Concesionaria Dominicana De Autopistas Y Carreteras, S.A. v. Dominican State

• Court: District Court, District of Columbia
• Decided: December 20, 2012
• Docket: Civil Action No. 2012-1335
• Status: Published

Opinion

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CONCESIONARIA DOMINICANA DE AUTOPISTAS Y CARRETERAS, S.A.,

Petitioner, Civil Action No. 12-cv-1335 (RLW) v.

THE DOMINICAN STATE,

Respondent.

MEMORANDUM OPINION 1

Petitioner Concesionaria Dominicana de Autopistas y Carreteras, S.A. (“CODACSA”)

brings this action to confirm an arbitral award against Respondent the Dominican State (the

“Dominican Republic”), pursuant to the Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (the “New York Convention”), June 10, 1958, 21 U.S.T. 2517, T.I.A.S.

No. 6997, which was codified by Congress at Chapter 2 of the Federal Arbitration Act, 9 U.S.C.

§§ 201-08. The matter is now before the Court on CODASCA’s Motion for Default Judgment.

(Dkt. No. 7). For the reasons set forth herein, CODASCA’s Motion will be GRANTED, and the

1 This unpublished memorandum opinion is intended solely to inform the parties and any reviewing court of the basis for the instant ruling, or, alternatively, to assist in any potential future analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court has designated this opinion as “not intended for publication,” but this Court cannot prevent or prohibit the publication of this opinion in the various and sundry electronic and legal databases (as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion by counsel. Cf. FED. R. APP. P. 32.1. Nonetheless, as stated in the operational handbook adopted by our Court of Appeals, “counsel are reminded that the Court’s decision to issue an unpublished disposition means that the Court sees no precedential value in that disposition.” D.C. Circuit Handbook of Practice and Internal Procedures 43 (2011). 1 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

Court will CONFIRM the underlying arbitral award issued in favor of CODASCA and against

the Dominican Republic.

BACKGROUND

On November 26, 2001, CODACSA entered into a concession contract with the

Dominican Republic related to the funding and development of several stretches of highway

extensions in the Dominican Republic. (Dkt. No. 1 (“Petition”) at ¶ 6). 2 Roughly speaking, the

contract granted CODACSA the right to collect tolls at three separate toll stations over the life of

the concession (approximately thirty years), in exchange for various financing and construction

obligations on the part of CODACSA. (Id.). Shortly after the contract was approved and

enacted by the Dominican government, however, CODACSA asserts that the Dominican

Republic breached and repudiated the contract by failing to deliver a contractually-required bank

guarantee, among other ways. (Id. at ¶ 8). In turn, CODACSA initiated arbitration proceedings

before the Arbitration Court of the International Chamber of Commerce (“ICC”), as called for by

the terms of the concession contract. (Id.). 3

2 Because the Dominican Republic has not appeared in this action whatsoever, the facts set forth herein are drawn from CODASCA’s Verified Petition to Confirm. 3 More specifically, the applicable contract between CODACSA and the Dominican Republic expressly provided as follows: 23. Settlement of Disputes. Any disputes or disagreements of any nature pertaining to or deriving from this contract, other than those that may be resolved by agreement shall be settled by arbitration in Arbitration Court of the International Chamber of Commerce in Paris, which shall administer the arbitration and designate the arbitrators in accordance with its Regulations and Bylaws. The parties also expressly agree to comply with the arbitration award handed down. (Petition at ¶ 7; Dkt. No. 1-2 at ¶ 23).

2 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

Following the appointment and confirmation of three arbitrators, the ICC held evidentiary

hearings in the matter on September 6-10, 2010, and October 25-26, 2010, in Washington D.C.

(Id. at ¶ 12). The arbitrators ultimately issued their written award on January 11, 2012, finding

that the Dominican Republic breached the contract in several respects and awarding CODACSA

damages in the amount of $33,683,759.67, along with administrative expenses, attorneys’ fees,

and pre- and post-award interest. (Id. at ¶ 14; Dkt. No. 1-4 at Sect. XIII). Several months later,

on May 25, 2012, the ICC arbitrators issued an “Addendum to the Final Arbitration Award,”

setting forth revised damages calculations for the award in favor of CODACSA. (Petition at ¶

16; Dkt. No. 1-7 at Annex A, ¶ 914). More specifically, CODACSA was awarded damages as

follows: (1) $37,438,424.56 for losses arising from the termination of the contract; (2) pre-award

interest at the rate of LIBOR plus 2% per annum, amounting to a total of $3,016,480.42; 4 (3)

$200,000.00 for administrative expenses of the ICC, including the fees and expenses of the

arbitrators; and (4) $1,892,672.86 in attorneys’ fees. (Id.). In sum, the total amount due at the

time of the final award was $42,547,577.84. (Id.). The final award also provided for post-award

interest at the rate of LIBOR plus 2% per annum, if the award was not paid within sixty days

from the date of notification. 5 (Id.).

