Applying pressure
Enforcement of international arbitral awards and foreign judgments
Enforcement of arbitral awards
Under the rules of all major arbitral institutions an arbitral award is binding on the parties, but it is not self-executing. To collect the damages awarded to it, the prevailing party must resort to the formal recognition and enforcement process of converting the arbitral award into a court judgment.
There are a number of international instruments governing recognition and enforcement, and their applicability depends on the nature of arbitration proceeding, the seat of arbitration, and the jurisdiction where the debtor’s assets are located. The most prominent and frequently used is the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which requires each Contracting State to recognize international arbitral awards issued in another Contracting State. With more than 160 signatories, the New York Convention creates a global enforcement framework.
The US is a Contracting State and maintains the Convention’s strong “pro-enforcement bias.” US courts are required to recognize an international arbitral award, unless one of the grounds for refusal specified in Article V of the Convention is present. We have extensive experience prosecuting and defending against Article V defenses, including due process and public policy defenses, as well as non-Article V defenses, including lack of personal jurisdiction, forum non conveniens, and manifest disregard of the law. We also have experience with enforcement of awards that have been set aside at the seat.
Although US law sets forth a relatively short time period to enforce awards under the New York Convention, there are creative solutions that may allow award creditors to effectively extend that time.
Cross-border disputes have become deeply embedded in the fabric of modern business.
Such disputes, although frequent, present unique challenges. Indeed, there is no single,
universal forum where all international disputes can be heard, nor any uniform legal
system to govern them. And, after a dispute is resolved, the ensuing judgment or award
needs to be “domesticated” by obtaining its recognition and enforcement before formal
collection efforts can begin.
Eversheds Sutherland by the numbers
Above, a meeting of The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws). established in 1892. The ULC a non-profit unincorporated association, comprised of state commissions on uniform laws from each state, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.
“Our impression of the team as a whole was incredible. They systematically dissected all the other side’s arguments and prepared proper, logical and reasonable arguments.”
Aerospace and Aviation
In a complex, multi-jurisdictional dispute related to the supply and maintenance of in-flight entertainment systems for several leading Middle East airlines and spanning several arbitral institutions and courts, securing dismissal of more than US$1.6 billion in claims asserted against our French and California-based clients after removing the claims from California state court to federal court and then compelling arbitration.
Representing a leading developer and manufacturer of in-flight entertainment systems in connection with a complex, multi-jurisdictional dispute involving patent infringement actions in France, Germany, and the United Kingdom, and an action in the US for discovery pursuant to 28 U.S.C. 1782. We won successively at both the trial and appellate courts. In re Lufthansa Technik AG, No. SAMC 19-00016JVS(KESx), 2020 U.S. Dist. LEXIS 231675 (C.D. Cal. Nov. 4, 2020) (denying Motion for Review); Lufthansa Technik AG v. Thales Avionics, Inc., No. 20-56293, 2021 U.S. App. LEXIS 36660 (9th Cir. Dec. 13, 2021) (affirming).
Manufacturing and Industrial
Successfully representing our French client, one of the world’s largest aerial work platform manufacturing companies,
in parallel actions pending before the ICDR and a US federal court in Louisiana, and involving claims for more than US$30 million in connection with the manufacturing and sale of lift equipment. REQ Assignment for the Benefit of Creditors LLC v. Haulotte Group SA, No. 2:18-cv-11551 (E.D. La. Oct. 15, 2019).
Successfully represented Valmont Industries, a Nebraska-based global leader of engineered products and services for energy and communications infrastructure, against a US$100 million claim against our client in federal court in Delaware by a Turkish entity alleging theft of trade secrets and key employees. We defeated the emergency motion for preliminary injunction and then successfully compelled arbitration of the dispute. Mitas Endustri Sanayi Ticaret A.S. v. Valmont Indus., Civil Action No. 20-1285-CFC, 2021 U.S. Dist. LEXIS 139528 (D. Del. July 27, 2021).
