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939 F.Supp. 907

(Cite as: 939 F.Supp. 907)

[2] T 372

United States District Court, 25T Alternative Dispute Resolution

District of Columbia. 25TII Arbitration
25TII(H) Review, Conclusiveness, and En-
In the Matter of the Arbitration of Certain Contro- forcement of Award
versies Between CHROMALLOY AER- 25Tk366 Appeal or Other Proceedings for
GAS TURBINE CORPORATION, Petitioner, 25Tk372 k. Proceedings for Transfer.
and Most Cited Cases
The ARAB REPUBLIC OF EGYPT, Respondent. (Formerly 33k73.5 Arbitration)
Civil No. 94-2339 (JLG). Arbitration agreement between defense contractor
and Egyptian Air Force, under which parties agreed
July 31, 1996.
to apply Egyptian law and that decision of arbitrat-
Defense contractor brought action to enforce arbit- ors would be “final and binding,” did not permit ap-
ration award entered under contract with Egyptian peal of arbitrators' decision to Egyptian courts.
Air Force. On contractor's petition to recognize and
[3] Judgment 228 830.1
enforce Egyptian arbitral award and Egypt's motion
to dismiss, and District Court, June L. Green, J., 228 Judgment
held, as a matter of first impression, that decision of 228XVII Foreign Judgments
Egyptian Court of Appeal nullifying arbitration 228k830 Judgments of Courts of Foreign
award that was proper as matter of United States Countries
law was not entitled to res judicata effect in United 228k830.1 k. In General. Most Cited
States. Cases

Petition granted; motion to dismiss denied. Treaties 385 13

West Headnotes 385 Treaties

385k13 k. Performance and Enforcement of Pro-
[1] T 515
visions. Most Cited Cases
25T Alternative Dispute Resolution Decision of Egyptian Court of Appeal nullifying ar-
25TV Foreign Dispute Resolution Proceedings bitration award that was proper as matter of United
25Tk515 k. Enforcement and Recognition of States law was not entitled to res judicata effect in
Awards. Most Cited Cases United States in action to enforce award under Con-
(Formerly 33k63.1 Arbitration) vention on Recognition and Enforcement of For-
Egyptian arbitration award entered in dispute eign Arbitral Awards; recognizing decision of
between United States defense contractor and Egyptian court would violate clear United States
Egyptian Air Force was proper under United States public policy in favor of final and binding arbitra-
law, although arbitrators made procedural decision tion of commercial disputes. 9 U.S.C.A. § 202.
that allegedly led to misapplication of substantive
[4] Judgment 228 830.1
law, and award was overturned in Egypt on that
ground. 9 U.S.C.A. § 10. 228 Judgment
228XVII Foreign Judgments

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939 F.Supp. 907
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228k830 Judgments of Courts of Foreign United States law, did not conflict with Article V of
Countries the Convention, permitting court to refuse to en-
228k830.1 k. In General. Most Cited force arbitration award. 9 U.S.C.A. § 208; Conven-
Cases tion on the Recognition and Enforcement of For-
Doctrine of international comity did not require de- eign Arbitral Awards, Arts. V, VII, 9 U.S.C.A. §
ference to decision of Egyptian Court of Appeal 201 note.
nullifying arbitration award that was valid under *907 Gary H. Sampliner, and Allen B. Green,
United States law. McKenna & Cuneo, L.L.P., Washington, D.C., for
[5] T 515
Mitchell B. Berger and Dean M. Dilley, Patton,
25T Alternative Dispute Resolution Boggs & Blow, L.L.P., Washington, D.C., for Re-
25TV Foreign Dispute Resolution Proceedings spondent.
25Tk515 k. Enforcement and Recognition of
Awards. Most Cited Cases
(Formerly 33k2.2 Arbitration)
Treaties 385 8
JUNE L. GREEN, District Judge.
385 Treaties
385k8 k. Construction and Operation of Particu- I. Introduction
lar Provisions. Most Cited Cases
United States defense contractor, by choosing This matter is before the Court on the Petition of
Egyptian law to govern its agreement with Egyptian Chromalloy Aeroservices, Inc., (“CAS”) to Con-
Air Force and choosing Cairo as site of arbitration firm an Arbitral Award, and a Motion to Dismiss
did not sign away its rights to enforce arbitration that Petition filed by the Arab Republic of Egypt
award under Convention on Recognition and En- (“Egypt”), the defendant in the arbitration. This is a
forcement of Foreign Arbitral Awards and United case of first impression. The Court GRANTS
States law. 9 U.S.C.A. § 202. Chromalloy Aeroservices' Petition to Recognize
and Enforce the Arbitral Award, and DENIES
[6] T 515 Egypt's Motion to Dismiss, because the arbitral
award in question is valid, and because Egypt's ar-
25T Alternative Dispute Resolution
guments against enforcement are insufficient to al-
25TV Foreign Dispute Resolution Proceedings
low this Court to disturb the award.
25Tk515 k. Enforcement and Recognition of
Awards. Most Cited Cases
(Formerly 33k2.2 Arbitration) II. Background

