United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
Gretton Ltd. seeks to enforce a foreign arbitral award
assessed against the Republic of Uzbekistan. Gretton itself,
however, never had any direct dealings with Uzbekistan.
Rather, the dispute arose between the Central Asian country
and a company called Oxus Gold, PLC over Oxus's
investments in two gold-mining operations there. Although the
underlying Award is still working its way through
direct-appeal proceedings in France, Gretton - Oxus's
litigation funder and assignee of the Award's proceeds -
has clamored to have its day in court in the United States.
Uzbekistan has now moved to dismiss the Petition, lodging a
host of jurisdictional objections to enforcement of the
Award, or alternatively to stay the case. Finding it
appropriate to stay these proceedings pending the decision of
the Paris Court of Appeal, the Court will grant
Uzbekistan's Motion in part without treating its
arguments to dismiss the suit entirely.
underlying controversy stems from Oxus's involvement in
two projects related to mining and exploration of gold
deposits in Uzbekistan. On August 31, 2011, it filed a notice
of arbitration against Uzbekistan seeking $1.2 billion for
the purported expropriation of its investments. See
ECF No. 5-2 (Arbitral Award), ¶¶ 60, 1019. The
arbitral panel, sitting in Paris, issued its Award on
December 17, 2015. Id. at 1. It found Uzbekistan
liable for only $10, 299, 572 plus interest that - based on
Petitioner's calculations - brings the grand total to
$13, 026, 908.12. Id. at 396; see also ECF
No. 5-8 (Declaration of Kevin N. Ainsworth), ¶ 5.
April 26, 2016, Oxus initiated a proceeding before a court in
Paris, seeking recognition of the Award. See ECF No.
17-13 (Declaration of Andrea Pinna), ¶ 4. Having
received that recognition, it then filed a request on July
26, 2016, before the Paris Court of Appeal for partial
vacatur of the Award - namely, it sought to set aside certain
portions of the Award denying its claims but to
leave intact the portion for which damages were already
awarded. Id., ¶ 5. Uzbekistan has naturally
opposed; it has also argued that, if the Paris court were to
set aside any of the Award, it should vacate the
entire Award, rather than merely the portion Oxus
lost in arbitration. The parties have submitted several
rounds of briefing, and the Paris Court of Appeal is
scheduled to hold a hearing on March 26, 2019. Id.,
these proceedings were pending in Paris, Gretton filed its
Petition against Uzbekistan in this Court in July 2018
seeking to enforce the piece of the Award in which Oxus
prevailed. See ECF No. 1 (Petition to Confirm
Arbitration Award). It has represented that Oxus assigned it
the proceeds of the Award back in 2012. Id. at 2-3.
Uzbekistan now moves to dismiss the Petition on several
grounds. See ECF No. 17 (Motion to Dismiss or Stay).
It has also moved, in the alternative, for the Court to stay
the case pending the outcome of the set-aside proceedings in
Federal Arbitration Act, 9 U.S.C. §§ 201-208,
codifies the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, better known as the New York
Convention. Pursuant to the Convention, a district court
“shall confirm [an] [arbitral] award unless it finds
one of the grounds for refusal or deferral of recognition or
enforcement of the award specified in the said
Convention.” 9 U.S.C. § 207. “Consistent
with the ‘emphatic federal policy in favor of arbitral
dispute resolution' recognized by the Supreme Court[, ] .
. . t h e FA A affords the district court little discretion
in refusing or deferring enforcement of foreign arbitral
awards.” Belize Social Development Ltd. v.
Government of Belize, 668 F.3d 724, 727 (D.C. Cir. 2012)
(quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985)).
the Convention, however, district courts do have discretion
to stay proceedings if “an application for the setting
aside or suspension of the award has been made to a competent
authority.” New York Convention art. VI. Because
“the adjournment of enforcement proceedings impedes the
goals of arbitration - the expeditious resolution of disputes
and the avoidance of protracted and expensive
litigation” - “[a] stay of confirmation should
not be lightly granted.” Europcar Italia, S.p.A. v.
Maiellano Tours, Inc., 156 F.3d 310, 317 (2d Cir. 1998).
challenges the Petition to enforce the Award on several
bases. It argues that the Court lacks subject-matter
jurisdiction because no exception to immunity has been
satisfied under the Foreign Sovereign Immunities Act.
See Mot. at 2. It also contends that Gretton's
efforts to effect service were defective and that personal
jurisdiction therefore does not exist. Id. Finally,
Respondent urges dismissal under the forum non
conveniens doctrine because France is an adequate
alternative forum for adjudication. Id. In the event
the Court declines to dismiss, Uzbekistan last maintains that
this “case should be stayed pending the outcome of
proceedings to set aside the Award.” Id. at 3.
courts must begin by assuring themselves of their own
jurisdiction. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94-95 (1998). There are,
however, exceptions to that general precept. The Court first
concludes that it is proper to treat the stay question
without ruling on the jurisdictional issues and then explains
why a stay is appropriate here.
Addressing Stay First
a court must establish its jurisdiction to hear a case before
analyzing any merits issue, see Foster v. Chatman,
136 S.Ct. 1737, 1745 (2016), it may - “when
considerations of convenience, fairness, and judicial economy
so warrant” - “deny audience to a case on the
merits” on a non-jurisdictional “threshold
ground.” Sinochem Int'l Co. v. Malaysia
Int'l Shipping Co., 549 U.S. 422, 425, 431-32, 436
(2007) (citations omitted). In Sinochem, the Court
reasoned that it could make a forum non conveniens
determination before resolving subject-matter jurisdiction
because - while the FNC analysis could “involve a brush
with factual and legal issues of the underlying
dispute” - it was nonetheless a “threshold,
nonmerits issue” since “[r]esolving [it] does not
entail any assumption by the court of substantive
law-declaring power.” Id. at 433 (internal
quotation marks and citation omitted); see also Pub.
Citizen v. U.S. Dist. Court for the Dist. of Columbia,