United States District Court, District of Columbia
S. CHUTKAN United States District Judge
Salini Costruttori S.p.A. (“Salini”), brings this
action against the Kingdom of Morocco
(“Morocco”), to enforce a 2011 arbitration award
issued by the International Chamber of Commerce
(“ICC”) International Court of Arbitration in
Paris, France. The two parties executed an agreement for a
construction project in Morocco, but several disputes arose
out of the agreement, after which Salini filed a Request for
Arbitration against Morocco with the ICC. The ICC decision
ordered Morocco to pay Salini several sums of money,
including interest and reimbursement for various duties and
taxes paid by Salini throughout the construction process.
Salini then filed a petition in Morocco's courts seeking
recognition and enforcement of the arbitration award. The
Administrative Court of Rabat entered judgment in the case,
ordering the enforcement of all of the parts of the award
except for those requiring Morocco to repay Salini for
various taxes it had levied against Salini, finding that
aspect of the award to be outside the jurisdiction of the
international arbitration court. Salini appealed the portion
of the judgment involving the repayment of taxes, and the
Administrative Court of Appeal of Rabat affirmed the lower
court's decision. Salini then appealed to the Moroccan
Court of Cassation, the country's highest civil court;
that appeal remains pending. Morocco paid Salini the amount
of the award that the Administrative Court upheld: 167, 695,
954.30 MAD (Moroccan dirham).
filed this Petition to Recognize, Confirm, and Enforce the
arbitral award pursuant to the Federal Arbitration Act (FAA)
in order to address the difference between the amount Morocco
has already fulfilled and the total amount of the ICC award,
plus accrued interest. Chapter two of the FAA codifies the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of June 10, 1958 (“the New York
Convention”). 9 U.S.C. §§ 201, et
seq. Also before the court is Morocco's motion to
dismiss the Petition under Federal Rules of Civil Procedure
12(b)(1)-for lack of jurisdiction, and 12(b)(6)-for failure
to state a claim pursuant to Section 207 of the
The FAA requires that the court not confirm the award if it
“finds one of the grounds for refusal or deferral of
recognition or enforcement of the award specified in the [New
York] Convention, ” and Article V(1)(e) of the
Convention describes as possible grounds for denial of
confirmation that “[t]he award has not yet become
binding on the parties, 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.” 9 U.S.C. §
207; New York Convention art. V(1)(e), June 10, 1958, 330
reasons below, Salini's Petition to Recognize, Confirm,
and Enforce a Final, Binding Arbitral Award will be GRANTED
and Morocco's Motion to Dismiss the Petition will be
21, 2004, Salini entered into Agreement AH03/2004
(“Construction Agreement”) with Morocco,
specifically the Ministry of Equipment and Transportation, to
construct a road between two Moroccan cities. (Pet. ¶
¶ 5-6). The Construction Agreement contains an
arbitration clause, which allows either party to submit a
dispute to either Morocco or to an arbitral award. (Pet.
¶ 9). In 2008, disputes arose between the parties
related to, in part, “(i) the reimbursement by Morocco
of direct and indirect taxes paid by Salini to its suppliers;
(ii) the termination of the Agreement and the timing thereof;
and (iii) the financial consequences of the partial execution
of the Agreement and its termination.” (Pet. ¶
12). The parties were unable to settle their dispute
amicably, and Salini filed its Request for Arbitration
against Morocco with the ICC on August 13, 2009. (Pet. at
¶ 13). The Arbitration took place in Paris, France (Pet.
Ex. D at 103), and on December 5, 2011, the Arbitral tribunal
rendered its Final Award. (Pet. at ¶ 17).
Final Award, the Arbitral tribunal decided that:
1. It had proper jurisdiction to rule on the dispute.
2. Salini's attempt at terminating the agreement as of
January 10, 2008, was invalid.
3. Morocco's August 1, 2008, termination of the agreement
was the proper termination date.
4. The date of final taking over of the project was April 7,
5. Morocco was to pay Salini, by way of the works carried
out, an amount of €8, 158, 518.87 plus [Value Added Tax
(“VAT”)] at a rate of 20% for the part not
financed by the European Union.
6. Morocco was to pay Salini by way of interest on the
principal amount of €8, 158, 518.87, calculated until
June 30, 2010, an amount of €1, 040, 000.00.
7. Morocco was to pay Salini interest on this amount of
€8, 130, 000.00, calculated from l July 2010 at the
[European Central Bank (“ECB”)] rate plus 3.5
percentage points, until its complete payment.
8. The agreement contained a commitment by Morocco not to
impose on Salini duties or taxes, and that in the event
Morocco did impose any, it would be liable to reimburse
9. Morocco was to pay Salini, by way of reimbursement of the
duties and taxes on cement, heating oil, and extractions, an
amount of €5, 212, 183.39, plus interest at the ECB rate
plus 3.5 percentage points, starting from 13 August 2009
until complete payment of the principal.
10. Morocco was to reimburse all other duties and taxes to
Salini, plus interest at ECB rate plus 3.5 percentage points,
starting from the day after payment by Salini of the said
taxes and duties and until complete reimbursement 11. Morocco
was to pay Salini €2, 140, 600.16 by way of changes in
the quantity of certain items, plus VAT at a rate of 20%.
12. Morocco was to pay Salini interest on this amount of
€2, l40, 600.l6, calculated from 1 July 2010 at the ECB
rate plus 3.5 percentage points, until complete payment.
13. Salini was to pay Morocco the amount of €500, 000.00
for delay damages plus interest at the ECB rate plus 3.5
percentage points, starting from 18 November 2009, until
complete payment of the principal.
14. Salini was to pay Morocco, for the necessity of drawing
up a new contract with another ...