Summary

INTEREST OF AMICUS CURIAE

Joint Stock Company State Savings Bank of Ukraine (also known as JSC Oschadbank) is a Joint Stock Company and independent commercial entity that is owned by Ukraine.

The petition presents the question: When a foreign sovereign is a party to the New York Convention, that sovereign agrees to arbitrate a dispute governed by the Convention, and a plaintiff seeks to enforce a foreign judgment enforcing an award arising out of that arbitration agreement, does the Foreign Sovereign Immunity Act's (FSIA) waiver exception apply? Amicus urges the Court to grant certiorari and answer that question "yes."

Amicus has a direct interest in this case because it also seeks to enforce an arbitral award and a foreign judgment enforcing that award against the Russian Federation. The resolution of the question presented here may be dispositive in Amicus's own case.

This case presents an ideal vehicle for resolving an important and recurring question. The D.C. Circuit expressly split with the Second Circuit on the question presented, which is preserved and dispositive here.

Contrast App.11a-16a, with Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 581-83 (2d Cir. 1993). The question recurs frequently, as award creditors have relied on the Seetransport rule for decades. It is also exceptionally important because award holders often cannot meet the Federal Arbitration Act's three-year deadline, 9 U.S.C. § 207, thanks to judicial glosses to the FSIA and FAA that lower courts have developed (rightly or wrongly) to protect foreign states. Further percolation would add little, as the D.C. and Second Circuits are the principal forums for these disputes.

But it would significantly delay resolution of the question presented, because other potential vehicles raise other complicating issues that do not arise here.

SUMMARY OF ARGUMENT

The D.C. Circuit erred in holding that the FSIA's waiver exception does not apply to an action to enforce a foreign judgment that itself enforced a foreign arbitral award when the foreign-state defendant is a party to the New York Convention and signed the underlying arbitration agreement. This Court should grant certiorari and reverse.

The question presented is not whether foreign states may waive immunity by implication--Congress expressly provided for such waivers in the FSIA. See 28 U.S.C. § 1605(a)(1). The sole question is whether a concededly valid implied waiver, arising from an arbitration agreement and the New York Convention, extends to a procedurally different but substantively identical mechanism for enforcing the same arbitral obligation.

It is well established that a foreign state that signs the New York Convention and agrees to arbitrate impliedly waives immunity from actions to enforce arbitral awards. That rule is grounded in pre-FSIA common law and international law, as reflected in state practice and opinio juris. When a foreign state has both signed an arbitration agreement and ratified the New York Convention, the case for implied waiver is even stronger. Since the FSIA's enactment, all three branches of government have consistently endorsed this rule.

Such a waiver extends not only to actions enforcing arbitral awards, but also to actions to enforce foreign judgments that themselves enforce foreign awards.

(This brief refers to such judgments as "foreign award judgments.") A foreign state's waiver arising from an arbitration agreement extends to any proceeding that relates to one enforcing an award, not merely the enforcement action itself. See Seetransport, 989 F.2d at 581-83. The D.C. Circuit acknowledged below, as it must, that "an arbitral award and a court judgment enforcing an arbitral award are closely related." App.15a (citation omitted). It follows that an action to enforce a foreign award judgment is covered by the foreign state's original waiver.

The D.C. Circuit disagreed because it believed that no state party to the New York Convention could have anticipated foreign award judgment proceedings because the New York Convention does not mention them. See App.13a-14a. But the court ignored that Respondents also signed arbitration agreements.

Doing so gives rise to the expectation that state parties to the New York Convention will use all available means at their disposal to give effect to the underlying arbitration agreement and award. The Convention "sets a `floor,' but not a `ceiling'" on enforcement, preserving parties' rights to enforce awards "in the manner. . . allowed by the law. . . of the country where such award is sought to be relied upon." Commissions Imp. Exp. S.A. v. Republic of the Congo, 757 F.3d 321, 328 (D.C. Cir. 2014) (Comimpex) (emphasis in original) (quoting Br. for United States as Amicus Curiae at 7, Commissions Imp. Exp. S.A. v. Republic of the Congo, 757 F.3d 321 (D.C. Cir. 2014), 2014 WL 1366285 (U.S. Comimpex Br.)); see U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. 7, June 10, 1958, T.I.A.S. No. 6997, 330 U.N.T.S. 3 (the New York Convention).

One such means is foreign award judgment enforcement, which the United States and other countries have employed for at least a century. This "parallel entitlement" regime, under which an award creditor may seek to enforce either the award or a judgment enforcing it, is contemplated by and consistent with the New York Convention, and has been endorsed by the United States and lower courts, including the D.C. Circuit. Signatory states must have contemplated judgment-enforcement actions because this regime existed when the Convention opened for signature and persists today.

In short, holding that such a waiver extends to enforcement of foreign award judgments would not create a new foreign-judgments exception to sovereign immunity. It would simply give full effect to a foreign state's consent to arbitrate and the well-established mechanisms for enforcing that obligation.

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