Miminco, LLC v. Democratic Republic of the Congo, No. 14-01987 (D.D.C. Feb. 9, 2015) [click for opinion]
Petitioners obtained a $13 million award against Respondent, the Democratic Republic of the Congo, in an arbitration pursuant to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the "ICSID Convention"). Petitioner filed an ex parte petition in the U.S. District Court for the District of Columbia seeking not only the unpaid balance of the award, but also post- and pre-judgment interest, attorneys' fees and costs.
First, the court found that ex parte proceedings suffice for recognition of ICSID awards, as this is consistent with the statutory mandate under 22 U.S.C. § 1650a that courts afford ICSID awards the same full faith and credit as a state court judgment. As Petitioners complied with the ICSID Convention requirements in Article 54(2) by filing a certified copy of the award, the court recognized the ICSID award as if it were its own judgment. In doing so, the court rejected Petitioners' argument that the court should follow the recognition procedure under the District of Columbia's Uniform Enforcement of Foreign Judgments Act.
Although the court recognized the judgment, it refused to calculate the precise balance of the award still owed by Respondent in the recognition proceeding. The amount that Respondent already paid could be disputed as a factual matter, and its determination was appropriately deferred to a future enforcement proceeding.
The court next addressed the payment of interest. The court noted that post-judgment interest is imposed on "any money judgment in a civil case recovered in a district court." The ICSID award qualified as a money judgment since the parties were clearly identified and the amount owed ($13 million specified on the face of the arbitral award) was "definite and certain." Petitioners were therefore entitled to accrual of post-judgment interest on the full $13 million award.
However, pre-judgment interest was not available to Petitioners. While the decision to award pre-judgment interest is generally a matter of discretion, that discretion must be exercised in a manner consistent with the underlying arbitral award. Where, as here, the ICSID award is silent with respect to pre-judgment interest, the court retained discretion to consider whether such interest was warranted in the particular circumstances of the case. Here, the court declined to "graft new requirements onto the plain language of the award," particularly given the ministerial function of an ICSID award confirmation proceeding, and in light of the ex partenature of the proceeding.
The court also declined to award attorneys' fees or costs as an inherent power sanction based on Respondent's alleged bad faith refusal to participate in the litigation. There was no clear and convincing evidence that Respondent acted in bad faith in this litigation since Respondent was not even a party to the ex parte confirmation proceeding.
In sum, the court recognized the ICSID award based on the ex partepetition and ordered Respondent to pay post-judgment interest on the full amount of the award. However, it deferred calculation of the remaining balance of the award and refused to grant pre-judgment interest, fees, or costs absent a specific grant of pre-judgment interest in the arbitral award.