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).

District of Columbia Warns Sovereigns Against Dragging Out Confirmation Proceedings

In Deutsche Telekom AG v. Republic of India, No. CV 21-1070 (RJL), 2024 WL 1299344 (D.D.C. Mar. 27, 2024), Judge Leon of the District Court for the District of Columbia sent a strong message to sovereign states looking to delay the confirmation of arbitration awards.

Judge Leon confirmed Deutsche Telekom's award, denying India's motion to dismiss on forum non conveniens and because India is immune from suit under the Foreign Sovereign Immunities Act. The forum non conveniens argument was "dispatched with alacrity"--as the D.C. Circuit has “squarely held ‘that forum non conveniens is not available in proceedings to confirm a foreign arbitral award because only U.S. courts can attach foreign commercial assets found within the United States.’ ” Id. at *2.

The court gave more time to the sovereign immunity argument, but nevertheless rejected it, finding that the FSIA's "arbitration exception" applies. Id. The Court explained that "the arbitration exception requires establishing three 'jurisdictional facts': 'the existence of an arbitration agreement, an arbitration award[,] and a treaty governing the award.'” Id. at *3. India attempted to rebut Deutsche Telekom's clear establishment of these three requirements by arguing that "its offer to arbitrate in ... the BIT did not encompass [Deutsche Telekom's]'s claims—first because '[it]had not made any ‘investment’ in India and was not an ‘investor’ as defined in the BIT,' and second because [its] activities through a subsidiary were not protected by the BIT." Id. The court explained, however, that such arguments "about whether a sovereign's offer to arbitrate covers 'this particular dispute' concern 'the arbitrability of a dispute[, which] is not a jurisdictional question under the FSIA., [but] are 'properly considered as part of [merits] review under the New York Convention.'” Id. Finding that India is not immune from suit, the court moved on to consider --and reject--India's argument as part of its analysis under the New York Convention.

Lastly, the court strongly rejected India's argument that confirmation proceedings in U.S. courts have evolved to comprise two separate stages when sovereigns are involved: one where arguments regarding immunity are heard; and one where defenses under the New York convention are considered. The court explained that not only need confirmation proceedings need to be summary in nature, but proceeding as requested by India would give sovereigns another bite at the apple after it raised the same arbitrability arguments--to no avail--before "the arbitral panel, the Swiss Federal Supreme Court, and the [District of Columbia] court." "Enough is enough!" the Court concluded.