United States District Court, District of Columbia
VENCO IMTIAZ CONSTRUCTION COMPANY, Plaintiff.
SYMBION POWER LLC, Defendant.
D. BATES United States District Judge.
construction company and its subcontractor are engaged in a
long-running dispute over payment for a power plant
construction project in Kabul, Afghanistan, between 2008 and
2010. The subcontractor, Venco Imitiaz Construction Company
(Venco), eventually won an arbitration award requiring the
contractor, Symbion Power LLC (Symbion), to pay $ 8.5 million
for the work that Venco performed. Venco now seeks
enforcement of that award. Symbion challenges that award
here, and also in a separate court proceeding in the United
Kingdom. For the reasons explained below, the Court will
grant Venco's motion for enforcement of the award, deny
Symbion's motion for a stay, and deny as moot Venco's
motion, in the alternative, for security.
2008, the U.S. Agency for International Development began
funding a project to build a power plant in Kabul. The delays
and disagreements began shortly thereafter. The facts that
follow are undisputed, however, unless otherwise noted.
hired a U.S.-based firm, The Louis Berger Group/Black &
Veatch Special Projects Corporation (LBG/BV) to manage the
project. LBG/BV then hired Symbion as is its primary
contractor. Symbion in turn hired Venco as a subcontractor
responsible for certain portions of the plant construction,
namely for the “power blocks” that would house
the electrical generators. Resp.'s Br. [ECF No. 7] at 3.
LBG/BV and Symbion had a dispute over who was responsible for
construction delays (these disputes were unrelated to
Venco's work) and, as a result, LBG/BV withheld payment
from Symbion. Id. at 3-4; Pet.'s Br. [ECF No.
1-7] at 1. Symbion, in turn, withheld payment from Venco.
Resp.'s Br. at 4; Pet.'s Br. at 1. Symbion argues
that its contract with Venco permits this, i.e., that the
contract conditions payment to Venco on Symbion's receipt
of payment from LBG/BV. Resp.'s Br. at 6. Venco takes the
opposite view. Pet.'s Br. at 2-3.
to Symbion, in 2009 LBG/BV and Symbion began arbitration
proceedings before a Tribunal of the International Court of
Arbitration (ICC), as provided for in their contract.
Resp.'s Br. at 5. That tribunal concluded that LBG/BV
breached its contract and was not justified in withholding
payment from Symbion, but also found that under the terms of
the contract, Symbion could not rely on the invoices that it
submitted as evidence that it was entitled to full payment.
See ICC Case No. 16383/VRO, Symbion Power LLC v.
LBG/BV, Final Award (Oct. 24, 2012), Ex. 4 to
Resp.'s Br. [ECF Nos. 7-7-7-13] (hereinafter “Prior
Award”) at 171-73. Instead, the tribunal found that
Symbion was required to separately prove the value of its
work with evidence beyond the invoices, and was only entitled
to payment for the amounts it could separately prove.
Id. Venco was not a party to that arbitration
proceeding nor did it participate in it in any way.
in 2013 Venco filed a request for arbitration with the ICC
against Symbion, as required by the arbitration clause in
their contract. Pet.'s Br. at 3; Resp.'s Br. at 6. A
three-arbitrator panel was empaneled pursuant to ICC rules.
Pet.'s Br. at 3-4; Resp.'s Br. at 6-7. Before the
panel, Venco argued that Symbion had breached its contract by
failing to make the required payments. Pet.'s Br. at 2-3;
Resp.'s Br. at 6. Symbion argued that its payments to
Venco were predicated on receiving payment from LBG/BV, and
also raised counterclaims against Venco for tortious
interference with contract, breach of the implied covenant of
good faith and fair dealing, and malicious prosecution and
abuse of process. Resp.'s Br. at 6. LBG/BV was not a
party to the Venco-Symbion arbitration. The arbitration panel
reviewed briefings, received written evidence, and held an
evidentiary hearing from November 2 through November 11,
2015, where it heard testimony from fact and expert
witnesses. See ICC Case No. 19335/AGF/ZF, Venco
Imtiaz Constr. Co. v. Symbion Power LLC, Final Award
(Jul. 11, 2016), Ex. 2 to Pet.'s Br. [ECF No. 1-2]
(hereinafter “Final Award”) at 22-24. The panel
ultimately issued an award on July 11, 2016, finding almost
entirely in Venco's favor. See id. at 140-42.
The panel ordered Symbion to pay all unpaid invoices that
Venco had submitted, plus interest, attorney's fees, and
the cost of arbitration. Id. It also dismissed all
of Symbion's counterclaims. Id. In total, this
amounted to $ 8, 462, 516.78. Id.
August 8, 2016, Symbion filed a motion in the United Kingdom
to set aside the award. Venco, in turn, filed the instant
motion in this Court to confirm and enforce the award.
