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In re Arbitration of Certain Controversies Between Getma Int'l

United States District Court, D. Columbia

November 3, 2015

In the matter of the Arbitration of Certain Controversies Between GETMA INTERNATIONAL, Petitioner, and THE REPUBLIC OF GUINEA, Respondent

          For GETMA INTERNATIONAL, Petitioner: Ivan W. Bilaniuk, MCKENNA LONG & ALDRIDGE, LLP, Washington, DC; Allen Barksdale Green, DENTONS U.S. LLP, Washington, DC.

         For 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.

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         MEMORANDUM OPINION

         REGGIE B. WALTON, United States District Judge.

         The 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,[1] the Court concludes that it must grant Guinea's motion.

         I. BACKGROUND

         A. The Arbitration Proceeding

         In 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

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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.

         The dispute resolution clause provides that any contractual disputes between the parties would be resolved according to the Common Court of Justice and Arbitration (" CCJA" )[2] 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.

         B. The Annulment Proceeding

         In July 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 1.

         II. LEGAL STANDARD

         The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, also known as the " New York Convention," is enforced

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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.

         III. ANALYSIS

         As set forth in Europcar, courts should consider several factors in deciding whether to grant a stay[3]:

(1) the general objectives of arbitration--the expeditious resolution of disputes and the avoidance of protracted and expensive litigation;
(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 ...

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