Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum and Natural Gas

• Court: District Court, District of Columbia
• Decided: June 7, 2018
• Docket: Civil Action No. 2016-0140
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HARDY EXPLORATION & : PRODUCTION (INDIA), INC., : : Petitioner, : Civil Action No.: 16-140 (RC) : v. : Re Document No.: 1, 36, 37 : GOVERNMENT OF INDIA, MINISTRY : OF PETROLEUM & NATURAL GAS, : : Respondent. :

MEMORANDUM OPINION

DENYING PETITION TO CONFIRM ARBITRATION AWARD; DENYING AS MOOT PETITIONER’S MOTION FOR LEAVE TO FILE SUR-REPLY; DENYING AS MOOT RESPONDENT’S CROSS- MOTION FOR LEAVE TO FILE RESPONSE

I. INTRODUCTION

In 1997, Hardy Exploration and Production (India), Inc. (“HEPI”) entered into a contract

with the Government of India that would allow HEPI to search for and potentially extract

hydrocarbons from an area off of India’s southeastern coast. The contract provided that if HEPI

found crude oil, it would have two years to ascertain if that oil was commercially viable, but that

if it found natural gas, that assessment period would last for five years. HEPI discovered a

reserve of hydrocarbons in 2006 and claimed that it was natural gas, entitling it to a five-year

appraisal period. India disagreed, and after two years, it informed HEPI that its rights to the

Block had been relinquished. When the Indian Government refused to change its position on the

type of hydrocarbons that had been discovered, HEPI initiated arbitration proceedings pursuant

to the contract. The Tribunal ultimately found in HEPI’s favor and ordered India to allow HEPI

back onto the Block for another three years to continue its assessment of whether the natural gas it had discovered was commercially viable. The Tribunal also awarded HEPI interest on its

original investment in the Block, as well as certain costs. India immediately appealed the award

to the Delhi High Court, and HEPI filed a separate suit in the Delhi High Court to enforce the

award. As far as the Court is aware, those cases remain pending. Three years after it had won the

arbitral award, HEPI had still not been allowed back onto the Block, and therefore filed a petition

for confirmation of its arbitral award in this court under the Federal Arbitration Act. India

opposed the confirmation, claiming that the enforcement of the award’s specific performance

order would violate U.S. public policy, as would confirmation of the interest portion of the

award, which India claimed is punitive and coercive, rather than compensatory. For the reasons

set forth below, the Court finds that confirmation and enforcement of the specific performance

portion of the award would violate U.S. public policy, and therefore, the Court declines to

confirm that portion of the award. Additionally, the Court finds that granting the award of

interest, which is predicated on India complying with an order that this Court cannot issued,

would also violate U.S. public policy, and therefore declines to confirm that portion of the award

as well.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from HEPI’s participation in a Production Sharing Contract (“PSC”) with

the Government of India for the extraction, development, and production of hydrocarbons in a

geographic block found off the southeastern coast of India called CY-OS/2 (the “Block”). See

Decl. of Ian MacKenzie (“MacKenzie Decl.”) ¶ 3, ECF No. 1-2; see generally MacKenzie Decl.

Ex. 2 (“PSC”), ECF No. 1-4. The PSC was originally entered into in November 1996 by three

private companies; India’s state-owned oil company, the Oil and Natural Gas Corporation

Limited (“ONGC”); and “[t]he President of India, acting through the Joint Secretary, Ministry of

2 Petroleum and Natural Gas.” PSC at 1. The PSC permitted the three private companies to

explore the Block and, if they found commercially viable hydrocarbon reserves, to extract those

resources under a production sharing arrangement. See Pet’r’s Mem. Law Supp. Pet. to Confirm

Arbitration Award (“Pet’r’s Mem.”) at 2–3, ECF No. 1-1; PSC arts. 14–15. While HEPI was not

an original participant in the PSC, it acquired a 25% participation share from one of the original

participants in 1997, and by August 2001, HEPI had acquired a 100% participation share in the

PSC. See Pet’r’s Mem. at 3; see also MacKenzie Decl. Ex. 1 (“Award”) at 3, ECF No. 1-3;

MacKenzie Decl. Ex. 4 at 1–2, ECF No. 1-6. HEPI then transferred 25% of its interest in the

PSC to GAIL (India) Ltd, a state-owned retail gas processing and distribution company in India.

MacKenzie Decl. Ex. 5 at 2, ECF No. 1-7. HEPI maintained a 75% interest in the PSC at all

times relevant to this dispute. See Pet’r’s Mem. at 4.

Each participant in the PSC entered the agreement at their own risk. If a participant

discovered a reserve of hydrocarbons that was capable of being extracted and produced

commercially, then it would be entitled to extract and produce the hydrocarbons, and would be

entitled to keep a percentage of the hydrocarbons for itself, with the rest going to the

Government of India. See PSC arts. 14–15. If participants’ work on the Block yielded no

commercially viable discovery, the participants would be entitled to no compensation for the

investment they had put into the Block. See PSC art. 7.4 (providing that the contractor shall

“conduct all Petroleum Operations at its sole risk, cost and expense and provide all funds

necessary for the conduct of Petroleum Operations . . .” unless otherwise provided in the PSC);

see also Award at 41 (observing that “[t]here is no dispute” that a contractor “is not entitled to

any compensation if it is unable to get commercial discovery of the product within the period

specified in the contract”).

3 The PSC outlined the procedures the parties would follow in the event of a hydrocarbon

discovery. See PSC art. 9. Under the PSC, after the discovery of hydrocarbons, the participants

would enter into an appraisal period to determine whether the production of the hydrocarbons in

the newly discovered reserve would be commercially feasible. See Pet’r’s Mem. at 4; PSC arts.

9.5, 21.4.4. The PSC provided for appraisal periods of different lengths depending on the type of

hydrocarbons discovered. If the discovery was crude oil, the appraisal period would be two

years, see PSC art. 9.5; if it was natural gas, the appraisal period would be five years, see PSC

art. 21.4.4.

In late 2006, HEPI and GAIL discovered a reserve of hydrocarbons and promptly

informed the Ministry of Petroleum and Natural Gas of their discovery. Pet’r’s Mem. at 4;

Award at 7–8. HEPI believed that the hydrocarbons it had discovered was natural gas, and more

particularly, Non-Associated Natural Gas (“NANG”), and therefore that its declaration of

commerciality would not be due until January 7, 2012. Id. at 6–7, 9–11. However, the Ministry

insisted that the discovery was in fact crude oil, and accordingly that HEPI’s declaration of

commerciality was due on January 7, 2009. Id. at 9–11. Therefore, the Ministry informed HEPI

via letters dated February 20 and March 23, 2009, that HEPI’s rights to the Block were

relinquished due to its failure to submit its declaration of commerciality on time. Id. Despite

HEPI’s efforts to convince the Ministry over the next year that its discovery was natural gas and

therefore that it had not missed its deadline to file a declaration of commerciality, India would

not yield. Id. at 5. Therefore, HEPI initiated arbitration proceedings pursuant to Article 33 of the

PSC to resolve the question of which assessment period applied to the discovery of relevant

hydrocarbons in the Block. Id. at 4. A tribunal of three former Chief Justices of the Supreme

Court of India was empaneled to preside over these proceedings. Id. at 5.