Petition [ECF No. 1]. Symbion not only opposes Venco's
motion, but also filed a motion asking this Court to stay
further proceedings pending the outcome of the U.K.
proceedings. Resp.'s Br. at 1-2. Symbion's primary
argument is that the arbitration proceeding at issue here
interpreted the contract in a manner inconsistent with the
prior arbitration award between Symbion and LBG/BV, and
therefore enforcement of the award in this Court would
violate the public policy of issue preclusion. Id.
at 1. Venco opposes Symbion's motion for a stay, but in
the alternative, requests that if a stay is granted, that
Symbion be required to post security in the full amount of
the arbitration award. Pet.'s Reply & Opp'n [ECF
No. 13] at 1. Symbion opposes the request for security.
Resp.'s Reply [ECF No. 17] at 1.
the parties completed briefing in this matter, the U.K. High
Court of Justice in London, England, has dismissed
Symbion's challenge to the arbitral award. See
Symbion Power LLC v. Venco Imtiaz Constr. Co., 
EWHC 348 (TCC) (March 10, 2017), Ex. 1 to Status Report [ECF
No. 22-1]. Based on the parties' representation during a
hearing before this Court on April 18, 2017, Symbion intends
to seek leave to appeal that decision. This Court has not
been advised of the time frame in which the U.K. appellate
court would grant or deny leave to appeal, or of the time
frame in which that court might issue a judgment on the
merits, should leave to appeal be granted.
seeks enforcement of its arbitration award under the New York
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards. See Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of June 10, 1958
(“New York Convention”), 21 U.S.T. 2517, codified
at 9 U.S.C. §§ 201-08. Under the New York
Convention, which is codified as part of the Federal
Arbitration Act (FAA), a “court shall confirm the award
unless it finds one of the grounds for refusal or deferral of
recognition or enforcement of the award specified in the said
Convention.” Id. § 207. The FAA therefore
“‘reflects an emphatic federal policy in favor of
arbitral dispute resolution.'” Marmet Health
Care Ctr., Inc. v. Brown, 565 U.S. 530, 533 (2012) (per
curiam) (quoting KPMG LLP v. Cocchi, 565 U.S. 18, 21
(2011)). This emphatic federal policy is equally true in
enforcing foreign arbitration awards. See TermoRio S.A.
E.S.P. v. Electranta S.P., 487 F.3d 928, 933-34 (D.C.
Cir. 2007) (citing Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985));
see also Newco Ltd. v. Gov't of Belize, 650 F.
App'x 14, 16 (D.C. Cir. 2016) (nonprecedential).
the enumerated grounds for a court to decline to enforce an
award is if “[t]he recognition or enforcement of the
award would be contrary to the public policy of [the]
country” where enforcement is sought. New York
Convention, art. V(2)(b). Wary of the potentially vast
possibilities of this exception, “courts have been
careful not to stretch the compass of ‘public
policy.'” TermRio, 487 F.3d at 938.
Rather, the “public policy defense is to be construed
narrowly to be applied only where enforcement would violate
the [United States'] most basic notions of morality and
justice.” Id. (quoting Karaha Bodas Co. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364
F.3d 274, 306 (5th Cir. 2004)); see also Enron Nigeria
Power Holding, Ltd. v. Fed. Republic of Nigeria, 844
F.3d 281, 289 (D.C. Cir. 2016); Belize Bank Ltd. v.
Gov't of Belize, 852 F.3d 1107, 1111 (D.C. Cir.
2017); cf. Nat'l R.R. Passenger Corp. v. Fraternal
Order of Police, No. 16-7004, slip op. at 9 (D.C. Cir.
Apr. 28, 2017) (describing similar public policy exception in
Railway Labor Act as only applicable when “arbitration
award . . . transgresses well defined and dominant laws and
legal precedents” (internal quotation marks omitted)).
Here, Symbion, as the party challenging enforcement of the
award, “‘bears the burden of proof' of
meeting this exacting standard.” Belize Bank,
852 F.3d at 1111.
Issue Preclusion And The Public Policy Exception
argues that the earlier arbitration award between Symbion and
LBG/BV should have had a preclusive effect on the subsequent
arbitration award between Symbion and Venco, and that
enforcing this later award would violate the public policy of
issue preclusion. In particular, Symbion argues that the
LBG/BV award determined that a contractor (such as Venco)
could not rely only on invoices to establish damages, and
instead must prove the actual value of the work performed.
See Resp.'s Br. at 9.
preclusion (sometimes known as collateral estoppel)
“bars ‘successive litigation of an issue of fact
or law actually litigated and resolved in a valid court
determination essential to the prior judgment, ' even if
the issue recurs in the context of a different claim.”
Taylor v. Sturgell, 553 U.S. 880, 892 (2008)
(quoting New Hampshire v. Maine, 532 U.S. 742, 748
(2001)); see also Southern Pac. R. Co. v. United
States, 168 U.S. 1, 48-49 (1897) (defining issue
preclusion as the “general principle . . . that a
right, question, or fact distinctly put in issue, and
directly determined by a court of competent jurisdiction, as
a ground of recovery, cannot be disputed in a subsequent suit
between the same parties or their privies”). Issue
preclusion is “[a] fundamental precept of common-law
adjudication” that saves litigants ...