(Asterisks denote application of the New York Convention to investor-State arbitral awards in relation to bilateral investment treaties)
Jurisdiction Case citation Summary
*Germany Investor v Republic of Poland (Bundesgerichtshof (Supreme Court), 17 August 2000). A German investor commenced arbitration proceedings against the Republic of Poland, relying on the Germany-Poland BIT. An arbitral award was rendered in Zurich, and the investor sought enforcement of the award in Germany.
See summary and translation of selected extracts of the judgment in: (2001) XXVI YBCA 771. On 8 July 1999, the Court of Appeal in Frankfurt enforced the award. Poland appealed to the Supreme Court, alleging that the investor had failed to comply with the requirements in Art IV(1)(a) of the 1958 New York Convention. Poland relied on the 1958 New York Convention, thereby accepting that it applied to the enforcement of this investor-State award.
The Supreme Court of Germany applied the 1958 New York Convention and affirmed the lower court's decision enforcing the award.
*Germany Debtor (Russian Federation) v Franz Sedelmayer, Case No 26 W 101/02 (Oberlandesgericht (Court of Appeal), Frankfurt am Main, 26 September 2002). A Stockholm arbitral panel rendered an investor-State award against the Russian Federation, in favour of Sedelmayer. Russia sought annulment of the award in Sweden; on 26 October 1998, the Stockholm city court granted a temporary stay of execution of the award.
See summary and translation of selected extracts of the judgment in: (2005) XXX YBCA 505. Sedelmayer sought enforcement of the award in Germany. On 16 February 2001, the Court of Appeal in Berlin granted enforcement.
On 22 January 2002, the Court of First Instance in Frankfurt granted attachment of certain sums held in bank accounts of the Embassy of the Russian Federation in Germany; on 19 March 2002, it denied Russia's opposition to attachment. Russia appealed from this decision.
The Frankfurt Court of Appeal dismissed the appeal, holding that Russia was estopped from raising the objection that the award was not final and binding in the execution proceedings, because it had not raised that objection in the enforcement proceedings in Berlin. Further, execution in Germany can only be based on an executory title - here, the Berlin enforcement decision - rather than on the claim granted in the underlying arbitration. The Berlin decision was final and binding as Russia had failed to attack it properly through recourse to the Federal Supreme Court. The Court also dismissed Russia's objection that execution would violate its sovereign immunity, since Russia failed to prove that the commercial accounts were earmarked for sovereign aims. The Frankfurt Court of Appeal noted that the Germany-USSR BIT "refers for enforcement to the [1958 New York Convention]". The Court did not question the applicability of the 1958 New York Convention to the award.
*Germany Werner Schneider as liquidator of Walter Bau A.G. v The Kingdom of Thailand, Case No 20 Sch 10/11 (Court of Appeal, Berlin, 4 June 2012) and Case No III ZB 40/12 (Federal Supreme Court, 30 January 2013). An investor-State award rendered in Switzerland in arbitration under the 2002 Germany-Thailand BIT was declared enforceable.
See summary and translation of selected extracts of both judgments in: (2013) XXXVIII YBCA 384. The claimant sought a declaration of enforceability of the investor-State award in Germany.
Liquidator of Walter-Bau AG v Kingdom of Thailand, Case No I ZB 13/15 (Bundesgerichtshof, 6 October 2016). By the first reported decision, rendered on 4 June 2012, the Berlin Court of Appeal granted the claimant's request for a declaration of enforceability of the BIT award, finding that Thailand had waived its sovereign immunity from enforcement and that a declaration of enforceability would not violate public policy. The Berlin Court of Appeal applied the 1958 New York Convention to the award.
See summary and translation of selected extracts of the judgment in: (2018) XLIII YBCA 445. By the second reported decision, rendered on 30 January 2013, the Federal Supreme Court reversed and remanded the case to the Court of Appeal. The Supreme Court also applied the 1958 New York Convention to the award.
The Court of Appeal granted the declaration of enforceability again on 23 February 2015; Thailand again appealed, and the Federal Supreme Court denied the appeal, holding that the investor-State award could be recognised under Art III of the 1958 New York Convention. None of the grounds in Art V of the 1958 New York Convention was made out.
*Germany Republic of Bulgaria v ST-AD GmbH, Case No 1 Sch 7/13 (Oberlandesgericht, Thuringia, 20 November 2013). ST-AD commenced an investor-State arbitration against the Republic of Bulgaria under the 1986 Bulgaria-Germany BIT in respect of an alleged expropriation. The arbitral tribunal found in Bulgaria's favour (on jurisdiction) and directed ST-AD to pay the costs of the arbitration and Bulgaria's legal costs.
See summary and translation of selected extracts of the judgment in: (2015) XL YBCA 422. Bulgaria sought a declaration of enforceability of the award in its favour under the 1958 New York Convention.
By the present decision, the Court of Appeal of Thuringia granted recognition of the PCA award on costs in Bulgaria's favour. The Court applied the 1958 New York Convention, finding that Bulgaria had satisfied the requirements of Art IV, and rejecting various potential grounds for refusal of recognition and enforcement under Art V.