4 Article 33 of the PSC provides that “any unresolved dispute, difference or claim which

cannot be settled amicably within a reasonable time may . . . be submitted to an arbitral tribunal

for final decision,” PSC art. 33.3; sets forth the procedures for any arbitration; and selects Kuala

Lumpur, Malaysia as the venue for the proceedings, PSC art. 33.12. Article 33 further provided

that “[t]he decision of the arbitral tribunal, and, in the case of difference among the arbitrators,

the decision of the majority, shall be final and binding upon the Parties.” PSC art. 33.8.

The Tribunal first turned to preliminary issues, and issued an order on May 28, 2011

finding that the dispute between the parties was subject to arbitration and within the Tribunal’s

jurisdiction. See MacKenzie Decl. Ex. 7, ECF No. 1-9; see also Award at 5. The Tribunal heard

argument on the merits of the dispute on August 20–22, 2012, in Kuala Lampur, Malaysia.

Award at 5. During the course of these proceedings, HEPI presented the testimony of two expert

witnesses to support its contention that the discovery was of natural gas, and India produced no

expert testimony to the contrary. Id. at 26–29. On February 2, 2013, the Tribunal, still sitting in

Kuala Lampur, issued a unanimous 43-page Award to HEPI, finding that “the nature of the

discovery in the Block . . . would unequivocally qualify under the term of the [PSC] as Non

Associated Natural Gas.” Id. at 29. Because the discovery was natural gas, not crude oil, the

Tribunal decided that HEPI was “denied the time provided for in the contract for appraisal and to

come to [a] conclusion about the commerciality of the discovery.” Id. at 36. The Tribunal

concluded that severing HEPI’s interest in the Block was “illegal, being on the erroneous

impression that the discovery was Oil.” Id. at 43.

To remedy what it found to be a breach of the PSC, the Tribunal ruled that India’s “order

of relinquishment is declared to be null and void.” Id. Because India had ordered the

relinquishment of the Block before HEPI was able to determine the commercial viability of the

5 hydrocarbons it had discovered, the full extent of the monetary damage to HEPI due to India’s

breach of the PCS remained unclear. Id. at 41. Therefore, the Tribunal ordered that “the parties

shall be immediately relegated to the position in which they stood prior to the order of the

relinquishment and the block shall be restored to [HEPI].” Id. at 43. Additionally, it ordered

India to pay interest on HEPI’s Rs. 500 crores investment in the Block, at a rate of 9% per year

up to the date of the award, and 18% per year thereafter until the fulfillment of the award. Id. The

Tribunal also awarded certain costs to HEPI. Id.

To date, the Government of India has only complied with the latter portion of the Award,

the payment of Rs. 51 lakhs for India’s share of the arbitration costs. See 4th MacKenzie Decl. ¶

8, ECF No. 29-1. However, in order to challenge the other two portions of the award, India filed

a petition with the Delhi High Court to invalidate the award in July 2013. Id. ¶ 9. In November

2013, HEPI filed a petition to enforce the award with the same court. Id. ¶ 10. After two years of

delays, “counsel for GOI ultimately withdrew the [invalidation] petition on the grounds that it

was not properly under the jurisdiction of the Delhi High Court,” but rather that of the Madras

High Court in Chennai, the high court geographically closest to the Block. Id. ¶ 14. However,

less than a month later India filed a review petition seeking to reverse the order dismissing its

action to invalidate the award. Id. ¶ 15. After the Delhi High Court dismissed this review petition

in January 2016, India filed an appeal of the dismissal of the review petition. Id. ¶ 19–21.

Following several adjournments at the request of India’s counsel, the matter was heard in May

2016 and dismissed by the Delhi High Court, again on jurisdictional grounds, in July 2016. Id. ¶

22. This time, however, the jurisdictional basis of the dismissal was not the fact that the high

court in Chennai was the proper court to hear the case. Rather, it was because the Delhi High

Court had found that the seat of arbitration had been Malaysia, rather than India, and therefore,

6 that Indian courts did not have the power to set aside the arbitral award pursuant to Section 34 of

the Arbitration and Conciliation Act, 1996, India’s statute governing arbitration. See 4th

MacKenzie Decl. Ex. 5 (“Judgment”) at 17–22, ECF No. 29-6.

In October 2016, India filed for leave to appeal the dismissal with the Supreme Court of

India. 4th MacKenzie Decl. ¶ 23. It also moved for the Supreme Court to stay the arbitration

award, which the court denied. Id. Arguments on the appeal were delayed for almost a year due

to the unavailability of India’s counsel and the Supreme Court, and the docket in this case does

not indicate whether the appeal has yet been fully heard, nor does it indicate whether the

Supreme Court has ruled on the appeal. Id. ¶ 27. In the meantime, HEPI’s petition for execution

of the Award before the Delhi High Court has been repeatedly adjourned pending the disposition

of India’s appeal. Id. ¶ 28.

Due to this delay, HEPI decided to avail itself of the enforcement powers of this Court as

well, and in January 2016 filed the instant petition for enforcement of the arbitral award. See

Pet’r’s Pet. to Confirm Arbitration Award (“Pet’r’s Pet.”), ECF No. 1. Following briefing and an

order from this Court regarding proper service of India, India filed its response to HEPI’s

petition, arguing that the Court should decline to enforce the arbitral award because confirming

both the specific performance and interest aspects of the Award would violate U.S. public policy.

See Resp’t’s Resp. Pet’r’s Pet. (“Resp.”), ECF No. 28. It further moved for the Court to stay

these proceedings while its petition to set aside the arbitral award remains pending in India. Id.

HEPI’s petition, and India’s request that the Court stay these proceedings, are now ripe for

decision.

7 III. LEGAL STANDARD

“The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of

June 10, 1958, also known as the ‘New York Convention,’ [21 U.S.T. 2517,] is enforced through

the Federal Arbitration Act, 9 U.S.C. § 201 (2012).” Matter of Arbitration of Certain

Controversies Between Getma Int’l & Republic of Guinea, 142 F. Supp. 3d 110, 112–13 (D.D.C.

2015). Under the New York Convention and the Federal Arbitration Act, a recipient of a foreign

arbitral award may seek confirmation and enforcement of the award in U.S. federal courts. See 9

U.S.C. §§ 202, 207.

“Consistent with the ‘emphatic federal policy in favor of arbitral dispute resolution’

recognized by the Supreme Court[,] . . . the FAA affords the district court little discretion in

refusing or deferring enforcement of foreign arbitral awards.” Belize Social Development Ltd. v.

Government of Belize, 668 F.3d 724, 727 (D.C. Cir. 2012) (quoting Mitsubishi Motors Corp. v.

Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 631 (1985)). Courts “may refuse to enforce the

award [brought under the New York Convention] only on the grounds explicitly set forth in

Article V of the Convention.” TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C.

