United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. ##S 1, 11]
Richard J. Leon, Judge
the Court is the petitioner's Motion for Default Judgment
[Dkt. #11] and its Petition to Confirmation Arbitration Award
and to Enter Judgment ("Pet.") [Dkt. #1] under the
Foreign Sovereign Immunities Act of 1976 ("FSIA"),
28 U.S.C. §§ 1330, 1441(d), 1602 et seq.
This is an action by Customs and Tax Consultancy LLC
("CTC" or "the petitioner") against the
Democratic Republic of the Congo ("the DRC"), to
confirm an arbitral award in accordance with the United
States Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, 9 U.S.C. 201 et seq., also known as
the "New York Convention." As the petitioner has
satisfied the jurisdictional and procedural requirements for
confirmation of its claimed arbitral award, the Court GRANTS
the petitioner's motion for default judgment and its
petition to confirm the award.
2008, the DRC and CTC entered into a Technical Assistance
Contract ("the Contract") under which the DRC hired
CTC to assist in auditing, reforming, and modernizing the
DRC's customs agency, OFIDA. Pet. ¶¶ 18-25;
Decl. of Jean- Christophe Honlet ("Honlet Decl."),
Pet. Ex. A [Dkt. # 1 -1 ] ¶ 13; Award of July 22, 2015
("Translated Partial Award"), Honlet Decl. Ex. 2
[Dkt. # 1-2] at 21-28 ¶¶ 57, 60-66.
Clause twenty-four of the Contract:
Any dispute that may arise concerning the formation,
performance, construction or termination of this Contract
shall be first resolved amicably by direct negotiations
between the two contracting Parties.
If at the end of a three (3) month period from the date
notice of a dispute is given by one party to the other party
the two contracting parties have not reached an agreement to
resolve their dispute, either party may submit the dispute to
arbitration by an Arbitral Tribunal appointed in accordance
with the Rules of Arbitration of the International Chamber of
Commerce (ICC). The Arbitral Tribunal shall comprise three
arbitrators appointed in accordance with said Rules. The seat
of arbitration shall be Paris and the language of such
arbitration shall be French. The parties shall comply with
any arbitration award and, accordingly, the State expressly
waives any immunity of any kind whatsoever.
Pet. ¶ 30; Translated Partial Award at 10 ¶ 4.
31, 2013 CTC submitted a request for arbitration against the
DRC to the International Chamber of Commerce
("ICC"). Pet. ¶ 32; Translated Partial Award
at 11 ¶ 6. By March 20, 2014, the parties had retained
counsel, nominated arbitrators, and agreed to terms of
reference, and the Arbitral Tribunal ("the
Tribunal") had set a procedural timeline. Pet.
¶¶ 33-35, 37; Translated Partial Award at 11-15;
¶¶ 7-20, 23-29. CTC asserted claims and the DRC
asserted counterclaims. Pet. ¶¶ 36; Translated
Partial Award at 13 ¶ 16. The parties submitted
memoranda and supporting documents over the course of 2014.
See Pet. ¶¶ 39-42; Translated Partial
Award at 15-16 1]¶ 32-37. On October 27, 2014, the
Tribunal heard testimony and argument from both CTC and the
DRC at the ICC Hearing Center in Paris. Pet. ¶ 43;
Translated Partial Award at 20 ¶ 52. By the end of 2014,
both parties had submitted costs and fees memoranda, and the
Tribunal closed proceedings on January 23, 2015. Pet.
¶¶ 45-46; Translated Partial Award at 20
22, 2015, the Tribunal rendered the Partial Award. Pet.
¶ 47; Translated Partial Award at 117. The Tribunal
rejected the DRC's various arguments that the contract
was void and found in favor of CTC on most its claims.
See Pet. ¶¶ 48-59; Translated Partial
Award at 35-114 ¶¶ 73-237. In total, the Partial
Award awarded CTC $91, 696, 347, plus interest, in
compensation for various unpaid invoices and $3, 750, 000,
plus interest, in compensation for demobilization, indemnity,
and repatriation of its personnel. See Pet. *|ff
58-59; Translated Partial Award at 115 ¶ 239.
Thereafter, on November 19, 2015, the Tribunal rendered an
Addendum, correcting a clerical error in the Partial Award
and adding $853, 751 to the compensation for unpaid invoices.
