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Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela

United States Court of Appeals, Second Circuit

July 11, 2017

Mobil Cerro Negro, Limited, Venezuela Holdings, B. V., Mobil Cerro Negro Holding, Limited, Mobil Venezolana De Petroleos Holdings, Incorporated, Mobil Venezolana De Petroleos, Incorporated, Arbitration Award Creditors-Petitioners-Appellees,
v.
Bolivarian Republic of Venezuela, Arbitration Award Debtor-Respondent-Appellant.

          Argued: January 7, 2016

          Last submissions: May 23, 2016

         Appeal from an order of the United States District Court for the Southern District of New York (Engelmayer, J.), denying a motion to vacate the judgment entered against the Bolivarian Republic of Venezuela on an award made by an arbitral panel of the International Centre for Settlement of Investment Disputes ("ICSID") in accordance with the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention"). The District Court relied on 22 U.S.C. § 1650a ("Section 1650a"), the statute enabling U.S. participation in the ICSID Convention, and certain exceptions set forth in the Foreign Sovereign Immunities Act ("FSIA"), in exercising jurisdiction over the creditors' action against Venezuela. The District Court concluded that the procedure by which the creditors obtained the judgment-filing an ex parte petition for "recognition" in accordance with New York state law, NY. CPLR Art. 54-was appropriate in light of a perceived procedural "gap" in Section 1650a. Compliance with the FSIA's service of process and venue provisions was unnecessary, the District Court ruled, determining that to inject state processes into Section 1650a was more consistent with the ICSID Convention's goal of affording streamlined enforcement proceedings than would be applying the FSIA's provisions.

         We conclude that the District Court erred. We reject the proposition that Section 1650a provides an independent grant of subject matter jurisdiction and hold that the FSIA provides the sole basis for federal court jurisdiction over foreign sovereigns in actions to enforce ICSID awards. Because the FSIA, not Section 1650a, governs these proceedings, the procedural requirements set forth in the FSIA's comprehensive scheme must be satisfied before a federal court may enter judgment against a foreign sovereign. These requirements were not met here. We therefore REVERSE the order denying respondent's motion, VACATE the judgment, and REMAND the cause with instructions to dismiss the ex parte petition.

         Reversed, Vacated, and Remanded.

          Joseph D. Pizzurro (Kevin A. Meehan, Juan O. Perla, Joseph B. Heath, on the brief), Curtis, Mallet-Prevost, Colt & Mosle LLP, New York, New York, for Respondent-Appellant.

          Steven K. Davidson (Michael J. Baratz, Bruce C. Bishop, Jared R. Butcher, Molly Bruder Fox, on the brief), Steptoe & Johnson LLP, Washington, D.C., for Petitioners-Appellees.

          Jennifer Jude, Benjamin H. Torrance, Christopher Connolly, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Sharon Swingle, Civil Division, Department of Justice, Brian Egan, Legal Adviser, Department of State, Washington, D.C., for amicus curiae United States of America.

          Before: Pooler, Hall, and Carney, Circuit Judges.

          Susan L. Carney, Circuit Judge

         This case requires us to examine the authority of a United States district court to adjudicate an arbitral award-creditor's ex parte petition for entry of a federal judgment against a foreign sovereign premised on an award made under the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention" or "Convention"). The award in this case arose from a dispute submitted to the International Centre for the Settlement of Investment Disputes by certain subsidiaries of ExxonMobil Corporation (collectively, "Mobil") and the Bolivarian Republic of Venezuela ("Venezuela"). Directing Venezuela to pay Mobil approximately $1.6 billion, the award was announced on October 9, 2014 (the "Award"). The following day, Mobil filed an ex parte petition asking the U.S. District Court for the Southern District of New York to recognize the Award and to enter judgment based on it. The Motion Term Part I judge granted the petition and entered judgment in the full amount awarded by the ICSID panel.

