Oi European Group B v. v. Bolivarian Republic of Venezuela ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
OI EUROPEAN GROUP B.V., )
)
Plaintiff, )
)
v. ) Civil Action No. 16-1533 (ABJ)
)
BOLIVARIAN REPUBLIC OF )
VENEZUELA, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Owens-Illinois European Group (“OIEG”) brought this action pursuant to 22
U.S.C. § 1650a and Article 54 of the International Centre for Settlement of Investment Disputes
(“ICSID”) Convention against the Bolivarian Republic of Venezuela seeking to confirm and
enforce an arbitration award of more than $400 million. Compl. [Dkt. # 1]. In October of 2010,
OIEG’s factories were expropriated by the Venezuelan government, then headed by Hugo
Chávez, and on September 7, 2011, OIEG commenced arbitration against Venezuela pursuant to
the Netherlands-Venezuela Bilateral Investment Treaty. Id. ¶¶ 6, 12; Final Award [Dkt. # 1-10]
¶¶ 1, 110. On March 10, 2015, the tribunal found in favor of plaintiff, and it awarded OIEG
$372,461,982 for the expropriation and $5,750,000 in costs and expenses. See Final Award
[Dkt. # 1-14] ¶¶ 880–81, 976.
A motion to dismiss has already been heard and denied, see Mar. 8, 2019 Hr’g Tr. [Dkt.
# 54] (“3/8 Hr’g Tr.”), and plaintiff has filed a motion for summary judgment seeking
confirmation of the Award. Pl.’s Mot. for Summ. J. [Dkt. # 60] (“Pl.’s Mot.”). Because 22
U.S.C. § 1650a requires this Court to confirm an arbitral award obtained under ICSID, and the
sole issue raised in defendant’s opposition pertains to the applicable post-judgment interest rate,
the Court will enter judgment for plaintiff.
BACKGROUND
I. International Centre for Settlement of Investment Disputes (“ICSID”)
The International Convention on the Settlement of Investment Disputes between States
and Nationals of Other States is a multilateral treaty designed to provide a legal framework for
resolving disputes between private investors and governments. Preamble, Mar. 18, 1965, 17
U.S.T. 1270 (“ICSID Convention”). The ICSID Convention established the International Centre
for Settlement of Investment Disputes, which has the authority to convene arbitration tribunals to
adjudicate disputes between international investors and host governments in contracting states.
Id. art. 1. “Any Contracting State or any national of a Contracting State” may request that ICSID
convene an arbitration tribunal. See id. art. 36. The tribunal, which consists of either a single
arbitrator or “any uneven number of arbitrators,” id. art. 37, considers the dispute and issues a
written award, which “deal[s] with every question submitted to the [t]ribunal, and . . . state[s] the
reasons upon which it is based.” Id. art. 48.
The parties have multiple avenues for contesting the tribunal’s award: A party may
request “revision” if there is a newly-discovered material fact previously unknown to the parties
and arbitrator, see id. art. 51, or an “annulment” if a party challenges the tribunal’s substantive
decision. Id. art. 52. When a party seeks annulment, ICSID convenes an ad hoc committee of
three members to review the award determination. Id. At a party’s request, enforcement of an
award is “stayed provisionally until the [c]ommittee” renders its decision. Id. But, “except to
the extent that enforcement” has been stayed, the tribunal’s award remains “binding on the
parties and shall not be subject to any appeal or to any other remedy” other than those set forth in
the ICSID Convention. Id. art. 53.
2
ICSID is not empowered to enforce awards. Prevailing parties must register their awards
with a court of a member state. The courts of member states are required to “recognize an award
. . . as binding and [to] enforce the pecuniary obligations imposed by that award within its
territories as if it were a final judgment of a court in that [s]tate,” or, for a member state with “a
federal constitution,” to “treat the award as if it were a final judgment of the courts of a
constituent state.” Id. art. 54; see 22 U.S.C. § 1650a(a).