Italy The Republic of Kazakhstan v Anatolie Stati et al, Decision No 1490/2019 (Corte d'Appello, Rome, 27 February 2019). The Stati parties were successful in an investor-State arbitration against the Republic of Kazakhstan pursuant to the dispute settlement provision of the Energy Charter Treaty (ECT). By an Award of 19 December 2013 (and an Addendum of 17 January 2014 - collectively, the Award), an SCC arbitral tribunal found that Kazakhstan had breached its obligation to provide fair and equitable treatment under the ECT, and it awarded the Stati parties US$497,685,101 for the expropriation of their assets in Kazakhstan.
See summary and translation of selected extracts of the judgment in: (2019) XLIV YBCA 562. Kazakhstan sought the annulment of the Award in Sweden before the Svea Court of Appeal, while the Stati parties sought its enforcement in, inter alia, the UK, the US, and Italy.
In Italy, on 29-30 January 2018, the Rome Court of Appeal issued a decree granting the ex parte application of the Stati parties for recognition and enforcement of the Award. On 14 May 2018, Kazakhstan notified its opposition to the decree. The Rome Court of Appeal denied Kazakhstan's opposition, finding that it was admissible but unfounded. Kazakhstan relied on three grounds for opposition of recognition and enforcement under the 1958 New York Convention, and the Rome Court of Appeal considered and rejected each ground.
*Lithuania L.B. v State Property Fund of the Republic of Lithuania, Civil Case No 3K-3-363/2014 (Supreme Court of Lithuania, 27 June 2014). L.B. had commenced arbitration against the Republic of Lithuania, alleging that Lithuania violated its obligations under the 1994 Italy-Lithuania BIT and seeking damages, interest and costs. An ad hoc tribunal was instituted at the Permanent Court of Arbitration pursuant to the BIT and under the 1976 UNCITRAL Arbitration Rules. By an award of 17 May 2013, the arbitral tribunal found in L.B.'s favour.
See summary and translation of selected extracts of the judgment in: (2014) XXXIX YBCA 437. L.B. sought recognition and enforcement of the award in Lithuania. The Supreme Court confirmed that the award was governed by the 1958 New York Convention, and granted recognition.
*Luxembourg Bolivarian Republic of Venezuela v Company 1 INC. (Cour d'Appel, Luxembourg, 25 June 2015). Gold Reserve Inc. claimed that Venezuela's rescission of concessions and permits and seizure of assets of Gold Reserve for alleged breaches of mining and environmental obligations were a failure to accord equitable treatment and amounted to an unlawful expropriation in violation of the Canada-Venezuela BIT. It filed for arbitration pursuant to the ICSID Additional Facility Rules, seeking compensation for itself and its Venezuelan subsidiary Gold Reserve de Venezuela. The arbitration was seated in Paris and governed by French law.
See summary and translation of selected extracts of the judgment in: (2017) XLII YBCA 425. By an award of 22 September 2014, the arbitral tribunal found Venezuela in breach of the BIT for failure to accord fair and equitable treatment to Gold Reserve's investment, and awarded Gold Reserve in compensation, plus pre- and post-award interest and legal costs. A rectification award was issued on 15 December 2014.
Venezuela petitioned the Paris Court of Appeal to set aside the award; Gold Reserve requested the Court to confirm it. On 29 January 2015, the Paris Court granted exequatur and denied Venezuela's request to suspend enforcement pending an appeal from the exequatur order.
In the meantime, Gold Reserve sought confirmation of the award in the US. On 20 November 2015, the US District Court for the District of Columbia confirmed the award and, on a balance of relevant factors, declined to stay enforcement pending a final decision in the French annulment action.
Gold Reserve also sought enforcement of the award in Luxembourg. On 28 October 2014, the Luxembourg District Court declared the award enforceable. Venezuela appealed.
The Luxembourg Court of Appeal stayed the enforcement decision and denied Gold Reserve's request for security. Venezuela relied on Art VI of the 1958 New York Convention, thereby accepting that the Convention applied to the award.
The Court of Appeal first held that since the investor-State award was rendered in France, where the 1958 New York Convention is in force, and its enforcement was sought in Luxembourg, also a Convention country, its exequatur was governed solely by the Convention and the enforcement provisions of Luxembourg law did not apply. The Court of Appeal concluded that under Arts V and VI of the 1958 New York Convention, pending annulment proceedings may justify a stay.
The Court of Appeal considered that a decision of the Paris court was expected within a few months and decided to stay a decision on the appeal from the exequatur order and to await the outcome of the set aside action.
Netherlands Ascom Group SA et al v Republic of Kazakhstan, Case No 200.224.067/01 (Gerechtshof, Amsterdam, 6 November 2018). On 26 July 2010, Anatolie and Gabriel Stati, Ascom Group SA and Terra Raf Trans Traiding Ltd (collectively, the Stati parties) filed a Request for Arbitration with the Arbitration Institution of the Stockholm Chamber of Commerce (SCC), as provided in the dispute settlement provision of the Energy Charter Treaty (ECT), to which Kazakhstan was a party. They alleged that Kazakhstan's actions were intended to intimidate and harass them into selling their investments to a state-owned company, KazMunaiGas (KMG), at a substantial discount.
See summary and translation of selected extracts of the judgment in: (2019) XLIV YBCA 614. By an Award of 19 December 2013 (and an Addendum of 17 January 2014 - collectively, the Award), an SCC arbitral tribunal found that Kazakhstan breached its obligation to provide fair and equitable treatment under the Energy Charter Treaty, and it awarded the Stati parties compensation for the expropriation of their assets in Kazakhstan.