Treaties 385 8 This case involves a military procurement contract

between a U.S. corporation, Chromalloy Aer-
385 Treaties oservices, Inc., and the Air Force of the Arab Re-
385k8 k. Construction and Operation of Particu- public of Egypt.
lar Provisions. Most Cited Cases
United States defense contractor's use of Article On June 16, 1988, Egypt and CAS entered into a
VII of the Convention on Recognition and Enforce- contract under which CAS agreed to provide parts,
ment of Foreign Arbitral Awards, requiring court to maintenance, and repair for helicopters belonging
consider contractor's claims under applicable to the Egyptian Air Force. (Arbitration Award

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(“Award”) at 3.) On December 2, 1991, Egypt ter- “does not present any serious argument that its
minated the contract by notifying CAS representat- court's nullification decision is consistent with the
ives in Egypt. (Award at 5.) On December 4, 1991, New York Convention or United States arbitration
Egypt notified CAS headquarters in Texas of the law.” (Petitioner's Rejoinder at 1.)
termination. (Id.) On December 15, 1991, CAS no-
tified Egypt that it rejected the cancellation of the
III. Discussion
contract “and commenced arbitration proceedings
on the basis of the arbitration clause contained in A. Jurisdiction
Article XII and Appendix E of the Contract.” (Id.)
Egypt then drew down CAS' letters of guarantee in This Court has original jurisdiction under the For-
an amount totaling some $11,475,968. (Id.) eign Sovereign Immunities Act, 28 U.S.C. § 1330,
et. seq. (1976), which provides in relevant part that:
On February 23, 1992, the parties began appointing
arbitrators, and shortly thereafter, commenced a The district courts shall have original jurisdiction
lengthy arbitration. (Id.) On August 24, 1994, the without regard to amount in controversy of any
arbitral panel ordered Egypt to pay to CAS the non-jury civil action against a foreign state as
sums of $272,900 plus 5 percent interest from July defined in section 1603(a) of this title as to any
15, 1991, (interest accruing until the date of pay- claim for relief in personam with respect to
ment), and $16,940,958 plus 5 percent interest from which the foreign state is not entitled to im-
December 15, 1991, (interest accruing until the date munity ... under sections 1605-1607 of this title.
of payment). (Id. at 65-66.) The panel also ordered
CAS to pay to Egypt the sum of 606,920 pounds 28 U.S.C. § 1330(a). Both the Arab Republic of
sterling, plus 5 percent interest from December 15, Egypt and the Egyptian Air Force are foreign states
1991, (interest accruing until the date of payment). under 28 U.S.C. § 1603(a) & (b). See *909Republic
(Id.) of Argentina v. Weltover, 504 U.S. 607, 612, n. 1,
112 S.Ct. 2160, 2164-65, n. 1, 119 L.Ed.2d 394
On October 28, 1994, CAS applied to this Court for (1992).
enforcement of the award. On November 13, 1994, (a) A foreign state shall not be immune from the
Egypt filed an appeal with the Egyptian Court of jurisdiction of courts of the United States ... in
Appeal, seeking nullification of the award. On any case-
March 1, 1995, Egypt filed a motion with this Court
to adjourn CAS's Petition to enforce the award. On ******
April 4, 1995, the Egyptian Court of Appeal sus-
(6) in which the action is brought, either to en-
pended the award, and on May 5, 1995, Egypt filed
force an agreement made by the foreign state
a Motion in this Court to Dismiss CAS's petition to
with or for the benefit of a private party to submit
enforce the award. On December 5, 1995, Egypt's
to arbitration all or any differences which have
Court of Appeal at Cairo issued an order nullifying
arisen or which may arise between the parties
the award. (Decision of Egyptian Court of Appeal
with respect to a defined legal relationship,
(“Egypt Ct.”) at 11.) This Court held a hearing in
whether contractual or not, concerning a subject
the matter on December 12, 1995.
matter capable of settlement by arbitration under
Egypt argues that this Court should deny CAS' Peti- the laws of the United States, or to confirm an
tion to Recognize and Enforce the Arbitral Award award made pursuant to such an agreement, if
out of deference to its court. (Response to Petition-
er's Post-Hearing Brief at 2.) CAS argues that this
Court should confirm the award because Egypt

