BCB Holdings Limited v. Government of Belize, 650 Fed.Appx. 17 (2016)
[2] Belize failed to show that enforcement of foreign arbitral award would violate the most basic U.S. notions 650 Fed.Appx. 17
of morality and justice; and This case was not selected for publication in West's Federal Reporter.
[3] equitable tolling of the statute of limitations for See Fed. Rule of Appellate Procedure 32.1 bringing suit to enforce arbitral award was appropriate.
generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. D.C.Cir. Rule 32.1 and Rule 36. Affirmed.
United States Court of Appeals, District of Columbia Circuit.
*18 Appeals from the United States District Court for BCB Holdings Limited and the District of Columbia (No. 1:14-cv-01123) Belize Bank Limited, Appellees v. Attorneys and Law Firms Government of Belize, Appellant.
Louis Benjamin Kimmelman, Esquire, Attorney, Dana No. 15-7063 Chandler MacGrath, Counsel, Sidley Austin LLP, New | York, NY, Kristin Graham Koehler, Ryan Conway Consolidated with 15-7069 Morris, Esquire, Sidley Austin LLP, Washington, DC, for | Petitioners–Appellees.
September Term, 2015
Juan C. Basombrio, Dorsey & Whitney LLP, Costa Mesa, |
CA, Creighton Reid Magid, Esquire, Dorsey & Whitney Filed On: May 13, 2016
LLP, Washington, DC, for Respondent–Appellant.
Synopsis Before: Rogers, Griffith, and Kavanaugh, Circuit Judges.
Background: Belize-registered parent holding company and its banking subsidiary petitioned to confirm foreign arbitral award, pursuant to Federal Arbitration JUDGMENT
Act (FAA) and Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York This appeal was considered on the record from the United Convention), to convert award plus costs and interests States District Court for the District of Columbia and on to United States dollars, and to enter judgment in their the briefs and oral arguments of the parties. The Court has favor against Government of Belize or, alternatively, afforded the issues full consideration and has determined filed complaint to recognize and enforce foreign money that they do not warrant a published opinion. See D.C. judgment pursuant to District of Columbia Foreign- Cir. R. 36(d). It is Money Judgments Recognition Act. Belize moved to dismiss petition and complaint. The United States District ORDERED and ADJUDGED that the judgment of the Court for the District of Columbia, Colleen Kollar- District Court is hereby AFFIRMED. Kotelly, J., 110 F.Supp.3d 233, granted petition and denied motion. Belize appealed. BCB Holdings Limited and Belize Bank Limited are two Belizean banking companies. In 2005, those two companies signed an agreement with the Belizean Holdings: The Court of Appeals held that: Prime Minister regarding, among other things, their tax treatment. In 2008, the Government of Belize repudiated [1] the doctrine of international comity was not a “rule of that agreement. In response, BCB Holdings and Belize procedure” of the United States, and so did not constitute Bank invoked the agreement's arbitration clause. On a basis for denying enforcement of the foreign arbitral August 20, 2009, an arbitral tribunal in London ruled award under the New York Convention; against Belize and ordered the country to pay a substantial amount (approximately $20.5 million in U.S. dollars), plus
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
BCB Holdings Limited v. Government of Belize, 650 Fed.Appx. 17 (2016)
interest and costs. The two companies first tried to enforce the award in Belize itself. But that effort failed because Belize also argues that the District Court should have Belize's highest court ruled that the award contravened refused to enforce the arbitral award based on two other Belize's separation-of-powers system. So on July 1, 2014, public policies: the separation of powers and international BCB Holdings and Belize Bank sought to enforce the comity. But enforcement in this case would not violate any award in the U.S. District Court for the District of “basic notion of morality and justice” rooted in either of Columbia. Belize moved to dismiss the suit on a variety those two doctrines. of grounds, including international comity, public policy, forum non conveniens, and the statute of limitations. Belize contends that the District Court should have The District Court found none of Belize's arguments dismissed the enforcement action on forum non persuasive, and it enforced the arbitral award. See BCB conveniens grounds. That argument is squarely foreclosed Holdings Ltd. v. Belize, 110 F.Supp.3d 233 (D.D.C. 2015). by our precedent. In TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005), we held [1] We affirm. Under the Federal Arbitration Act, U.S. that the doctrine of forum non conveniens does not apply courts must enforce foreign arbitral awards unless they to actions in the United States to enforce arbitral awards find “one of the grounds for refusal or deferral of against foreign nations. See id. at 303–04. recognition or enforcement of the award specified in” the United Nations Convention on the Recognition and [3] Finally, Belize claims that BCB Holdings and Belize Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517 Bank were time-barred from bringing their enforcement (1958), also known as the New York Convention. 