Cir. 2007) (citation omitted); see also Int’l Trading & Indus. Inv. Co. v. DynCorp Aerospace

Tech., 763 F. Supp. 2d 12, 19 (D.D.C. 2011) (collecting cases). Because “the New York

Convention provides only several narrow circumstances when a court may deny confirmation of

an arbitral award, confirmation proceedings are generally summary in nature.” DynCorp

Aerospace Tech., 763 F. Supp. 2d at 20 (citing Zeiler v. Deitsch, 500 F.3d 157, 169 (2d Cir.

2007)). “[T]he burden of establishing the requisite factual predicate to deny confirmation of an

arbitral award rests with the party resisting confirmation, and the showing required to avoid

8 summary confirmation is high.” BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233, 247

(D.D.C. 2015) (alteration in original) (internal citations and quotation marks omitted).

IV. ANALYSIS

India has presented two major arguments for why HEPI should not be granted the

confirmation it seeks. First, it argues that confirmation of the two remaining portions of the

arbitral award—specific performance and interest—would violate U.S. public policy. See Resp.

at 6–7. Second, it argues that if the Court finds that the award does not violate U.S. public policy,

and therefore that it should be confirmed, the Court should stay the enforcement of the award

while India’s appeal of the award and HEPI’s parallel litigation to enforce the award proceed

through the Indian court system. Id. at 40. The Court first addresses India’s arguments regarding

a stay of these proceedings, and, finding that a stay is not warranted, then addresses India’s

arguments regarding whether confirmation of the award would violate U.S. public policy.

A. Request for Stay

India has moved for a stay of these proceedings pending the resolution of its appeal of the

arbitral award in India pursuant to Article VI of the New York Convention, which provides that

“[i]f an application for the setting aside or suspension of the award has been made to a competent

authority referred to in article V(1)(e), the authority before which the award is sought to be relied

upon may, if it considers it proper, adjourn the decision on the enforcement of the award.” New

York Convention, art. VI. A “competent authority” referred to in Article V(1)(e) is one “of the

country in which, or under the law of which, that award was made.” New York Convention, art.

V(1)(e). India further argues that this Court should stay the proceedings pursuant to the doctrines

of forum non conveniens and international comity. See Resp. at 40. HEPI counters that because

India brought a set-aside suit in India, rather than Malaysia, the requirements of an Article VI

9 stay have not been met. See Pet’r’s Mem. P. & A. Resp. Resp’t’s Opp’n (“Pet’r’s Resp.”) at 34–

35, ECF No. 29. It further argues that forum non conveniens and international comity are not

available as defenses to enforcement actions in this Circuit. See id. at 23, 31–32. For the reasons

set forth below, the Court finds a stay of these proceedings unwarranted, and therefore denies

India’s request.

The D.C. Circuit has explained that “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,’” and a court “may adjourn enforcement proceedings only on the grounds explicitly

set forth in Article V(1)(e) 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, 487 F.3d at 935). While other circuits

have found that “a district court nevertheless retains the inherent authority to issue a stay for the

purposes of managing its own docket” in FAA cases, the D.C. Circuit has eschewed such

flexibility. Cf. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1172

n.7 (11th Cir. 2004); see also Hewlett–Packard Co. v. Berg, 61 F.3d 101, 106 (1st Cir. 1995)

(concluding that a district court may consider staying a case in broader circumstances than those

found in Article VI of the Convention, but cautioning that the power to stay should be used

judiciously). As such, the Court is limited to granting stays only when “an application for setting

aside or suspension of the award has been made to a competent authority referred to in article

V(1)(e)”—that is, “a competent authority of the country in which, or under the law of which, that

award was made.” New York Convention, arts. V, VI.

India filed suit with the Delhi High Court to set aside the arbitration award in 2013, and

HEPI filed suit with the Delhi High Court to enforce the arbitration award, also in 2013. Pet’r’s

10 Pet. at 5; Resp. at 13. The court dismissed India’s set-aside action in July 2015, finding that it did

not have jurisdiction and that the action should have been brought in Chennai, which is the

locality closest to the Block. Resp’t’s Resp. at 13. India’s request for reconsideration was denied

in January 2016, on the ground that Indian courts do not have the authority to set aside this

award. Id. India then appealed to the Indian Supreme Court, but the docket in this case does not

indicate that the Indian Supreme Court has ruled on the appeal in the set-aside case. Id. The

docket likewise does not indicate that the Delhi High Court has ruled on HEPI’s petition to

enforce the arbitration award.

HEPI and India contest whether Indian courts have power under the New York

Convention to set aside the award, and therefore, whether a petition in India to set aside the

arbitral award counts as an application with “a competent authority of the country in which, or

under the law of which, that award was made.” New York Convention, arts. V, VI; see Pet’r’s

Mem. at 12–13; Resp. at 14–18. India argues that Indian courts are one such competent authority

because India was the country under whose law the arbitration award was made. Resp. at 14–18.

HEPI argues that “India has failed to initiate any action before the courts of a competent

authority, and therefore has no basis to apply for a stay” because Malaysian courts, rather than

Indian courts, are the only courts of competent authority to set aside the award. Pet’r’s Resp. at

32.1

1 Both parties have requested leave to submit additional briefing, along with expert affidavits, concerning the question of whether India is the competent authority to set aside the arbitration agreement, and therefore, whether the Court has the power to grant a stay of these proceedings. See Pet’r’s Mot. for Leave to File Sur-reply, ECF No. 36; Resp’t’s Cross-Mot. for Leave to File Resp., ECF No. 37. As explained below, the Court ultimately finds that it can resolve the question of whether a stay should be granted without determining whether Indian courts have the authority to set aside the arbitral award, and therefore denies both parties’ motions as moot.

11 If the Court were to find that Indian courts have the authority to set aside the award under

the New York Convention, the Court would next turn to deciding whether a stay under these

circumstances is proper. “A stay of confirmation should not be lightly granted,” because “the

adjournment of enforcement proceedings impedes the goals of arbitration—the expeditious

resolution of disputes and the avoidance of protracted and expensive litigation.” Europcar Italia,

S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310, 317 (2d Cir. 1998). Therefore, the Second Circuit

in Europcar listed several factors for courts to consider when determining whether to stay

arbitral enforcement proceedings, which courts in this district have chosen to apply on several

occasions.

Europcar instructs courts to look at:

(1) the general objectives of arbitration—the expeditious resolution of disputes and the avoidance of protracted and expensive litigation; (2) the status of the foreign proceedings and the estimated time for those proceedings to be resolved; (3) whether the award sought to be enforced will receive greater scrutiny in the foreign proceedings under a less deferential standard of review; (4) the characteristics of the foreign proceedings including (i) whether they were brought to enforce an award (which would tend to weigh in favor of a stay) or to set the award aside (which would tend to weigh in favor of enforcement); (ii) whether they were initiated before the underlying enforcement proceeding so as to raise concerns of international comity; (iii) whether they were initiated by the party now seeking to enforce the award in federal court; and (iv) whether they were initiated under circumstances indicating an intent to hinder or delay resolution of the dispute; (5) A balance of the possible hardships to the parties . . . ; and (6) Any other circumstance that could tend to shift the balance in favor of or against adjournment . . . .