Kazakhstan sought the annulment of the Award in Sweden before the Svea Court of Appeal, while the Stati parties sought its enforcement in, inter alia, Italy, the Netherlands, the UK and the US.
In the Netherlands, on 26 September 2017 the Stati parties sought recognition and leave for enforcement of the SCC Award against Kazakhstan, including the National Fund of Kazakhstan, and Kazakhstan's National Welfare Fund Samruk-Kazyna JSC (Samruk) in the Court of Appeal of Amsterdam.
The Court of Appeal held that it was the competent court to hear the exequatur request; held that it could not grant the request of the Stati parties in respect of Samruk and the National Fund on grounds of due process and public policy; and granted a stay of the proceedings in respect of Kazakhstan.
Kazakhstan and Samruk relied on various grounds under the 1958 New York Convention to object to the grant of leave for enforcement, thereby accepting that the Convention applied to the award. The Court applied the 1958 New York Convention in its decision.
*Russian Federation Public Joint Stock Company Tatneft v Ukraine (Arbitrazh Court, City of Moscow, 4 July 2017) and Case No A40-67511/17-29-659 (Arbitrazh Court, Moscow District, 29 August 2017). Tatneft commenced an arbitration against Ukraine under the 1998 Russia-Ukraine BIT, claiming that it lost its shareholding in a Ukrainian company in which it had invested, as a consequence of Ukraine's breach of its obligations under the BIT. The arbitration was conducted under the auspices of the Permanent Court of Arbitration and in accordance with the 1976 UNCITRAL Arbitration Rules; the seat of the arbitration was Paris.
See summary and translation of selected extracts of the judgment in: (2018) XLIII YBCA 538. On 29 July 2014, the arbitral tribunal rendered an Award in favour of Tatneft. Tatneft sought recognition and enforcement of the Award in Russia.
PAO Tatneft v Ukraine, Case No 308-ES19-17745 (Supreme Court of the Russian Federation, 21 October 2019). By the first decision, dated 4 July 2017, the Arbitrazh (Commercial) Court of the City of Moscow terminated the proceedings brought by Tatneft. The Court granted Ukraine's objections, finding that (i) Ukraine enjoyed sovereign immunity, and (ii) the Court lacked effective jurisdiction as there was no property of Ukraine available for execution in the Court's district.
Unofficial English translation available from italaw: . By the second decision, dated 29 August 2017, the Abitrazh Court of the Moscow District granted Tatneft's cassation appeal and reversed the decision below, sending the case back to the court of first instance for reconsideration.
The appellate Court confirmed that the 1958 New York Convention applied to the award, noting Russia's obligation under Art III to recognise arbitral awards as binding and enforce them in accordance with local rules of procedure, and the applicability of Art V of the Convention. The Court considered that as a party to the 1958 New York Convention, Ukraine could not invoke jurisdictional immunity, because State immunity is not contemplated in the Convention as a ground for refusal of recognition and enforcement of an arbitral award.
The Supreme Court of the Russian Federation dismissed a cassation appeal brought by Ukraine from the decision of the Arbitrazh Court, Moscow District.
Switzerland A Limited v Republic of Uzbekistan, Case No 5A 942/2017 (Bundesgericht, II. zivilrechtliche Abteilung, 7 September 2018). On 17 December 2015, an arbitral tribunal rendered an award in favour of B, an English company, in an investor-State dispute between B and the Republic of Uzbekistan. The arbitration was held in Paris in accordance with the UNCITRAL Arbitration Rules. B subsequently assigned its rights under the award to A Limited. On 25 August 2016, A Limited filed a request with a single judge of the District Court of March, in Switzerland, to attach a property owned by the Republic of Uzbekistan in Switzerland as security for the enforcement of the French award. The single judge granted the request and the property was attached on 29 August 2016. On 30 September 2016, Uzbekistan filed an opposition to the attachment. On 8 February 2017, the opposition was granted and the attachment lifted.
See summary and translation of selected extracts of judgment in: (2019) XLIV YBCA 680. A Limited appealed against this decision to the Cantonal Court of Schwyz. On 27 October 2017, the Cantonal Court denied the appeal. On 23 November 2017, A Limited filed an appeal with the Federal Supreme Court.
The Federal Supreme Court denied A Limited's appeal, finding that the Swiss courts lacked jurisdiction over the action because there was prima facie no "sufficient internal connection" with Switzerland. In so holding, however, the Court confirmed that the 1958 New York Convention applied to the underlying investor-State award against the Republic of Uzbekistan:
"The New York Convention does indeed apply to arbitral awards rendered against a state, a state-controlled enterprise or a state-controlled organization."
Ukraine Remington Worldwide Limited v The State of Ukraine, Case No 2-8-8/12 (District Court of the Pechersk Raion of the City of Kiev, 11 July 2012). On 28 April 2011, an arbitral tribunal of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) rendered an award in favour of Remington Worldwide Ltd and against the State of Ukraine. This was an investor-State award rendered under the Energy Charter Treaty.
