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The Export-Import Bank of the Republic of China v. Grenada

June 22, 2012

THE EXPORT-IMPORT BANK OF THE REPUBLIC OF CHINA, PLAINTIFF,
v.
GRENADA, DEFENDANT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:

OPINION & : ORDER

Before the Court are two motions brought by Defendant/ Judgment Debtor Grenada ("Grenada"). Grenada defaulted on four multimillion dollar loans totaling $21,586,057.38 made by the Plaintiff/ Judgment Creditor Export-Import Bank of China ("Ex-Im Bank") between 1990 and 2000. On March 16, 2007, I entered an amended judgment in favor of Ex-Im Bank and against Grenada in the amount of $21,586,057.38, plus prejudgment interest, attorneys' fees, and statutory interest. Ex-Im Bank has attempted to obtain satisfaction on this judgment ever since. Grenada's first motion seeks to prevent Ex-Im Bank from using an award of costs and fees to Grenada's attorneys following an unrelated arbitration to gain entry to an exception in the Foreign Sovereign Immunities Act ("FSIA"). Grenada's second motion seeks to vacate the restraining notices issued by Ex-Im Bank to various airlines, cruise lines and shipping companies. Grenada's motions are granted.

I. Grenada's Motion for an Order (1) Declaring Funds Immune from Attachment or (2) Fixing A Charging Lien and Directing Money Judgment for Legal Services

A. Overview of the Motion and Cross-Motion

On December 8, 2011, Grenada deposited $300,486.69 with the Clerk of the Court (the "Arbitration Funds"). Phillip Decl. ¶ 18. The Arbitration Funds represent the proceeds of an order entered in favor of Grenada following an international arbitration proceeding before the International Centre for the Settlement of Investment Disputes ("ICSID"), which was confirmed by the U.S. District Court for the Southern District of New York. Id. at ¶¶ 3-12. A judgment was entered on April 29, 2011. Id. The arbitration proceeding was brought by claimants, RSM Production Corp. and U.S. citizens, alleging that Grenada breached a treaty between the United States and Grenada concerning Reciprocal Encouragement and Protection of Investment, and asserted claims against Grenada for breach of contract, requesting specific performance, declaratory relief and damages. Id. at ¶¶ 3-4; see also Phillip Decl. Ex. C, at ¶ 4. The tribunal dismissed the claims and granted Grenada its legal costs and fees to pay Grenada's counsel, Freshfields Bruckhaus Dringer ("Freshfields"). Phillip Decl. ¶ 10.

Grenada seeks an order that (1) the Arbitration Funds are immune from attachment under the FSIA, 28 U.S.C. §§ 1330, 1602-1611 or in the alternative, (2) fixing a charging lien pursuant to New York Judiciary Law § 475 in favor of, and directing judgment for, Freshfields. Ex-Im Bank cross-moves for turnover of the Arbitration Funds to Ex-Im Bank to help satisfy the unpaid loans.

B. The Arbitration Funds Are Immune From Attachment

Under the FSIA, 28 U.S.C. §§ 1602-1611, the property of a foreign sovereign within the United States is immune from attachment or execution to satisfy a judgment, 28 U.S.C. § 1609, unless the property is subject to one of the exceptions found in the FSIA, 28 U.S.C. § 1610. The sole relevant exception is:

§ 1610. Exceptions to the immunity from attachment or execution

(a) The property in the United States of a foreign state.used for a commercial activity in the United States, shall not be immune from . . . execution, upon a judgment entered by a court of the United States . . . if--

(1) the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication. .

Id.(a)(1). Grenada waived sovereign immunity from attachment and execution in the loan agreement between Ex-Im Bank and Grenada. See Samuels Decl. Ex. 4, Loan Agreement § 9.06. Grenada does not dispute that the Arbitration Funds are in the United States; however, the parties dispute whether they were "used for a commercial activity in the United States." 28 U.S.C. § 1610.

The Arbitration Funds have not been disbursed for commercial or any other activity because before any disbursement was made, Ex-Im Bank restrained the Funds and the parties stipulated to an order to deposit the Funds with the Court. Phillip Decl. ¶¶ 18-19; see, e.g., Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 131 (2d Cir. 2009) (concluding that assets held in the United States and administered by private corporations for the benefit of Argentine pensioners that were to be transferred to Argentina's social security administration pursuant to Argentine legislation were immune where creditors attached the assets "effective immediately," and so "neither the Administration nor the Republic had any opportunity to use the funds for any commercial activity whatsoever").

Ex-Im Bank responds that Aurelius is "unique" and not helpful to Grenada, however, the Second Circuit made it clear that the FSIA's plain language "does not say that the property in the United States of a foreign state that 'will be used' or 'could potentially be used' for a commercial activity in the United States is not immune from attachment or execution." Id. at 130. The property "must be used for a commercial activity in the United States 'upon a judgment entered by a court of the United States or of a State.' " Id. (quoting 28 U.S.C. ยง 1610(a)); see also EM Ltd. v. Republic of Arg. (EM Ltd. II), No. 06 Civ. 7792, 2010 WL 2399560, at *4 (S.D.N.Y. June 11, 2010) ("[I]t is difficult to see how a sum of money frozen by stipulation and thereby entirely unavailable to defendants for more than four years has been 'used' for any activity at all, commercial or not."). More recently, in NML Capital, Ltd. v. Republic of Argentina, No. 03 Civ. 8845, 2011 WL 1533072, at *6 ...


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