         Venezuela learned of the judgment's entry by letter delivered electronically to its legal counsel soon after the court's action and promptly moved under Federal Rule of Civil Procedure 60(b) to vacate the judgment for both lack of subject matter and personal jurisdiction. The District Court judge subsequently assigned to the case denied the motion, concluding that it had subject matter jurisdiction under certain exceptions to sovereign immunity recognized in one provision of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1605, and in 22 U.S.C. § 1650a ("Section 1650a"), the statute enabling U.S. participation in the ICSID Convention. See Mobil Cerro Negro Ltd. v. Bolivarian Republic of Venezuela ("Mobil Cerro Negro"), 87 F.Supp.3d 573, 587-90 (S.D.N.Y. 2015). The ex parte procedures-which did not satisfy the FSIA's requirements for personal jurisdiction-were sufficient, the District Court reasoned, because a procedural "gap" in Section 1650a permitted courts to take guidance from New York state law. Id. at 583-86. Accordingly, it turned to the summary procedures for recognizing and enforcing "foreign judgments" that are set forth in New York Civil Practice Law and Rules ("NY. CPLR") Article 54. Id. at 584. The District Court disclaimed any need to obtain personal jurisdiction over Venezuela under the FSIA, in light of Venezuela's participation in the Convention and the permission given by N.Y. CPLR Article 54 for New York state courts to enter "foreign judgments" even absent jurisdiction over the judgment debtor. Id. at 590-602.

         We conclude that the District Court erred in declining to vacate the judgment. We reject Mobil's argument that Section 1650a provides an independent grant of subject-matter jurisdiction for actions against foreign sovereigns and decide that the FSIA provides the sole basis for subject-matter jurisdiction over actions to enforce ICSID awards against a foreign sovereign. Because actions to enforce ICSID awards against a foreign sovereign fall within the FSIA's comprehensive scheme, plaintiffs pursuing such actions must satisfy the FSIA's procedural requirements. The District Court was therefore mistaken in excusing Mobil from complying with the FSIA's service and venue requirements. The ex parte proceedings that Mobil utilized are neither permitted by the FSIA nor required by Section 1650a. The FSIA's procedural requirements regarding notice and venue serve Congress's stated goals of promoting comity with other sovereigns and ensuring the United States' consistency of approach with respect to federal courts' interactions with foreign sovereigns. The ICSID Convention's significant, but more modest, aims of allowing streamlined enforcement of authenticated ICSID arbitral awards and restricting substantive appeals of those awards to ICSID pose no significant conflict with the FSIA and can readily be accommodated by the FSIA's comprehensive regime.

         Although several courts of the Southern District of New York (the "Southern District") have from time to time allowed such ex parte proceedings as occurred here to provide the basis for entry of a federal judgment against a foreign sovereign, district courts in other districts have not, and have given precedence to the FSIA. We think the correct view is the latter: ICSID award-creditors must pursue federal court judgments to enforce their awards against a foreign sovereign by filing a federal action on the award against the sovereign, serving the sovereign with process in compliance with the FSIA, and meeting the FSIA's venue requirements before seeking entry of a federal judgment, whether through a motion for judgment on the pleadings or for summary judgment. Those requirements were not met here. The court entering judgment needed, but lacked, personal jurisdiction over Venezuela under the FSIA.

         We therefore REVERSE the District Court's order denying Venezuela's motion to vacate, VACATE the judgment entered in favor of Mobil, and REMAND the cause to the District Court with instructions to dismiss the ex parte petition.

         BACKGROUND

         I. Statutory background

         The present appeal requires us to harmonize the ICSID Convention and its enabling statute, 22 U.S.C. § 1650a, with the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1391(f), 1441(d), 1602-1611. We therefore begin with an overview of the relevant texts, as these provide the setting for the issues presented on appeal.

         A. The ICSID Convention

         Between 1962 and 1965, the World Bank spearheaded development of the ICSID Convention, a multilateral treaty aimed at encouraging and facilitating private foreign investment in developing countries. See Anthony R. Parra, The History of ICSID 11-12, 24-26 (Oxford 2012) ("Parra, History"); Convention on the Settlement of Investment Disputes: Hearing on H.R. 15785 before the H. Comm. on Foreign Affairs, Subcomm. on Int'l Organizations and Movements, 89th Cong. 2-3 (1966) ("H.R. 15785 Hearing") (statement of Hon. Fred B. Smith, Gen. Counsel, Dep't of Treasury) ("Smith House Statement"). According to Parra (a former ICSID Deputy Secretary-General and Legal Adviser), the "immediate origins" of the Convention stem from the period between 1955 and 1962, when the "retreat of colonialism" quickly increased the number of developing countries. Parra, History, at 11. The amount of governmental development assistance available for these countries fell far short of their growing economic needs, leading to a widely shared hope "that private foreign investment would become an increasingly important source of funds." Id. at 12. Private investors were wary of investment in these countries, however, citing risks of expropriation and other "government measures that might tend to impair the rights or assets of foreign investors." Id. To help allay these concerns, the World Bank was called upon to create an effective and neutral dispute settlement forum.