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(B) the agreement or award is ... governed by a 1. The Standard under the Convention
treaty or other international agreement in force
for the United States calling for the recognition This Court must grant CAS's Petition to Recognize
and enforcement of arbitral awards. and Enforce the arbitral “award unless it finds one
of the grounds for refusal ... of recognition or en-
28 U.S.C. § 1605(a) & (a)(6) & (a)(6)(B) (emphasis forcement of the award specified in the ... Conven-
added). tion.” 9 U.S.C. § 207. Under the Convention,
“Recognition and enforcement of the award may be
CAS brings this action to confirm an arbitral award refused” if Egypt furnishes to this Court “proof that
made pursuant to an agreement to arbitrate any and ... [t]he award has ... been set aside ... by a compet-
all disputes arising under a contract between itself ent authority of the country in which, or under the
and Egypt, a foreign state, concerning a subject law of which, that award was made.” Convention,
matter capable of settlement by arbitration under Article V(1) & V(1)(e) (emphasis added), 9 U.S.C.
U.S. law. See 9 U.S.C. §§ 1-14. Enforcement of the § 201 note. In the present case, the award was made
award falls under the Convention on Recognition in Egypt, under the laws of Egypt, and has been
and Enforcement of Foreign Arbitral Awards, nullified by the court designated by Egypt to review
(“Convention”), 9 U.S.C. § 202, which grants arbitral awards. Thus, the Court may, at its discre-
“[t]he district courts of the United States ... original FN2
tion, decline to enforce the award.
jurisdiction over such an action or proceeding, re-
gardless of the amount in controversy.” 9 U.S.C. § FN2. The French language version of the
203. Convention, (which the Court notes is not
the version codified by Congress), emphas-
FN1. Having established jurisdiction under izes the extraordinary nature of a refusal to
28 U.S.C. § 1605(a)(6)(B), the Court does recognize an award: “Recognition and en-
not consider CAS' other claims to jurisdic- forcement of the award will not be refused
tion. ... unless....” (Response to Petitioner's
Post-Hearing Brief, at 3) (emphasis in the
B. Chromalloy's Petition for Enforcement original).

A party seeking enforcement of a foreign arbitral While Article V provides a discretionary standard,
award must apply for an order confirming the Article VII of the Convention requires that, “The
award within three years after the award is made. 9 provisions of the present Convention shall not ...
U.S.C. § 207. The award in question was made on deprive any interested party of any right he may
August 14, 1994. CAS filed a Petition to confirm have to avail himself of an arbitral award in the
the award with this Court on October 28, 1994, less manner and to the extent allowed by the law ... of
than three months after the arbitral panel made the the count[r]y where such award is sought to be re-
award. CAS's Petition includes a “duly certified lied upon.” 9 U.S.C. § 201 note (emphasis*910 ad-
copy” of the original award as required by Article ded). In other words, under the Convention, CAS
IV(1)(a) of the Convention, translated by a duly maintains all rights to the enforcement of this Ar-
sworn translator, as required by Article IV(2) of the bitral Award that it would have in the absence of
Convention, as well as a duly certified copy of the the Convention. Accordingly, the Court finds that,
original contract and arbitration clause, as required if the Convention did not exist, the Federal Arbitra-
by Article IV(1)(b) of the Convention. 9 U.S.C. § tion Act (“FAA”) would provide CAS with a legit-
201 note. CAS's Petition is properly before this imate claim to enforcement of this arbitral award.
Court. See 9 U.S.C. §§ 1-14. Jurisdiction over Egypt in
such a suit would be available under 28 U.S.C. §§