The United States has been a member of the ICSID Convention since 1966, and Congress
has enacted legislation implementing the Convention:
An award of an arbitral tribunal rendered pursuant to chapter IV of the
convention shall create a right arising under a treaty of the United States.
The pecuniary obligations imposed by such an award shall be enforced
and shall be given the same full faith and credit as if the award were a
final judgment of a court of general jurisdiction of one of the several
States. The Federal Arbitration Act (9 U.S.C. 1 et seq.) shall not apply to
enforcement of awards rendered pursuant to the convention.
22 U.S.C. § 1650a(a).
II. Factual and Procedural Background
Plaintiff is a corporation organized and existing under the laws of the Netherlands. Pl.’s
Statement of Undisputed Material Facts [Dkt. # 63] (“Pl.’s SOF”) ¶ 1. Plaintiff is part of a group
of companies that operates glass container factories around the world, including in Venezuela.
See Final Award [Dkt. # 1-10] ¶¶ 86–87. Plaintiff operated its Venezuelan glass factories
through two of its subsidiaries, – Fábrica de Vidrios los Andes, (“Favianca”) and Owens-Illinois
de Venezuela, C.A. (“OIdv”) – through which plaintiff held 72.983% equity interest in the
Venezuelan factories. Id. ¶ 87; id. [Dkt. # 1-14] ¶ 881. A group of minority shareholders held
the remaining 27.017% equity interest. See id. Defendant is the Bolivarian Republic of
Venezuela. Pl.’s SOF ¶ 2.
3
In October of 2010, the Venezuelan government expropriated plaintiff’s Venezuelan
glass factories, Final Award ¶¶ 110–14, and OIEG commenced arbitration against Venezuela on
September 7, 2011. Id. ¶ 1. An arbitral tribunal was assembled by March 30, 2012, id. ¶ 21, and
on September 16–21, 2013, the tribunal held a hearing in Paris, France to receive testimony and
hear argument. Id. ¶¶ 66–67. On March 10, 2015, the tribunal issued a final arbitration award
(“Award”) in OIEG’s favor. Pl.’s SOF ¶ 3; see Final Award. That Award consisted of:
• $372,461,982 for the expropriation in principal amount, plus interest from
October 26, 2010 until payment in full calculated at a LIBOR interest rate
for one-year deposits in U.S. dollars, plus a margin of 4% with annual
compounding of accrued interest, Final Award ¶ 984(6);
• $5,750,000 for costs and expenses in the ICSID arbitration, plus interest
from March 10, 2015 until payment in full calculated at a LIBOR interest
rate for one-year deposits in U.S. dollars, plus a margin of 4% with annual
compounding of accrued interest. Id. ¶ 976.
See also Pl.’s SOF ¶ 5.
Shortly thereafter, Venezuela sought annulment of the award in accordance with the
ICSID convention. Pl.’s SOF ¶ 4; ICSID Convention art. 52. On July 17, 2015, the Annulment
Committee entered a provisional stay of enforcement of the Award, but on April 4, 2016, that
stay was terminated based upon the risk of Venezuela’s non-compliance. Decision on Stay of
Enforcement of the Award, Ex. B to Neudhardt Decl. [Dkt. # 27-8] ¶¶ 123–28, 130.
Subsequently, OIEG filed suit in this Court to enforce its arbitration award, and after a year of
multiple service attempts, plaintiff effectuated service on June 28, 2017. See Return of Service
[Dkt. # 16].
On September 27, 2017, defendant moved to dismiss the complaint arguing that OIEG
was not the real party in interest and Federal Rule of Civil Procedure 17 mandated dismissal, that
OIEG had waived its right to claim that the decision is an enforceable final award, that OIEG
4
was impermissibly seeking double recovery, 1 and that the award was unenforceable because one
of the arbitrators on the tribunal was biased. See Def.’s Mot. to Dismiss or Stay the Proceeding
[Dkt. # 23]. In the alternative, defendant moved to stay the proceedings pending the annulment
proceedings. See id. On December 21, 2017, the Court granted defendant’s motion to stay.
