MEMORANDUM OPINION
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
Plaintiff
Owens-Illinois European Group (“OIEG”) brought
this action pursuant to 22 U.S.C. § 1650a and Article 54
of the International Centre for Settlement of Investment
Disputes (“ICSID”) Convention against the
Bolivarian Republic of Venezuela seeking to confirm and
enforce an arbitration award of more than $400 million.
Compl. [Dkt. # 1]. In October of 2010, OIEG's factories
were expropriated by the Venezuelan government, then headed
by Hugo Chávez, and on September 7, 2011, OIEG
commenced arbitration against Venezuela pursuant to the
Netherlands-Venezuela Bilateral Investment Treaty.
Id. ¶¶ 6, 12; Final Award [Dkt. # 1-10]
¶¶ 1, 110. On March 10, 2015, the tribunal found in
favor of plaintiff, and it awarded OIEG $372, 461, 982 for
the expropriation and $5, 750, 000 in costs and expenses.
See Final Award [Dkt. # 1-14] ¶¶ 880-81,
976.
A
motion to dismiss has already been heard and denied,
see Mar. 8, 2019 Hr'g Tr. [Dkt. # 54]
(“3/8 Hr'g Tr.”), and plaintiff has filed a
motion for summary judgment seeking confirmation of the
Award. Pl.'s Mot. for Summ. J. [Dkt. # 60]
(“Pl.'s Mot.”). Because 22 U.S.C. §
1650a requires this Court to confirm an arbitral award
obtained under ICSID, and the sole issue raised in
defendant's opposition pertains to the applicable
post-judgment interest rate, the Court will enter judgment
for plaintiff.
BACKGROUND
I.
International Centre for Settlement of Investment Disputes
(“ICSID”)
The
International Convention on the Settlement of Investment
Disputes between States and Nationals of Other States is a
multilateral treaty designed to provide a legal framework for
resolving disputes between private investors and governments.
Preamble, Mar. 18, 1965, 17 U.S.T. 1270 (“ICSID
Convention”). The ICSID Convention established the
International Centre for Settlement of Investment Disputes,
which has the authority to convene arbitration tribunals to
adjudicate disputes between international investors and host
governments in contracting states. Id. art. 1.
“Any Contracting State or any national of a Contracting
State” may request that ICSID convene an arbitration
tribunal. See Id. art. 36. The tribunal, which
consists of either a single arbitrator or “any uneven
number of arbitrators, ” id. art. 37,
considers the dispute and issues a written award, which
“deal[s] with every question submitted to the
[t]ribunal, and . . . state[s] the reasons upon which it is
based.” Id. art. 48.
The
parties have multiple avenues for contesting the
tribunal's award: A party may request
“revision” if there is a newly-discovered
material fact previously unknown to the parties and
arbitrator, see Id. art. 51, or an
“annulment” if a party challenges the
tribunal's substantive decision. Id. art. 52.
When a party seeks annulment, ICSID convenes an ad
hoc committee of three members to review the award
determination. Id. At a party's request,
enforcement of an award is “stayed provisionally until
the [c]ommittee” renders its decision. Id.
But, “except to the extent that enforcement” has
been stayed, the tribunal's award remains “binding
on the parties and shall not be subject to any appeal or to
any other remedy” other than those set forth in the
ICSID Convention. Id. art. 53.
ICSID
is not empowered to enforce awards. Prevailing parties must
register their awards with a court of a member state. The
courts of member states are required to “recognize an
award . . . as binding and [to] enforce the pecuniary
obligations imposed by that award within its territories as
if it were a final judgment of a court in that [s]tate,
” or, for a member state with “a federal
constitution, ” to “treat the award as if it were
a final judgment of the courts of a constituent state.”
Id. art. 54; see 22 U.S.C. § 1650a(a).
The
United States has been a member of the ICSID Convention since
1966, and Congress has enacted legislation implementing the
Convention:
An award of an arbitral tribunal rendered pursuant to chapter
IV of the convention shall create a right arising under a
treaty of the United States. The pecuniary obligations
imposed by such an award shall be enforced and shall be given
the same full faith and credit as if the award were a final
judgment of a court of general jurisdiction of one of the
several States. The Federal Arbitration Act (9 U.S.C. 1 et
seq.) shall not apply to enforcement of awards rendered
pursuant to the convention.
