Thai-Lao Lignite (Thailand) Co., et al v. Government of the Lao People’s Democratic Republic, 10 Civ. 5256 (S.D.N.Y Aug. 2011), presents a recent analysis of cross-motions to vacate and confirm arbitral awards, a mainstay in the international dispute resolution play book. The decision provides learning on several timely topics that we address more fully in the discussion of the enforcement and recognition of non-U.S. arbitral awards against non-U.S. sovereigns in our e-book, International Practice: Topics and Trends.
The agreement between the litigants provided for arbitration in Malaysia at the Kuala Lumpur Regional Centre for Arbitration under the UNCITRAL rules, with an award being permitted to be entered as a judgment “in any court of competent jurisdiction”. Even though the respondent was a sovereign state, the parties’ agreement itself contained a broad waiver of sovereign immunity. The District Court upheld this waiver.
The District Court independently based jurisdiction on an exception to the Foreign Sovereign Immunities Act, 28 U.S.C. sec. 1605(a)(6), which provides that a non-U.S. sovereign “shall not be immune from the jurisdiction of the courts of the United States” in an action
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 … (B) 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 ….
The U.S. is a signatory to the New York Convention, which satisfied the requirement of Section 1605(a)(6).
The District Court also overruled the personal jurisdiction objection, finding that it had personal jurisdiction over the non-U.S. sovereign pursuant to 28 U.S.C. Sec. 1330(b) providing personal jurisdiction over a non-U.S. sovereign in the circumstances here if service of process is made in accordance with the statute (28 U.S.C. sec. 1608). The parties had stipulated that such service had been made. The Court followed the Second Circuit’s decision in Frontera Resources Azerbaijan Corp. v. State Oil Co. of the Azerbaijan Republic, 582 F.3d 393 (2d Cir. 2009), holding that non-U.S. sovereigns are not entitled to the jurisdictional protections of the Due Process Clause or the minimum contacts requirement.
The District Court also concluded that the non-U.S. sovereign was permitted to assert a forum non conveniens objection — but rejected the defense on merits. The Court observed that the New York “Convention specifically contemplates multiple, simultaneous enforcement proceedings”.
Finding no grounds to challenge the arbitral award, the Court agreed that it was obliged to enforce it.