         The ICSID Convention was the result. See International Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention"), Mar. 18, 1965, T.I.A.S. No. 6090, 17 U.S.T. 1270. The Convention established an international institution-the International Centre for Settlement of Investment Disputes, based in Washington, D.C. (the "Centre" or "ICSID")-under whose authority arbitration panels may be convened to adjudicate disputes between international investors and host governments in "Contracting States"-those countries whose governments have adopted the Convention.[1] See ICSID Convention arts. 3, 25; see also Smith House Statement at 2-3. The final texts of the Convention (it has parallel versions in English, French, and Spanish) were approved by the Executive Directors of the World Bank on March 18, 1965, for submission to World Bank member governments. Parra, History, at 94. On June 10, 1966, the United States Congress ratified the Convention, and on October 14, 1966, after ratification by a twentieth country, the Convention officially entered into force. See id. at 95-97; Christopher H. Schreuer, et al., The ICSID Convention: A Commentary 1270 (2d ed. 2009) ("Schreuer, Commentary").

         The Centre convenes arbitral tribunals in response to requests made by either a member state or a national of a member state. ICSID Convention arts. 36-37. At the conclusion of the proceedings, the tribunals issue written awards that address "every question submitted to the Tribunal, " and "state the reasons upon which [the award] is based." Id. art 48. Of particular note here, Article 53 of the Convention provides that a party dissatisfied with an award may challenge it on various grounds, but may do so only through proceedings at the Centre and not collaterally in the courts of member states.[2] The limited role played by the member states' courts is articulated in Article 54 of the Convention, which provides that the member states agree to "recognize" ICSID awards "as binding" and to "enforce the pecuniary obligations imposed by that award."[3] Id. art 54(1). In member states with federal constitutions, such as the United States, ICSID awards may be enforced in a federal court: The Convention expressly allows courts of such countries to "treat the award as if it were a final judgment of the courts of a constituent state." Id. And, to enforce an ICSID award, a prevailing party may execute on the losing party's assets with the assistance of the courts of member states in accordance with "the laws concerning the execution of judgments in force in the State in whose territories such execution is sought." Id. art. 54(3).

         Member states' courts are thus not permitted to examine an ICSID award's merits, its compliance with international law, or the ICSID tribunal's jurisdiction to render the award; under the Convention's terms, they may do no more than examine the judgment's authenticity and enforce the obligations imposed by the award. Thus, the Convention reflects an expectation that the courts of a member nation will treat the award as final. See Schreuer, Commentary, at 1139-41 (describing principle of finality of awards and reporting that principle was the subject of "extensive discussion").

         The Convention also envisions, however, that participating sovereign states remain subject to the immunity and other relevant laws of the jurisdictions in which enforcement is sought: Thus, Article 55 declares, "Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution." ICSID Convention art. 55.

         B. The ICSID enabling statute: Section 1650a

         In August 1966, after ratifying the Convention, Congress adopted legislation to implement its provisions. Pub. L. No. 89-532, 80 Stat. 344 (1966) ("An Act [t]o facilitate the carrying out of the obligations of the United States under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, signed on August 27, 1965, and for other purposes."). As relevant here, Section 3 of the brief Convention on the Settlement of Investment Disputes Act of 1966 is codified at 22 U.S.C. § 1650a. So codified, subsection (a) of Section 1650a provides in full:

An award of an arbitral tribunal rendered pursuant to chapter IV of the convention shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States. The Federal Arbitration Act (9 U.S.C. 1 et seq.) shall not apply to enforcement of awards rendered pursuant to the convention.

22 U.S.C. § 1650a(a). Subsection (b) of Section 1650a gives exclusive jurisdiction over "actions and proceedings under subsection (a)" to the federal district courts, "regardless of the amount in controversy."[4]

         C. The Foreign Sovereign Immunities Act

         The Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891 (1976), governs the jurisdiction of United States courts over actions against foreign sovereigns. Its enactment marked a watershed moment in the foreign relations law of the United States.

