United States District Court, District of Columbia
ORANGE MIDDLE EAST & AFRICA f/k/a FRANCE CABLES & RADIOS, Petitioner,
REPUBLIC OF EQUATORIAL GUINEA, Respondent.
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
asks this Court to enforce an international arbitration
award. Because Respondent is a foreign state, Petitioner was
required to effect service under the Foreign Sovereign
Immunities Act. Petitioner has failed to demonstrate that it
followed one of the methods for service prescribed by FSIA,
and thus proper service was never effected. The petition must
be dismissed without prejudice.
following facts are taken from the operative pleading,
Petition to Confirm Arbitral Award [Dkt. 1] (Pet.), and are
taken as true in this procedural posture. Baird v.
Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015).
Orange Middle East and Africa (Orange MEA), and Respondent,
the Republic of Equatorial Guinea, were joint shareholders in
a telecommunications company (Telecomunicaciones Sociedad
Anonima or “GETESA”) that provided service to
Equatorial Guinea. See Pet. ¶ 7. Equatorial
Guinea and Orange MEA owned 60 percent and 40 percent of the
corporate capital of the company, respectively. See
November 4, 2011, after disputes between the two parties
arose regarding the management of GETESA, the parties entered
into a settlement agreement. See Id. ¶ 8 &
Ex. 1, Settlement Agreement [Dkt. 1-1 at 4] (Agreement).
Article 9 of the Agreement contained an “Exit
Clause,” in which Equatorial Guinea made an
“irrevocable promise” to purchase Orange
MEA’s 40% share in GETESA in the event that a
telecommunications license were granted to a third party in
Equatorial Guinea. See Pet. ¶ 9; Agreement at
December 2011, Equatorial Guinea granted a telecommunications
license to a third party, triggering the Exit Clause. Pet.
¶ 9. However, Equatorial Guinea did not purchase Orange
MEA’s 40% stake in GETESA, as Article 9 of the
Agreement required. See Id. That failure
precipitated the instant dispute.
11 of the Agreement required Orange MEA and Equatorial Guinea
to submit to arbitration any unresolved disputes over the
settlement agreement. Id. ¶ 11; Agreement at 7.
Specifically, it provided that should conciliation procedures
fail, “the Parties agree that any dispute arising from
or related to the Agreement shall be definitively settled in
accordance with the ICC’s arbitration regulations in
accordance with this regulation. The arbitral tribunal shall
consist of three (3) arbitrators and shall take place in
Paris.” Pet. ¶ 11; Agreement at 7.
March 22, 2013, Orange MEA filed an arbitration request with
the International Chamber of Commerce’s (ICC’s)
International Court of Arbitration. See Pet. ¶
12 & Ex. 2, Final Arbitral Award [Dkt. 1-1 at 70] (Award)
at 1. According to Orange MEA, Equatorial Guinea disputed the
arbitral tribunal’s jurisdiction and “refused to
submit any arguments relating to the substantive issues in
dispute.” See Pet. ¶ 13. Seven
representatives for Equatorial Guinea attended the hearing,
including the Deputy Minister of Justice and the Attorney
8, 2014, the tribunal issued its Final Arbitral Award in
favor of Orange MEA. See Id. ¶ 14; Award at 47.
Among other things, it ordered Equatorial Guinea to pay
€ 131,992,915 plus interest and fees for Orange
MEA’s stake in GETESA. Pet. ¶ 14.
August 7, 2014, Equatorial Guinea petitioned the Paris Court
of Appeals to set aside the Final Arbitral Award.
Id. ¶ 17. This appeal was still pending at the
time Orange MEA filed its petition. See Id. Orange
MEA also sought an order authorizing the enforcement of the
Final Arbitral Award in France. The Paris Court of Appeals
authorized the enforcement of the award on February 5, 2015.
MEA seeks a judgment from this Court confirming the arbitral
award pursuant to Section 207 of the Federal Arbitration Act,
9 U.S.C. § 207 (FAA). See Id. ¶ 1. Orange
MEA alleges that the Court has subject matter jurisdiction
under Section 203 of the FAA because the Petition constitutes
an action to confirm an arbitral award governed by the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York Convention or Convention). See
Id. ¶ 4 (citing FAA § 203). Orange MEA
maintains that the New York Convention, as implemented by the
FAA, governs the confirmation of the Final Arbitration Award
because it arises from a commercial relationship and does not
arise out of a relationship entirely between United States
citizens. See Pet. ¶ 18; FAA § 202.
Petition, Orange MEA alleged that this Court would have
personal jurisdiction over Equatorial Guinea, pursuant to 28
U.S.C. § 1330(b), once Orange MEA completed service on
Equatorial Guinea as authorized by the Foreign Sovereign
Immunities Act (FSIA), 28 U.S.C. § 1608(a). Pet. ¶
Two months later, Orange MEA filed a Certificate of Service
[Dkt. 8] (Certificate) indicating that Equatorial Guinea was
served on August 6, 2015.
day its answer was due, Equatorial Guinea filed a motion to
dismiss. See Def. Mot. to Dismiss [Dkt 12-1] (Mot.).
Equatorial Guinea argues that the Petition should be
dismissed because Orange MEA failed to serve it properly as
required by FSIA § 1608(a). Orange MEA has filed an
Opposition [Dkt. 16] ...