Gold Reserve Inc. v. Bolivarian Republic of Venezuela, 146 F. Supp. 3d 112, 134–35 (D.D.C.

2015) (quoting Europcar, 156 F.3d at 317–18). Additionally, the court in Europcar specified that

12 “[b]ecause the primary goal of the Convention is to facilitate the recognition and enforcement of

arbitral awards, the first and second factors on the list should weigh more heavily in the district

court’s determination.” Europcar, 156 F.3d at 318. “A stay of confirmation should not be lightly

granted lest it encourage abusive tactics by the party that lost in arbitration.” Id. at 317 (citing

Hewlett–Packard Co., 61 F.3d at 106).

Courts in this District have often utilized the Europcar factors in determining whether to

grant a stay of arbitral enforcement proceedings. See, e.g., Hulley Enterprises Ltd. v. Russian

Fed’n, 211 F. Supp. 3d 269 (D.D.C. 2016); Stati v. Republic of Kazakhstan, 199 F. Supp. 3d 179

(D.D.C. 2016); Chevron Corp. v. Republic of Ecuador, 949 F. Supp. 2d 57 (D.D.C. 2013). While

the D.C. Circuit has yet to explicitly adopt the Europcar factors, the Court will follow the lead of

other courts in this District and analyze the prudence of a stay of these proceedings according to

the Europcar factors.

The Court begins by considering the first and second Europcar factors, which “should

weigh more heavily in the district court’s determination,” “[b]ecause the primary goal of the

Convention is to facilitate the recognition and enforcement of arbitral awards.” Europcar, 156

F.3d at 318. India claims that staying these proceedings would satisfy the first Europcar factor

because a stay would further “the general objectives of arbitration – expeditious resolution of

disputes and the avoidance of protracted and expensive litigations.” Resp. at 42 (quoting

Europcar, 156 F.3d at 317). India supports this claim by arguing that “[h]ere, the pending court

proceedings in India could effectively and expeditiously resolve the issues of both confirmation

and enforcement of the Award.” Resp. at 42. India also claims that the second Europcar factor,

“the status of the foreign proceedings and the estimated time for those proceedings to be

resolved,” Europcar, 156 F.3d at 317, also counsels in favor of a stay of these proceedings. Resp.

13 at 42–43. HEPI argues that these factors in fact counsel against a stay, because “[f]ar from

offering speedy resolution, the Indian proceedings have been characterized by inordinate delay.”

Pet’r’s Resp. at 36.

The Court agrees with HEPI’s assessment of the timeliness of the Indian proceedings and

the likelihood of their resolution in the near future. India filed its suit to set aside the arbitral

award nearly five years ago, in July 2013. 4th MacKenzie Decl. ¶ 9. After several years of delay

by both the Government of India and the courts, India’s set-aside action was dismissed for lack

of jurisdiction in July 2016. Id. ¶ 22. India appealed to the Supreme Court of India in October

2016. Id. ¶ 23. There is no indication on the docket that the Supreme Court has ruled on this

appeal, which has been delayed over and over again due to the actions of the Government of

India and the Supreme Court. Id. ¶¶ 23–27. Additionally, the parties have given no indication of

how long they expect it will take the Indian court system to reach a final resolution in this case

once the Supreme Court of India has determined whether the Delhi High Court has jurisdiction

to hear the set-aside action on its merits, or whether only the courts in Malaysia do, forcing India

to refile its suit there. Similarly, the parties have given no indication of how long they expect it

will take for the Delhi High Court to reach the merits of HEPI’s enforcement action, given that

the courts have been inclined to postpone deciding that case until India’s set-aside action has

been resolved. Id. ¶ 28.

As HEPI has pointed out, courts in this district have readily found stays inappropriate

when foreign set-aside proceedings have remained pending for half a decade. Pet’r’s Resp. at

35–38. In Chevron, the court took into account the fact that the underlying arbitration had

occurred over six years prior and the protractedness of set-aside litigation pending in The Hague

when it decided not to stay its confirmation of Chevron’s arbitral award. 949 F. Supp. 2d at 72.

14 Likewise, in G.E. Transp. S.p.A. v. Republic of Albania, the court took into consideration the fact

that the arbitration process had commenced four years prior and the fact that appeal proceedings

in Italy would likely not be completed for another four when it decided to confirm the arbitral

award. 693 F. Supp. 2d 132, 138-139 (D.D.C. 2010). Here, the fact that the underlying arbitral

award was rendered five years ago and the fact that there is no clear end to the Indian set-aside

proceedings in sight counsels against granting India a stay.

Next the Court considers the third Europcar factor, which is “whether the award sought

to be enforced will receive greater scrutiny in the foreign proceedings under a less deferential

standard of review.” 156 F.3d at 317. India claims, without citation, that the award will be

subject to more exacting scrutiny when an Indian High Court rules on HEPI’s Indian

enforcement action, because “Indian law permits courts to refuse confirmation and enforcement

on public policy grounds that are broader than those permitted in the United States.” Resp. at 43.

It continues that “in order for an arbitral award to be confirmed and enforced in India and not be

considered a violation of Indian public policy, it must meet four criteria: (1) compliance with

Indian statutes and judicial precedents; (2) adherence to a ‘judicial approach’; (3) compliance

with ‘Natural Justice’; and (4) reasonableness.” Id. Conversely, this Court is only empowered to

decline enforcement of this award if “[t]he recognition or enforcement of the award would be

contrary to the public policy of th[is] country,” because no other grounds for declining

enforcement are applicable in this case. See New York Convention, art. V(2)(b). HEPI argues

that India’s standard for arbitral enforcement is irrelevant here, “since India is not a competent

authority to set aside the Award.” Pet’r’s Resp. at 37. However, this argument misses India’s

point regarding how Indian courts will review the award in enforcement proceedings, rather than

set-aside proceedings. While it would have been preferable for India to direct the Court toward

15 sources indicating that Indian courts have broader discretion when deciding whether to enforce

arbitral awards, the Court will take India’s word that Indian courts evaluate whether arbitral

awards comport with Indian law when considering whether to enforce that award, a power that

American courts do not have, until the award has actually been set aside by a competent

authority. See Four Seasons Hotels, 613 F. Supp. 2d at 1369 (“A holding in an arbitration award

that is contrary to the substantive law governing the arbitration is not a defense under the

Convention, and therefore a district court generally may not review an arbitration award on the

merits.”) (citing China Nat’l Metal Prods. Import/Export Co. v. Apex Digital, Inc., 379 F.3d 796,

799 (9th Cir. 2004)). Therefore, the third Europcar factor counsels in favor of a stay.

The fourth factor instructs the court to examine the characteristics of the foreign

proceedings in several respects, including

the characteristics of the foreign proceedings including (i) whether they were brought to enforce an award (which would tend to weigh in favor of a stay) or to set the award aside (which would tend to weigh in favor of enforcement); (ii) whether they were initiated before the underlying enforcement proceeding so as to raise concerns of international comity; (iii) whether they were initiated by the party now seeking to enforce the award in federal court; and (iv) whether they were initiated under circumstances indicating an intent to hinder or delay resolution of the dispute.