See summary and translation of selected extracts of the judgment in: (2013) XXXVIII YBCA 471. Remington sought enforcement of the SCC award in Ukraine. The Pechersky District Court of Kiev granted permission for enforcement. The Court noted that the representative of the Ministry of Justice, which represented the State of Ukraine as provided by Ukrainian law, did not oppose the motion.
The District Court held that all formal and substantive requirements for granting permission for enforcement under the 1958 New York Convention and the Ukrainian Code of Civil Procedure were met. Further, the award was final and binding; there had been no violation of due process and enforcement would not be contrary to public policy; enforcement was sought within the prescribed time limit; and there was no Ukrainian court decision or pending proceeding in Ukraine on the same dispute.
Ukraine JKX Oil & Gas PLC et al v State of Ukraine, represented by the Ministry of Justice of Ukraine, Case No 757/5777/15-4 (Pechersk District Court, Kyiv City, 8 June 2015). JKX Oil, Poltava Gas and JV Poltava (collectively, the Applicants) were engaged in the production of natural gas in an investment in Ukraine falling under the Energy Charter Treaty. On 7 January 2015, the Applicants commenced SCC emergency arbitration, claiming that Ukraine had violated its obligations under the ECT. On 14 January 2015, an emergency arbitrator issued an Emergency Award in the Applicants' favour, and the Applicants sought enforcement of the Emergency Award in Ukraine.
See summary and translation of selected extracts of the judgment in: (2015) XL YBCA 492. The Pechersk District Court of Kyiv City granted enforcement of the SCC Emergency Award, denying all of Ukraine's objections. Ukraine relied on grounds for resisting recognition and enforcement of the award under Art V(1)(b) of the 1958 New York Convention, thereby accepting the applicability of the New York Convention to the investor-State award.
The Ministry of Justice of Ukraine v JKX Oil & Gas Plc, Case No 22-u/796/9284/2015 (Court of Appeal of the City of Kiev, 17 September 2015). The Ukrainian court confirmed that the 1958 New York Convention governed the dispute, and it rejected Ukraine's arguments, granting permission to enforce the Emergency Award in Ukraine.
See summary and translation of selected extracts of the judgment in: (2016) XLI YBCA 577. The Court of Appeal reversed the decision and denied enforcement of the SCC Emergency Award. The Court held that enforcement should be denied on grounds of public policy under both the 1958 New York Convention and the Ukrainian CCP, because enforcement would be contrary to the public policy of Ukraine. The Court of Appeal confirmed that the legal relations in the dispute were governed by the 1958 New York Convention.
Ministry of Justice of Ukraine v JKX Oil Plc et al (Supreme Court, 24 February 2016 and Court of Appeal, Kyiv, 17 May 2016). The High Specialized Court reversed the decision of the Court of Appeal. The High Specialized Court held that recognition and enforcement of the SCC emergency award did not violate fundamental principles of Ukrainian public policy.
See summary and translation of selected extracts of the judgment in: (2016) XLI YBCA 581. On 17 May 2016, the Court of Appeal rendered a new decision confirming the recognition and enforcement order of the District Court, on the grounds given by the High Specialized Court.
*United Kingdom Republic of Ecuador v Occidental Exploration and Production Company [2005] EWHC 774 (Comm); [2005] 2 Lloyd's Rep 240. An investor-State arbitration occurred pursuant to the USA-Ecuador BIT between Occidental and the Republic of Ecuador. The arbitration was seated in London, and the tribunal rendered an award in Occidental's favour. Ecuador brought proceedings challenging the award in the English courts under s 67(1) of the Arbitration Act 1996 on the ground that the arbitrators had exceeded their jurisdiction.
Republic of Ecuador v Occidental Exploration and Production Co [2006] 1 QB 432. In the course of considering Ecuador's challenge to the award, the High Court observed that it was agreed between the parties that the investor-State award, if not challenged, could be given recognition and could be enforced under the provisions of the 1958 New York Convention.
Occidental appealed from the judgment of the High Court. The Court of Appeal dismissed the appeal, and had no doubt that the 1958 New York Convention applied to the investor-State award.
United Kingdom Stati v The Republic of Kazakhstan [2017] EWHC 1348 (Comm); [2017] 2 Lloyd's Rep 201. The claimants operated a joint venture with the defendant (Kazakhstan). Disputes arose and they were referred to an arbitral tribunal, seated in Stockholm, pursuant to the Energy Charter Treaty. The arbitral tribunal rendered an award in the claimants' favour on 19 December 2013. The claimants sought permission to enforce the award in the English High Court and on 28 February 2014 permission was initially granted, on the claimant's without notice application. On 7 April 2015, Kazakhstan applied to set aside the permission that had been granted to enforce the award in the UK.
Stati v Republic of Kazakhstan (No 2) [2019] 1 WLR 897. When the application came before the English High Court, the Court noted at [3]: "The award is within the New York Convention (the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958)."
In a subsequent related judgment, the Court of Appeal stated (at [4]): "The award is an 'arbitral award' for the purposes of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (1976) (Cmnd 6419) ('the New York Convention') and steps have been taken by the claimants to enforce the award in numerous jurisdictions including the United States, Belgium, the Netherlands, Luxembourg, Italy and Sweden."
