The opinion of the court was delivered by: VINCENT L. BRODERICK
This is a suit to enforce a French judicially affirmed arbitration award pursuant to treaty.
On January 26, 1980 plaintiff and defendant entered into a contract under which defendant agreed to build certain vessels for plaintiff, a West German shipowner. Defendant was a state owned Romanian foreign trading company engaged in shipbuilding, which actively utilized Romanian government commercial offices in Manhattan to solicit business.
The contract between plaintiff and defendant was never performed, and resultant disputes were submitted to arbitration in Paris pursuant to the contract. On November 2, 1982 and March 26, 1984 the arbitration board rendered interim and final awards against defendant for 6,000,000 Deutsche Marks plus interest and half of the arbitration costs. Defendant appealed to the French Court of Appeals, which on March 4, 1986 affirmed the award.
By decree of the Romanian Council of State dated June 26, 1987 the defendant was dissolved. On or about July 1, 1987 all of the defendant's assets and liabilities were transferred to a newly formed company, Uzinexportimport ("Uz")
On March 28, 1988 plaintiff brought this suit seeking enforcement of the arbitration award or, in the alternative, adoption of the judgment of the Court of Appeals of Paris as a United States court judgment.
Plaintiff served the summons and complaint on the Romanian Commercial Attache's office in New York, and it was sent by the clerk of this court by mail to defendant at its last known address pursuant to 28 USC § 1608(a)(3); a postal receipt was obtained. Defendant received actual notice; it contacted plaintiff about the matter.
Both parties have moved for summary judgment. Plaintiff also has moved to amend the complaint to add Uz as an additional defendant, as successor to the rights and obligations of the defendant.
Defendants argues (1) that this court lacks personal jurisdiction; (2) that service of process was inadequate; and (3) that failure to join an Uz as a party was fatal.
SUBJECT MATTER JURISDICTION
Paragraph 9 of defendant's Statement of Material Facts Pursuant to Rule 3(g) of the Civil Rules of this court states that "Defendant was a state owned foreign trade company organized under the laws of the Socialist Republic of Romania with its place of business at Galatz, Socialist Republic of Romania." In paragraph 22 of its answer, defendant also alleges that it "is a state foreign trading company, wholly owned by the Romanian Government and, as such, is an instrumentality of Romania within the meaning of FSIA 28 U.S.C., Sect. 1603(b)." State trading companies and state-owned export associations have been considered within the definition of "agency or instrumentality" of a foreign state, treated as a foreign state, treated as a foreign state under 28 USC 1603(a). S. & S. Machinery Co. v. Masinexportimport, 706 F.2d 411 (2d Cir. 1983) cert. denied 464 U.S. 850, 78 L. Ed. 2d 147 (1983) (involving a Romanian trading company as well as Romanian bank), citing H Rep 1487, 94th Cong., 2d Sess. 15-16, reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6614.
28 USC § 1605(a)(6) was enacted in 1988. It provides that a foreign state (or under the applicable definitions its instrumentality), lacks immunity where the action is brought to confirm an award made pursuant to an agreement to arbitrate if the agreement or award is governed by a treaty or other international agreement binding upon the United States which calls for the recognition or enforcement of arbitral awards. As a procedural and jurisdictional statute not affecting substantive rights, § 1605(a)(6) would seem, other things being equal, to be applicable to the facts before me as they exist today, at the time of decision. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16, 95 L. Ed. 702, 71 S. Ct. 534 (1951); Able v. Upjohn Co., 829 F.2d 1330 (4th Cir. 1987), cert. denied 485 U.S. 963, 99 L. Ed. 2d 429, 108 S. Ct. 1229 (1988). No retroactive impairment of substantive rights would seem to be caused by application in ...