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1330 (granting jurisdiction over foreign states “as 9 U.S.C. § 10.
to any claim for relief in personam with respect to
which the foreign state is not entitled to immunity FN3. The Court has reviewed the volumin-
... under sections 1605-1607 of this title”) and ous submissions of the parties and finds no
1605(a)(2) (withholding immunity of foreign states evidence that corruption, fraud, or undue
for “an act outside ... the United States in connec- means was used in procuring the award, or
tion with a commercial activity of the foreign state that the arbitrators exceeded their powers
elsewhere and that act causes a direct effect in the in any way.
United States”). See Weltover, 504 U.S. at 607, 112
An arbitral award will also be set aside if the award
S.Ct. at 2160. Venue for the action would lie with
was made in “ ‘manifest disregard’ of the law.”
this Court under 28 U.S.C. § 1391(f) & (f)(4)
First Options of Chicago v. Kaplan, 514 U.S. 938, -
(granting venue in civil cases against foreign gov-
---, 115 S.Ct. 1920, 1923, 131 L.Ed.2d 985 (1995).
ernments to the United States District Court for the
“Manifest disregard of the law may be found if
District of Columbia).
[the] arbitrator[s] understood and correctly stated
the law but proceeded to ignore it.” Kanuth v.
2. Examination of the Award under 9 U.S.C. § 10 Prescott, Ball, & Turben, Inc., 949 F.2d 1175, 1179
[1] Under the laws of the United States, arbitration
awards are presumed to be binding, and may only Plainly, this non-statutory theory of vacatur can-
be vacated by a court under very limited circum- not empower a District Court to conduct the same
stances: de novo review of questions of law that an appel-
late court exercises over lower court decisions.
(a) In any of the following cases the United Indeed, we have in the past held that it is clear
States court in and for the district wherein the that [manifest disregard] means more than error
award was made may make an order vacating the or misunderstanding with respect to the law.
award upon the application of any party to the ar-
bitration- Al- Harbi v. Citibank, 85 F.3d 680, 683
(D.C.Cir.1996) (internal citations omitted).
(1) Where the award was procured by corrup-
tion, fraud, or undue means. In Al-Harbi, “The submission agreement under
which the arbitrator decided the controversy man-
(2) Where there was evident partiality or cor- dated that the arbitrator apply ‘the procedural and
ruption in the arbitrators, or either of them. substantive laws of the Southern District of New
York, U.S.A.’ ” Id. at 684. The arbitrator in Al-
(3) Where the arbitrators were guilty of mis-
Harbi ruled that a court applying the laws of New
conduct in refusing to postpone the hearing, upon
York would dismiss the case on forum non conveni-
sufficient cause shown, or in refusing to hear
ens grounds. Id. Appellant argued on appeal that
evidence pertinent and material to the contro-
the arbitrator had manifestly disregarded the sub-
versy; or of any other misbehavior by which the
stantive laws of New York by disposing of the case
rights of any party have been prejudiced.
on procedural grounds. Id. The D.C. Circuit em-
(4) Where the arbitrators exceeded their phatically rejected this argument, stating that:
powers, or so imperfectly executed them that a
Appellant's argument then depends upon the pro-
mutual, final, and definite award upon the subject
position that where a tribunal is to render [a] de-
matter submitted was not made.
cision based on procedural and substantive law