*United Kingdom PAO Tatneft v Ukraine [2021] 1 WLR 1123. Tatneft commenced an arbitration against Ukraine under the 1998 Russia-Ukraine BIT, claiming that it lost its shareholding in a Ukrainian company in which it had invested, as a consequence of Ukraine's breach of its obligations under the BIT. The arbitration was conducted under the auspices of the Permanent Court of Arbitration and in accordance with the 1976 UNCITRAL Arbitration Rules; the seat of the arbitration was Paris.
On 29 July 2014, the arbitral tribunal rendered an Award in favour of Tatneft, together with interest. Tatneft sought recognition and enforcement of the Award in the UK.
By an order made ex parte on 9 August 2017, the High Court granted Tatneft permission to enforce the award. By an application dated 31 January 2020, Ukraine applied to set aside the order in part. Previous challenges to the order brought by Ukraine had been rejected by Butcher J (PAO Tatneft v Ukraine [2018] 1 WLR 5947) and by Cockerill J (PAO Tatneft v Ukraine [2019] EWHC 3740 (Comm)). At no stage was it doubted that the 1958 New York Convention applied to the award, the High Court here referring to the award as "a New York Convention award" (see at [1], [7]).
United Kingdom Hulley Enterprises Ltd v Russian Federation [2021] 1 WLR 3429. The claimants are entities incorporated in Cyprus (the first and third claimants) and the Isle of Man (second claimant). They are former shareholders in OAO Yukos Oil Company (Yukos), which was an oil company based in Russia. By final awards of the PCA dated 18 July 2014 (the Final Awards), the claimants were awarded over US$50bn in compensation, arising out of allegations that Yukos' assets were unlawfully expropriated in Russia.
The claimants brought proceedings for the recognition and enforcement of these investor-State awards in the UK, and the High Court confirmed in the opening paragraph of its judgment that these awards were "subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (1976) (Cmnd 6419) ('the New York Convention')" (see [1]), and the Court applied the 1958 New York Convention in considering the claimants' application: see e.g. [58]-[59].
*United States Chevron Corporation v Republic of Ecuador, 949 F.Supp.2d 57 (D.D.C. 2013). Chevron and Texaco (together, 'Chevron') entered into a contract with Ecuador in 1973, permitting Chevron to exploit oil reserves in Ecuador's Amazon region. The agreement was amended in 1977 and expired in June 1992. As Chevron began winding up its work in Ecuador in 1991, it filed seven breach-of-contract cases there against the Ecuadorian government, seeking damages for various breaches of the 1973 and 1977 agreements.
Chevron Corporation v Ecuador, 795 F.3d 200 (D.C. Cir. 2015). In 1997, the US-Ecuador BIT entered into force. After more than a decade had elapsed without a determination of its claims pending in the Ecuadorian courts, Chevron filed a Notice of Arbitration in 2006, alleging that Ecuador had breached the BIT by allowing its claims to languish in those courts without a resolution.
Cert. denied: Republic of Ecuador v Chevron Corporation, 578 U.S. 1023; 136 S.Ct. 2410. An investor-State tribunal seated in The Hague issued an Interim Award in December 2008 finding that it had jurisdiction to hear the case, a Partial Award on the Merits in March 2010 in Chevron's favour, and a Final Award in August 2011 concerning damages.
Chevron sought an order in the District Court for the District of Columbia confirming the Final Award under the 1958 New York Convention. Ecuador objected, relying first on foreign sovereign immunity under the FSIA 1976. On immunity, Chevron asserted that its petition fell under the arbitration exception in s1605(a)(6) because the Final Award was made pursuant to the BIT and was governed by the 1958 New York Convention. The District Court agreed, holding that the Final Award was "clearly governed by the New York Convention". Ecuador relied, secondly, on several grounds for resisting enforcement under the 1958 New York Convention (thereby accepting that the 1958 New York Convention applied to the arbitral award). The District Court considered, and rejected these grounds.
On appeal, the D.C. Circuit affirmed the District Court's judgment, confirming and entering judgment on the award. The D.C. Circuit (like the District Court) considered that the 1958 New York Convention applied to the award.
The D.C. Circuit denied rehearing en banc, and the US Supreme Court denied certiorari.
*United States Republic of Ecuador v Chevron Corporation, 638 F.3d 384 (2d Cir. 2011). There has been protracted litigation and arbitration proceedings between Ecuador, and citizens of Peru and Ecuador, on the one hand, and Chevron Corporation and Texaco Petroleum Company (collectively, 'Chevron'), on the other hand. The Republic of Ecuador and a group of Ecuadorian citizens sought relief for environmental devastation allegedly caused by TexPet's oil exploration and drilling operations in the Ecuadorian rainforest. In 2001, the District Court for the Southern District of New York dismissed the plaintiffs' initial action, granting Chevron's forum non conveniens motion. The plaintiffs refiled their claims in Lago Agrio, Ecuador.
Chevron invoked the arbitration clause in the US-Ecuador BIT and commenced (a second) investor-State arbitration against Ecuador in September 2009, asserting that Ecuador had improperly interfered in the Lago Agrio litigation and requesting, inter alia, a declaration that Chevron had no liability for environmental damages arising out of TexPet's drilling operations in Ecuador.
The Ecuadorian citizens (who were not parties to the BIT arbitration) responded by commencing proceedings in the District Court for the Southern District of New York seeking a stay of the BIT arbitration; Ecuador also moved for a stay. The District Court assumed, without deciding, that it had the power to stay the BIT arbitration, but declined to exercise that authority in this case.