Europcar, 156 F.3d at 318. In this case, analysis of the first and third subfactors tug in both

directions, as there are two cases regarding the arbitral award pending in India: one initiated by

India to set aside the award (counseling against a stay) and one initiated by HEPI to enforce the

award (counseling in favor of a stay). Both suits were filed prior to the filing of this case,

counseling in favor of a stay. The fourth subfactor asks the Court to consider the motivations

underlying the foreign proceedings, and consider whether they were commenced in good faith.

India has provided no explanation for why, throughout its appeal, hearings repeatedly needed to

16 be continued because India’s attorney was not prepared for the hearings. See 4th MacKenzie

Decl. ¶¶ 9–27. While the Court acknowledges the right of the Indian government to challenge an

arbitral award that it believes was unlawful, India’s contributions to the protractedness of the

litigation in the Indian courts cannot be denied. As such, the Court finds that overall, the fourth

Europcar factor counsels against a stay.

The fifth factor likewise counsels against a stay. India’s initial breach of its contract with

HEPI occurred nine years ago, and the arbitral award in question was handed down five years

ago. While the interest that HEPI was awarded through arbitration would continue to accrue in

the event of a stay, there is no doubt that, given the length of time HEPI has waited to receive the

award, and the amount of money at issue, HEPI would be burdened should the Court delay

confirmation of the award. See Chevron Corp., 949 F. Supp. 2d at 72. Last, pursuant to the sixth

Europcar factor (“[a]ny other circumstance that could tend to shift the balance in favor of or

against adjournment”), 156 F.3d at 317, the Court notes in particular the fact that the Supreme

Court of India has already declined to stay the arbitration award pending India’s appeal regarding

the Delhi High Court’s jurisdiction over the set-aside suit. See 4th MacKenzie Decl. ¶ 23; see

also G.E. Transp. S.p.A., 693 F. Supp. 2d at 139 (“Furthermore, the court notes that the Court of

Appeals in Rome declined to set aside the Arbitral Award on an interim basis.”). This Court is

disinclined to question that assessment.

Overall, examination of the six Europcar factors demonstrates that a stay is not warranted

in this case. Because the Court determines that the application of the six Europcar factors

counsels against staying this enforcement action, the Court need not determine whether Indian

courts, under Indian law, have the power to set aside the arbitral award. Because the Court need

not determine the “seat” of the arbitration for the purposes of considering whether it will grant a

17 stay in this case, the Court need not consider the arguments raised in HEPI’s proposed sur-reply

and India’s proposed sur-sur-reply. Because this is not a situation in which the “proposed

surrepl[ies] would be helpful to the resolution of the pending motion,” Glass v. Lahood, 786 F.

Supp. 2d 189, 231 (D.D.C. 2011), the Court denies HEPI’s motion for leave to file its sur-reply

(ECF No. 36), and India’s cross-motion for leave to a file a response to the sur-reply (ECF No.

37).

B. The Arbitration Award

Having ruled against India’s request to stay these proceedings, the Court now turns to

HEPI’s petition for enforcement of the Award. Because it has already received the costs portion

of the arbitral award, see 4th MacKenzie Decl. ¶ 8, HEPI urges this Court to affirm and enforce

the two remaining portions of the award: return of the Block to HEPI for a period of three years

and interest on its original investment in the Block. India responds that the Court should decline

to enforce these two components of the award on public policy grounds, as permitted by the New

York Convention. See New York Convention, art. V(2)(b). First, it argues that because

confirmation of the award “would not lead to the usual result this Court is used to seeing—a

monetary judgment that the petitioner can then enforce against the sovereign nation’s

commercial assets located within the U.S.,” but rather “would divest [India] of possession and

control of its own territorial waters and natural resources,” the confirmation “would be contrary

to the public policy of [the United States].” Resp. at 19. It further argues against confirmation of

the monetary portion of the award because “[t]he United States has clear public policy

prohibiting punitive measures against foreign nations,” and therefore it cautions against

confirmation of an arbitral award meant to “punish[] India for its ‘illegal acts’ and any future

18 disobedience of its injunctive decree by ordering India to pay interest on a base amount unless

and until it restores the Block to Hardy.” Id. at 37–38.

As both parties acknowledge, the burden of demonstrating that the confirmation of an

arbitral award would violate U.S. public policy is a heavy one. Analysis of a proposed public-

policy defense “begins with the strong public policy favoring confirmation of foreign arbitration

awards,” Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v.

Cubic Def. Sys., Inc., 665 F.3d 1091, 1098 (9th Cir. 2011), because “[t]he goal of the [New

York] Convention, and the principal purpose underlying American adoption and implementation

of it, was to encourage the recognition and enforcement of commercial arbitration agreements in

international contracts and to unify the standards by which agreements to arbitrate are observed

and arbitral awards are enforced in the signatory countries.” Scherk v. Alberto–Culver Co., 417

U.S. 506, 520 n.15 (1974). Due to the “‘emphatic federal policy in favor of arbitral dispute

resolution’ . . . the FAA affords [a] district court little discretion in refusing or deferring

enforcement of foreign arbitral awards.” Belize Soc. Dev. Ltd., 668 F.3d at 727 (quoting

Mitsubishi Motor Corp., 473 U.S. at 631). Courts in this circuit have repeatedly held that “courts

should rely on the public policy exception only ‘in clear-cut cases’ where ‘enforcement would

violate the forum state’s most basic notions of morality and justice.’” Newco Ltd. v. Gov’t of

Belize, 650 F. App’x 14, 16 (D.C. Cir. 2016) (emphasis added) (citing TermoRio S.A. E.S.P., 487

F.3d at 938); see also Chevron Corp., 949 F. Supp. 2d at 69 (D.D.C. 2013) (citing Parsons v.

Whittemore Overseas Co. v. Societe Generale De L’Industrie Du Papier (RAKTA), 508 F.2d 969,

974 (2d Cir. 1974)). The public policy defense under Article V(2)(b) of the New York

Convention is to be construed narrowly and is available only where an arbitration award “tends

clearly to undermine the public interest, the public confidence in the administration of the law, or

19 security for individual rights of personal liberty or of private property.” Enron Nigeria Power

Holding, Ltd. v. Fed. Republic of Nigeria, 844 F.3d 281, 289 (D.C. Cir. 2016). Such a public

policy must be “explicit” and “well defined and dominant, and is to be ascertained by reference

to the laws and legal precedents.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29,

43 (1987). The “provision was not meant to enshrine the vagaries of international politics under

the rubric of ‘public policy,’ ” and it does not provide that awards that might contravene U.S.

interests may be resisted on such grounds. Parsons, 508 F.2d at 974. The public policy exception

cannot be used to simply question the merits of the underlying award. See Chevron Corp., 949 F.

Supp. 2d at 69.