9 U.S.C action. Generally, parties must bring suit to enforce an § 207. In this case, Belize asks us to deny enforcement arbitral award within “three years after [it] is made.” on the basis of international comity. Belize argues that 9 U.S.C. § 207. Here, BCB Holdings and Belize Bank the Convention instructs courts to *19 enforce arbitral took almost five years. But the District Court equitably awards “in accordance with the rules of procedure of the tolled the statute of limitations so that their claims were territory” where the enforcement action is brought. New not time-barred. BCB Holdings Ltd., 110 F.Supp.3d at York Convention art. III. But Belize has failed to provide 245. The District Court reasoned that BCB Holdings support for its assertion that the doctrine of international and Belize Bank had pursued their rights to the arbitral comity is a “rule of procedure” of the United States. award diligently. Id. According to the District Court, the two companies had failed to enforce the award only [2] Belize also claims that the District Court should because of an external obstacle—a 2010 Belize criminal have refused to enforce the arbitral award because it statute that, as relevant here, imposed imprisonment and was the result of a corrupt bargain between the two substantial fines on those who violated a Belize Supreme companies and the former Belizean Prime Minister. Under Court injunction, including injunctions against pursuing the New York Convention, courts may decline to enforce enforcement of arbitration awards against Belize. Cf. an arbitral award if “enforcement of the award would be Belize Social Development Ltd. v. Belize, 668 F.3d 724, 729 contrary to the public policy of that country.” New York (D.C. Cir. 2012). That statute was ruled unconstitutional Convention art. V(2)(b). But courts should rely on the in January 2014. But up until that point, the District public policy exception only “in clear-cut cases” where Court observed, the statute had a “chilling effect” on “enforcement would violate the forum state's most basic enforcement efforts. BCB Holdings Ltd., 110 F.Supp.3d at notions of morality and justice.” Termorio S.A. E.S.P. 245. This Court has not resolved the appropriate standard v. Electranta S.P., 487 F.3d 928, 938 (D.C. Cir. 2007) of appellate review for equitable tolling decisions. But (citations omitted). In this case, Belize has not shown that even under de novo review, we agree with the District enforcement would violate the most basic U.S. notions of Court that equitable tolling was appropriate under all the morality and justice. The arbitral tribunal did not find any circumstances here. The companies persuasively explain corruption. And Belize's highest court refused to enforce that they *20 and their lawyers were reasonably chilled the award not because the underlying agreement was from enforcing the award in the United States because tainted by corruption, but rather because the agreement they might thereby run afoul of the Belizean statute and violated Belize's separation of powers. Belize has failed to risk criminal penalties. So long as the statute was in justify the use of the public policy exception in this case. effect, therefore, it was reasonable for BCB Holdings
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2
BCB Holdings Limited v. Government of Belize, 650 Fed.Appx. 17 (2016)
and Belize Bank to avoid any action—including starting Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance an enforcement suit in the United States. And once of the mandate herein until seven days after resolution of the statute was ruled unconstitutional, it was reasonable any timely petition for rehearing or rehearing en banc. See for BCB Holdings and Belize Bank to then file the Fed. R. App. P. 41(b); D.C. Cir. R. 41.
enforcement action in the District Court within six months.
All Citations
We have carefully considered all of Belize's arguments. We affirm the judgment of the District Court. 650 Fed.Appx. 17
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 3