Successfully representing a Central Asian bank in an arbitration with its partner arising from unauthorized sale of a jointly owned cardboard factory and in related proceedings in Eastern Europe, Cypriot and BVI courts.
Representing a Swiss-based multinational company and its Serbian philanthropist founder, president, and CEO in multi-jurisdictional litigation in the US and Europe in connection with defamatory statements and interference with business opportunities, and twice securing reversal and remand
of the US federal court action. Jankovic v. International Crisis Group, 593 F.3d 22 (D.C. Cir. 2010), rehearing en banc denied (Mar. 31, 2010); Jankovic v. International Crisis Group, 494 F.3d 1080 (D.C. Cir. 2007).
Confirming an arbitration award against
the Government of Romania and obtained
a judgment of more than US$330 million. Micula v. Government of Romania, 404 F. Supp. 3d 265 (D.D.C. 2019).
Defense and Security
Winning more than US$62 million in claims on behalf of a Fortune 500 multinational against the Greek government in an ICC arbitration seated in Athens and arising from installation of the security system for the 2004 Athens Olympics, while also defeating more than US$200 million in set-offs brought against the company in a hotly political matter involving broad allegations of corruption and government misconduct. ICC Case No. 16394/GZ/MHM. We enforced the award in the Supreme Court of Greece and in US federal court (SAIC v. The Hellenic Republic, CA No. 13-cv-1070, 2017 WL 65821 (D.D.C. Jan. 5, 2017), amended (D.D.C. 2018)), and collecting a judgment against the Greek Government in US federal court totaling more than US$58 million (Leidos, Inc. v. Hellenic Republic, 881 F.3d 213 (D.C. Cir. 2018)).
Defeating more than US$51 million in claims and winning multiple counterclaims on behalf of a Fortune 100 global security company in a Cairo Regional Centre for International Commercial Arbitration (CRCICA) arbitration against a privatized aviation industry entity of the Egyptian government.
Favorably resolving a US$30 million suit for a US arms manufacturer against a German gun dealer involving alleged violations of international laws of war in the delivery of
a weapons system. Orbital ATK, Inc., et al.
v. Heckler & Koch GmbH, No. 17-3033
(8th Cir. July 16, 2018), International Centre for Dispute Resolution (ICDR); Orbital ATK Inc. et al. v. Heckler & Koch GmbH, CA No. 0:17-cv-00250, (D. Minn. July 11, 2018).
Obtaining a favorable resolution for a global aerospace and defense technology company in a contractual dispute with an Egyptian government entity over performance and delivery of a defense radar equipment system, in which the Egyptian government entity refused to pay.
Energy
Obtaining for our Lebanon-based clients total dismissal in the “Rocket Docket” Eastern District of Virginia US federal court of fraud and other tort claims brought by a leading global energy trader from Switzerland and related to the sale and delivery of more than US$100 million in oil from Iraq. Gunvor SA
v. Kayablian et al., No. 1:18:-cv-00934, (E.D. Va. Oct. 19, 2018); Gunvor SA v. Kayablian et al., 948 F.3d 214 (4th Cir. 2020).
Obtaining dismissal with prejudice of claims totaling more than US$45 million against a US contractor brought by a foreign government alleging fraud, FCPA violations, environmental damage and product liability. Government of the Dominican Republic v. AES et al., Civil Action No. 1:06-cv-313 (E.D. Va. 2007).
Technology
Successfully arguing novel issues of international arbitration law and constitutional due process to establish jurisdiction in the United States over a South African entity to enforce an international arbitration award worth more than US$100 million. Telcordia Tech, Inc. v. Telkom SA Ltd, 458 F.3d 172 (3d Cir. 2006), cert. denied, 549 US 1206 (2007).
Obtaining total dismissal for a UK-based attraction ticketing and queuing technology provider and its US subsidiary in a suit involving allegations of an antitrust conspiracy among our clients and an Austrian ticket and access technology company. Charych v. Siriusware, Inc., 790 Fed. Appx. 299 (2d Cir. 2019).