Therefore, the Court must determine whether the confirmation of the specific

performance and interest portions of the arbitral award violate the United States’ most basic

notions of morality and justice, defined by its laws and legal precedents.

1. Specific Performance

This case presents the Court with a unique opportunity to balance two important U.S.

public policy values: respect for the sovereignty of other nations and respect for foreign arbitral

agreements. India urges the Court to decline confirmation of the portion of the award ordering it

to allow HEPI back onto the Block to continue its determination of whether the reserve of natural

gas it discovered in 2006 is commercially viable, claiming that such a confirmation would be in

violation of U.S public policy for several reasons. First, it claims that enforcement of the award

would violate the U.S.’s clear public policy preference of respecting the sovereignty of foreign

nations, including their right to control their own lands and national resources. Resp. at 19.

Second, it claims that the specific performance portion of the award was granted in contravention

of Indian law, which prohibits the granting of specific performance other than in limited

20 circumstances. Id. at 31. Third, it claims that an order confirming the arbitral award would be too

difficult to enforce and supervise. Id. at 35. Fourth, it argues that enforcement of the award

would violate the doctrines of comity and act of state. Id. at 26.

In response, HEPI argues that India overstates the affront confirmation of the award

would be to India’s sovereignty, and also overstates the hesitancy of U.S. courts to hold foreign

governments accountable when they harm private parties. See Pet’r’s Resp. at 15–23. It also

contends that India’s emphasis on its belief that the award violates Indian statute is an attempt to

reargue the merits of the arbitration award, something this Court is not allowed to consider. Id. at

25. It further argues that compliance with the award would not be too difficult to supervise, and

that the doctrines of comity and act of state are inapplicable in arbitration award confirmation

cases. Id. at 23–24.

Despite HEPI’s examples to the contrary, the Court finds that India does not overstate the

United States’ public policy interest in respecting the right of other nations to control the

extraction and processing of natural resources within their own sovereign territories. The Court

therefore finds that India has met its burden of demonstrating that confirmation of the specific

performance portion of the award would be contrary to U.S. public policy, and therefore the

Court declines to confirm this portion of the award. Because the Court declines confirmation of

the award on this ground, it does not reach India’s other arguments as to why the Court should

decline to confirm this portion of the award.

There is no doubt that “[a]ctions against foreign sovereigns in our courts raise sensitive

issues concerning the foreign relations of the United States” and other nations. Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 493 (1983). That is why “[o]ur courts have understood, as

international law itself understands, foreign nation states to be ‘independent sovereign’ entities.

21 To grant those sovereign entities an immunity from suit in our courts both recognizes the

‘absolute independence of every sovereign authority’ and helps to ‘induc[e]’ each nation state, as

a matter of ‘international comity,’ to ‘respect the independence and dignity of every other,’

including our own.” Bolivarian Republic of Venezuela v. Helmerich & Payne Intern. Drilling

Co., 137 S. Ct. 1312, 1319 (2017). This respect for the independence and dignity of other nations

includes respect for their territorial integrity.

The United States’ recognition and respect of other nations’ sovereignty is expressed

through the Foreign Sovereign Immunities Act, which provides that “foreign state[s] shall be

immune from the jurisdiction of the courts of the United States and of the States except as

provided in” three subsequent subsections of the Act. 28 U.S.C. § 1604. One such exception

enumerated in the Act is when a party seeks to enforce a foreign arbitration agreement or have a

foreign arbitral award confirmed, as HEPI has done here. See 28 U.S.C. § 1605(a)(6). Neither

this exception nor any of the others listed in the FSIA specifies whether U.S. courts’ jurisdiction

extends to awards of specific performance to be completed outside the territorial jurisdiction of

the United States, or indeed, even within the territorial jurisdiction of the United States.

Therefore, the crucial question for this Court to consider is whether the enforcement of an

arbitral award granting specific performance against a foreign sovereign, and extraterritorial

specific performance at that, would undercut American public policy, as expressed through the

FSIA and other treaties regarding the liability of foreign nations to which the United States is a

party.

To counter India’s contention regarding U.S. public policy, HEPI first points out that

courts have in the past enforced arbitral awards for specific performance in other countries, and

that therefore, confirmation of arbitral awards that grant extraterritorial specific performance do

22 not violate U.S. public policy. See Pet’r’s Resp. at 20–21 (citing NTT DoCoMo v. Ultra d.o.o.,

No. 10-cv-3823, 2010 WL 4159459, at *3 (S.D.N.Y. Oct. 12, 2010) (enforcing award requiring

foreign party to stock purchase agreement to perform its purchase obligations); Four Seasons

Hotels, 613 F. Supp. 2d at 1369 (confirming award providing injunctive relief and specific

performance of management agreement relating to a hotel in Venezuela)). However, as India

indicates, both of these confirmations of awards ordering extraterritorial specific performance

were against private corporations, rather than foreign nations. As such, these district court cases

do not convince the Court that confirmation of this award would not violate U.S. public policy’s

respect for national sovereignty.

HEPI also highlights two instances in which American courts granted specific

performance against defendant sovereign nations outside of the international arbitration context.

In Chabad v. Russian Federation, a court in this district ordered Russia to “surrender to the

United States Embassy in Moscow or to the duly appointed representatives of . . . Chabad . . . the

complete collection” of certain expropriated religious texts and artifacts in Russia’s possession.

915 F. Supp. 2d 148, 150–52 (D.D.C. 2013). HEPI argues that this case demonstrates that “U.S.

courts have not hesitated to order extraterritorial specific performance or injunctive relief against

foreign states.” Pet’r’s Resp. at 21. However, after Russia had refused to comply with the order,

and after the plaintiff had moved for the imposition of civil contempt sanctions against Russia,

the United States filed a Statement of Interest, explaining that while the government was actively

working through diplomatic channels to recover the artifacts in question, it believed that the

FSIA “does not permit a court to compel compliance with a specific performance order regarding

property held by a foreign sovereign within the sovereign’s own territory,” and also that “the

provision of such relief would be contrary to the foreign policy interests of the United States.”

23 Statement of Interest of the United States, Chabad v. Russian Fed’n, No. 05-1548, Aug. 29,

2012, ECF No. 111 at 2. The United States Government highlighted that “FSIA’s exceptions

from execution immunity apply only to a foreign state’s ‘property in the United States,’ and even

that property is subject to execution only in carefully circumscribed and extremely limited

circumstances.” Id. at 6 (quoting 28 U.S.C. § 1610(a)). It further highlighted that many circuit

courts have found the language of 28 U.S.C. § 1610(a) referring only to the execution against

property “in the United States” to be significant. Id. at 5 (citing, for example, Autotech Tech. LP

v. Integral Research & Dev. Corp., 499 F.3d 737, 750 (7th Cir. 2007) (“The FSIA did not

purport to authorize execution against a foreign sovereign’s property, or that of its

instrumentality, wherever that property is located around the world. We would need some hint

from Congress before we felt justified in adopting such a breathtaking assertion of extraterritorial

jurisdiction.”)). The United States therefore concluded that, without this limitation, judicial

seizure of the property of a foreign state may well “be regarded as an affront to its dignity and

may affect [the U.S.’s] relations with it.” Id. at 6–7 (quoting Republic of Philippines v. Pimentel,

553 U.S. 851, 866 (2008) (internal quotation and ellipses omitted)).2

While the injunction in Chabad stemmed from a suit seeking the return of expropriated

property, the limited language of 28 U.S.C. § 1610(a) also applies when “the judgment is based

on an order confirming an arbitral award rendered against the foreign state, provided that

attachment in aid of execution, or execution, would not be inconsistent with any provision in the

arbitral agreement.” 28 U.S.C. § 1610(a)(6). As such, the Court finds that the policy interests

expressed by the United States in Chabad are also relevant in this case, which concerns an order

2 The district court ultimately granted Chabad its sanctions, despite the United States’ objection, see Chabad v. Russian Fed’n, 915 F. Supp. 2d 148 (D.D.C. 2013), and because Russia was in default, it never appealed.

