United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Gretton Ltd. seeks to enforce a foreign arbitral award issued
in Paris under 9 U.S.C. § 207 and the 1958 Convention on
the Recognition and Enforcement of Foreign Arbitral Awards,
better known as the New York Convention. Before addressing
what it perceives as the infirmities of such award,
Respondent Republic of Uzbekistan offers multiple challenges
to the jurisdiction of this Court to even hear the matter.
First, Uzbekistan argues that this Court lacks personal
jurisdiction over it because it was never served in strict
compliance with 28 U.S.C. § 1608. Second, it contends
that subject-matter jurisdiction does not exist because
Gretton's claim does not meet the requirements of the
arbitration exception to the Foreign Sovereign Immunities
Act. Finally, it maintains that, even if this Court finds it
has jurisdiction, it should dismiss the case under the
doctrine of forum non conveniens. Although it finds
the last two arguments wanting, the Court will require a
hearing on the first. It will, accordingly, deny in part
Court recited the facts of the underlying controversy in its
February 2019 Opinion, but sees no harm in briefly retracing
its steps. See Gretton Ltd. v. Republic of
Uzbekistan, 2019 WL 464793, at *1 (D.D.C. Feb. 6, 2019).
August 31, 2011, an entity named Oxus Gold filed a notice of
arbitration against Uzbekistan seeking $1.2 billion for the
purported expropriation of its investments. Id. On
December 17, 2015, the arbitral panel, sitting in Paris,
found Uzbekistan liable to Oxus for just over $13 million.
Id. Oxus appealed that decision, but on May 14,
2019, the Paris Court of Appeal dismissed that appeal.
See ECF No. 28 (Joint Status Report) at 3. Oxus
consequently decided not to further press the issue.
See ECF No. 31 (Gretton Supplemental Status Report)
the appeal unfolded in Paris, Gretton, as purported assignee
of Oxus's, filed a Petition against Uzbekistan in this
Court in July 2018 seeking to enforce the piece of the Award
in which Oxus had prevailed. See ECF No. 1.
Uzbekistan subsequently moved to dismiss the Petition on
several grounds or, in the alternative, to stay the case.
See ECF No. 17 (MTD). On February 6, 2019, this
Court stayed the case pending the outcome of the proceedings
in Paris. See Gretton Ltd., 2019 WL 464793, at *7.
With those now concluded, the Court considers
Uzbekistan's jurisdictional challenges.
FSIA is the sole basis for obtaining jurisdiction over a
foreign state in our courts.” Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).
Under the Act, “‘[p]ersonal jurisdiction over a
foreign state shall exist as to every claim for relief over
which' subject matter jurisdiction exists . . ., so long
as the defendant was properly served.” I.T.
Consultants, Inc. v. Islamic Republic of Pakistan, 351
F.3d 1184, 1191 (D.C. Cir. 2003) (quoting 28 U.S.C. §
lists, “in hierarchical order, ” four methods for
serving a foreign state. Republic of Sudan v.
Harrison, 139 S.Ct. 1048, 1054 (2019). The summons and
complaint may be delivered, first, “in accordance with
any special arrangement for service between the plaintiff and
the foreign state or political subdivision, ” 28 U.S.C.
§ 1608(a)(1), or, second, “in accordance with an
applicable international convention on service of judicial
documents.” Id., § 1608(a)(2). If the
countries lack such agreements, respondents may be served
through a third method, which involves sending the summons,
complaint, Notice of Suit, a copy of the FSIA, and
translations into the official language of the foreign state,
“by any form of mail requiring a signed receipt . . .
to the head of the ministry of foreign affairs of the foreign
state concerned.” Id., § 1608(a)(3);
see also 22 C.F.R. § 93.2(e) (requiring
inclusion of copy of FSIA). And “if service cannot be
made within 30 days” under that method, petitioners may
resort to method four: sending those same documents to the
Secretary of State for transmittal “through diplomatic
channels to the foreign state.” 28 U.S.C. §
1608(a)(4); see also Harrison, 139 S.Ct. at 1054.
subject-matter jurisdiction, “a foreign state is
presumptively immune from the jurisdiction of United States
courts unless a specified exception applies.”
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. Central Bank of Nigeria, 461 U.S.
480, 493-94 (1983).
here is the FSIA exception for actions to confirm certain
arbitration awards. See 28 U.S.C. § 1605(a)(6).
Specifically, foreign sovereigns are not immune from suits
in which the action is brought[ ] either to enforce an
agreement made by the foreign state with or for the benefit
of a private party to submit to arbitration all or any
differences which have arisen or which may arise between the
parties with respect to a defined legal relationship . . . or
to confirm an award made pursuant to such an agreement to
arbitrate, if . . . 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 arbitral awards.
Id. Notably, once a petitioner produces evidence
showing that an FSIA exception applies, “the defendant
bears the burden of proving that the . . . allegations do not
bring its case within a statutory exception to
immunity.” Phoenix Consulting, Inc. v. Republic of
Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (citing
Transamerican S.S. Corp. v. Somali Democratic
Republic, 767 F.2d 998, 1002 (D.C. Cir. 1985));
accord Chevron Corp. v. Ecuador, 795 F.3d 200, 204
(D.C. Cir. 2015).
dismissal under the doctrine of forum non conveniens
is a “non-merits threshold inquiry, ” which
“reflects a court's assessment of a range of
considerations, most notably the convenience to the parties
and the practical difficulties that can attend the
adjudication of a dispute in a certain locality.”
MBI Grp., Inc. v. Credit Foncier du Cameroun, 558
F.Supp.2d 21, 26 (D.D.C. 2008) (quoting Sinochem
Int'l Co. v. Malaysia Int'l Shipping Corp., 549
U.S. 422, 429 (2007)). Applying forum non conveniens
is a two-fold inquiry. First, the court asks whether an
adequate alternative forum exists. If so, it next looks to a
set of public and private factors to determine if they favor
dismissal. “If the balance favors the foreign forum,
and if the Court is convinced that plaintiff effectively can
bring its case in the alternative forum, the Court
may dismiss the case on grounds of forum non
conveniens.” KPMG Fin. Advisory Servs. Ltd. v.
Diligence LLC, 2006 WL 335768, at *1 (D.D.C. Feb. 14,
2006) (citing Pain v. United Techs. Corp., ...