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In re Arbitration of Certain Controversies Between Getma International

United States District Court, District of Columbia

June 9, 2016

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

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         Getma International ("Getma"), the petitioner, commenced this civil action against the Republic of Guinea ("Guinea"), the respondent, seeking confirmation and enforcement of a foreign arbitral award ("arbitral award" or "award") pursuant to the Federal Arbitration Act, 9 U.S.C. § 201 (2012). See, e.g., Petition to Confirm Arbitration Award and to Enter Judgment ("Confirm Pet.") at 1. The Court previously stayed this case, pending the outcome of Guinea’s attempt to have the award annulled. See In re Certain Controversies Between Getma Int’l & Republic of Guinea ("In re Getma"), __ F.Supp. 3d __, __, 2015 WL 6735625, at *7 (D.D.C. 2015). That stay was effectively lifted after the parties informed the Court that the award had been annulled, see December 22, 2015 Joint Status Report at 1-2, ECF No. 29, whereupon the Court ordered the parties to propose a briefing schedule concerning whether the Court should confirm and enforce the award, notwithstanding the annulment, see January 5, 2016 Order, ECF No. 30. Briefing has now been completed, and upon careful consideration of the parties’ submissions, [1]the Court concludes that it cannot confirm and enforce the award.

         I. BACKGROUND

         The Court previously set out many of the facts underlying this case. In re Getma, __ F.Supp. 3d at __, 2015 WL 6735625, at *1-2. The Court supplements that background as follows.

         A. The Arbitration Proceeding

         In October 2011, after the parties agreed to resolve their dispute before a foreign arbitral tribunal ("arbitral tribunal" or "tribunal")-composed of three arbitrators-concerning the termination of the Concession Agreement pursuant to the Common Court of Justice and Arbitration ("CCJA") Arbitration Rules, [2] see id. at __, *1, the CCJA ordered that the parties pay for certain fees and costs in advance of the arbitration, Declaration of Laurent Jaeger ("First Jaeger Decl."), ECF No. 18-5, Exhibit ("Ex.") 4 (October 24, 2011 CCJA Order ("Oct. 24, 2011 CCJA Order")) at 5-6, [3] which amounted to about €154, 000, including approximately €62, 000 in arbitrators’ fees, see Confirm Mem. at 6; Confirm Opp’n at 6. After the tribunal was constituted in early 2012, the tribunal sought permission from the Secretary General of the CCJA ("Secretary General")[4] on or about April 11, 2013, to contact the parties’ counsel about an increase in the arbitrators’ fees. See, e.g., First Jaeger Decl., Ex. 29 (June 3, 2014 Letter From Arbitral Tribunal to Secretary General ("June 3, 2014 Letter")) at 12 ("If the Secretary General finds the time to be opportune, the [t]ribunal can discuss . . . [the fees issue] with the [p]arties’ [c]ounsel." (emphasis and quotation marks omitted)); First Jaeger Decl., Ex. 25 (August 1, 2013 CCJA Order ("Aug. 2013 CCJA Order")) at 5 ("In light of the letter dated [April 11, 2013] from the . . . [t]ribunal . . . to the Secretary General relative to the request that the [CCJA] revise the global fee payable to the [t]ribunal upward to €450, 000[.]"). The Secretary General permitted the tribunal to do so on April 15, 2013. See, e.g., First Jaeger Decl., Ex. 29 (June 3, 2014 Letter) at 12 ("[Y]ou may, as you have requested, bring this . . . [fees issue] to the [p]arties’ [c]ounsel and keep me informed of the outcome."); First Jaeger Decl., Ex. 25 (Aug. 2013 CCJA Order) at 5 (noting that the Secretary General sent a letter on April 15, 2013, to the arbitral tribunal regarding request for increased arbitrators’ fees).

         On April 22, 2013, the arbitral tribunal contacted the parties about increasing the arbitrators’ fees from approximately €62, 000 to approximately €450, 000. First Jaeger Decl., Ex. 14 (April 22, 2013 Letter From Arbitral Tribunal to the Parties) at 5-6 ("Given the size of the dispute and of the questions raised, the arbitrators believe that in order to enable them to properly perform their duties, the overall fee of the arbitral [t]ribunal should be fixed at €450, 000. The [t]ribunal wishes to obtain any comments from the parties with respect to this estimate.").

         By May 10, 2013, the parties had responded to the arbitral tribunal, informing it that they had "no comments" regarding the request for increased arbitrators’ fees. First Jaeger Decl., Ex.18 (May 3, 2013 Letter From Getma to Arbitral Tribunal) at 4; First Jaeger Decl., Ex. 19 (May 10, 2013 Letter From Guinea to Arbitral Tribunal) at 5; see also First Jaeger Decl., Ex. 16 (May 10, 2013 Letter From Arbitral Tribunal to Parties ("May 10, 2013 Letter")) at 5. The tribunal interpreted the parties’ silence on the fee issue as "hav[ing] no objection to [the] fee revision, " First Jaeger Decl., Ex. 16 (May 10, 2013 Letter) at 5, and sought the parties’ confirmation of this interpretation. Id. at 6. The parties eventually agreed to the tribunal’s solicitation for increased arbitrators’ fees in June 2013. See First Jaeger Decl., Ex. 23. (June 25, 2013 and June 28, 2013 Emails ("June 2013 Emails")) at 5. The tribunal then immediately notified the Secretary General of the parties’ consent to increased arbitrators’ fees, and the Secretary General informed the tribunal that he would "contact the [CCJA] soon to adjust the fees of the . . . [tribunal]." Second Declaration of Cédric Fischer ("Second Fischer Decl."), ECF No. 25-13, Ex. 11 (June 28, 2013 Email From Secretary General to Arbitral Tribunal ("June 28, 2013 Letter")) at 2.

         However, on August 1, 2013, the CCJA denied the arbitral tribunal’s attempt to revise and increase the arbitrators’ fees that the CCJA initially ordered, citing 1999 CCJA precedent. See First Jaeger Decl., Ex. 25 (Aug. 2013 CCJA Order) at 5-6. In pertinent part, the 1999 CCJA precedent states:

The [CCJA] shall determine the arbitrator’s fees pursuant to [a fixed schedule], or at its discretion where the amount in controversy has not been stated.
If the circumstances of the case render it necessary on an exceptional basis, the [CCJA] may set the arbitrator’s fees at an amount that is greater or less than the amount that would result from application of the scale. . . .
When it sets the arbitrator’s fees, the [CCJA] shall take into consideration the work done by arbitrator, the time spent, the speed of proceedings[, ] and the complexity of the dispute, so as to reach a figure within the limits provided for, or above or below such limits under . . . exceptional circumstances . . . .
Where a matter is submitted to more than one arbitrator, the [CCJA] may, at its discretion, increase the amount set aside for payment of fees, generally up to a limit of three times that provided for a single arbitrator. . . .
The arbitrator’s fees and expenses are set exclusively by the Court, in accordance with the provisions of the Rules of Arbitration. Any separate arrangement between the parties and the arbitrators concerning their fees is null and void.

         First Jaeger Decl., Ex. 26 (February 3, 1999 CCJA Order ("Feb. 3, 1999 ...


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