Min. Order (Dec. 21, 2017).
Almost a year later, on December 10, 2018, plaintiff notified the Court that the
annulment committee had rejected defendant’s application for annulment on December 6, 2018.
See Pl.’s Status Report [Dkt. # 52]; Annulment Comm. Decision [Dkt. # 52-1] (“Annulment
Decision”). And, the committee awarded plaintiff an additional $3,864,811.05 for costs and
expenses related to the annulment proceeding, plus interest from December 6, 2018 until
payment at the same rate provided for in the Award. Annulment Decision ¶ 398.
The Court therefore lifted the stay on December 18, 2018, see Min. Order, and it denied
defendant’s motion to dismiss in open court on March 8, 2019. See 3/8 Hr’g Tr. With respect to
the real party in interest issue, the Court found that Federal Rule of Civil Procedure 25, not Rule
17, applied, and Rule 25 did not mandate dismissal of the case. Id. at 10:11–15:2. It also held
that OIEG had not waived its right to enforce the award, that OIEG was not impermissibly
seeking double recovery, and that the arbitrator bias argument was not available to defendant
1 In addition to the OIEG Arbitration, the two subsidiaries, Favianca and OIdv, filed
another, separate arbitration against Venezuela. See Decl. of Diego Brian Gosis in Supp. of Mot.
to Dismiss Compl. [Dkt. # 23-1] (“Gossis Decl.”) ¶¶ 4–5. This arbitration was presented to a
different tribunal, and a final hearing for this arbitration was held on April 4–8, 2016. Id. ¶ 5.
On December 7, 2017, while the motion to dismiss was pending, plaintiff notified the Court that
the tribunal in the Parallel Arbitration had dismissed Favianca and OIdv’s claims on November
13, 2017, because the tribunal found that it was without jurisdiction with respect to the dispute
that had been submitted to it. See Pl.’s Suppl. Mem. in Supp. of Pl.’s Opp. to Def.’s Mot. to
Dismiss [Dkt. # 37] (“Pl.’s Suppl. Mem.”).
5
during an enforcement proceeding for an award issued pursuant to the ICSID Convention. Id. at
15:3–25:16.
Thereafter, the Court entered a schedule for briefing summary judgment. See Min. Order
(Mar. 15, 2019). But before any briefs were filed, the parties entered into a stipulation for final
judgment. Stipulated Order for Final J. [Dkt. # 56] (“Stipulation”). The next day, new counsel
for defendant, representing Venezuela under the authority of the President of the Venezuelan
National Assembly, Juan Guaidó, entered an appearance, Appearance of Counsel [Dkt. # 57],
and moved to strike the stipulation on the grounds that it was the Guaidó government, and not
the Maduro government, that had been formally recognized by the United States. Guaidó Gov’t
Emergency Mot. to Strike [Dkt. # 58]. Considering Venezuela’s political climate and possible
change of administration, OIEG informed the Court that it would not oppose the motion, Resp. to
Emergency Mot. [Dkt. # 59], and it filed its motion for summary judgment. See Pl.’s Mot. In
light of plaintiff’s consent to the Guaidó government motion, the Court granted the motion to
strike, see Min. Order (Apr. 2, 2019), but on April 4, counsel for Venezuela under the authority
of the Nicolás Maduro government, which had entered into the stipulation and been litigating
this case since its inception, moved for reconsideration of the motion to strike. Maduro Gov’t
Mot. for Recons. [Dkt. # 65]. The Guaidó government then moved to strike the motion for
reconsideration. Guaidó Gov’t Mot. to Strike Mot. for Recons. [Dkt. # 67]. 2 Both sets of
attorneys for defendant also filed oppositions to the motion for summary judgment. Guaidó
Gov’t Opp. to Pl.’s Mot. [Dkt. # 71] (“Guaidó Gov’t Opp.”); Maduro Gov’t Opp. to Pl.’s Mot.