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that tribunal has not only erred, but acted in antees they afford.” (Nullification Decision at 8.)
manifest disregard of the law if it finds that pro- Egypt's complaint that, “[T]he Arbitral Award is
cedural factors are dispositive of the case without null under Arbitration Law, ... because it is not
then *911 going on to consider substantive law properly ‘grounded’ under Egyptian law,” reflects
rendered apparently moot by that procedural de- this suspicious view of arbitration, and is precisely
cision. To state that proposition is to reject it. We the type of technical argument that U.S. courts are
find no basis for vacatur. not to entertain when reviewing an arbitral award.
See Montana Power Company v. Federal Power
Id. Commission, 445 F.2d 739, 755 (D.C.Cir.1970) (
cert. den. 400 U.S. 1013, 91 S.Ct. 566, 27 L.Ed.2d
In the present case, the language of the arbitral
627 (1971)) (holding that, “Arbitrators do not have
award that Egypt complains of reads:
to give reasons”) (citing United Steelworkers v. En-
The Arbitral tribunal considers that it does not terprise Wheel & Car Corp., 363 U.S. 593, 598, 80
need to decide the legal nature of the contract. It S.Ct. 1358, 1361-62, 4 L.Ed.2d 1424 (1960)).
appears that the Parties rely principally for their
The Court's analysis thus far has addressed the ar-
claims and defences, on the interpretation of the
bitral award, and, as a matter of U.S. law, the award
contract itself and on the facts presented. Further-
is proper. See Sanders v. Washington Metro. Area
more, the Arbitral tribunal holds that the legal is-
Transit Auth., 819 F.2d 1151, 1157 (D.C.Cir.1987)
sues in dispute are not affected by the character-
(holding that, “When the parties have had a full and
ization of the contract.
fair opportunity to present their evidence, the de-
(Award at 30.) cisions of the arbitrator should be viewed as con-
clusive as to subsequent proceedings, absent some
Like the arbitrator in Al-Harbi, the arbitrators in the abuse of discretion by the arbitrator”) (citing the
present case made a procedural decision that al- Restatement (Second) of Judgments § 84(3) (1982),
legedly led to a misapplication of substantive law. Greenblatt v. Drexel Burnham Lambert, Inc., 763
After considering Egypt's arguments that Egyptian F.2d 1352 (11th Cir.1985)). The Court now con-
administrative law should govern the contract, the siders the question of whether the decision of the
majority of the arbitral panel held that it did not Egyptian court should be recognized as a valid for-
matter which substantive law they applied-civil or eign judgment.
administrative. Id. At worst, this decision consti-
tutes a mistake of law, and thus is not subject to re- As the Court stated earlier, this is a case of first im-
view by this Court. See Al- Harbi, 85 F.3d at 684. pression. There are no reported cases in which a
court of the United States has faced a situation, un-
In the United States, “[W]e are well past the time der the Convention, in which the court of a foreign
when judicial suspicion of the desirability of arbit- nation has nullified an otherwise valid arbitral
ration and of the competence of arbitral tribunals award. This does not mean, however, that the Court
inhibited the development of arbitration as an al- is without guidance in this case. To the contrary,
ternative means of dispute resolution.” Mitsubishi more than twenty years ago, in a case involving the
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 enforcement of an arbitration clause under the
U.S. 614, 626-27, 105 S.Ct. 3346, 3354, 87 L.Ed.2d FAA, the Supreme Court held that:
444 (1985). In Egypt, however, “[I]t is established
that arbitration is an exceptional means for resolv- An agreement to arbitrate before a specified
ing disputes, requiring departure from the normal tribunal is, in effect, a specialized kind of forum-
means of litigation before the courts, and the guar- selection clause.... The invalidation of such an
agreement ... would not only allow the respond-