         As the Supreme Court described the pre-FSIA regime, "[f]or more than a century and a half, the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country." Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1982). Chief Justice Marshall's seminal opinion in The Schooner Exchange v. McFaddon provided the roots for the United States' embrace of the so-called "absolute theory" of sovereign immunity. See 7 Cranch 116 (1812). There, the Chief Justice wrote that a ship from Napoleonic France, "having entered an American port open for her reception[, ] . . . must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country." Id. at 147. The "implied promise" was that a foreign sovereign would receive absolute immunity in the courts of the United States: the host sovereign "wa[i]ve[d] the exercise of a part of that complete exclusive territorial jurisdiction" to which it was otherwise entitled, because "all sovereigns impliedly engage[d] not to avail themselves of a power over their equal, which a romantic confidence in their magnanimity has placed in their hands." Id. at 137-38; see Robert B. von Mehren, The Foreign Sovereign Immunities Act of 1976, 17 Colum. J. Transnat T L. 33, 35-36 & n.10 (1978) ("R. von Mehren, FSIA"). Despite this broad language, The Schooner Exchange made clear that immunity was "a matter of grace and comity, " and the Court therefore continued to "defer[] to the [case-by-case] decisions of the political branches-in particular, those of the Executive Branch-on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities." Verlinden, 461 U.S. at 486 (citing Ex Parte Republic of Peru, 318 U.S. 578 (1943), and Mexico v. Hoffman, 324 U.S. 30 (1945)).

         In 1952, the State Department announced a change in course: it issued the "Tate Letter, " a landmark policy statement expressing the Executive Branch's adoption of a more nuanced, "restrictive theory" of sovereign immunity, under which sovereigns would enjoy immunity as to their public acts, but not as to their private or commercial activities outside of their territories. See Ltr. from Jack B. Tate, Acting Legal Adviser, Dep't of State, to Acting Att'y Gen. Philip B. Perlman (May 19, 1952), available at Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 711-15 (1976) (Appendix 2). Despite the Tate Letter's clear policy statement, however, immunity determinations continued to be made by the State Department on a case-by-case basis, at times suggesting "immunity in cases where immunity would not have been available under the restrictive theory." Republic of Argentina v. NML Capital, Ltd., 134 S.Ct. 2250, 2255 (2014) (quoting Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004)). When the State Department did not make a suggestion as to immunity, United States courts made the determinations "by reference to prior State Department decisions." Id. (quoting Verlinden, 461 U.S. at 487); see also R. von Mehren, FSIA, at 41-42. As a result, the patchwork quilt of immunity decisions continued to grow, with "sovereign immunity decisions . . . [being] made in two different branches, subject to a variety of factors, sometimes including diplomatic considerations, " resulting in standards that "were neither clear nor uniformly applied." NML Capital, Ltd., 134 S.Ct. at 2255 (quoting Verlinden, 461 U.S. at 488) (alteration in original).

         In 1976, Congress stepped in to rectify the resulting disarray by passing the Foreign Sovereign Immunities Act. In the FSIA, which is codified at 28 U.S.C. §§ 1330, 1391(f), 1441(d), and 1602-1611, Congress, "[f]or the most part, " adopted the restrictive theory of foreign sovereign immunity and vested responsibility for immunity determinations in the federal judiciary. Verlinden, 461 U.S. at 488-89. The FSIA was designed "to free the Government from the case-by-case diplomatic pressures, to clarify the governing standards, and to 'assur[e] litigants that. . . decisions are made on purely legal grounds and under procedures that insure due process.'" Id. at 488 (quoting H.R. Rep. No. 94-1487, 1976 U.S.C.C.A.N. 6604, 6656 (1976)) (alterations in original). To this end, "the Act contains a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities." Id. Congress declared categorically in the statute itself, "Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter." 28 U.S.C. § 1602.

         The FSIA provides that, "[s]ubject to existing international agreements to which the United States is a party/' foreign sovereigns "shall be immune from the jurisdiction of the courts of the United States and of the States" except as provided by one of the FSIA's exceptions to jurisdictional immunity. 28 U.S.C. § 1604; see id. § 1605 ("General exceptions to the jurisdictional immunity of a foreign state"). Under the FSIA, federal courts are empowered to exercise personal jurisdiction over a foreign sovereign when two conditions obtain: (1) an exception from jurisdictional immunity established by the FSIA applies, and (2) the sovereign has been served with process in accordance with the FSIA's provisions. See 28 U.S.C. § 1330(b); Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1020 (2d Cir. 1991) ("Under the FSIA . . . personal jurisdiction [over a foreign sovereign] equals subject matter jurisdiction plus valid service of process.").[5] The procedural requirements are set forth in 28 U.S.C. § 1608 ("Service; time to answer; default"), and the venue requirements are set forth in 28 U.S.C. § 1391(f) ("Civil actions against a foreign state").