[Dkt. # 72] (“Maduro Gov’t Opp.”).
2 In addition to the motions to strike, both the Maduro government and Guaidó government
filed a number of other motions, including a motion to stay [Dkt. # 71] and a motion for
substitution or joinder [Dkt. # 73].
6
After considering this unusual procedural posture, the Court ordered that the parties,
including both sets of attorneys for defendant, appear in Court for a status conference. Min.
Order (Apr. 10, 2019). The Court had doubts concerning its authority to determine which set of
lawyers represented any defendant, much less which political leader represented a foreign
sovereign. At a hearing on May 2, 2019, the lawyers for the Guaidó government informed the
Court of a decision reached by the D.C. Circuit the day before that governed this issue. Status
Conference Hr’g Tr. [Dkt. # 81] (“5/2 Hr’g Tr.”) at 9:12–25. The Court took the matter under
advisement but also inquired whether the parties could resolve the question of representation
among themselves, and in the event the stipulation that had been previously negotiated might
have been favorable to the Venezuelan government, it gave the Guaidó lawyers the opportunity
to ascertain their client’s position with respect to a stipulation. Id. at 10:3–9, 20:13–17. Both
sets of attorneys filed notices with the Court two weeks later indicating that the Guaidó counsel
were unable to obtain the necessary authorization to enter into a stipulation, Guaidó Gov’t Notice
[Dkt. # 82] at 1, and that the Maduro counsel did not agree to voluntarily withdraw. Id.; see
Maduro Gov’t Notice [Dkt. # 83] at 2.
STANDARD OF REVIEW
ICSID’s enabling statute makes clear that the Court may not re-examine the propriety of
the award:
The pecuniary obligations imposed by such an award shall be enforced
and shall be given the same full faith and credit as if the award were a
final judgment of a court of general jurisdiction of one of the several
States. The Federal Arbitration Act (9 U.S.C. 1 et seq.) shall not apply to
enforcement of awards rendered pursuant to the convention.
22 U.S.C. § 1650a(a) (emphasis added). While this Circuit has not explicitly discussed a court’s
authority to review ICSID awards, the Second Circuit has addressed this issue. In Mobil Cerro
Negro, Ltd. v. Bolivarian Republic of Venezuela, the Second Circuit observed:
7
[The Federal Arbitration Act (“FAA”)] prescribes grounds for vacating an
arbitral award where the award was tainted by, among other things, fraud,
corruption, or misconduct by the arbitrator. By expressly precluding the
FAA’s application to enforcement of ICSID Convention awards, Congress
intended to make these grounds of attack unavailable to ICSID award-
debtors in federal court enforcement proceedings. Congress’s exclusion of
the FAA’s provisions from Section 1650a may suggest an expectation that
actions to enforce ICSID awards would not be protracted, as emphasized
by the District Court.
863 F.3d 96, 120–21 (2d Cir. 2017) (internal citations omitted), citing 112 Cong. Rec. 13148,
13149 (daily ed. June 15, 1966) (written statement of Sen. Fulbright) (conveying that substantive
attack to ICSID awards on grounds provided by FAA can be made “only through the annulment
proceedings provided for in the Convention,” not in federal court). Thus, courts have found “[a]
member state is ‘not permitted to examine an ICSID award’s merits, its compliance with
international law, or the ICSID tribunal’s jurisdiction to render the award;’ all it may do is
‘examine the judgment’s authenticity and enforce the obligations imposed by the award.’”
TECO Guat. Holdings, LLC v. Republic of Guat., No. CV 17-102 (RDM), 2018 WL 4705794, at
*2 (D.D.C. Sept. 30, 2018), quoting Mobil Cerro, 863 F.3d at 102; see also Mobil Cerro Negro
Ltd. v. Bolivarian Republic of Venez., 87 F. Supp. 3d 573, 578 (S.D.N.Y. 2015), rev’d on other
grounds, 863 F.3d 96 (2d Cir. 2017) (noting that ICSID “determinations are final” and national
courts “may review such awards solely to confirm their authenticity”).
