Accordingly, we do not consider TMR's alternative contention that, contrary to the Second Circuit’s decision In re Arbitration Between Monegasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311 F.3d 488 (2002), the doctrine [of forum non conveniens] has no place in an action to enforce an arbitration award.
Id. at 305 n.*. Based on this apparent limitation, Respondents argue that, although the TMR decision may have ruled out forum non conveniens arguments in circumstances where the respondent may have property in the United States in the future and where no fact-bound arguments would benefit from litigation elsewhere, the Circuit otherwise remained silent as to the doctrine’s application in other circumstances. Mem. of Law in Supp. of Resp’ts’ Mot. to Dismiss Pet. to Confirm Foreign Arbitral Award, in Whole or in Part ("Mot. to Dismiss") at 3031, ECF No. 19-2. And Respondents argue that forum non conveniens applies in this case because there are fact-bound arguments that would benefit from litigation in the Kyrgyz Republic. But the substance of the Second Circuit opinion cited in the TMR footnote helps clarify the contrast that the D.C. Circuit meant to draw. In that case, the Second Circuit considered, and rejected, the argument that the terms of the New York Convention precluded the application of forum non conveniens to petitions to confirm arbitration awards pursuant to the Convention. Monegasque, 311 F.3d at 495-96. The Second Circuit reasoned that forum non conveniens is a procedural doctrine and that Article III of the Convention provides that "the rules of procedure where the award is relied upon" should be applied. Id. at 496 (quoting New York Convention art. III). For this reason, the Second Circuit held that forum non conveniens could apply and should be considered. The TMR footnote upon which Respondents base their argument, then, only clarifies that the D.C. Circuit does not have to consider, as the Second Circuit had, whether forum non conveniens might be outright inapplicable in arbitration enforcement actions, because it has concluded that, even assuming the doctrine applied, forum non conveniens was no reason to dismiss TMR's petition.
First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case. Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination.
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (citations and footnote omitted). The party invoking issue preclusion, here Entes, has the burden of establishing each of its elements. Democratic Cent. Comm. v. Wash. Metro. Transit Comm 'n, 842 F.2d 402, 409 (D.C. Cir. 1988).
There are many reasons why a party may choose not to raise an issue, or to contest an assertion, in a particular action. The action may involve so small an amount in that litigation that litigation of the issue may cost more than the value of the lawsuit. Or the forum may be an inconvenient one in which to produce the necessary evidence or in which to litigate at all. The interest of conserving judicial resources, of maintaining consistency, and of avoiding oppression or harassment of the adverse party are less compelling when the issue on which preclusion is sought has not actually been litigated before.
Restatement § 27 cmt. e. Accordingly, the Court will not speculate why the issue of whether the Kyrgyz Republic is bound by the arbitration Award arose in this case but did not come up in the Ontario litigation. It is enough to recognize that it is a new issue in this case. Consequently, the Kyrgyz Republic is not precluded from arguing that the Award cannot be enforced against it because it was not a party to the underlying arbitration.4
Creation by an enabling law that prescribes the instrumentality's powers and duties; establishment as a separate juridical entity with the capacity to hold property and to sue and be sued; management by a government-selected board; primary responsibility for its own finances; and operation as a distinct economic enterprise that often is not subject to the same administrative requirements that apply to government agencies.
DRC, 71 F. Supp. 3d at 209 (citing Banec, 462 U.S. at 624).5 The inquiry is not a searching one, and the bar that the Republic must clear in arguing its separateness from the Ministry is low because Banec holds that, for reasons of comity, the lower courts should respect a foreign sovereign’s decision to establish an instrumentality with a distinct juridical identity. Banec, 462 U.S. at 626 ("Freely ignoring the separate status of government instrumentalities would result in substantial uncertainty.... [T]he efforts of sovereign nations to structure their governmental activities in a manner deemed necessary to promote economic development and efficient administration would surely be frustrated."). To examine whether the Ministry possesses these telltale characteristics, the Court must look, at least to an extent, to the Kyrgyz Republic’s own laws. "In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence." Fed. R. Civ. P. 44.1.
And the parties are ORDERED to provide supplemental briefing within 30 days as to how Banec applies to the relationship between the Ministry and the Republic as set forth above. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
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