         We have held that the FSIA's immunity provisions do not shield a foreign sovereign from federal courts' exercise of jurisdiction over a civil action to enforce an ICSID award: the waiver and arbitration exceptions to immunity that are found in subsections 1605(a)(1) and (a)(6), respectively, apply, and allow such an action to proceed. See Blue Ridge Inv., L.L.C. v. Republic of Argentina, 735 F.3d 72, 83-85 (2d Cir. 2013) (applying FSIA exceptions to sovereign immunity to find jurisdiction over sovereign in appeal from denial of sovereign immunity in plenary action for enforcement of ICSID award). Subsection (a)(1) of Section 1605 (the "waiver exception") divests foreign sovereigns of immunity when the sovereign "has waived its immunity either explicitly or by implication." 28 U.S.C. § 1605(a)(1). Subsection (a)(6) (the "arbitration exception") deprives the sovereign of immunity when an action is brought either "to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration" or "to confirm an award made pursuant to such an agreement to arbitrate" if the agreement or award is subject to a treaty. Id. § 1605(a)(6).[6]

         D. ICSID awards in federal district courts

         Nationally, district courts confronting requests to enter federal judgments upon ICSID awards against foreign sovereigns have adopted various approaches to "recognition" and "enforcement" of ICSID awards. Compare Micula v. Government of Romania ("Micula I"), 104 F.Supp.3d 42 (D.D.C. 2015) (requiring plenary action governed by FSIA), and Continental Casualty Co. v. Argentine Republic, 893 F.Supp.2d 747 (E.D. Va. 2012) (contemplating plenary action governed by FSIA), with Mobil Cerro Negro, 87 F.Supp.3d 573 (S.D.N.Y. 2015) (permitting ex parte action), and Siag v. Arab Republic of Egypt, No. M-82, 2009 WL 1834562 (S.D.N.Y.June 19, 2009) (same); see also Viren M. Mascarenhas & Camilla Gambarini, US Courts Adopt Different Approaches Regarding Recognition of ICSID Awards, 20 IBA Arbitration News 37 (2015). No United States court of appeals appears to have yet given studied consideration to how ICSID awards may be converted into federal judgments and enforced in federal courts, but two distinct approaches have developed in the district courts.

         The first approach permits entry of judgment on an ICSID award through ex parte proceedings like those at issue here. Since 1986, in the few reported opinions that have addressed the issue, district courts in the Southern District have acted on applications to enforce ICSID awards against foreign sovereigns by entering judgments ex parte. See Siag, 2009 WL 1834562; Liberian E. Timber Corp. v. Government of Republic of Liberia ("LETCO"), 650 F.Supp. 73 (S.D.N.Y. 1986); see also Micula v. Government of Romania ("Micula II"), No. 15 Misc. 107, 2015 WL 4643180 (S.D.N.Y Aug. 5, 2015).[7] We in fact summarily affirmed one of those decisions in a non-precedential Table decision. See LETCO, 650 F.Supp. 73, summarily aff'd in 854 F.2d 1314 (2d Cir. 1987) (Table) (affirming denial of motion to vacate judgment entered ex parte against foreign sovereign without directly addressing propriety of using ex parte procedures).

         The district courts adopting this approach interpret the Convention and Section 1650a to require some sort of summary procedure to recognize the ICSID award, and generally look to state law for the appropriate procedure. But see Miminco, LLC v. Democratic Republic of Congo, 79 F.Supp.3d 213, 217 n.3 (D.D.C. 2015) (granting ex parte petition, but declining to adopt procedures for enforcing a foreign judgment from District of Columbia Code). For example, in Siag, the Southern District's most thorough discussion of the procedure for recognizing and enforcing ICSID awards before the District Court's opinion here, private ICSID award-creditors moved the district court to enter judgment ex parte on an ICSID award, having provided no advance notice of the motion to the ICSID award-debtor, the Arab Republic of Egypt. 2009 WL 1834562, at *1. Relying on the language of the ICSID Convention and Section 1650a, the Siag court concluded that it should "treat[] an ICSID arbitration award as [it] would the final judgment of state court, " and, based on its reading of our decision in Keeton v. Hustler Magazine, Inc., 815 F.2d 857 (2d Cir. 1987), turned to New York's CPLR Article 54 to define the procedures to be employed in such a case. Siag, 2009 WL 1834562, at *2.

