United States District Court, District of Columbia
AFRICARD CO. LTD., Petitioner,
REPUBLIC OF NIGER, Respondent.
BERMAN JACKSON United States District Judge
Africard Company, Ltd. (“Africard”) has filed a
petition to confirm an arbitration award against respondent,
the Republic of Niger, pursuant to Section 207 of the Federal
Arbitration Act, 9 U.S.C. § 207. Pet. to Confirm Foreign
Arb. Award & to Enter J. [Dkt. # 1] (“Pet.”)
¶ 1. The petition arises from Niger's 2011 contract
with Africard to produce biometric and electronic passports.
Id. ¶ 12. According to the terms of the
parties' agreement, Africard was contracted to produce a
minimum of one million biometric and electronic passports,
but Africard alleges that on March 24, 2011, Niger
unilaterally cancelled the agreement. Id.
ultimately referred the dispute to arbitration in Abidjan,
Côte d'Ivoire. Pet. ¶ 14. On June 9, 2014, the
arbitral tribunal issued an Interim Procedural Award,
concluding that “the unilateral termination by the
State of Niger of the Agreement of October 13, 2011 for the
production of biometric and electronic passports in the
Republic of Niger [was] abusive and wrongful.” Interim
Procedural Award, Ex. D to Decl. of Christopher D. Man [Dkt.
# 1-5] (“Interim Award”) at 33. The tribunal
ultimately awarded Africard 44, 740, 781 West African CFA
Francs as compensation for costs incurred, 15, 440, 533, 316
West African CFA Francs as compensation for lost profits, 1,
000, 000, 000 West African CFA Francs for reputational harm
incurred, and 156, 747, 299 West African CFA Francs for the
cost of the arbitral proceedings. Final Award, Ex. F to Man
Decl. [Dkt. # 1-7] (“Final Award”) ¶ 64.
However, as of February 4, 2016, Niger had not paid any
amount of the Final Award. Pet. ¶ 22.
filed its petition to confirm the arbitration award on
February 4, 2016. Pet. After Niger was served, and failed to
timely answer, the Clerk of Court entered a default against
it. Clerk's Entry of Default [Dkt. # 13]. On May 13,
2016, Africard filed a motion for default judgment. Mot. for
Default J. as to Repub. of Niger & Confirmation of Arb.
Award [Dkt. # 14] (“Mot.”); Mem. of Law in Supp.
of Mot. [Dkt. # 14] (“Mem.”). Though Africard
served Niger with a copy of the motion, Niger did not
respond. Because the record indicated that counsel for
Africard had been contacted by an attorney who conveyed a
request on behalf of Niger but also indicated that he had not
been retained to defend this action, see Decl. of
Mark D. Beckett [Dkt. # 14-21], on July 7, 2016, the Court
entered an order asking petitioner to update the Court on
whether it had any further contact with that lawyer. Min.
Order (July 7, 2016). Petitioner responded, noting that it
had received no further communications from Niger's
attorneys on this matter, and it informed the Court that
Niger's application to set aside the arbitration award
had been denied. Status Report (July 19, 2016) [Dkt. # 22].
the Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. § 1602 et seq., a court shall not enter
a default judgment against a foreign state “unless the
claimant establishes his claim or right to relief by evidence
satisfactory to the court.” 28 U.S.C. § 1608(e).
This standard is identical to the standard for entry of
default judgments against the United States under Federal
Rule of Civil Procedure 55(d). Hill v. Repub. of
Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003). As a result,
the court cannot treat the allegations asserted in the
petition as true, and must “inquire further before
entering judgment against parties in default.”
Rimkus v. Islamic Repub. of Iran, 750 F.Supp.2d 163,
171 (D.D.C. 2010). Upon evaluating petitioner's claim,
though, the court “may accept the plaintiff's
uncontroverted factual allegations if they are supported by
documentary and affidavit evidence.” Lanny J. Davis
& Assocs LLC v. Repub. of Eq. Guinea, 962 F.Supp.2d
152, 161 (D.D.C. 2013).
The Court has subject matter jurisdiction over this
the Court may consider whether Africard is entitled to a
default judgment in this matter, it must assess whether it
has subject matter jurisdiction over this dispute. Federal
courts are courts of limited jurisdiction and the law
presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994); see also Gen.
Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004)
(“As a court of limited jurisdiction, we begin, and
end, with an examination of our jurisdiction.”).
The Court can exercise jurisdiction under the Federal
Federal Arbitration Act (“FAA”) codifies an
international convention known as the New York Convention
into U.S. law. 9 U.S.C. § 201 et seq. Section
202 of the FAA specifies that: “[a]n arbitration
agreement or arbitral award arising out of a legal
relationship, whether contractual or not, which is considered
as commercial . . . falls under the [New York]
Convention.” 9 U.S.C. § 202. The “district
courts of the United States . . . shall have original
jurisdiction over [an action or proceeding falling under the
Convention], regardless of the amount in controversy.”
