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Orange Middle East and Africa v. Republic of Equatorial Guinea

United States District Court, District of Columbia

May 18, 2016

ORANGE MIDDLE EAST & AFRICA f/k/a FRANCE CABLES & RADIOS, Petitioner,
v.
REPUBLIC OF EQUATORIAL GUINEA, Respondent.

          OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. FACTS

         The 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).

         Petitioner, 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 id.

         On 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 5-6.

         In 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.

         Article 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.

         On 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 General. Id.

         On July 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.

         On 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. See id.

         Orange 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.

         In its 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. ¶ 5.[1] Two months later, Orange MEA filed a Certificate of Service [Dkt. 8] (Certificate) indicating that Equatorial Guinea was served on August 6, 2015.

         On the 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 ยง 1608(a). Orange MEA has filed an Opposition [Dkt. 16] ...


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