4 The arbitrators’ award provided for pre-award interest at the rate of 2% above the LIBOR six-month average as of the date of the award—May 31, 2012. CODACSA correctly identifies that rate as 2.7364%. See BBA LIBOR, Historical Libor Rates, May 2012, available at http://www.bbalibor.com/rates/historical (last visited Dec. 20, 2012). Applied to the overall principal amount of $37,438,424.56, the applicable daily interest rate is $2,845.74. (Petition at p. 7 n.2). In turn, CODACSA tabulates the total amount of pre-award interest—covering the period from June 30, 2009 through May 31, 2012—to be $3,016,480.42. 5 CODACSA correctly identifies that applicable interest rate as of July 31, 2012, to be 2.7496%. See BBA LIBOR, Historical Libor Rates, July 2012, available at http://www.bbalibor.com/rates/historical (last visited Dec. 20, 2012). Applying that rate to the overall principal of $42,547,577.84, CODACSA calculates the applicable daily rate of interest to be $3,249.69. (Petition at p. 7 n.3). 3 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

On June 13 and 26, 2012, CODACSA requested that the Dominican Republic provide

assurances that it would honor and pay the final award within the applicable sixty-day period.

(Petition at ¶ 17). CODACSA also advised that, absent receipt of such assurances by July 10,

2012, CODACSA would initiate judicial proceedings to confirm the final award as a judgment.

(Id.). While the Dominican Republic subsequently acknowledged the receipt of CODACSA’s

requests for assurances, it did not substantively respond to those requests. (Id.).

On August 13, 2012, CODACSA filed its Verified Petition to Confirm (“Petition”)

initiating these proceedings. As required by Article IV of the New York Convention,

CODACSA attached to its Petition a certified copy of the final arbitral award, along with a

certified copy of the parties’ arbitration agreement (set forth at Paragraph 23 of the concession

contract). On September 10, 2012, CODASCA served a copy of its Petition on the Dominican

Republic through a courier, DHL World Wide Express. (Dkt. No. 5). The Dominican Republic

received and accepted service of the Petition two days later, on September 12, 2012. (Dkt. No.

6). To date, however, the Dominican Republic has not responded to CODACSA’s Petition, nor

has it otherwise appeared in this action whatsoever. As a result, CODASCA filed this Motion

for Default Judgment on November 19, 2012. (Dkt. No. 7). The Court initially issued a Minute

Order advising that CODACSA’s Motion was premature, insofar as no entry of default had been

entered against the Dominican Republic. (See Minute Order dated Nov. 30, 2012). CODACSA

then promptly moved for entry of default against the Dominican Republic, which the Clerk of

Court entered on December 3, 2012. (Dkt. No. 13). 6 This Motion is now ripe for decision.

6 The Court also notes that, although not required to do so given the Dominican Republic’s default status, CODACSA served a copy of its Return of Service Affidavit and its Motion for Default Judgment on the Dominican Republic on November 30, 2012. (See Dkt. No. 11). Yet, the Dominican Republic still has not appeared in this action whatsoever. 4 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

ANALYSIS

A. The Court Has Jurisdiction To Confirm The Arbitral Award

To begin with, given the Dominican Republic’s status as a foreign state, the Court must

first consider the impact of the Foreign Sovereign Immunities Act (“FSIA”) upon its power to

hear this case. Creighton Ltd. v. Gov’t of the State of Qatar, 181 F.3d 118, 121-24 (D.C. Cir.

1999). The FSIA renders a foreign state “presumptively immune from the jurisdiction of United

States courts.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (citing Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S. 480, 488-89 (1983)). Therefore, “unless a specified exception

applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” Id.;

see also Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83, 86 (D.C. Cir. 2005). As

relevant here, the FSIA specifically prescribes a jurisdictional exception for purposes of

confirming certain arbitration 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 . . . to confirm an award made pursuant to . . . 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)(B). This Circuit has explained that the “New York Convention is exactly

the sort of treaty Congress intended to include in the arbitration exception.” Creighton Ltd., 181

F.3d at 123-24 (quoting Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1018 (2d. Cir.

1993)) (internal quotations omitted).

Given that CODACSA properly invokes the New York Convention as the basis for its

Petition, the FSIA’s arbitration exception vests the Court with subject matter jurisdiction over

this action. An arbitral award “falls under the Convention” where it arises “out of a legal

relationship, whether contractual or not, which is considered as commercial, including a

5 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

transaction, contract, or agreement . . . .” 9 U.S.C. § 202; see also Global Distressed Alpha Fund

I LP v. Red Sea Flour Mills Co. Ltd., 725 F. Supp. 2d 198, 203 (D.D.C. 2010). The arbitral

award CODACSA seeks to confirm plainly falls under the Convention, inasmuch as it derives

from CODACSA’s commercial legal relationship with the Dominican Republic, as memorialized

in the underlying concession contract. Accordingly, the FSIA’s arbitration exception provides

the Court with subject matter jurisdiction over this case.

