Default Proceedings Underway in Award Confirmation Case Against Ghana

Petitioner GPGC Ltd., represented by Robert Kry of Molo Lamken LLP informed the Court that service of the Clerk's Entry of Default on the Republic of Ghana was completed in a proceeding to confirm a $134 million award against the sovereign.

The arbitration arose out of a 2015 Emergency Purchase Agreement between Ghana and GPGC, a commodity supplier and supply chain manager with operations around the world (the “EPA”). Under the EPA, GPGC agreed to relocate, install, and operate two gas turbine power plants to meet the energy needs of the Republic of Ghana during an energy crisis affecting the country. That agreement required GPGC to dismantle the two power plants, transport them to Ghana, install them, and operate and maintain them, all at its own expense. In return, GPGC would earn revenues from the energy sales for a guaranteed term of four years. But according to the petition to confirm, in December 2016, Ghana held a general election, and the newly installed government believed that its predecessor had purchased too much power and that there would be an excess of supply. In February 2018, Ghana purported to terminate the EPA. The arbitration ensued before the Permanent Court of Arbitration, where GPGC claimed that the termination of the EPA was unlawful.

In January 2021, the tribunal issued its final award, ordering Ghana to pay GPGC $134,348,661 for its wrongful termination of the EPA. Ghana has made a few partial payments toward the Award, but has failed to pay the full amount due.

GPGC filed the petition to confirm the Award before the U.S. District Court for the District of Columbia in January 2024. The petition was served on Ghana that same month. Due to Ghana's failure to appear in this case, GPGC filed and affidavit in support of default on April 23, 2024. The Clerk entered default the next day. With the clerk's entry of default having been served on the sovereign, GPGC will soon move for default judgment and confirmation of the award.

Ghana is not a stranger to U.S. courts and it has appeared in the past to oppose the confirmation of arbitration awards, see, e.g.,  Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 2018), or other lawsuits brought against it in U.S. courts, e.g., TJGEM LLC v. Republic of Ghana, 26 F. Supp. 3d 1 (D.D.C. 2013), aff'd, No. 14-7036, 2015 WL 3653187 (D.C. Cir. June 9, 2015).

The case is GPGC Limited v. Government of the Republic of Ghana, No. 1:24-cv-00169-JEB (D.D.C.).

Russia Makes Arbitrability Argument in Appellate Opening Brief

Earlier this month, Russia filed its appellant brief challenging U.S. District Court for the District of Columbia's denial of its motion to dismiss. Notably, the brief was filed by David Riesenberg, newly with Pinna Goldberg, a French firm who opened a D.C. office earlier this year. David has previously represented Russia along with his colleagues from White & Case LLP in the proceedings in the District Court. 

Russia asked the Court to dismiss the long-stayed action to enforce the arbitral award against it claiming that it has never waived its immunity against jurisdiction. Russia now argues that the Court erred in refusing to dismiss the action because (1) it has not delegated the arbitrability review to the tribunal; and (2) even if it did, the District Court still had the obligation to independently decide "whether Respondent made a 'standing offer' to arbitrate under the [Energy Charter Treaty ("ECT")] and whether Petitioners were eligible offerees who could 'accept[]' any purported offer."

Specifically, Russia argues that it has delegated only the initial determination of arbitrability--and not the exclusive determination--to arbitrators. Russia points out that its interpretation that the delegated arbitrability review was non-exclusive is consistent with the approach of French, Dutch, and Canadian courts before which parallel ECT litigation against Respondent is pending. 

Russia then argued that even if petitioners were correct regarding the delegation of authority, the D.C. District Court still had an obligation to independently decide "some arbitrability questions" de novo as part of its review of the jurisdictional requirements of the Foreign Sovereign Immunities Act. In Russia's interpretation of Chevron Corp. v. Republic of Ecuador, 795 F.3d 200 (D.C. Cir. 2015), the court should have approached at least the following jurisdictional questions de novo: "(1) whether the treaty’s signatory made 'a standing offer' to arbitrate and (2) whether the offer was 'accepted' by a claimant from within the category of eligible offerees (e.g., 'all potential U.S. investors')." 

Russia explained that although its executive branch signed the ECT, its parliament chose not to ratify it, and thus "accepted only a limited commitment under the ECT’s Article 45(1) to apply the treaty 'provisionally … to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.'”  According to the brief, "Respondent had not committed to applying the ECT’s arbitration provisions, [as] confirmed publicly in 2004 by the ECT Deputy Secretary General."

These arguments were rejected in November 2023 by the District of Columbia District Court, which explained in a lengthy opinion that ruling otherwise would "risk upending the global community's predominant mechanism for international commercial dispute resolution." The case had been pending before the District of Columbia court since 2014, and was subject to multiple stays pending Russia's attempts to annul the award in Dutch courts.

In the same month, the Commercial Court, King's Bench Division of the High Court of Justice of England and Wales rejected Russia's sovereign immunity arguments.

Omni Bridgeway Moves for Default against Albanian State-Owned Entities

Omni Bridgeway filed a motion for entry of default judgment against the Ministry of Infrastructure and Energy of the Republic of Albania, the National Agency of Natural Resources of the Republic of Albania, and Albpetrol SH.A.  in a case seeking to confirm a $12M arbitration award won by GBC Oil Company in July 2020. 

Although Omni Bridgeway served each respondent by sending two copies of a service request form, petition, summons, and supporting papers by FedEx to Albania’s central authority, the Albanian Ministry of Justice, the Ministry failed to provide the required certificate of service other than confirming that it had "forwarded the service packets to the Court of First Instance of General Jurisdiction in Tirana, Albania, for service on respondents" in November 2023. The Ministry then ceased all communications with petitioners. 

This is not the first time when Albania and its instrumentalities refused to participate in enforcement proceedings in U.S. courts. In 2010, the District Court for the District of Columbia granted in part G.E. Transportation S.p.A.'s motion for default judgment and to confirm an arbitration award against the Republic of Albania, Ministry of Public Works, Transport and Telecommunications. See G.E. Transp. S.P.A. v. Republic of Albania, 693 F. Supp. 2d 132, 141 (D.D.C. 2010). In 2012, again, the Ministry of Economy, Trade, and Energy of Albania, and National Agency of Natural Resources of Albania refused to appear in an action to compel arbitration and preserve status quo during such arbitration filed in the Western District of Texas. See Sky Petroleum, Inc. v. Ministry of Econ., No. A-12-CA-023-SS, 2012 WL 12874201, at *1 (W.D. Tex. Jan. 20, 2012).