Comm'ns Import Export, S.A. v. Republic of the Congo

• Decision Date: 30 July 2015
• Docket Number: Civil No. 12–743 (RCL)
• Citation: 118 F.Supp.3d 220
• Parties: Commissions Import Export, S.A., Plaintiff, v. The Republic of the Congo and Caisse Congolaise D'amortissement, Defendants.
• Court: U.S. District Court — District of Columbia

118 F.Supp.3d 220

Commissions Import Export, S.A., Plaintiff,

v.The Republic of the Congo and Caisse Congolaise D'amortissement, Defendants.

Civil No. 12–743 (RCL)

United States District Court, District of Columbia.

Signed July 30, 2015

Francis A. Vasquez, Jr., Frank Panopoulos, Jonathan C. Ulrich, White & Case LLP, Washington, DC, Owen C. Pell, Peter E. Wilhelm, White & Case, New York, NY, for Plaintiff.

Michael Robert Lazerwitz, Boaz S. Morag, Jesse D.H. Sherrett, Cleary, Gottlieb, Steen & Hamilton, LLP, New York, NY, for Defendants.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

Pending before the Court are plaintiff Commissions Import Export, S.A.'s ("Commisimpex") motion for summary judgment and defendants the Republic of the Congo and Caisse Congolaise d'Amortissement's ("CCA") (collectively "Congo") motion for substitution pursuant to Fed.R.Civ.P. 25(c). ECF Nos. 37, 54. The Court previously denied the summary judgment motion and dismissed this case. ECF No. 43. The Court of Appeals reversed, remanding the case for further proceedings in accordance with its opinion. ECF No. 47. In light of the Court of Appeals' mandate and upon further review of the parties' briefing, the record, and the relevant legal authorities, the Court shall grant Commisimpex's motion for summary judgment and deny Congo's motion for substitution.

I. BACKGROUND

The factual predicate for this lawsuit was ably set forth by the Court of Appeals in its 2014 opinion and the Court incorporates it herein:

In the 1980s, [Commisimpex] entered into contracts with the Republic of the Congo to perform public works and supply materials. The contracts were financed through supplier credits extended by [CCA] that were formalized through promissory notes issued by CCA and guaranteed by the Republic of the Congo. In 1992, the parties signed an agreement for the repayment over ten years in equal, consecutive monthly payments of certain outstanding debts owed to [Commisimpex] under the contracts. Article 10 provided that any disputes arising from or relating to the agreement would be resolved by final binding arbitration under the Rules of the International Chamber of Commerce ("ICC"). CCA drew up promissory notes endorsed in favor of the Company, and in 1993 the Republic of the Congo issued a series of commitment letters; each commitment letter contained an irrevocable waiver of immunity from legal proceedings or execution and a commitment to submit all disputes to ICC arbitration in Paris, France, governed by French law.

When the Congo failed to pay the promised amounts as they came due, and did not respond to [Commisimpex's] formal demand for payment, [Commisimpex] filed a request in 1998 for arbitration with the International Court of Arbitration of the ICC and the matter was submitted to arbitration. On December 3, 2000, the arbitral tribunal in Paris issued a final award in favor of [Commisimpex] ("the Award"). The Award included outstanding principal owed under the agreement, interest, penalty interest on various promissory notes, and costs. The Award was summarily confirmed by the Tribunal de Grande Instance of Paris on December 12, 2000, and was upheld on May 23, 2002 by the Court of Appeals of Paris after the Congo appealed to rescind the Award. The Company filed eleven judicial enforcement proceedings to enforce the Award in France, as well as 82 non-judicial bailiff actions.

[Commisimpex] also obtained judicial recognition of the Award pursuant to the New York Convention in Belgium and Sweden, but obtained no recovery on the amounts owed. On June 17, 2009, [Commisimpex] initiated proceedings pursuant to the Convention in the Queen's Bench Division of the High Court of Justice, Commercial Court in London, England [ (the "English Court") ]. The [English] Court entered an order on July 10, 2009, ruling that the Award was enforceable in the same manner as a judgment under section 101 of the 1996 Arbitration Act of England, and recalculating the amount due to include additional interest and other costs ("the English Judgment"). Under English law, the judgment became final, conclusive, and enforceable on March 2, 2010, and remains enforceable for six years from that date. The [English] Court amended the judgment on November 1, 2011 to account for [Commisimpex's] successful seizure of French Francs in partial satisfaction of the Award.