Pet. ¶ 61; Addendum of November 19, 2015
("Translated Addendum"), Honlet Decl. Ex. 4 [Dkt.
ultimately waived the second phase of the arbitration and the
DRC did not object, so the Tribunal issued a Final Award
allocating arbitration costs and legal fees on February 22,
2016. See Pet. ¶¶ 62-64; Final Award of
February 22, 2016 ("Translated Final Award"),
Honlet Decl. Ex. 6 [Dkt. #1-8] at 9-10 ¶¶ 17-24, 16
¶ 48. The Final Award ordered the DRC to pay CTC $162,
500, plus interest, for its portion of the arbitration fees,
and €200, 000, plus interest, as compensation for
CTC's legal fees. Pet. ¶ 64; Translated Final Award
at 16 ¶ 48.
filed its petition to confirm the Partial Award, Addendum,
and Final Award on June 14, 2018. See Pet. On July
17, 2018, the Clerk of the U.S. District Court for the
District of Columbia sent copies of the summons and petition
via commercial courier. along with a translation into French,
with tracking and signature confirmation, to the DRC's
minister of foreign affairs in Kinshasa, pursuant to 28
U.S.C. § 1608(a)(3). See [Dkt. ##s 6, 7].
Information from the commercial carrier confirms that the
summons and petition were received and signed for on July 23,
2018. See [Dkt. #8-1]. Once service had been made,
the DRC was required to serve an answer or other responsive
pleading within sixty days. 28 U.S.C. § 1608(d). The DRC
neither responded, nor entered an appearance. The Clerk of
the Court entered default on September 26, 2018. [Dkt. #10].
On November 20, 2018, CTC filed a motion for default
judgment. See Mot. for Default J. ("Mot.")
[Dkt. 11]. Once again, the DRC failed to respond. That motion
is now ripe for decision.
shall not enter a default judgment against a foreign state
"unless the claimant establishes his claim or rights to
relief by evidence satisfactory to the court." 28 U.S.C.
§ 1608(e). This standard "mirrors" Federal
Rule of Civil Procedure 55(d), Owens v. Republic of
Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017), which
provides that default judgment may be entered against the
United States "only if the claimant establishes a claim
or right to relief by evidence that satisfies that court,
" Fed.R.Civ.P. 55(d). Both provisions give an
unresponsive sovereign some protection against an unfounded
default judgment, but neither provision "relieves the
sovereign from the duty to defend cases."
evaluating whether a plaintiff has sufficiently established
its claim, section 1608(e) "imposes a duty on FSIA
courts to not simply accept a complaint's unsupported
allegations as true, and obligates courts to inquire further
before entering judgment against parties in default."
Firebird Glob. Master Fund II Ltd. v. Republic of
Nauru, 915 F.Supp.2d 124, 126 (D.D.C.
2013) (internal quotation marks omitted). But the standard
does not "require the court to demand more or different
evidence than it would ordinarily receive."
Owens, 864 F.3d at 785. Thus, "[i]n evaluating
whether a plaintiff has sufficiently established its claim,
courts may accept the plaintiffs 'uncontroverted factual
allegations, which are supported by . . . documentary and
affidavit evidence."" Firebird Glob. Master
Fund II Ltd., 915 F.Supp.2d at 126 (quoting Oveissi
v. Islamic Republic of Iran, 879 F.Supp.2d 44, 49
The Court has subject matter jurisdiction over this dispute
under the FSIA and Federal Arbitration Act.
I may consider whether CTC is entitled to a default judgment
in this matter, I must first determine whether I have subject
matter jurisdiction over this dispute. Federal courts are
courts of limited jurisdiction and the law presumes that
"a cause lies outside this limited jurisdiction."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
FSIA allows the enforcement of certain foreign arbitral
awards against foreign sovereigns in U.S. courts. Under the
FSIA, a "foreign state is presumptively immune from the
jurisdiction of United States courts." Saudi Arabia
v. Nelson, 507 U.S. 349, 355 (1993). But the FSIA
enumerates several exceptions to this immunity. See
generally 28 U.S.C. § 1605. Among these exceptions
is one that applies when a party seeks to confirm certain
types of foreign arbitral awards:
A foreign state shall not be immune from the jurisdiction of
courts of the United States ... in any case ... 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, whether contractual or not,
concerning a subject matter capable of settlement by
arbitration under the laws of the United States, 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 ....
28 U.S.C. § 1605(a)(6).
governed by the New York Convention fall within the FSIA's
arbitration exception. The New York Convention is a
multilateral treaty providing for "the recognition and
enforcement of arbitral awards" across international
borders. New York Convention Art. 1(1). In the United States,
Congress has codified the Convention in the Federal
Arbitration Act ("FAA"). 9 U.S.C. §§ 202
et seq., which provides that any "action or
proceeding falling under the Convention shall be deemed to
arise under the laws and treaties of the United States"
and that the "district courts of the United States . . .
shall have original jurisdiction over such an action or
proceeding, regardless of the amount in controversy, "
id. § 203. Thus, foreign arbitral awards
governed by the New York Convention fall within the
FSIA's arbitration exception. Sterling Merchant Fin.
Ltd. v. Republic of Cabo Verde,261 F.Supp. 3d 48, 51
(D.D.C. 2017); see also Creighton Ltd. V. Gov't ...