ANALYSIS
I. The Court is required to recognize only the representatives of the Guaidó
government.
The D.C. Circuit has addressed the question of the legal representation of Venezuela, and
its decisions are binding on this Court. On May 1, 2019, the Court issued an Order denying a
“pro se application” filed by Reinaldo Enrique Muñoz Pedroza, the Attorney General of the
Bolivarian Republic of Venezuela under the authority of the Nicolás Maduro government. See
8
Order, Rusoro Mining Ltd. v. Bolivarian Republic of Venez., No. 18-7044, Doc. No. 1785518
(D.C. Cir. May 1, 2019). The application requested that the Court bar Juan Guaidó and his
representatives from arguing the appeal on behalf of Venezuela. Id. In denying the application,
the Court reasoned:
“What government is to be regarded here as representative of a foreign
state is a political rather than a judicial question, and is to be determined
by the political department of the government.” The executive branch’s
“action in recognizing a foreign government . . . is conclusive on all
domestic courts, which are bound to accept that determination . . . .”
Furthermore, “the rights of a sovereign state are vested in the state rather
than in any particular government which may purport to represent it, and .
. . suit in its behalf may be maintained in our courts only by that
government which has been recognized by the political department of our
government as the authorized government of the foreign state.”
Id. (internal citations omitted), quoting Guaranty Trust Co. v. United States, 304 U.S. 126, 137–
38 (1938).
In light of this Order, and because the United States has recognized Juan Guaidó as the
Interim President of Venezuela, 3 the Court will recognize the Guaidó government lawyers as the
3 See White House Statements & Releases, Statement from Donald J. Trump (Jan. 23,
2019) available at https://www.whitehouse.gov/briefings-statements/statement-president-donald-
j-trump-recognizing-venezuelan-national-assembly-president-juan-guaido-interim-president-
venezuela/ (last accessed May 17, 2019).
9
appropriate representatives of Venezuela, 4 and the Court will consider the opposition brief filed
by the Guaidó government in response to plaintiff’s motion for summary judgment. 5
II. The Court will enter judgment in favor of the plaintiff.
The Guaidó government makes no argument against the entry of judgment in favor of the
plaintiff 6 – the only issue it raises is the applicable post-judgment interest rate. Since there has
been no grounds presented to contest the authenticity of the Award, the Court will enter
judgment in favor of the plaintiff and confirm the Award.
The Court notes that granting judgment in favor of the plaintiff is entirely consistent with
the intent of the Maduro government as it was expressed in its March 27, 2019 stipulation to the
entry of judgment for the plaintiff. See Stipulation at 3. In the event that circumstances give rise
to any reason to question the legitimacy or binding nature of a judgment rendered in accordance
with the D.C. Circuit’s order in Rusoro Mining, or the position of the Department of State
4 The Court has reviewed exhibits submitted to the Court by counsel for the Maduro
government, which include a decision by an ICSID arbitration panel denying representation by
Guaidó government lawyers, see Ex. A to Notice [Dkt. # 83-1], and a recent court order from the
Southern District of Florida granting a 120-day stay rather than ruling on a motion for
substitution. See Ex. B to Notice [Dkt. # 83-2]. Neither of these decisions are consistent with
the D.C. Circuit precedent that the Court is bound to follow.
5 In light of this finding, the Court will deny the Maduro government’s motion for
reconsideration of the Court’s order granting the motion to strike the stipulation for judgment,
see Mot. for Recons. [Dkt. # 65] and the Maduro government’s motion for substitution or joinder
of the third-party in interest. See Mot. for Substitution or Joinder of the Third-Party in Interest
[Dkt. # 73].