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ent to repudiate its solemn promise but would, as C. The Decision of Egypt's Court of Appeal
well, reflect a parochial concept that all disputes
must be resolved under our laws and in our 1. The Contract
[2] “The arbitration agreement is a contract and the
Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, court will not rewrite it for the parties.” Williams v.
94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974) (reh. E.F. Hutton & Co., Inc., 753 F.2d 117, 119
den., 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129 (D.C.Cir.1985) (citing Davis v. Chevy Chase Fin-
(1974)) (citations omitted). ancial Ltd., 667 F.2d 160, 167 (D.C.Cir.1981)). The
Court “begin[s] with the ‘cardinal principle of con-
*912 In Scherk, the Court forced a U.S. corporation tract construction: that a document should be read
to arbitrate a dispute arising under an international to give effect to all its provisions and to render
contract containing an arbitration clause. Id. 417 them consistent with each other.’ ” United States v.
U.S. at 518, 94 S.Ct. at 2456-57. In so doing, the Insurance Co. of North America, 83 F.3d 1507,
Court relied upon the FAA, but took the opportun- 1511 (D.C.Cir.1996) (quoting Mastrobuono v.
ity to comment upon the purposes of the newly ac- Shearson Lehman Hutton, Inc., 514 U.S. 52, ----,
ceded-to Convention: 115 S.Ct. 1212, 1219, 131 L.Ed.2d 76 (1995)). Art-
icle XII of the contract requires that the parties ar-
The delegates to the Convention voiced frequent bitrate all disputes that arise between them under
concern that courts of signatory countries in the contract. Appendix E, which defines the terms
which an agreement to arbitrate is sought to be of any arbitration, forms an integral part of the con-
enforced should not be permitted to decline en- tract. The contract is unitary. Appendix E to the
forcement of such agreements on the basis of pa- contract defines the “Applicable Law Court of Ar-
rochial views of their desirability or in a manner bitration.” The clause reads, in relevant part:
that would diminish the mutually binding nature
of the agreements.... [W]e think that this coun- It is ... understood that both parties have irre-
try's adoption and ratification of the Convention vocably agreed to apply Egypt (sic) Laws and to
and the passage of Chapter 2 of the United States choose Cairo as seat of the court of arbitration.
Arbitration Act provide strongly persuasive evid-
ence of congressional policy consistent with the ******
decision we reach today.
The decision of the said court shall be final and
Id. at n. 15. The Court finds this argument equally binding and cannot be made subject to any appeal
persuasive in the present case, where Egypt seeks to or other recourse.
repudiate its solemn promise to abide by the results
FN4 (Appendix E (“Appendix”) to the Contract.)
of the arbitration.
This Court may not assume that the parties intended
FN4. The fact that this case concerns the
these two sentences to contradict one another, and
enforcement of an arbitral award, rather
must preserve the meaning of both if possible. In-
than the enforcement of an agreement to
surance Co., 83 F.3d 1507, 1511 (D.C.Cir.1996).
arbitrate, makes no difference, because
Egypt argues that the first quoted sentence super-
without the knowledge that judgment will
sedes the second, and allows an appeal to an Egyp-
be entered upon an award, the term
tian court. Such an interpretation, however, would
“binding arbitration” becomes meaning-
vitiate the second sentence, and would ignore the
plain language on the face of the contract. The
Court concludes that the first sentence defines

