved according to
the Common Court of Justice and Arbitration ("
CCJA" ) arbitration rules. Confirm Pet. ¶
19; see also Confirm Opp'n at 8. Getma filed a request
for arbitration with the CCJA in May 2011. Confirm Pet.
¶ 20; see also Confirm Opp'n at 2, 11. And in
January 2012, a tribunal of three arbitrators (the "
arbitral tribunal" ) was constituted to resolve the
parties' dispute. Confirm Pet. ¶ 21; see also
Confirm Opp'n at 11. After considering extensive
discovery and numerous briefings from the parties, see
Confirm Pet. ¶ ¶ 22-27, the arbitral tribunal
rendered a final decision in May 2014, ruling " in favor
of Getma on several of its claims" and awarding it more
than € 38.5 million, plus interest, id. ¶ ¶
28-31; see also Confirm Opp'n at 2, 20, 21.
The Annulment Proceeding
2014, Guinea filed an annulment petition with the CCJA,
seeking to have the CCJA set aside the arbitral award.
Confirm Pet. ¶ 31; see also Confirm Opp'n at 22. One
of the primary reasons identified in Guinea's annulment
petition for the set aside is that the arbitral tribunal did
not fully consider evidence that allegedly demonstrated that
Getma procured the Agreement through " corruption."
Confirm Opp'n at 22; see also id. at 15-19. The annulment
proceeding is currently ongoing, but both parties dispute
when it will conclude. Compare Stay Mem. at 3 (" Guinea
anticipates the CCJA to issue a[n] [annulment] ruling by the
end of 2015 or early 2016." ), with Stay Opp'n Mem.
at 2 (" It is unknown when this annulment petition will
be resolved. There are no formal or informal CCJA rules
establishing a timeline for resolution of these proceedings,
but anecdotal evidence shows resolution may take longer than
two years." ). Because the annulment proceeding remains
in progress, Guinea seeks a stay of this matter. Stay Mot. at
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of June 10, 1958, also known as the "
New York Convention," is enforced
through the Federal Arbitration Act, 9 U.S.C. § 201
(2012). See, e.g., G.E. Transp. S.P.A. v. Republic of
Albania, 693 F.Supp.2d 132, 136 & n.5 (D.D.C. 2010). The
New York Convention authorizes the recipient of a foreign
arbitral award to seek confirmation and enforcement of the
award in federal court. See 9 U.S.C. § § 202, 207.
The New York Convention provides that a Court " shall
confirm the award unless it finds one of the grounds for
refusal or deferral of recognition or enforcement of the
award specified in the said Convention." Id.
§ 207. Such grounds include the following: incapacity of
the parties; invalidity of the underlying agreement;
deficient notice of the arbitration proceedings; an award
beyond the scope of the arbitration agreement; improper
composition of the arbitration panel; and an award that has
not yet become binding, or has been set aside or suspended by
a competent authority of the country in which, or under the
law of which, that award was made. TermoRio S.A. E.S.P.
v. Electranta S.P., 487 F.3d 928, 934-35, 376
U.S.App.D.C. 242 (D.C. Cir. 2007). The New York Convention,
however, also provides the Court with the discretion to defer
confirmation and enforcement of the arbitral award if there
is a pending action in another jurisdiction to set aside the
award. See Europcar Italia, S.p.A. v. Maiellano Tours
Inc., 156 F.3d 310, 316-17 (2d Cir. 1998) (" A
court has discretion to adjourn enforcement proceedings where
an application has been made in the originating country to
have the arbitral award set aside or suspended. . . . [W]here
a parallel proceeding is ongoing in the originating country
and there is a possibility that the award will be set aside,
a district court may be acting improvidently by enforcing the
award prior to the completion of the foreign
proceedings." (citations and ellipses omitted));
Cont'l Transfert Technique Ltd. v. Fed. Gov't of
Nigeria, 697 F.Supp.2d 46, 59 (D.D.C. 2010) (" [I]t
is within the discretion of the district court to decide
whether an action should be adjourned pursuant to . . . [the
New York Convention]." ). " A stay of confirmation
should not be lightly granted lest it encourage abusive
tactics by the party that lost in arbitration."
Europcar, 156 F.3d at 317.
forth in Europcar, courts should consider several factors in
deciding whether to grant a stay:
(1) the general objectives of arbitration--the expeditious
resolution of disputes and the avoidance of protracted and
(2) the status of the foreign proceedings and the estimated
time for those proceedings to be resolved;
(3) whether the award sought to be enforced will receive
greater scrutiny in the foreign proceedings under a less