6 Instead, the Guaidó government moves for a 120-day stay of the proceedings, arguing
that a stay is necessary to allow the newly installed government of President Guaidó to conduct
an orderly transition to democracy. See Guaidó Gov’t Opp. at 4–5. But, as the Court stated
during the May 2, 2019 status conference, a stay in this case would not lead to a different result
and would only serve to delay plaintiff’s entitlement to judgment in a case that has been pending
for three years and has already been stayed once before. Therefore, the Court finds that a stay is
unnecessary and unwarranted. See 5/2 Hr’g Tr. at 19:18–24.
10
changes, the Court has also reviewed the opposition brief filed by the Maduro government.
Represented by its counsel, the Maduro government also makes no new argument in its
opposition to the entry of judgment, 7 and its pleading addresses the question of the interest rate.
See Maduro Gov’t Opp. at 8–11. The Court has separately considered the motion for summary
judgment in connection with the Maduro opposition, and finds that it would grant the motion if
that were the proper opposition to consider as well.
III. Post-Judgment Interest Rate
The sole issue raised by the Guaidó government in opposition to the motion for summary
judgment is what the applicable post-judgment interest rate should be. Venezuela asks the Court
to impose post-judgment interest at the rate set forth in 28 U.S.C. § 1961(a), which is applicable
to money judgments in a civil case recovered in a district court and provides that “interest shall
be calculated from the date of the entry of judgment, at a rate equal to the weekly average 1-year
constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve
System, for the calendar week preceding the date of judgment.” Plaintiff maintains that the post-
judgment interest rate should accrue at the rate set forth in the Award: “[U]ntil the date of actual
payment, [interest will be] calculated at a LIBOR interest rate for one-year deposits in U.S.
dollars, plus a margin of 4%, with annual compounding of accrued interest.” Pl.’s Mem. in
Supp. of its Mot. for Summ. J. [Dkt. # 61] (“Pl.’s Mem.”) at 7–8; Final Award ¶ 984.
7 The Maduro government repeats the arguments that the Court has already rejected in
ruling on the motion to dismiss, see Maduro Gov’t Opp. at 10–11, and raises no claims that
would bar the entry of judgment in accordance with ICSID and 22 U.S.C. § 1650a. The Maduro
government also argues that a genuine dispute exists as to whether the parties entered into a valid
stipulation for judgment, see Maduro Gov’t Opp. at 7–8, but the stipulation has already been
stricken by the Court, see Min. Order (Apr. 2, 2019). And, in any event, the judgment of the
Court reflects the terms of the stipulation. See Stipulation.
11
Under the doctrine of merger, “[w]hen the plaintiff recovers a valid and final personal
judgment, his original claim is extinguished and rights upon the judgment are substituted for it.
The plaintiff’s original claim is said to be ‘merged’ in the judgment.” Restatement (Second) of
Judgments § 18 cmt. a (1982); see Bayer CropScience AG v. Dow Agrosciences, LLC, 680 Fed.
Appx. 985, 1000–01 (Fed. Cir. 2017). Thus, numerous circuits have held that once a federal
court confirms an arbitral award, the award merges into the judgment, and the federal rate of
post-judgment interest presumptively applies. See, e.g., Tricon Energy Ltd. v. Vinmar Int’l, Ltd.,
718 F.3d 448, 456–60 (5th Cir. 2013); Newmont U.S.A. Ltd. v. Ins. Co. of N. Am., 615 F.3d 1268,
1275–77 (10th Cir. 2010); Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1023–24
(9th Cir. 2004).
The language of § 1961 is “mandatory” and “[i]ts terms do not permit the exercise of
judicial discretion in its application.” Carte Blanche (Sing.) Pte., Ltd. v. Carte Blanche Int’l,
Ltd., 888 F.2d 260, 268–70 (2d Cir. 1989). However, the “parties may contract to, and agree
upon, a post-judgment interest [rate] other than that specified in § 1961.” Soc’y of Lloyd’s v.
Reinhart, 402 F.3d 982, 1004 (10th Cir. 2005). To do so, they must express their intent to
replace the federal interest rate through “clear, unambiguous and unequivocal language.”