Representing a Chinese investment firm in an action to confirm and enforce an arbitral award amounting to more than US$100 million issued by the China International Economic and Trade Arbitration Commission (CIETAC) in an arbitration against a mobile phone technology provider. Shanghai Qichengyueming Investment Partnership Enterprise v. Jia Yueting, CA No. 2:18-cv-07723-SJO-JPR (C.D. Cal. 2018).
Technology
Representing entities in North America, Europe, and the Middle East against an international consortium in a US$190 million dispute arising from a high-profile rail project.
Representing a major Canadian rail transportation provider in a politically charged dispute, including in an ad hoc arbitration, concerning installation of the public transit system for the City of Edmonton, and claims against the city for tens of millions of dollars.
Finance
Favorably resolving defamation claims for a Latvian financial institution in US federal court action involving allegations of money laundering and related crimes.
Successfully representing a Central Asian client in a multi-party arbitration with its Albanian partner and Swiss bank involving issues of English, Swiss and Albanian law, and concerning an alleged theft of a large volume of naphtha used as a collateral for a complex transaction.
Successfully representing a French entrepreneur in a US$40 million dispute against a US multinational company arising from unlawful termination of a joint venture between the parties and implicating issuing of public policy, the US FCPA and Venezuelan currency exchange laws.
Real Estate
Successfully representing an Eastern Europe real estate development business and its executive in connection with an arbitration before the London Court of International Arbitration concerning a dispute related to a large real estate development project in Eastern Europe and a related discovery action under 28 U.S.C. 1782 brought in the US District Court for the Southern District of Florida.
Enforcing a multimillion-dollar arbitral award against a Mexican entity on behalf of a major real estate development firm.
Government Contracting
Successfully confirming an arbitration award issued by the International Chamber of Commerce’s International Court of Arbitration against the Democratic Republic of the Congo (DRC) for breach of contract and related claims against the DRC in connection with our client’s efforts to improve and modernize the DRC’s customs department. Customs and Tax Consultancy LLC v. Democratic Republic of Congo, Civ. No. 18-1408 (D.D.C.).
Favorably resolving for our US government contractor client breach of contract claims related to a failed Kuwait joint venture. Systems Products & Solutions, Inc. v. R4, Inc., 1:08-cv-00847-TSE-TRJ (E.D.VA).
Eversheds Sutherland by the numbers
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Rankings and recognition
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The recognition and enforcement of international arbitral awards and foreign court judgments is a process requiring careful planning and steadfast compliance with applicable foreign or international norms, domestic laws, and local practices. Recognizing this complexity, we pride ourselves on our ability to develop bespoke enforcement strategies and to employ, as necessary, comprehensive multi-jurisdictional approaches, nonlinear solutions, and our firm’s global reach.
As their trusted advisors, Eversheds Sutherland's international disputes team advises clients through the maze of legal, economic, and practical considerations, and we utilize innovative tools to streamline our processes, allowing our clients to minimize their legal spend and avoid distractions that stand in the way of value creation.
While we routinely represent clients from the inception of their disputes through collection, we also frequently act as special counsel retained for the stage of enforcing international arbitral awards and foreign court judgments. We have a wealth of experience in this field and have acted on the side of both prosecution of enforcement and defense against enforcement. For more than 20 years, our team has been involved in ground-breaking cases that have shaped US law on the enforcement of arbitral awards, including recognition under the New York Convention and ICSID. We have particular experience in handling enforcement matters involving sovereigns and defenses based on sovereign immunity. We also offer associated services relating to asset searches and attachment procedures.
Our clients consistently recognize the expertise, creativity, and business acumen that we bring to every engagement.
Enforcement of arbitral awards
The US is not yet a party to any treaty for the enforcement of foreign court judgments and has not yet established any federal law governing the enforcement of foreign court judgments. Therefore the enforcement of foreign court judgments is governed by the law of the state in which enforcement is sought and by principles of comity.