24 that would deprive a foreign nation of the ability to decide who will be able to extract and utilize

its natural resources.

The second case HEPI cites is also relevant, but ultimately does not convince the Court

that HEPI must prevail. See Pet’r’s Resp. at 22. In NML Capital v. Argentina, the Second Circuit

affirmed a district court’s orders permanently enjoining Argentina from making payments on

bonds issued pursuant to its debt restructurings without making comparable payments on

defaulted bonds. 699 F.3d 246, 261–65 (2d Cir. 2012). In that case, the court awarded specific

performance because it had found that money damages would be an insufficient remedy for the

plaintiffs. In justifying this remedy, the court further reasoned that even though the court was

prohibiting Argentina from transferring money to some bondholders before it had paid others,

the injunctions were permissible because they could “be complied with without the court[] ever

exercising dominion over sovereign property.” Id. at 262–65. Additionally, “[t]he [i]njunctions

d[id] not require Argentina to pay any bondholder any amount of money; nor d[id] they limit the

other uses to which Argentina may put its fiscal reserves.” Id. at 263. Nevertheless, the

injunctions against Argentina were extraordinary to the extent that they prevented a sovereign

nation from spending its money in the way that it saw fit, and indeed demonstrated that in some

particular instances, U.S. courts have chosen to exercise their authority in a manner that

contravenes usual notions of nations’ rights to control what occurs within their borders.

India argues that a confirmation of the award would go even farther than the injunction in

NML Capital, because it would require “India to give possession of its territorial waters to Hardy

and permit Hardy to commercially develop India’s natural resources.” Resp. at 19. While the

Court questions this assertion—after all, the PSC specifies that “India’s natural resources remain

vested in India . . . and subject to its control . . . , while HEPI bears the status of a ‘Contractor’

25 with limited rights and obligations enumerated in the PSC,” Pet’r’s Resp. at 20—the Court

nevertheless finds that this infringement on India’s national sovereignty would contravene the

United States’ public policy interest in respecting the territorial integrity of other nations for

several reasons.

First, the Court agrees with India that confirmation of the award would lead to a U.S.

court attempting to enforce an even more invasive order than the one in NML Capital. While the

Court does not agree with India’s contention that enforcement of the arbitral award would be too

complicated for the Court to oversee,3 nor does the Court agree that allowing HEPI back onto the

Block to continue its commerciality assessment would give HEPI full “possession” of the Block,

it does find that forced interference with India’s complete control over its territory violates public

policy to the extent necessary to overcome the United States’ policy preference for the speedy

confirmation of arbitral awards. After all, the issuance of “extraterritorial injunctions often raise

serious concerns for sovereignty and enforceability which compel denial.” Nguyen Thang Loi v.

Dow Chem. Co. (In re Agent Orange Prod. Liab. Litig.), 373 F. Supp. 2d 7, 45 (E.D.N.Y. 2005).

The power to grant extraterritorial injunctions “should be exercised with great reluctance when it

[would] be difficult to secure compliance . . . or when the exercise of such power is fraught with

3 India emphasizes the complexity of the PSC and the involvement of entities not party to this suit to demonstrate “that any attempt to require specific performance of the PSC or to supervise specific performance of the PSC would be a fools-errand.” Resp. at 34. However, this contention misconstrues the extent of the arbitral award, and therefore, what this Court would actually be enforcing if it confirmed the award. Confirmation of this award would not require the Court to supervise the remainder of the process provided by the PSC. It would only require that the Court ensure that HEPI is allowed back onto the Block to pick up where it had left off in 2009. If India violates any other portion of the PSC, that violation would not be covered by the initial arbitration award, and therefore would not be subject to this Court’s jurisdiction. The fact that ONGC and GAIL have expressed their disapproval of HEPI’s attempt to confirm the arbitral award in the United States does, however, indicate that the Government of India alone may not be able to grant HEPI the full relief contemplated in the arbitral award. See Bravin Decl., Exs. 5 & 6, ECF No. 28-1.

26 possibilities of discord and conflict with the authorities of another country.” Id. (quoting Vanity

Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 647 (2d Cir.1956)).

Second, the Court is persuaded that the FSIA’s contemplation of jurisdiction over foreign

countries in suits seeking compensatory (but not punitive) damages, and allowing for specific,

domestic methods of ensuring that plaintiffs receive those damages, demonstrates the United

States’ public policy commitment to respecting the sovereignty of foreign nations by only

holding them liable for certain forms of relief. See, e.g., 28 U.S.C. § 1606 (providing that a

“foreign state shall be liable in the same manner and to the same extent as a private individual

under like circumstances; but a foreign state . . . shall not be liable for punitive damages”); 28

U.S.C. § 1610(a)(6) (providing that “[t]he property in the United States of a foreign state . . .

used for a commercial activity in the United States, shall not be immune from attachment in aid

of execution, or from execution, upon a judgment entered by a court of the United States . . . , if .

. . the judgment is based on an order confirming an arbitral award rendered against the foreign

state, provided that attachment in aid of execution, or execution, would not be inconsistent with

any provision in the arbitral agreement”) (emphasis added). While the FSIA grants federal courts

jurisdiction over arbitral award confirmation proceedings, 28 U.S.C. § 1605(a)(6), and therefore

the Court has clear jurisdiction over this case, the spirit of the United States’ policy preference

against specific performance is clear from the exclusion from the statutory text of any mention of

specific performance or extraterritorial enforcement, apart from the terrorism and expropriation

exceptions. See Resp. at 21–22 n.9 (citing to 28 U.S.C. § 1605(a)(3) and 28 U.S.C. § 1605A).