Westinghouse Credit Corp. v. D’Urso, 371 F.3d 96, 102 (2d Cir. 2004).
The plaintiff does not point to contractual language here, but it submits that the Award
should control. A number of courts have held that where an award specifies an interest rate
“until payment,” that language does not clearly portray the intent of the parties to replace the
federal interest rate. Rather, the award must explicitly state the interest rate to be applied “post-
judgment.” See, e.g., Bayer CropScience, 680 Fed. Appx. at 1001 (rejecting the interest rate
provided for in an arbitration award because it specified that it would accrue “from the date of
12
this Award until full payment,” but did not specify it “post-judgment”); Tricon Energy, 718 F.3d
at 456–60 (finding because the panel did not use the words “postjudgment interest,” and instead
stated that an 8.5% interest rate would apply “until paid,” that § 1961 applied); In re Riebesell,
586 F.3d 782, 794–95 (10th Cir. 2009) (rejecting a provision in a note that the debt “shall accrue
interest until payment at the rate of twenty-four percent” because the note did not contract for
that rate “post-judgment”); D’Urso, 371 F.3d at 102 (rejecting an explicit agreement to apply a
15.5% interest rate to any arbitration award “from the date payment was due to the date payment
is made” and instead applying the interest rate specified in § 1961).
The ICSID enabling statute states that “an award shall be enforced and shall be given the
same full faith and credit as if the award were a final judgment of a court of general jurisdiction
of one of the several States.” 22 U.S.C. § 1650a. Thus, it appears to the Court that once the
Award is confirmed, it merges with the judgment and § 1961 applies. See Miminco, LLC v.
Democratic Republic of the Congo, 79 F. Supp. 3d 213, 218–19 (D.D.C. 2015) (applying § 1961
to an ICSID arbitration award). And, because the Award sets forth that it will apply “until the
date of actual payment” 8 and not “post-judgment,” then accordingly, the appropriate interest rate
post-judgment is set by § 1961.
Plaintiff argues that the cases cited above do not apply in this case because the precedent
“originates in Federal Arbitration Act cases,” and the FAA does not apply to ICSID awards.
Pl.’s Reply in Supp. of Summ. J. [Dkt. # 78] (“Pl.’s Reply”) at 5–6. But the merger doctrine and
whether or not § 1961 applies does not find authority in the FAA – it is a common law doctrine
8 The arbitration was brought pursuant to the Netherlands-Venezuela Bilateral Investment
Treaty, which provides that any compensation to be awarded “shall include interest at a normal
commercial rate.” See Agreement on Encouragement and Reciprocal Protection of Investments,
Neth.-Venez., art. 6, Oct. 22, 1991, 1788 U.N.T.S. 73. The Tribunal considered this language
when it determined what interest rate should apply to the award. Final Award ¶ 935.
13
that applies to all money judgments recovered in a federal district court. And the ICSID
Convention provides that “courts shall treat the award as if it were a final judgment of the courts
of a constituent state.” ICSID Convention art. 54. If the award were simply self-executing as
written, then plaintiff would not have had to come into court and request that a judgment be
entered. See Compl., Prayer for Relief, ¶ a (seeking an order “that the pecuniary obligations in
the Final Award in favor of OI European Group B.V. and against Venezuela be recognized and
entered as a judgment by the Clerk of this Court in the same manner and with the same force and
effect as if the Final Award were a final judgment of this Court . . . .”) (emphasis added). But
see, id. ¶ b (asking for the award plus the interest rate set forth in the award). Therefore, the
Court sees no reason to deviate from this approach.
