Case of the Day: Commissions Import Export v. Republic of the Congo

The case of the day is Commissions Import Export, S.A. v. Republic of the Congo (D.D.C. 2015). I’ve written about this case twice before, once in the D.D.C. and once in the D.C. Circuit. In the previous case, the question was: when a party to a foreign arbitration has obtained a judgment confirming the award from a foreign court and then seeks recognition and enforcement of the foreign judgment rather than of the award in a US court, does the statute of limitations in § 207 of the FAA preempts any longer statute of limitations available under state law governing the recognition and enforcement of foreign judgments? The D.C. Circuit said no, and so the case was back in the district court on remand to consider the merits of Commisimpex’s claim for recognition and enforcement of the foreign judgment.

Here was my description of the case from my first post:

The Republic of the Congo was party to a 1992 contract with Commisimpex that it failed to honor. The contract contained an arbitration agreement and a waiver of sovereign immunity. Commisimpex commenced an arbitration before the ICC in Paris against the Republic and one of its ministries. In 2000, the tribunal awarded more than $31 million in damages to Commisimpex.

In 2009, Commisimpex sought recognition and enforcement of the award in the English High Court. The court entered a judgment in Commisimpex’s favor.

In 2012, Commisimpex sought recognition and enforcement of the English judgment—not the arbitral award—under District of Columbia law. It moved for summary judgment.

The Congolese government pointed to two grounds for non-recognition under the D.C. enactment of the UFCMJRA. First, it claimed the English court had lacked personal jurisdiction. Second, it claimed the public policy of the District of Columbia forbade recognition.

On personal jurisdiction, the UFCMJRA has a non-exclusive list of grounds sufficient to justify the foreign court’s exercise of personal jurisdiction (e.g., service in the foreign jurisdiction, voluntary appearance in the proceeding, etc.). Congo claimed that none of these grounds were satisfied, but the statute also allows the court to “recognize bases of personal jurisdiction other than those listed in subsection (a) of this section as sufficient to support a foreign-country judgment.” Here, because the judgment debtor was a foreign sovereign, the judge looked to the FSIA. He held that the English court had jurisdiction because Congo had waived its sovereign immunity in the underlying contract and the method of service used in England was “substantially similar” to one of the methods prescribed in US law for service under the FSIA, namely, service through the diplomatic channel.

On public policy, Congo pointed to a supposed DC public policy against enforcement of a foreign judgment that itself enforces a foreign arbitral award. It cited the AHAB v. Standard Chartered Bank case, which I covered in September 2014. But the question in AHAB was whether a sister-state judgment recognizing a foreign country judgment was entitled to recognition under the Uniform Enforcement of Foreign Judgments Act, the statute governing recognition of sister-state judgments. In AHAB the DC Court of Appeals held that a sister-state judgment could not be recognized under the UEFJA in those circumstances because it was, in substance, a foreign-country judgment, not a sister-state judgment. But in today’s case, the DC court was not making a public policy pronouncement in AHAB, but rather was simply construing the scope of the UEFJA. The court found no public policy against recognition of a judgment recognizing a foreign arbitral award. It suggested, to the contrary, that if anything public policy would support recognition in such cases, because “the federal policy favoring the enforcement of valid arbitral awards ‘is not undermined—and frequently will be advanced—through recourse to parallel enforcement mechanisms that exist independently of the FAA.'”

Thus the court rejected Congo’s arguments and held that the judgment should be recognized.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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