[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... 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)(B).
Pursuant to the New York Convention: (1) an arbitral award may be refused at the request of the party against whom it is invoked where (a) the parties to the agreement were under some incapacity; (b) the party against whom the award is invoked did not receive proper notice of the arbitration proceedings; (c) the award deals with an issue not falling within the terms of the parties' submission to arbitration; (d) the composition of the arbitral tribunal was not in accordance with the parties' agreement; (e) the award has not yet become binding; or (2) recognition and enforcement of an arbitral award may be refused in the country where it is sought if (a) the issue arbitrated is not capable of being arbitrated under the law or (b) it would be contrary to the public policy of such country. New York Convention, Art. V, June 10, 1958, 21 U.S.T. 2517, 1970 WL 104417 (effective for the United States on Dec. 29, 1970).
1. Any dispute between one Contracting Party and an investor of the other Contracting Party arising in connection with investments, including disputes regarding the amount, terms of and procedure for payment of the compensation..., shall be set out in a written notification accompanied by detailed comments which the investor shall send to the Contracting Party involved in a dispute. The parties to the dispute shall attempt to resolve that dispute where possible by negotiation.
2. In the event that the dispute is not resolved within six months of the date of the written notification,..., the dispute shall be referred to be considered by:
(c) an ad hoc arbitration tribunal, in conformity with the Arbitration Rules of the United Nations Commission on International Trade Law (UNICITRAL).
3. The arbitration award shall be final and binding upon both parties to the dispute....
Russia-Ukraine BIT, ECF No. 1-8, Article 9. See, e.g., Merits Award, ECF No. 1-4, at 16, 17, 23 (referring to obligations "under the Russia-Ukraine BIT" and describing the subject of the arbitration as concerning "the lawfulness under the Russia-Ukraine BIT"); ECF No. 1-5, at 43 (setting out Tatneft's claims under the Russia-Ukraine BIT).
Such an argument appears to be an attempt by Ecuador to get two bites at the apple of the merits of its dispute with Chevron, by seeking to have this Court separately determine the arbitrability of the underlying dispute under both the FSIA and the New York Convention. The inquiry Ecuador suggests runs counter to the clear teaching of this Circuit on the purpose and role of the FSIA. The FSIA is a jurisdictional statute that speak[s] to the power of the court rather than to the rights and obligations of the parties. Likewise § 1605(a) does not affect the contractual right of the parties to arbitration but only the tribunal that may hear a dispute concerning enforcement of an arbitral award. Inquiring into the merits of the enforcement dispute — that is, the arbitrability of the underlying claims — would involve an inquiry into the contractual rights of the parties to arbitration and would thus be beyond the reach of the FSIA's cabined jurisdictional inquiry.
Chevron Corp. v. Republic of Ecuador, 949 F.Supp.2d 57, 63 (D.D.C. 2013) (internal citations and quotation marks omitted), aff'd, 795 F.3d 200 (D.C. Cir. 2015). Judge Boasberg applied an approach consistent with many other federal courts engaging in only two jurisdictional inquiries including "whether the award was made pursuant to an appropriate arbitration agreement with a foreign state and whether the award is or may be governed by a relevant recognition treaty." Id. Citation and internal quotation marks omitted). FSIA "allows federal courts to exercise jurisdiction over [a foreign sovereign] in order to consider an action to confirm or enforce the award" regardless of any dispute over whether the tribunal was competent to hear the arbitration in the first place. Chevron, 795 F. 3d at 206; see BCB Holdings Ltd. v. Govt. of Belize, 110 F. Supp. 3d 233, 244 (D.D.C. 2015) ("Inquiring into the merits of whether this dispute was rightly submitted to arbitration is beyond the scope of the FSIA's jurisdictional framework."), aff'd, 650 Fed. App'x 17 (D.C. Cir. 2016).
BG Group left intact the principle that "it is up to the parties to determine whether a particular matter is primarily for arbitrators or for courts to decide." Id. at 1206. In other words, when the parties explicitly agree that the tribunal should decide the scope of its own inquiry, then courts should review that determination deferentially. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 131 L. Ed. 2d 185 (1995) ("[A]court must defer to an arbitrator's arbitrability decision when the parties submitted that matter to arbitration.")
Crystallex, 244 F. Supp. 3d at 111; see also Gold Reserve Inc. v. Bolivarian Republic of Venezuela, 146 F. Supp.3d 112, 121 (D.D.C. 2015) ("In cases where both parties have clearly and unmistakably delegated the question of arbitrability to the arbitrator, a court 'should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances.'") (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995)).
Even if [Respondent] currently has no attachable property in the United States, however, it may own property here in the future, and [Petitioner's] having a judgment in hand will expedite the process of attachment. In any event, the possibility that the judgment of the district court may go unenforced does not bear upon whether that court is an inconvenient forum in which to defend. [Respondent] also speculates that [Petitioner's] true motive is to go after the property of the State of Ukraine, but [Petitioner's] motive is immaterial and whether [Petitioner] could properly attach such property is not before us.
Because there is no other forum in which [Petitioner] could reach the [Respondent's] property, if any, in the United States, we affirm the district court's refusal to dismiss this action based upon the doctrine of forum non conveniens.
TMR, 411 F.3d at 303-04; see generally Belize Social Dev. Ltd. v. Gov't of Belize, 5 F. Supp. 3d 25, 34 (D.D.C. 2011) (noting that TMR Energy is "the controlling law in [this] Circuit"), aff'd, 794 F.3d 591 (D.C. Cir. 2013).
1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(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
(c) The award deals with a difference not contemplated by or not falling within the terms 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
(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.
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.
New York Convention, art. V, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (effective for the United States on Dec. 29, 1970).
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