This undertaking is considered as a commercial instrument governed by commercial law and is constituted for commercial purposes. It follows that the signatory hereof irrevocably and on a final basis waives the right to invoke any immunity from legal proceedings as well as any immunity from execution in the context of the settlement in the context of the settlement of a dispute relating to the undertakings which are the subject hereof.
Pl.'s Mot. 9; Pl.'s Statement ¶ 6 (citing Commitment Letters Nos. 75, 78, 85, 88, 95, 99, 105 & 108, ECF Nos. 37-21, 37-22, 37-23, 37-24, 37-25, 37-26, 37-27 & 37-28). This language expressly waives defendants' sovereign immunity pursuant to § 1605(a)(1). Moreover, defendants concede that they waived their sovereign immunity and "do not deny that this Court has jurisdiction to adjudicate Commisimpex's cause of action for recognition of the English Order...." Defs.' Opp'n 41. The Court has subject matter jurisdiction.3
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2. "[S]tate laws are preempted when they conflict with federal law." Arizona, 132 S. Ct. at 2501. Such a conflict arises, inter alia, where the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Arizona, 132 S. Ct. at 2501 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). "What is a sufficient obstacle is a matter of Judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000). "[T]he entire scheme of the statute must... be considered and that which needs must be implied is of no less force than that which is expressed." Id. (quoting Savage v. Jones, 225 U.S. 501, 533 (1912).
Within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.
9 U.S.C. § 207. "Courts addressing claims under the Arbitration Act have construed Section 207 to be a statute of limitations." Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 28, 29 (D.D.C. 1999) (collecting cases); see also id. (finding an award not confirmed within three years to be "null and void"). Congress chose to impose a longer period for parties to seek enforcement of New York Convention awards than it already had in place for confirmation of domestic arbitral awards. See 9 U.S.C. § 9 (one-year statute of limitations for confirmation of domestic awards). Notably, the three-year period Congress settled on is far shorter than that imposed by many other contracting states, some of which have no limitation period whatsoever. See, e.g., ICC, International Court of Arbitration Bulletin: Guide to National Rules of Procedure for Recognition and Enforcement of New York Convention Awards, app. D (2008 Special Supplement) (listing the statutes of limitations for signatory states).
Chairman: Does this legislation have any effect whatever on State laws?
Mr. Kearney: No, Mr. Chairman, it does not. It concerns in effect solely the jurisdiction of the Federal district courts.
Chairman: And it does not alter or change a citizen's rights under State laws?
Mr. Kearney: Not at all.
Chairman: Does it in any way broaden Federal authority?
Mr. Kearney: Not basically. It provides for the right of removal to the district court from the State court in a case that falls under the Convention, but what we are dealing with is foreign commerce which now is fully within the ambit of Federal authority.
Chairman: So there is no possible opposition based upon the idea we are now reaching out and subjecting citizens to further arbitrary intervention of the Federal authorities or any other authorities in their private affairs. That is not justified; is that correct?
Mr. Kearney: That is correct.
S. Rep. No. 91-702, 91st Cong. 2d Sess at 10 (1970); see also Pl.'s Reply 14-15 (quoting and discussing this passage.). Even setting aside the usual caveats about reading this type of legislative history as a reliable signal of Congressional intent, this exchange is far too general to dispute the Congressional purposes in promoting uniformity and finality evinced by the legislation as described above. The exchange does not consider the time-limit imposed by § 207, nor does it suggest that Congress contemplated the loophole that Commisimpex now seeks to exploit. Mr. Kearney's statement that cases implicating "foreign commerce" are "now... fully within the ambit of Federal authority" actually bolsters the Congressional purpose in procedural uniformity, evinced by its choice to implement the New York Convention at the federal level, rather than leaving it for individual states.
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