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choice of law and choice of forum for the hearings The U.S. public policy in favor of final and binding
of the arbitral panel. The Court further concludes arbitration of commercial disputes is unmistakable,
that the second quoted sentence indicates the clear and supported by treaty, by statute, and by case
intent of the parties that any arbitration of a dispute law. The Federal Arbitration Act “and the imple-
arising under the contract is not to be appealed to mentation of the Convention in the same year by
any court. This interpretation, unlike that offered by amendment of the Federal Arbitration Act,” demon-
Egypt, preserves the meaning of both sentences in a strate that there is an “emphatic federal policy in fa-
manner that is consistent with the plain language of vor of arbitral dispute resolution,” particularly “in
the contract. The position of the latter sentence as the field of international commerce.” Mitsubishi v.
the seventh and final paragraph, just before the sig- Soler Chrysler-Plymouth, 473 U.S. 614, 631, 105
natures, lends credence to the view that this sen- S.Ct. 3346, 3356, 87 L.Ed.2d 444 (1985) (internal
tence is the final word on the arbitration question. citation omitted); cf. Revere Copper & Brass Inc.,
In other words, the parties agreed to apply Egyptian v. Overseas Private Investment Corporation, 628
Law to the arbitration, but, more important, they F.2d 81, 82 (D.C.Cir.1980) (holding that, “There is
agreed that the arbitration ends with the decision of a strong public policy behind judicial enforcement
the arbitral panel. of binding arbitration clauses”). A decision by this
Court to recognize the decision of the Egyptian
court would violate this clear U.S. public policy.
*913 2. The Decision of the Egyptian Court of
3. International Comity
[3] The Court has already found that the arbitral
award is proper as a matter of U.S. law, and that the [4] “No nation is under an unremitting obligation to
arbitration agreement between Egypt and CAS pre- enforce foreign interests which are fundamentally
cluded an appeal in Egyptian courts. The Egyptian prejudicial to those of the domestic forum.” Laker
court has acted, however, and Egypt asks this Court Airways Ltd. v. Sabena, Belgian World Airlines,
to grant res judicata effect to that action. 731 F.2d 909, 937 (D.C.Cir.1984). “[C]omity never
obligates a national forum to ignore ‘the rights of
The “requirements for enforcement of a foreign its own citizens or of other persons who are under
judgment ... are that there be ‘due citation’ [i.e., the protection of its laws.’ ” Id. at 942 (emphasis
proper service of process] and that the original added) (quoting Hilton v. Guyot, 159 U.S. 113, 164,
claim not violate U.S. public policy.” Tahan v. 16 S.Ct. 139, 143-44, 40 L.Ed. 95 (1895). Egypt al-
Hodgson, 662 F.2d 862, 864 (D.C.Cir.1981) (citing leges that, “Comity is the chief doctrine of interna-
Hilton v. Guyot, 159 U.S. 113, 202, 16 S.Ct. 139, tional law requiring U.S. courts to respect the de-
158, 40 L.Ed. 95 (1895)). The Court uses the term cisions of competent foreign tribunals.” However,
‘public policy’ advisedly, with a full understanding comity does not and may not have the preclusive
that, “[J]udges have no license to impose their own effect upon U.S. law that Egypt wishes this Court to
brand of justice in determining applicable public create for it.
policy.” Northwest Airlines Inc. v. Air Line Pilots
Association, Int'l, 808 F.2d 76, 78 (D.C.Cir.1987). The Supreme Court's unanimous opinion in W.S.
Correctly understood, “[P]ublic policy emanates Kirkpatrick & Co., Inc. v. Environmental Tectonics
[only] from clear statutory or case law, ‘not from Corp., Int'l, 493 U.S. 400, 408, 110 S.Ct. 701, 706,
general considerations of supposed public interest.’ 107 L.Ed.2d 816 (1990), defines the proper limita-
” Id. (quoting American Postal Workers Union v. tions of the “act of state doctrine” and, by im-
United States Postal Service, 789 F.2d 1 plication, judicial comity as well. Kirkpatrick arose
(D.C.Cir.1986)). out of a dispute between two U.S. companies over a