Although state laws can differ substantially, a certain level of uniformity is present in the field as most US states have adopted one of two model laws developed by the Uniform Law Commission on the recognition of foreign court judgments: the 1962 Uniform Foreign Money-Judgments Recognition Act and the 2005 Uniform Foreign-Country Money Judgments Recognition Act.
Both provide a set of mandatory and discretionary factors for the non-recognition of foreign court judgments, and we have extensive experience working with each of those factors—from due process violations, to lack of personal or subject matter jurisdiction in the underlying proceeding, to fraud, to violation of public policy of the enforcing state.
Source: ULC
Representative experience
On behalf of a Fortune 500 company, we prevailed in an arbitration against the government of Greece in an ICC arbitration seated in Athens and arising from the installation of a security system for the 2004 Athens Olympics. (ICC Case No. 16394/GZ/MHM.) We subsequently enforced the award in the Supreme Court of Greece and in US federal court (SAIC v. The Hellenic Republic, CA No. 13-cv-1070, 2017 WL 65821 (D.D.C. Jan. 5, 2017), amended (D.D.C. 2018)), collecting from Greece a judgment in excess US$58 million (Leidos, Inc. v. Hellenic Republic, 881 F.3d 213 (D.C. Cir. 2018)).
We successfully argued novel issues of law and constitutional due process and established jurisdiction in the United States over a South African entity to enforce an international arbitration award exceeding US$100 million. (Telcordia Tech, Inc. v. Telkom SA Ltd, 458 F.3d 172 (3d Cir. 2006), cert. denied, 549 US 1206 (2007).)
On behalf of a Fortune 100 global security company, we defeated more than US$50 million in claims brought by an Egyptian entity and prevailed in counterclaims asserted for our client, the award on which we subsequently enforced in the US. (Cairo Regional Centre for International Commercial Arbitration, Case No. 455/2005; NANSC v. NGOSCO, CA No. 1:11-cv-00744-RLW (D.D.C. 2012).)
We represented a Chinese investment firm in an action to confirm and enforce an arbitral award amounting to more than US$100 million issued by the China International Economic and Trade Arbitration Commission (CIETAC) in an arbitration against a mobile phone technology provider. (Shanghai Qichengyueming Investment Partnership Enterprise v. Jia Yueting, CA No. 2:18-cv-07723-SJO-JPR (C.D. Cal. 2018).)
We successfully brought an enforcement proceeding regarding a US$250 million ICC arbitration award in a case between the Democratic Republic of the Congo (DRC) and its contractor over a contract for improvement and modernization of the DRC’s customs department. (Customs and Tax Consultancy LLC v. Democratic Republic of Congo, CA No. 1:18-cv-01408-RJL (D.D.C. 2019).)
We prevailed in a multi-jurisdictional enforcement action against parent, subsidiaries, and related entities throughout US and Mexico involving a multi-million dollar arbitral award in a case between a Mexican entity and an international real estate development firm.
We secured confirmation of an investment treat award and a judgment of more than US$330 million against the Government of Romania on behalf of a Swedish investor who had relied on economic incentives offered by Romania to begin building an integrated food platform designed to produce consumer products and beverages for the Romanian market, only to see Romania repeal those incentives as part of its process of becoming a member of the European Union. (Micula v. Gov’t of Romania, 404 F. Supp. 3d 365 (D.D.C. 2019)), aff’d No. 19-7127, 2020 WL 2610916 (D.C. Cir. May 19, 2020).)
“He is terrific – everything you can ask for in outside counsel. He’s skilled in
his area of expertise, has good business sense and is a good communicator.”
“…the lawyers work together seamlessly to deliver the advice and work product that we need.”
William O'Brien serves as an advocate in litigation and arbitration and represents clients in the enforcement of arbitral awards. He has a Chambers US Band 1 ranking in “International Arbitration: Enforcement.”
“He is able to tailor solutions for the clients that meet their needs.”
“We prize Will above all others for his experience, efficiency and especially practicality.”