Ecuador and the citizen plaintiffs appealed. The Second Circuit affirmed the District Court's refusal to stay the BIT arbitration. In the course of doing so, the Second Circuit noted that all parties (including Ecuador) agreed "that BIT arbitration falls under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ('New York Convention'), which governs agreements that are 'commercial and … not entirely between citizens of the United States'" .
*United States Republic of Argentina v BG Group PLC, 715 F.Supp.2d 108 (D.D.C. 2010). BG Group, a UK company, invested in a gas distribution company in Argentina. When disputes arose, BG initiated an investor-State arbitration against Argentina pursuant to the UK-Argentina BIT. On 24 December 2007, the arbitral tribunal issued an award in favour of BG Group against Argentina.
Republic of Argentina v BG Group PLC, 764 F.Supp.2d 21 (D.D.C. 2011). Argentina filed a petition in the D.C. District Court to vacate or modify the award; BG Group filed a cross-motion to recognise and enforce the award under the 1958 New York Convention.
Republic of Argentina v BG Group PLC, 665 F.3d 1363 (D.C. Cir. 2012). In its 2010 judgment denying Argentina's petition to vacate, the District Court noted that whether it had subject-matter jurisdiction over the dispute depended on "whether the Award is one that is covered under the New York Convention". It set out Art I(1) of the Convention. The award was made in the District of Columbia, and thus it was only covered by the Convention if it met the description in the second sentence of Art I(1), being "arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought". The District Court held that the award fell within the 'non-domestic' provision of Art I(1) of the Convention), and thus that the Convention applied to the award. The Court rejected Argentina's motion to vacate.
BG Group PLC v Republic of Argentina, 134 S.Ct. 1198; 572 U.S. 25 (2014). In a 2011 judgment, the District Court granted BG Group's cross-motion to recognise and enforce the award under the 1958 New York Convention, rejecting Argentina's arguments based on Art V of the 1958 New York Convention.
Republic of Argentina v BG Group PLC, 555 Fed.Appx. 2 (Mem) (D.C. Cir. 2014). Argentina appealed both judgments of the District Court. The D.C. Circuit allowed the appeal, without directly addressing the applicability of the 1958 New York Convention. BG Group appealed to the US Supreme Court, which allowed the appeal and reversed the D.C. Circuit's judgment. The Supreme Court did not discuss the applicability of the 1958 New York Convention, which was not in issue before it.
As a result, the D.C. District Court's judgment granting the cross-motion to confirm the award under the 1958 New York Convention was confirmed.
*United States The Argentine Republic v National Grid PLC (unreported, 7 June 2010) (D.D.C. 2010). On 3 November 2008, an investor-State arbitral tribunal, convened pursuant to the UK-Argentina BIT, determined that Argentina had violated the treaty and was liable to National Grid Plc for some $53 million plus costs and interests.
Argentine Republic v National Grid PLC, 637 F.3d 365 (D.C. Cir. 2011). The Republic of Argentina filed a petition in the District Court for the District of Columbia seeking to vacate the award against it. In response, National Grid filed a cross-motion to confirm the award under the Federal Arbitration Act and the 1958 New York Convention, arguing inter alia that Argentina's petition was time-barred.
Cert. denied: Argentine Republic v National Grid PLC, 132 S.Ct. 761; 565 U.S. 1059 (2011). The District Court dismissed Argentina's petition as time-barred and granted National Grid's cross-motion to confirm the award under the 1958 New York Convention.
Argentina appealed to the D.C. Circuit, which affirmed the District Court's judgment, confirming the award under the 1958 New York Convention. The D.C. Circuit denied rehearing en banc.
*United States Schneider v Kingdom of Thailand (unreported, 14 March 2011) (S.D.N.Y. 2011). Petitioner Werner Schneider, acting as insolvency administrator of Walter Bau Ag, petitioned the District Court of the Southern District of New York to confirm an investor-State arbitral award against the Kingdom of Thailand. Walter Bau submitted a Request for Arbitration under the 2002 Germany-Thailand BIT. The arbitral tribunal issued a final award in Walter Bau's favour against the Kingdom of Thailand on 1 July 2009.
Schneider v Kingdom of Thailand, 688 F.3d 68 (2d Cir. 2012). The District Court confirmed that the 1958 New York Convention applied to the recognition and enforcement of the award. The District Court granted Walter Bau's petition to confirm the arbitral award and entered judgment thereon.
On appeal, the Second Circuit affirmed the District Court's judgment and confirmed that the 1958 New York Convention applied to the award.
*United States Gold Reserve Inc. v Bolivarian Republic of Venezuela, 146 F.Supp.3d 11 (D.D.C. 2015). An investor-State tribunal awarded over $700 million in damages to Gold Reserve, in an arbitral award rendered on 22 September 2014 against Venezuela under the 1998 Canada-Venezuela BIT.
Gold Reserve petitioned the District Court for the District of Columbia to enforce the award under the 1958 New York Convention. The D.C. District Court confirmed that the 1958 New York Convention applied to the award. Venezuela raised various grounds for refusing recognition and enforcement, relying on Art V of the 1958 New York Convention (and thereby accepting that the Convention applied). The District Court rejected these challenges and granted the petition to confirm the award.