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government construction project in Nigeria. Kirk- state doctrine,” as a whole, does not require U.S.
patrick, the losing bidder, sued Environmental courts to defer to a foreign sovereign on these
Techtonics, (“ETC”), the winning bidder, alleging facts, comity, which is but one of several
that ETC acquired the contract by bribing Nigerian “policies” that underlie the act of state
officials in violation of U.S. law. Id. ETC argued “doctrine,” id. at 409, 110 S.Ct. at 706-07, does
that the act of state doctrine precluded U.S. courts not require such deference either.
from hearing the case because to do so “would im-
pugn or question the nobility of a foreign nation's FN6. Indeed, the Court assumes that the
motivations,” and would “result in embarrassment decision of the Court of Appeal at Cairo is
to the sovereign or constitute interference in the proper under applicable Egyptian law.
conduct of [the] foreign policy of the United
States.” Id. at 408, 110 S.Ct. at 706. The Supreme 4. Choice of Law
Court rejected this argument:
[5] Egypt argues that by choosing Egyptian law,
FN5. See Kirkpatrick, 493 U.S. at 400, 110 and by choosing Cairo as the sight of the arbitra-
S.Ct. at 701-02. “The act of state doctrine tion, CAS has for all time signed away its rights un-
... requires that ... the acts of foreign sover- der the Convention and U.S. law. This argument is
eigns taken within their own jurisdiction specious. When CAS agreed to the choice of law
shall be deemed valid.” Id. at 410, 110 and choice of forum provisions, it waived its right
S.Ct. at 707. The act of state doctrine is to sue Egypt for breach of contract in the courts of
based upon notions of “international the United States in favor of final and binding arbit-
comity, respect for the sovereignty of for- ration of such a dispute under the Convention. Hav-
eign nations on their own territory, and the ing prevailed in the chosen forum, under the chosen
avoidance of embarrassment to the Execut- law, CAS comes to this Court seeking recognition
ive Branch in its conduct of foreign rela- and enforcement of the award. The Convention was
tions.” Id. at 409, 110 S.Ct. at 706. created for just this purpose. It is untenable to argue
that by choosing arbitration under the Convention,
*914 The short of the matter is this: Courts in the
CAS has waived rights specifically guaranteed by
United States have the power, and ordinarily the
that same Convention.
obligation, to decide cases and controversies
properly presented to them. The act of state doc-
trine does not establish an exception for cases 5. Conflict between the Convention & the FAA
and controversies that may embarrass foreign
governments, but merely requires that, in the pro- [6] As a final matter, Egypt argues that,
cess of deciding, the acts of foreign sovereigns “Chromalloy's use of [A]rticle VII [to invoke the
taken within their own jurisdictions shall be Federal Arbitration Act] contradicts the clear lan-
deemed valid. That doctrine has no application to guage of the Convention and would create an im-
the present case because the validity of no for- permissible conflict under 9 U.S.C. § 208,” by
eign sovereign act is at issue. eliminating all consideration of Article V of the
Id. at 409, 110 S.Ct. at 707 (emphasis added). Convention. See Vimar Seguros y Reaseguros, S.A.
Similarly, in the present case, the question is v. M/V Sky Reefer, 515 U.S. 528, ----, 115 S.Ct.
whether this Court should give res judicata effect 2322, 2325, 132 L.Ed.2d 462 (1995) (holding that,
to the decision of the Egyptian Court of Appeal, “[W]hen two statutes are capable of coexistence ...
not whether that court properly decided the mat- it is the duty of the courts, absent a clearly ex-
FN6 pressed congressional intention to the contrary, to
ter under Egyptian law. Since the “act of
regard each as effective”). As the Court has ex-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 10
939 F.Supp. 907
(Cite as: 939 F.Supp. 907)

plained, however, Article V provides a permissive

standard, under which this Court may refuse to en-
force an award. Article VII, on the other hand,
mandates that this Court must consider CAS' claims
under applicable U.S. law.

Article VII of the Convention provides that:

The provisions of the present Convention shall

not ... deprive any interested party of any right he
may have to avail himself of an arbitral award in
the manner and to the extent allowed by the law
... of the count[r]y where such award is sought to
be relied upon.

9 U.S.C. § 201 note. Article VII does not eliminate

all consideration of Article V; it merely requires
that this Court protect any rights that CAS has un-
der the domestic laws of the United States. There is
no conflict between CAS' use of Article VII to in-
voke the FAA and the language of the Convention.

IV. Conclusion

The Court concludes that the award of the arbitral

panel is valid as a matter of U.S. law. The Court
further concludes that it need not grant res judicata
effect to the decision of the Egyptian Court of Ap-
peal at Cairo. Accordingly, the Court GRANTS
Chromalloy Aeroservices' Petition to Recognize
and Enforce*915 the Arbitral Award, and DENIES
Egypt's Motion to Dismiss that Petition.

Matter of Arbitration Between Cromalloy Aer-
oservices, a Div. of Chromalloy Gas Turbine Corp.
and Arab Republic of Egypt
939 F.Supp. 907


© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.