Shortly before, on September 2, 2011, [Commisimpex] filed a complaint in the federal court in the Southern District of New York to recognize and enforce the English Judgment under the New York Uniform Foreign Country Money—Judgments Recognition Act, N.Y. C.P.L.R. Article 53. That court transferred the case to the federal court in the District of Columbia and the Company amended and supplemented its complaint to recognize and enforce the English Judgment under [the Uniform Foreign—Country Money Judgments Recognition Act of 2011, D.C.Code § 15–361 et seq. (the "D.C. Recognition Act" or the "Act") ].

Commissions Import Export S.A. v. Republic of the Congo, 757 F.3d 321, 324–25 (D.C.Cir.2014) (internal citations omitted).

At summary judgment, this Court held that the D.C. Recognition Act was preempted by the Federal Arbitration Act's three year statute of limitations, codified at 9 U.S.C. § 207. Commissions Import Export, S.A. v. Republic of the Congo, 916 F.Supp.2d 48, 57–58 (D.D.C.2013), rev'd, 757 F.3d at 333. The Court concluded that Commisimpex's suit was not timely under the FAA's statute of limitations, denied Commisimpex's motion for summary judgment, and dismissed the case. Id. The Court of Appeals reversed, holding that federal law did not preempt the D.C. Recognition Act's longer limitations period. Commissions Import Export, 757 F.3d at 333. It remanded the case with instructions for this Court to "determine whether the English Judgment is enforceable under the D.C. Recognition Act." Id.

On March 31, 2015, the Court issued an order allowing the parties to submit supplemental briefing as to Commisimpex's motion for summary judgment given the substantial length of time since its filing. ECF No. 51. The parties submitted briefs and responses in accord with this order. ECF Nos. 52, 53, 56, 57. As the Court stated it would do in the March 31 order, the motion was taken under advisement at the conclusion of this round of supplemental briefing.

II. MOTION FOR SUMMARY JUDGMENT

Commisimpex has moved for summary judgment on its claim that the English Judgment should be recognized and enforced under the D.C. Recognition Act.¹

A. Legal Standard

1. Summary judgment

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A motion for summary judgment is only defeated by a "genuine" dispute as to a "material" fact; the "mere existence of some alleged factual dispute" is not enough. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which could affect the outcome of a case, as determined by the substantive law underlying the suit. Id. at 248, 106 S.Ct. 2505. A dispute is genuine if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

When the moving party would bear the burden of proof at trial, it "must support its motion with credible evidence—using any of the materials specified in Rule 56(c) —that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the nonmoving party must present specific facts beyond mere allegations or conclusory statements, which would enable a reasonable jury to find in its favor. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

2. D.C. Recognition Act

The D.C. Recognition Act states that any foreign country judgment entitled to recognition under it is "(1) [c]onclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in the District of Columbia would be conclusive; and (2)[e]nforceable in the same manner and to the same extent as a judgment rendered in the District of Columbia." D.C.Code § 15–367.

The Act applies to a foreign country judgment if that judgment "(1) [g]rants or denies recovery of a sum of money; and (2)[u]nder the law of the foreign country where rendered, is final; conclusive; and enforceable."Id. § 15–363(a) (internal subdivisions omitted). The Act does not apply, however, to judgments for taxes, fines or other penalties, divorce, support or maintenance, or other judgments rendered in connection with domestic relations. Id. § 15–363(b). The party seeking recognition of a foreign country judgment has the burden to show that the Act applies to that judgment. Id. § 15–363(c).

The D.C. Recognition Act requires a court of the District of Columbia to recognize a foreign country judgment to which the Act applies, unless a statutorily defined exception covers the judgment at issue. Id. § 15–364(a). There are both mandatory and discretionary exceptions to recognition. As to the former exceptions, the Act provides that a court may not recognize a foreign country judgment if the "[j]udgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law" or if the foreign court lacked subject matter or personal jurisdiction. Id. § 15–364(b). Of the statute's laundry list of discretionary exceptions to recognition, the only one at issue in this case is that which allows a court to decline recognition when the "[j]udgment or the cause of action on which the judgment is based is repugnant to the public policy of the District of Columbia or of the United States." Id. § 15–364(c)(3). In any event, the party objecting to the recognition of a foreign country judgment to which the Act applies bears the...