In other words, in assessing whether a plaintiff has sufficiently alleged or proffered evidence to support jurisdiction under the FSIA, a district court must review the allegations in the complaint, the undisputed facts, if any, placed before it by the parties, and - if the plaintiff comes forward with sufficient evidence to carry its burden of production on this issue - resolve disputed issues of fact, with the defendant foreign sovereign shouldering the burden of persuasion.
[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case... in which the action is brought... to confirm an award made pursuant to... an agreement to arbitrate, if... the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.
28 U.S.C. § 1605(a)(6). As the Second Circuit has explained, Section 1605(a)(6) "provides an exception to sovereign immunity in cases where a foreign state has agreed to arbitrate and the arbitration agreement is or may be governed by a treaty signed by the United States calling for the recognition and enforcement of arbitral awards." Cargill Int'l, 991 F.2d at 1017.
(1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.
(2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.
(3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.
ICSID Convention, Art. 54 (emphasis added).
For example, Article 64 of the Convention reads as follows:
[a]ny dispute arising between Contracting States concerning the interpretation or application of this Convention which is not settled by negotiation shall be referred to the International Court of Justice by the application of any party to such dispute, unless the States concerned agree to another method of settlement.
ICSID Convention, Art. 64 (emphasis added). Read in context, "party" - as used in Article 64 -refers to a Contracting State.
[t]his Convention shall be open for signature on behalf of States members of the Bank [for Reconstruction and Development]. It shall also be open for signature on behalf of any other State which is a party to the Statute of the International Court of Justice and which the Administrative Council, by a vote of two-thirds of its members, shall have invited to sign the Convention.
ICSID Convention, Art. 67 (emphasis added). Again, the term "party" in Article 67 does not refer to a "party to the arbitration," but rather refers to a State that is a "party to the Statute of the International Court of Justice." In sum, Argentina's claim that "party" - as used in the Convention - invariably refers to a "party to the arbitration" is simply wrong.
(1) Failure of a party to appear or to present his case shall not be deemed an admission of the other party's assertions.
(2) If a party fails to appear or to present his case at any stage of the proceedings the other party may request the Tribunal to deal with the questions submitted to it and to render an award. Before rendering an award, the Tribunal shall notify, and grant a period of grace to, the party failing to appear or to present its case, unless it is satisfied that that party does not intend to do so.
ICSID Convention, Art. 45 (emphasis added).
[e]xcept as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.
ICSID Convention, Art. 46 (emphasis added); see also ICSID Convention, Art. 49 ("The Tribunal upon the request of a party made within 45 days after the date on which the award was rendered may after notice to the other party decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award.").10
The Court has been informed that the parties have reached a settlement in principle of this case. Accordingly, it is hereby ORDERED that this action is dismissed without costs and without prejudice to restoring the action to the Court's calendar, provided the application to restore the action is made within thirty days.
(Id.)14 Blue Ridge did not file an application to restore the action to the Court's calendar.
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal - or state - court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
Fed. R. Civ. P. 41(a).
We find it plain... for two reasons that... Rule [41(a)(2)] requires the district court's specification to be explicit and clear. First, from the standpoint of the plaintiff, fairness demands it. When a plaintiff fails to satisfy the district court's stated conditions and his action is dismissed with prejudice, the consequence is draconian - his claims, however meritorious, are forever barred from being heard on their merits. The plaintiff is entitled to be made aware of this drastic consequence of failing to meet the court's conditions at the time the conditions are imposed, when he still has the opportunity to satisfy the conditions and avoid it.... Giving such a warning poses no significant burden on the district court - it must simply add to its order a sentence or a phrase stating explicitly and clearly that failure to meet its conditions will result in prejudicial dismissal. Second, from the standpoint of the courts, sound judicial practice dictates that district courts make such an explicit and clear specification. As courts, our purpose is "to render judgments in accordance with the substantial rights of the parties." As a result, we have long adhered to "the sound public policy of deciding cases on their merits," and not "depriving... part[ies] of [their] 'fair day in court.'"... Requiring district courts to provide explicit and clear notice when they intend to dismiss the plaintiff's action with prejudice if he fails to satisfy its conditions promotes our strong preference that cases be decided on their merits.
Id. at 471-72 (citations omitted).
[e]ach Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.... Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.
(ICSID Convention, Art. 54) (emphasis added). "Congress has determined that in enforcing an ICSID award, a federal court is to treat it as it would a final judgment from a state court: '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 in one of the several states.'" Siag, 2009 WL 1834562, at *1 (quoting 22 U.S.C. § 1650a(a)) (citing MINE, 693 F.2d at 1103 n. 14 ("ICSID arbitrations are to be enforced as judgments of sister states.").
On a money judgment. A money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it. This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents.... The presumption created by this subdivision may be availed of under an allegation that the action was not commenced within the time limited.
CPLR § 211(b).
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