Plaintiff cites to Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, No. 14
CIV. 8163, 2015 WL 926011, at *1–3 (S.D.N.Y. Mar. 4, 2015) in support of its position that the
interest rate set forth in the Award should apply. The court there found if the court
“supervene[d] the ICSID panel’s determination of the interest rate to apply until payment,” that it
could lead to the possibility of “different interest rates applying in different countries in which an
arbitral award creditor sought to recognize and enforce the same ICSID award.” Id. But, the
language in the convention appears to contemplate that different countries may enforce the
award differently:
Each Contracting State shall recognize an award rendered pursuant to this
Convention as binding and enforce the pecuniary obligations imposed by
that award within its territories as if it were a final judgment of a court in
that State. A Contracting State with a federal constitution may enforce
such an award in or through its federal courts and may provide that such
courts shall treat the award as if it were a final judgment of the courts of a
constituent state.
ICSID Convention art. 54; see also 22 U.S.C. § 1650a.
14
Furthermore, Mobil Cerro discussed the tension between § 1961 and § 1650a and
concluded, pursuant to canons of statutory construction, that it must adhere closely to § 1650a.9
Thus, “when an ICSID panel like the one here awards interest ‘until payment,’ a federal court
must recognize and enforce that pecuniary term. Any other reading of the Court’s obligations
would flout the plain language of the enabling statute.” Mobil Cerro, 2015 WL 926011, at *2.
In other words, even if this Court were to follow the direction of the Southern District of New
York, that direction would be: follow the statute. And here, the Court is faced with the language
in § 1650a that directs a court to give an award “the same full faith and credit as if the
award were a final judgment of a court of general jurisdiction of one of the several States.” 22
U.S.C. § 1650a. This would indicate that § 1961 should apply.
Furthermore, using § 1961 to determine the post-judgment interest rate would not
disregard the pecuniary obligations imposed by the Award. The Award makes no mention of
what interest rate applies “post-judgment,” and the courts of this country have found that the
words “until payment” do not preclude application of § 1961. Furthermore, using § 1961 to
determine the post-judgment interest rate would not render the interest rate set forth in the Award
meaningless – the Award interest rate would apply in determining the interest plaintiff is entitled
to for the entire pre-judgment period. Thus, the Court finds § 1961 applies, and interest rate set
9 The Mobil Cerro court noted that the under canons of construction, “any tension between
§ 1961 and § 1650a must be resolved in favor of § 1650a, rather than § 1961” because “a specific
statute trumps a general one,” and § 1650a “is more targeted to the context of recognition and
enforcement of an ICSID award than the more general § 1961.” 2015 WL 926011, at *2 n.3,
citing RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (“[I]t is a
commonplace of statutory construction that the specific governs the general.”) (citation omitted).
Furthermore, § 1650a post-dates § 1961, and generally, a U.S. statute should be “construed so as
to not conflict with international law or international agreement.” Id. n.5, citing Rest. (Third) of
Foreign Relations Law § 114 (1987).
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forth in the federal statute will apply post-judgment, and the interest rate set forth in the Award
will apply pre-judgment. 10
CONCLUSION
For all those reasons, the Court will enter judgment for the plaintiff and confirm the
Award. Plaintiff is entitled to the sum of:
• The principal amount: $372,461,982, plus interest on this amount from
October 26, 2010 through the date of judgment, calculated at a LIBOR
interest rate for one-year deposits in U.S. dollars, plus a margin of 4%,
with annual compounding of accrued interest;
• The costs and expenses of the arbitration: $5,750,000, plus interest on this
amount from March 10, 2015 through the date of judgment, calculated at a
LIBOR interest rate for one-year deposits in U.S. dollars, plus a margin of
4%, with annual compounding of accrued interest;
• The costs and expenses of the annulment: $3,864,811.05, plus interest on
this amount from December 6, 2018 through the date of judgment,
calculated at a LIBOR interest rate for one-year deposits in U.S. dollars,
plus a margin of 4%, with annual compounding of accrued interest; and
• Post-judgment interest on the total amount of the award, calculated at the
rate set forth in 28 U.S.C. § 1961, from the date of judgment until full
payment.
10 Upon consideration of the Maduro government’s arguments concerning the applicable
interest rate, see Maduro Gov’t Opp. at 8–10, the Court reaches the same conclusion.
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A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: May 21, 2019
17