United States Stati v Republic of Kazakhstan, 199 F.Supp.3d 179 (D.D.C. 2016). Investors Anatolie Stati, Gabriel Stati, Ascom Group SA, and Terra Raf Traiding Ltd, filed a petition in the District Court for the District of Columbia to confirm an investor-State arbitral award rendered against Kazakhstan on 19 December 2013, pursuant to the Energy Charter Treaty. The investors sought to confirm the award under the Federal Arbitration Act and the 1958 New York Convention.
Anatolie Stati v Republic of Kazakhstan, 302 F.Supp.3d 187 (D.D.C. 2018). The D.C. District Court found that the 1958 New York Convention applied to the investor-State award and provided a basis to enforce the award.
Stati v Republic of Kazakhstan, 773 Fed.Appx. 627 (D.C. Cir. 2019). The District Court decided to stay the proceedings in light of pending set-aside proceeding in Sweden, in accordance with Art VI of the 1958 New York Convention.
Cert. denied: Republic of Kazakhstan v Stati, 140 S.Ct. 381 (2019). On 9 December 2016, the Svea Court of Appeal rejected Kazakhstan's set-aside petition, and on 24 October 2017, the Swedish Supreme Court ruled in favour of the Stati parties. The D.C. District Court granted the investors' motion to lift the stay on 6 November 2017. The District Court then granted the investors' petition to confirm the award, finding that none of the 1958 New York Convention grounds for refusal or deferral of recognition and enforcement of the award applied.
The D.C. Circuit affirmed the District Court's grant of the investors' petition to confirm the arbitral award and confirmed that the 1958 New York Convention applied to the award. The D.C. Circuit denied rehearing en banc, and the U.S. Supreme Court denied certiorari.
*United States Sistem Muhendislik Insaat Sanayi Ve Ticaret, A.S. v Kyrgyz Republic (unreported, 30 September 2016) (S.D.N.Y. 2016). Sistem, a Turkish entity, filed a petition in the District Court for the Southern District of New York seeking to confirm an arbitral award against the Kyrgyz Republic. Sistem filed a Request for Arbitration against the Kyrgyz Republic pursuant to the arbitration clause in the 1992 Turkey-Kyrgyzstan BIT and, on 9 September 2009, the investor-State arbitral tribunal found in Sistem's favour. The District Court for the Southern District of New York confirmed that the 1958 New York Convention and the Federal Arbitration Act applied to the award, and granted confirmation of the award.
Sistem Mühendislik Inşaat Sanayi Ve Ticaret, A.Ş. v Kyrgyz Republic, 741 Fed.Appx. 832 (2d Cir. 2018). On appeal, the Second Circuit affirmed the District Court's judgment.
*United States Crystallex International Corporation v Bolivarian Republic of Venezuela, 244 F.Supp.3d 100 (D.D.C. 2017). Crystallex, a Canadian corporation, invested in gold deposits in Venezuela in 2002. When disputes arose, Crystallex pursued arbitration under the Canada-Venezuela BIT against Venezuela. The investor-State tribunal awarded Crystallex over $1.2 billion.
Crystallex International Corporation v Bolivarian Republic of Venezuela, 760 Fed.Appx. 1 (D.C. Cir. 2019). Crystallex sought confirmation of the arbitral award in the District Court for the District of Columbia, pursuant to the 1958 New York Convention. The D.C. District Court granted Crystallex's petition to confirm the award. The District Court confirmed that the award was "governed by the New York Convention" (at 109) and rejected Venezuela's arguments based on Art V of the Convention.
On appeal, the D.C. Circuit affirmed the District Court's judgment.
*United States Rusoro Mining Limited v Bolivarian Republic of Venezuela, 300 F.Supp.3d 137 (D.D.C. 2018). Rusoro Mining Ltd was a Canadian corporation engaged in the exploration and production of gold. Between 2006 and 2008, Rusoro acquired controlling interests in 24 Venezuelan companies, which held a total of 58 mining concessions and contracts in Venezuela. On 17 July 2012, Rusoro submitted a Request for Arbitration to ICSID, pursuant to the 1996 Canada-Venezuela BIT. The arbitral tribunal rendered an award on 22 August 2016 in Rusoro's favour, against Venezuela.
Rusoro sought confirmation of the arbitral award in the District Court for the District of Columbia. The D.C. District Court held that the recognition and enforcement of the award was governed by the 1958 New York Convention. Venezuela resisted enforcement of the award in reliance on Art V(1)(c) of the Convention (thereby accepting that the Convention applied to the award). The D.C. District Court granted Rusoro's petition and confirmed the arbitral award.
*United States Tatneft v Ukraine, 301 F.Supp.3d 175 (D.D.C. 2018). Tatneft sought recognition and enforcement of a merits award rendered in an investor-State arbitration conducted under the auspices of the PCA, seated in Paris, pursuant to the UNCITRAL Rules and the 1998 Russia-Ukraine BIT. Ukraine argued against the confirmation and enforcement of the Merits Award in reliance on Art V of the 1958 New York Convention (thereby accepting that the Convention applied to the Merits Award). The D.C. District Court noted that there was "no dispute that the Merits Award is governed by the New York Convention" (at 187).