Third, while the doctrine of international comity does not generally counsel against the

confirmation of arbitral awards, see Newco Ltd., 650 Fed. Appx. at 16 (citing Belize Soc. Dev.,

668 F.3d at 727), as India has indicated, confirmation of this award would “raise the specter of

27 the opposite situation coming to pass; namely, a foreign court confirming (or the court going

further and granting injunctive relief directly) against the United States for acts it has taken

within its own borders or respecting its own territory.” Resp. at 27. Given that the United States

has not waived its sovereign immunity in its own courts against specific performance in contract

cases, it would defy comprehension that it would be in compliance with U.S. public policy to

create a situation in which a foreign court could order the U.S. to specifically perform its portion

of a contract. See e.g., Gonzalez & Gonzalez Bonds & Ins. Agency, Inc. v. Dep’t Homeland

Security, 490 F.3d 940, 943 (Fed. Cir. 2007) (“In order for a [contract] claim to be brought under

either the Tucker Act or the Little Tucker Act, the claim must be for monetary relief; it cannot be

for equitable relief, except in very limited circumstances . . .”); Robbins v. U.S. Bureau of Land

Mgt., 438 F.3d 1074, 1082 (10th Cir. 2006) (“We now join our fellow circuits in holding that the

Tucker and Little Tucker Acts ‘impliedly forbid’ federal courts from ordering declaratory or

injunctive relief, at least in the form of specific performance, for contract claims against the

government”); Megapulse, Inc. v. Lewis, 672 F.2d 959, 971 (D.C. Cir. 1982) (acknowledging the

“generally recognized rule that a plaintiff cannot maintain a contract action in either the district

court or the Court of Claims seeking specific performance of a contract” with the federal

government); cf. Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Housing & Urban Dev., 480

F.3d 1116, 1128 (Fed. Cir. 2007) (“Since the Tucker Act grants consent for suits based on

contract, this has been interpreted by these other courts to preclude under the APA contract

claims of any kind, either for damages or specific performance. This court has acknowledged the

issue but not squarely addressed it.”)

For all of these reasons, the Court finds that enforcement of the specific performance

portion of the arbitral award would violate United States public policy, and therefore, that this

28 case presents one of the limited circumstances under which a district court can decline to confirm

and enforce a foreign arbitral award. Given that other recourse is still available to HEPI, through

its litigation in the Indian courts, the Court declines to confirm this portion of the award.

2. Interest

India urges the Court to decline confirmation of the monetary portion of the arbitral

award—interest on HEPI’s Rs. 500 crores ($113 million) investment in the Block, at a rate of 9%

per year up to the date of the award, and 18% per year thereafter until the fulfillment of the

award—claiming that it is both coercive and punitive and therefore that its enforcement “would

be contrary to the public policy of [the U.S.].” See Resp. at 37 (quoting New York Convention,

art. V(2)(b)); Rejoinder at 9–10. HEPI disagrees with India’s characterization of the awarding of

interest as punitive, explaining that the interest was meant “to compensate HEPI for the

deprivation of the marooned capital it had already sunk into the Block.” Pet’r’s Resp. at 27.

HEPI does not directly address India’s argument that the post-judgment interest portion of the

award is coercive. The Court finds that even if the interest awarded by the Tribunal was meant to

be compensatory rather than punitive, because this Court cannot enforce the primary component

of the award (return of the Block to HEPI), and because the two components of the award are

inextricably intertwined, the Court also cannot award interest predicated on compliance with that

component of the award. To order otherwise would be to impermissibly coerce India into

complying with an order that this Court has determined it cannot issue. The Court cannot coerce

through an interest award an action that it cannot order directly.

As explained above, the New York Convention allows U.S. courts to decline enforcing a

foreign arbitral award if the award “would be contrary to the public policy of [the U.S.].” New

York Convention, art. V(2)(b). The Court has already established that confirmation of the

29 specific performance portion of the award would violate public policy. Now the Court must also

determine whether confirming the contested monetary portion of the award, the magnitude of

which depends on whether India complies with the specific performance portion of the award,

also violates public policy. In answering this question, the Court is persuaded by the United

States’ prior contention that the substance of a proposed order awarding money damages, rather

than its form, should control how a court considers that order. See Statement of Interest of the

United States, Chabad v. Russian Fed’n, No. 05-1548, Aug. 29, 2012, ECF No. 111 at 7. In

Chabad, the United States argued that even though the proposed contempt sanctions the court

was considering had not been labeled as proposed orders for the attachment or execution on

property, for all intents and purposes, the sanctions would have had the same effect as such

orders, and therefore would violate the FSIA. Id. (citing S&S Machinery Co. v.

Masinexportimport, 706 F.2d 411, 418 (2d Cir. 1983) (explaining that “courts ‘may not grant, by

injunction, relief which they may not provide by attachment,’ for the obvious reason that ‘[t]he

FSIA would become meaningless’ if the denomination of an order controlled over its

substance”)). While the district court ultimately rejected the United States’ argument, finding

that, under FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 637 F.3d 373 (D.C.

Cir. 2011), it did have the authority to issue contempt sanctions, Chabad, 915 F. Supp. 2d at 148,

the Court will still heed the United States’ urging in Chabad to look at the functional effect of

the proposed order before it, rather than just its form.

In this case, the practical effect of confirming the Tribunal’s award of interest would be

to coerce a foreign state into complying with a non-existent order from this Court, a non-existent

order which, as explained above, would be a severe affront to India’s sovereignty and would

violate U.S. public policy. Even if the Tribunal did not intend its award of interest to be punitive,

30 confirmation of this award would leave India in a Catch-22 of either halting the accrual of

interest by allowing HEPI back onto the Block—and thereby, effectively, complying with the

arbitration award at the behest of this Court—or allowing the sum of money it owes to continue

to grow. Indeed, due to the way the arbitration award was composed, there is no way for India to

halt the accrual of interest against it, or indeed to even satisfy the award definitively, until it

allows HEPI back onto the Block.

This portion of the award is so inseparable from the specific performance portion of the

award, the confirmation of which would violate U.S. public policy, that the confirmation of the

interest portion of the award must also be found, necessarily, the violate U.S. public policy.

India may ultimately need to pay HEPI the millions of dollars in interest it now owes—but if it

does, it will be because a court with the authority to enforce the entire arbitration award,

including the specific performance portion, has ordered it to do so. Because this Court does not

have such authority, it cannot order this payment.4

V. CONCLUSION

For the foregoing reasons, the Court DENIES HEPI’s Petition to Confirm Arbitration

Award (ECF No. 1); DENIES AS MOOT HEPI’s Motion for Leave to File Sur-Reply (ECF No.

36); and DENIES AS MOOT India’s Cross-Motion for Leave to File a Response to HEPI’s

4 As explained above, the Court has found that the award’s grant of post-judgement interest is impermissibly coercive because the amount of interest owed is predicated on how long it takes India to return access to the Block to HEPI, an action the Court cannot order India to take. While the Court does not make a finding on the coerciveness of the Tribunal’s pre- judgment interest award, even if the Court were to find that such interest is not coercive, the Court still would not confirm that portion of the award. In its award decision, the Tribunal left open the question of how to calculate the 9% pre-judgment interest it was awarding. See Award at 41–43. India claims that the interest is compound, Resp. at 5 n.3, while HEPI contends that it is not, Pet’r’s Resp. at 5 n.20, 27 n.49. Because the exact amount of money the Tribunal awarded remains undetermined, the Court would not confirm this portion of the award either.

31 Proposed Sur-Reply (ECF No. 37). An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: June 7, 2018 RUDOLPH CONTRERAS United States District Judge