Pending before this Court is Respondent Ukraine’s  Motion to Stay Execution of Judgment Without Bond.1 This Memorandum Opinion relates to a discrete post-Judgment issue in a case involving a long and tortuous history, first in arbitration and later in this Court. As such, this Court incorporates by reference the background sections set forth in its March 19, 2018 Memorandum Opinion, ECF No. 34, and May 13, 2020 Memorandum Opinion, ECF No. 48, as supplemented by its August 24, 2020 Memorandum Opinion, ECF No. 50, and the Court will highlight below the relevant procedural background.
Pao Tatneft, formerly known as OAO Tatneft (herein referred to as “Tatneft”), initially brought this action to enforce a 2014 foreign arbitral award entered in favor of Petitioner Pao Tatneft and against Respondent Ukraine by the International Arbitral Tribunal in OAO Tatneft v. Ukraine, an arbitration seated in Paris, France and conducted pursuant to the Rules of the United Nations Commission on International Trade Law (“UNCITRAL”). Tatneft filed in this Court its  Petition to confirm the arbitral award on March 30, 2017. On August 24, 2020, this Court granted Tatneft’s Petition for confirmation of the foreign arbitral award, see Order, ECF No. 49, and Memorandum Opinion, ECF No. 50. Thereafter, Ukraine filed an appeal, while the parties concurrently briefed their calculations of the proposed judgment amount with interest. On January 11, 2021, this Court entered its  Memorandum Opinion and Order affirming the judgment amount (with interest) calculated by Tatneft, and entered its  Judgment in the amount of $172,910,493.00.
Ukraine asserts that a stay is warranted because of Ukraine’s status as a “sovereign entity with ample funds to satisfy the Court’s judgment at the appropriate time.” Ukraine Mot., ECF No. 67, at 6 (citing Cruise Connections Charter Mgmt. I v. Attorney General of Canada, 2014 U.S. Dist. LEXIS 204835, at *3 (D.D.C. Oct. 1, 2014)). Ukraine argues first that there is a “presumption in favor of sovereign states” that relieves them of the concern upon which a bond requirement is predicated; i.e., a likelihood or inability or unwillingness to pay. Ukraine Mot., ECF No. 67, at 7; see Matter of Arbitration of Certain Controversies Between Getma Int’l & Republic of Guinea, 142 F. Supp. 3d 110, 118 n. 10 (D.D.C. 2015) (noting that a “sovereign state ... [is] presumably ... solvent and will comply with legitimate order issued by courts in this country”) (quotation omitted and alterations in original); see also Novenergia II - Energy & Env’l (SCA) v. Kingdom of Spain, 18-cv-01148 (TSC), 2020 WL 417794, at *6 (D.D.C. Jan. 27, 2020) (noting that “courts in this Circuit generally have not required foreign sovereigns to post security” because of the presumption of solvency and compliance with court orders).
Tatneft argues however that, “[c]ontrary to Ukraine’s assertion, courts in this Circuit have made clear that the default rule requiring a bond to obtain a stay of execution applies to foreign sovereigns, just as it does to other defendants.” Tatneft Opp’n, ECF No. 69, at 16; see, e.g. (rejecting Venezuela’s argument that with regard to foreign sovereigns, courts have “generally” declined to require the posting of security as a condition for obtaining a stay, and further noting that there is “no consensus that a foreign sovereign should be exempted from the default rule[…]”) Tatneft distinguishes the cases cited by Ukraine in support of any alleged “rule” that foreign sovereigns are excused from posting a bond. Tatneft notes that the court either “engage[d] in fact-intensive analysis,” as in Cruise Connections, 2014 WL 12778302, at *1, or the court “d[id] not analyze the existence or basis for such a supposed “rule” at all,” as in Arbitration of Controversies Between Getma and Guinea, 142 F. Supp. 3d at 188, where Guinea’s ability to pay was addressed in a footnote, and Novenergia II, 2020 WL 417794, at *6, where the court had not yet determined its jurisdiction under the New York Convention.