Relatedly, the Court also concludes that it has personal jurisdiction over the Dominican

Republic. The FSIA “specifies that personal jurisdiction over a foreign state shall exist as to

every claim for relief over which the district courts have [subject-matter] jurisdiction . . . where

service has been made under [28 U.S.C. § 1608].” GSS Group Ltd. v. Nat’l Port Auth., 680 F.3d

805, 811 (D.C. Cir. 2012) (citing 28 U.S.C. § 1330(b)). More simply put, “under the FSIA,

subject matter jurisdiction plus service of process equals personal jurisdiction.” Id.; Practical

Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11 (D.C. Cir. 1987). Therefore,

because the Court has subject matter jurisdiction under § 1605(a)(6)(B), and because CODACSA

properly effectuated service of process on the Dominican Republic pursuant to 28 U.S.C. §

1608(a)(3), (See Dkt. Nos. 3, 4, 5, and 6), the Court also has personal jurisdiction over the

Dominican Republic.

B. CODACSA Is Entitled To Confirmation of Its Arbitral Award

The New York Convention—which Congress ratified and adopted through Chapter 2 of

the Federal Arbitration Act—authorizes the recipient of a foreign arbitral award to seek an order

in federal court “confirming the award as against any party to the arbitration.” 9 U.S.C. § 207.

Upon receipt of such a petition, “[t]he court shall confirm the award unless it finds one of the

6 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

grounds for refusal or deferral of recognition or enforcement of the award specified in said

Convention.” Id. To be sure, “the FAA affords the district court little discretion in refusing or

deferring enforcement of foreign arbitral awards: the Convention is ‘clear’ that a court ‘may

refuse to enforce the award only on the grounds explicitly set forth in Article V of the

Convention.’” Belize Soc. Dev., Ltd. v. Gov’t of Belize, 668 F.3d 724, 727 (D.C. Cir. 2012)

(quoting TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C. Cir. 2007)); see also

Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85, 90 (2d. Cir.

2005) (“Given the strong public policy in favor of international arbitration, review of arbitral

awards under the New York Convention is very limited in order to avoid undermining the twin

goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive

litigation.”).

The Dominican Republic obviously does not argue that any of the exceptions under the

New York Convention preclude confirmation of CODACSA’s arbitration award—nor could it,

given its default status in this case. Nonetheless, based upon an independent review of

CODACSA’s submissions, 7 the Court concludes that none of the grounds for refusing to confirm

7 The FSIA only allows the entry of a default judgment against a foreign state “where the “the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). This standard is the same as that “applicable to default judgments against the U.S. Government under [Federal Rule of Civil Procedure] 55(e),” Hill v. Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003), and the Court “may accept as true the plaintiff[’s] uncontroverted evidence, including proof by affidavit.” Bell Helicopter Textron Inc. v. Islamic Repub. of Iran, 764 F. Supp. 2d 122, 126 (D.D.C. 2011). Here, CODACSA presented the Court with certified copies of the original concession contract (Dkt. No. 1-2), along with the ICC’s final arbitration award (Dkt. No. 1-4) and the subsequent addendum to that award (Dkt. No. 1- 7)—all of which were introduced by way of CODACSA’s verified petition, executed by Mr. Pedro Claros Alegría. Although the verification itself does not confirm Mr. Alegría’s relationship to this action, upon a review of the ICC documents lodged along with CODACSA’s Petition, Mr. Alegría appears to have been counsel of record for CODACSA in the arbitration proceedings before the ICC and therefore can properly authenticate the above-listed documents. 7 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

CODACSA’s arbitral award exists here. See G.E. Transp. S.p.A. v. Republic of Albania, 693 F.

Supp. 2d (D.D.C. 2010) (summarizing the Convention’s grounds for refusing confirmation as:

“incapacity of the parties; invalidity of the underlying agreement; an award beyond the scope of

the arbitration agreement; improper composition of the arbitral panel; and an award that has not

yet become binding, or has been set aside or suspended by a competent authority of the country

in which, or under the law of which, that award was made”). Therefore, given the Court’s

circumscribed role in reviewing CODACSA’s Petition, the Court finds that CODACSA is

entitled to confirmation of its arbitral award and a corresponding judgment against the

CONCLUSION

For the foregoing reasons, CODASCA’s Petition to Confirm the Award and for Default

Judgment is GRANTED. An Order accompanies this Memorandum Opinion.

Digitally signed by Judge Robert L. Wilkins Date: December 20, 2012 DN: cn=Judge Robert L. Wilkins, o=U.S. District Court, ou=Chambers of Honorable Robert L. Wilkins, email=RW@dc.uscourt.gov, c=US Date: 2012.12.20 09:43:43 -05'00'

ROBERT L. WILKINS United States District Judge

(See Dkt. Nos. 1-4, 1-7). Accordingly, the Court concludes that CODACSA presented “satisfactory” evidence to justify the default judgment it seeks herein. 8