Tatneft v Ukraine, 771 Fed.Appx. 9 (D.C. Cir. 2019). On appeal, the D.C. Circuit affirmed the District Court's judgment.
Cert. denied: Ukraine v PAO Tatneft, 140 S.Ct. 901 (2020). The U.S. Supreme Court denied certiorari on 13 January 2020, and the matter returned to the D.C. District Court. On 24 August 2020, the District Court granted Tatneft's petition to confirm the arbitral award, rejecting Ukraine's various arguments based on Art V of the 1958 New York Convention. The D.C. Circuit subsequently rejected a further appeal, affirming the District Court's judgment granting Tatneft's petition.
PAO Tatneft v Ukraine (unreported, 24 August 2020) (D.D.C. 2020).
Tatneft v Ukraine, 21 F.4th 829 (D.C. Cir. 2021).
United States Gretton Ltd v Republic of Uzbekistan (unreported, 6 February 2019) (D.D.C. 2019). Gretton Ltd sought to enforce an arbitral award against the Republic of Uzbekistan in the D.C. District Court. The dispute arose between Uzbekistan and a company called Oxus Gold, PLC, over Oxus' investments in two gold-mining operations there. As of February 2019, the underlying investor-State award was still subject to direct-appeal proceedings in France.
Gretton - Oxus' litigation funder and assignee of the Award's proceeds - sought enforcement in the US. Uzbekistan moved to dismiss the petition, or alternatively to stay the case. In its judgment of 6 February 2019, the D.C. District Court found it appropriate to stay the proceedings pending the decision of the Paris Court of Appeal. In so holding, the District Court confirmed that the 1958 New York Convention applied to the award, relying on Art VI of the Convention to order the stay. There was no dispute between the parties that the 1958 New York Convention applied and permitted a stay of the proceedings.
United States LLC Komstroy v Republic of Moldova, (unreported, 13 November 2018) (D.D.C. 2018). LLC Komstroy filed an action in 2014 in the D.C. District Court to confirm an arbitral award pursuant to the 1958 New York Convention.
LLC Komstroy v Republic of Moldova, (unreported, 23 August 2019) (D.D.C. 2019). The arbitral award was issued by an investor-State tribunal in favour of Komstroy and against the Republic of Moldova in Paris on 23 October 2013, pursuant to the Energy Charter Treaty, under the UNCITRAL Rules. On 25 November 2013, Moldova applied to the Paris Court of Appeal to set aside the arbitral award. During the pendency of the set-aside proceedings, in June 2014, Komstroy requested and received exequatur from the High Court of Paris.
LLC SPC Stileks v Republic of Moldova, 985 F.3d 871 (D.C. Cir. 2021). In November 2014, Komstroy initiated the case in the US. On 4 April 2016, Moldova requested a stay pending resolution of the set-aside proceeding before the Paris Court of Appeal. On 12 April 2016, the Paris Court of Appeal vacated the 2013 award for lack of jurisdiction; Komstroy explained that it intended to appeal the adverse decision to the Cour de Cassation, and requested a stay of the US proceedings pending resolution of that appeal. On 22 April 2016, the D.C. District Court stayed the proceedings.
On 15 August 2018, Komstroy informed the D.C. District Court that in March 2018, the Cour de Cassation had issued a decision in Komstroy's favour, reversing and rendering void the 2016 Paris Court of Appeal decision that had set aside the arbitral award. The Cour de Cassation remanded the case to be reconsidered by a different panel of the Paris Court of Appeal. Komstroy moved the D.C. District Court to lit the stay and reopen the US case. Moldova requested an extension of the stay pending the further proceedings in the Paris Court of Appeal.
In its judgment of 13 November 2018, the D.C. District Court confirmed that the investor-State award was "presently enforceable" under the 1958 New York Convention, and granted Komstroy's motion to lift the stay, notwithstanding the pending proceedings before the Paris Court of Appeal.
In its judgment of 23 August 2019, the D.C. District Court proceeded to the merits of Komstroy's confirmation petition. Moldova made challenges to confirmation of the award under Art V of the 1958 New York Convention (thereby accepting that the Convention applied to the award). The D.C. District Court found that the FSIA's arbitration exception to immunity applied, and that the 1958 New York Convention "plainly" applied to the award. The Court rejected Moldova's challenges, and granted Komstroy's petition to confirm the award.
Moldova appealed to the D.C. Circuit, which affirmed the District Court's confirmation of the award. The D.C. Circuit confirmed that the 1958 New York Convention applied to the investor-State award against Moldova (noting also that there was no dispute that the New York Convention applied).
*United States State of Libya v Strabag SE (unreported, 30 September 2021) (D.D.C. 2021). Libya and Strabag SE went to investor-State arbitration over a series of construction contracts that were disrupted by the 2011 Libyan revolution, pursuant to the 2002 Austria-Libya BIT. Libya brought a petition in the District Court of the District of Columbia to vacate the arbitral award, and Strabag brought a cross-motion to confirm it. The D.C. District Court confirmed the arbitral award pursuant to the Federal Arbitration Act and the 1958 New York Convention.
State of Libya v Strabag SE (unreported, 27 May 2022) (D.C. Cir. 2022). On appeal, the D.C. Circuit affirmed the District Court's judgment.