22 U.S.C. § 1650a(a).
II.
Factual and Procedural Background
Plaintiff
is a corporation organized and existing under the laws of the
Netherlands. Pl.'s Statement of Undisputed Material Facts
[Dkt. # 63] (“Pl.'s SOF”) ¶ 1. Plaintiff
is part of a group of companies that operates glass container
factories around the world, including in Venezuela.
See Final Award [Dkt. # 1-10] ¶¶ 86-87.
Plaintiff operated its Venezuelan glass factories through two
of its subsidiaries, - Fábrica de Vidrios los Andes,
(“Favianca”) and Owens-Illinois de Venezuela,
C.A. (“OIdv”) - through which plaintiff held
72.983% equity interest in the Venezuelan factories.
Id. ¶ 87; id. [Dkt. # 1-14] ¶
881. A group of minority shareholders held the remaining
27.017% equity interest. See Id. Defendant is the
Bolivarian Republic of Venezuela. Pl.'s SOF ¶ 2.
In
October of 2010, the Venezuelan government expropriated
plaintiff's Venezuelan glass factories, Final Award
¶¶ 110-14, and OIEG commenced arbitration against
Venezuela on September 7, 2011. Id. ¶ 1. An
arbitral tribunal was assembled by March 30, 2012,
id. ¶ 21, and on September 16-21, 2013, the
tribunal held a hearing in Paris, France to receive testimony
and hear argument. Id. ¶¶ 66-67. On March
10, 2015, the tribunal issued a final arbitration award
(“Award”) in OIEG's favor. Pl.'s SOF
¶ 3; see Final Award. That Award consisted of:
• $372, 461, 982 for the expropriation in principal
amount, plus interest from October 26, 2010 until payment in
full calculated at a LIBOR interest rate for one-year
deposits in U.S. dollars, plus a margin of 4% with annual
compounding of accrued interest, Final Award ¶ 984(6);
• $5, 750, 000 for costs and expenses in the ICSID
arbitration, plus interest from March 10, 2015 until payment
in full calculated at a LIBOR interest rate for one-year
deposits in U.S. dollars, plus a margin of 4% with annual
compounding of accrued interest. Id. ¶ 976.
See
also Pl.'s SOF ¶ 5.
Shortly
thereafter, Venezuela sought annulment of the award in
accordance with the ICSID convention. Pl.'s SOF ¶ 4;
ICSID Convention art. 52. On July 17, 2015, the Annulment
Committee entered a provisional stay of enforcement of the
Award, but on April 4, 2016, that stay was terminated based
upon the risk of Venezuela's non-compliance. Decision on
Stay of Enforcement of the Award, Ex. B to Neudhardt Decl.
[Dkt. # 27-8] ¶¶ 123-28, 130. Subsequently, OIEG
filed suit in this Court to enforce its arbitration award,
and after a year of multiple service attempts, plaintiff
effectuated service on June 28, 2017. See Return of
Service [Dkt. # 16].
On
September 27, 2017, defendant moved to dismiss the complaint
arguing that OIEG was not the real party in interest and
Federal Rule of Civil Procedure 17 mandated dismissal, that
OIEG had waived its right to claim that the decision is an
enforceable final award, that OIEG was impermissibly seeking
double recovery, [1] and that the award was unenforceable
because one of the arbitrators on the tribunal was biased.
See Def.'s Mot. to Dismiss or Stay the
Proceeding [Dkt. # 23]. In the alternative, defendant moved
to stay the proceedings pending the annulment proceedings.
See Id. On December 21, 2017, the Court granted
defendant's motion to stay. Min. Order (Dec. 21, 2017).
Almost
a year later, on December 10, 2018, plaintiff notified the
Court that the annulment committee had rejected
defendant's application for annulment on December 6,
2018. See Pl.'s Status Report [Dkt. # 52];
Annulment Comm. Decision [Dkt. # 52-1] (“Annulment
Decision”). And, the committee awarded plaintiff an
additional $3, 864, 811.05 for costs and expenses related to
the annulment proceeding, plus ...