9 U.S.C. § 203.
Second Circuit has explained, a court will have subject
matter jurisdiction under the FAA when: “(1) there is a
written agreement; (2) the writing provides for arbitration
in the territory of a signatory of the convention; (3) the
subject matter is commercial; and (4) the subject matter is
not entirely domestic in scope.” U.S. Titan, Inc.
v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 146
(2d Cir. 2001).
has identified a written agreement - the “Agreement for
the Production of Biometric and Electronic Passports
(E-Passports) in the Republic of Niger” - that governed
the parties' conduct in this case. Ex. 3 to Mot. [Dkt. #
14-4] (“Agreement”). And Article 25 of the Agreement
provides that “any dispute shall be submitted by one of
the parties for arbitration by the OHADA Common Court of
Justice and Arbitration” in Côte d'Ivoire.
Id., Art. 25. Côte d'Ivoire, Niger, and
the United States are all parties to the New York Convention.
See Contracting States,
also Creighton Ltd. v. Gov't of Qatar, 181 F.3d 118,
121 (D.C. Cir. 1999) (“[T]he critical element is the
place of the award: if that place is in the territory of a
party to the Convention, all other Convention states are
required to recognize and enforce the award, regardless of
the citizenship or domicile of the parties to the
arbitration.”), quoting Restatement (Third) of Foreign
Relations Law § 487 cmt b (1987). Further, the subject
matter of the agreement is not entirely domestic in scope,
because it involves a dispute originating in Niger, and none
of the parties are citizens of the United States.
See 9 U.S.C. § 202 (“An agreement or
award arising out of [a commercial relationship] which is
entirely between citizens of the United States shall not be
deemed to fall under the Convention . . . .”).
the subject matter of the agreement is clearly commercial. As
the D.C. Circuit recently recognized, the term
“commercial” as used in the New York Convention,
though it does not have a specific statutory definition,
refers to “matters or relationships, whether
contractual or not, that arise out of or in connection with
commerce.” Belize Social Dev. Ltd. v. Gov't of
Belize, 794 F.3d 99, 103-04 (D.C. Cir. 2015), citing
Restatement (Third) of U.S. Law of Int'l Commercial Arb.
§ 1-1 (2012); Restatement (Third) of Foreign Relations
Law § 487 cmt. f (1987) (explaining that “the fact
that an agreement to arbitrate is in the contract between a
government and a private person may confirm its commercial
character.”). The Belize court added that
“the full scope of ‘commerce' and
‘foreign commerce' as those terms have been broadly
interpreted, is available for arbitral agreements and
awards.” 794 F.3d at 104, citing Island Territory
of Curacao v. Solitron Devices, Inc., 356 F.Supp. 1, 13
dispute in this case, which arises out of a service contract
between a company and a government to provide biometric and
electronic passports, Mem. at 11, clearly “arise[s] out
of or in connection with commerce.” See
Belize, 794 F.3d at 104.
the Court finds that each of the four factors of the U.S.
Titan test have been met, it finds that it has
jurisdiction under the FAA. The next question to consider is
whether Niger nonetheless enjoys foreign sovereign immunity
in this enforcement action under the Foreign Sovereign
Immunities Act. See Creighton Ltd., 181 F.3d at 121.
The Court can exercise jurisdiction under the FSIA.
Foreign Sovereign Immunities Act (“FSIA”) is the
“sole basis for obtaining jurisdiction over a foreign
state in the courts of [the United States].”
Belize, 794 F.3d at 101, quoting Argentine
Repub. v. Amerada Hess Shipping Corp., 488 U.S. 428, 443
(1989). Under the FSIA, 28 U.S.C. § 1602 et
seq., “a foreign state is presumptively immune
from the jurisdiction of United States courts, ” and
“unless a specified exception applies, a federal court
lacks subject-matter jurisdiction over a claim against a
foreign state.” Saudi Arabia v. Nelson, 507
U.S. 349, 355 (1993). Because “subject matter
jurisdiction in any such action depends on the existence of
one of the specified exceptions . . . [a]t the threshold of
every action in a district court against a foreign state . .
. the court must satisfy itself that one of the exceptions
applies.” Verlinden B.V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 493-94 (1983); see also
Belize, 794 F.3d at 101 (describing the FSIA's terms
awards that are subject to the New York Convention fall under
the “treaty” exception to the FSIA. That
exception provides that:
(a) A foreign state shall not be immune from the jurisdiction
of courts of the United States or of the States in any case .
(6) in which the action is brought . . . to confirm an award
made pursuant to . . . an agreement to arbitrate, if . . .
(B) the agreement or award is or may be governed by a treaty
or other international agreement in force for the United
States calling for the recognition and enforcement of
28 U.S.C. § 1605. It is well settled that the New York
Convention gives rise to jurisdiction under the treaty
exception. Creighton Ltd., 181 F.3d at 123-24
(“Indeed, it has been said with authority that the New
York Convention ‘is exactly the sort of treaty Congress
intended to include in the arbitration
exception.'”), quoting Cargill Int'l S.A.
v. M/T Pavel Dybenko, 991 F.2d 1012, 1018 (2d Cir.
1993). So Niger does not enjoy sovereign immunity under the
Africard appropriately served Niger according to the
requirements of the FSIA.
Court next considers whether Niger is properly on notice of
this lawsuit. The FSIA requires that foreign states must ...