         Article 54 authorizes New York state courts to enforce "foreign judgments, " defined as "any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance, or by confession of judgment." N.Y. CPLR 5401. Under these rules, a New York state court clerk may enter a judgment upon presentation of a duly authenticated "foreign judgment" and in the absence of the party as to whom the judgment applies. N.Y. CPLR 5402.[8] The creditor must, however, mail notice of filing of the judgment to the debtor within thirty days of the judgment's entry in New York, and the creditor is not permitted to obtain the proceeds of execution before thirty days after filing proof of service have passed. N.Y. CPLR 5403.[9] The Siag court directed the award- creditor to comply with these procedures, 2009 WL 1834562, at ""3, and subsequent cases in the Southern District have followed its guidance.[10]

         The second approach requires award-creditors to pursue a plenary action in compliance with the FSIA's personal jurisdiction, service, and venue requirements in order to enforce an ICSID award. Courts adopting this approach do not read Section 1650a to require summary enforcement and turn to the FSIA for guidance regarding how to bring an enforcement action against a foreign sovereign. See Micula I, 104 F.Supp.3d 42; Continental Casualty Co., 893 F.Supp.2d 747.

         In Continental Casualty, an ICSID award-creditor filed an action in the Eastern District of Virginia seeking recognition-but not enforcement-of an ICSID award against Argentina. 893 F.Supp.2d at 748. Argentina moved to dismiss for lack of subject matter and personal jurisdiction and for improper venue. Id. At the outset, the district court concluded that Section 1650a is not "itself a grant of subject matter jurisdiction, " and that the sole basis for jurisdiction over a foreign sovereign is the FSIA. Id. at 750. The court ruled that it had subject matter jurisdiction under the FSIA's arbitration exception to immunity, 28 U.S.C. § 1605(a)(6), and that it had personal jurisdiction over Argentina because the foreign sovereign had not challenged service of process and the FSIA's service requirements had otherwise been satisfied, 28 U.S.C. § 1608. Id. at 751-52. But the action could not proceed, the court held, because venue did not lie in the Eastern District of Virginia; rather, the FSIA's venue provision, 28 U.S.C. § 1391(f)(4), required that the action be brought in the District of Columbia. Id. at 754.

         The Micula I court adopted the approach presented in Continental Casualty, finding recourse to the FSIA's procedures "consistent with [the] text and structure" of Section 1650a. 104 F.Supp.3d at 49. It phrased the question succinctly:

Confirming, or recognizing, that arbitration award would render it an enforceable judgment of this court. . . . The question before the court is whether a statute that empowers federal courts to "enforce" an international arbitration award as if it were a final state court judgment permits a federal court, as a precursor to enforcement, to recognize or confirm such an arbitration award on an ex parte basis.

Id. at 44. Observing that Section 1650a uses only the term "enforce"- and not "recognize, " "confirm, " or "register, " it concluded that Section 1650a does not contemplate recognition of ICSID awards as a judicial act separate from enforcement. Id. at 49. The plaintiff, an ICSID award-creditor, requested ex parte entry of judgment on its ICSID award rendered against the Government of Romania. Id. at 44. The court rebuffed this request, reasoning that Section 1650a "does not permit use of such an ex parte procedure .... [Micula] must file a plenary action, with proper service on the Government of Romania under the Foreign Sovereign Immunities Act of 1976." Id. The court explained that, as is the case for a creditor seeking to enforce a state court judgment, the ICSID award-creditor must file a "suit on the judgment as a debt" in a "plenary proceeding" against the sovereign. Id. at 49 (citing Continental Casualty, 893 F.Supp.2d at 754).

         With these competing approaches to reconciling the ICSID Convention, Section 1650a, and the FSIA in mind, we now turn to the present controversy.

         II. Factual background

         A. The underlying Award

         The parties do not dispute the basic facts giving rise to the ICSID panel's decision.

         During the 1990s, Mobil (acting through the petitioner subsidiary entities)[11]invested in two oil development ventures undertaken in Venezuela: the Cerro Negro and La Ceiba projects. Cerro Negro was designed "to exploit extra-heavy crude in the Orinoco Oil Belt, " and La Ceiba was designed to explore and exploit "an area with light and medium crude potential adjacent to Lake Maracaibo." Joint App'x ("J.A.") 51. Mobil pursued both investments on a joint-venture basis with the state-owned entity Petroleos de Venezuela, S. A. ("PDVSA").

         In early 2007, in conjunction with the country's nationalization of its oil industry, the Venezuelan government seized Mobil's interests in the projects. The seizures were ratified by the National Assembly of Venezuela. Following the seizures, Mobil submitted a request for arbitration to the International Centre for Settlement of ...


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