Any dispute that may arise concerning the formation, performance, construction or termination of this Contract shall be first resolved amicably by direct negotiations between the two contracting Parties.
If at the end of a three (3) month period from the date notice of a dispute is given by one party to the other party the two contracting parties have not reached an agreement to resolve their dispute, either party may submit the dispute to arbitration by an Arbitral Tribunal appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC). The Arbitral Tribunal shall comprise three arbitrators appointed in accordance with said Rules. The seat of arbitration shall be Paris and the language of such arbitration shall be French. The parties shall comply with any arbitration award and, accordingly, the State expressly waives any immunity of any kind whatsoever.
Pet. ¶ 30; Translated Partial Award at 10 ¶ 4.
A foreign state shall not be immune from the jurisdiction of courts of the United States... in any case... in which the 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 all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such 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).
(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or
(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned....
I hereby certify that on July 23, 2018, service of the summons, complaint and notice of suit, together with a translation of each into French, by DHL, to the head of the ministry of foreign affairs of Respondent the Democratic Republic of the Congo was effected pursuant to the provisions of 28 U.S.C. § 1608(a)(3). The Clerk of the Court has previously certified that such documents were transmitted by DHL Waybill No. 73 9563 7326.4
Decl. of Morris [Dkt. #8]. Given this evidence, CTC properly served the DRC under the FSIA.
On September 7, 2018, I received a letter from Congo’s Ministry of Justice acknowledging receipt of the service of process and stating an intent to retain American counsel to represent Congo in this proceeding.
Decl. of O’Brien, Mot. for Default J. Ex. B [Dkt. #11-11] ¶ 7; see also Mot. for Default J. Ex. B-l1 [Dkt. #11-12] (appearing to be this letter). Despite this apparent intent to retain American counsel, the DRC has not taken any steps to defend this action or respond to CTC’s motion for default judgment. In any event, CTC has satisfied the FSIA’s service requirements.
(a) The parties to the agreement... were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration... or
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
New York Convention Art. V(1). But the party resisting confirmation of an arbitral award "bears the heavy burden of establishing that one of the grounds for denying confirmation in Article V applies." Gold Reserve, Inc. v. Bolivarian Repub. of Venezuela, 146 F. Supp. 3d 112, 120 (D.D.C. 2015). As the DRC has not even appeared in this matter, it certainly has not carried its burden as to any of these grounds.5
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of [the country where enforcement is sought]; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.
New York Convention Art. V(2). Neither of these grounds applies here. First, the subject matter of this dispute—the breach of a contract for services—is commonly settled by arbitration in the United States. Second, "[t]he Supreme Court has recognized an 'emphatic federal policy in favor of arbitral dispute resolution," TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 934 (D.C. Cir. 2007) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985), so the enforcement of these awards would not violate public policy.6
• $92,550,0987 as compensation for unpaid invoices, with interest at the rate of 1.5% per month on each invoice as from five days after its presentation until full payment. See Pet. ¶ 58, 61; Honlet Decl. ¶¶ 16-17, Translated Partial Award at 115 ¶ 239; Addendum ¶ 27.
• $3,750,000 as compensation for demobilization indemnity and repatriation allowance for personnel, with interest at the rate of 1.5% per month from January 15, 2010 until full payment. See Pet. ¶ 59; Honlet Decl. ¶ 16, Translated Partial Award at 115 ¶ 239.
• $162,500 as the DRC’s portion of the arbitral fees, with interest at the rate of 5% per year from February 22, 2016 until full payment. See Pet. ¶ 64; Honlet Decl. ¶ 18; Final Award at 16 ¶ 48.
• €200,000 as compensation for CTC’s legal fees, with interest at the rate of 5% per year from February 22, 2016 until full payment. See Pet. ¶ 64; Honlet Decl. ¶ 18, Final Award at 16 ¶ 48.
"Courts in the United States ordinarily give judgment on causes of action arising in another state, or denominated in a foreign currency, in United States dollars...." Africard, 210 F. Supp. 3d at 128 (quoting Restatement (Third) of Foreign Relations Law § 823(1) (internal quotation marks omitted)). Therefore, I will convert this last amount from euros to dollars. If, as here, "the foreign currency has appreciated since the injury or breach, judgment should be given at the rate of exchange applicable on the date of judgment or the date of payment." Id. at 128-29. According to the Department of the Treasury’s Bureau of the Fiscal Service, each euro is currently worth 1.1377 dollars.8 As such, the DRC owes CTC $227,540, plus applicable interest, as compensation for CTC’s legal fees.
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