Moreover, Tatneft notes several cases from this Circuit where foreign sovereigns were not granted unsecured stays, thus demonstrating that “there is no consensus that a foreign sovereign should be exempted from the default rule” of a supersedeas bond. Tatneft Opp’n, ECF No 69, at 16-17; see, e.g., Baker v. Socialist People’s Republic of Libyan Arab Jamahirya, 810 F. Supp. 2d 90, 100 n.6 (D.D.C. 2011) (refusing to grant Syria’s request for a stay and noting that if a stay had been granted, there would have been a condition that Syria post a supersedeas bond); Stati v. Republic of Kazakhstan, No. 1:14-cv-01638, Order, ECF No. 91, at2 (D.D.C. Nov. 13, 2018) (denying Kazakhstan’s request for unsecured stay of execution of judgment, but noting that Kazakhstan was free “to obtain a stay by posting a bond in accordance with  Rule 62(d).”). Accordingly, upon review of cases from this Circuit, the Court concludes that with regard to foreign sovereigns, there is no hardline exception to the default rule requiring a bond to obtain a stay of execution. Instead, the Court must apply the standard set forth in the Fed. Prescription case and look to the circumstances of this case to determine if there are “unusual circumstances” that warrant waiving the requirement of a supersedeas bond.
In its Motion, Ukraine alleges that there is a “presumption that a sovereign will pay an adverse judgment if it is affirmed on appeal[…]” Ukraine Mot., ECF No. 67, at 9; but see Crystallex, 16cv-00661-RC, Order, ECF No. 44, at 3-4 (D.D.C. Aug. 8, 2017) (refusing a stay without bond after finding affirmative evidence that the judgment debtor was not solvent, had a track record of failing to pay arbitral awards, and was taking active measures to avoid the judgment by repatriating its assets). In this case, Ukraine is a “sovereign entity whose over $40.8 billion in annual revenue and over $28.5 billion in reserves far exceed the judgment at issue.” Ukraine Mot., ECF No. 67, at 8. The Court acknowledges that there is no dispute regarding Ukraine’s solvency and ability to pay, see Ukraine Reply, ECF No. 73 at 9; rather, the dispute herein revolves around Ukraine’s willingness and intention to pay.
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of they stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
The first factor - a “strong showing” of likelihood of success - requires the presentation of a “serious legal question” raising “a fair ground for litigation.” Ukraine Mot., ECF No. 67, at 10 (citing Wash. Metro. Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977)). In this case, Ukraine proffers three grounds for its appeal - illegality, arbitrator bias, and forum non conveniens. Ukraine explains that the seriousness of its argument regarding illegality is “demonstrated by the U.K. High Court of Justice’s recent determination that Amruz and Seagroup share purchases were contrary to the law of Ukraine.” Ukraine Mot., ECF No. 67, at 10. Tatneft argues however that Ukraine forfeited that argument in this Court” and “controlling D.C. Circuit case law  forecloses [that] argument here.” Tatneft Opp’n, ECF No. 69, at 21. With regard to arbitrator bias, Ukraine appears to rely on Belize Bank Ltd. v. Gov’t of Belize, 191 F. Supp. 3d 26, 35-38 (D.D.C. 2016), for the proposition that bias may be evaluated under Article V(l)(d). Ukraine Mot., ECF No. 67, at 10. Tatneft notes however that the Belize court ultimately refused to deny recognition of the award on grounds of alleged arbitrator bias. Tatneft Opp’n, ECF No. 69, at 21-22. Finally, with regard to the issue of forum non conveniens, Ukraine argues that “a categorical reading of [a 2005 case from this Circuit] is contrary to a 2007 Supreme Court case, Ukraine Reply, ECF No. 73, at 13-14, while Tatneft argues that D.C. Circuit precedent survives, as illustrated by a later D C. Circuit decision. Tatneft Opp’n, ECF No. 69, at 22. While this Court finds that Tatneft has raised arguable defenses to each of Ukraine’s three claims, such defenses do not negate that Ukraine has done enough to meet the standard of presenting “serious legal questions” raising a “fair ground for litigation.” Accordingly, the Court finds that this first Hilton factor weighs in favor of Ukraine.
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