UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
COMMISSIONS IMPORT EXPORT, S.A., ) Plaintiff, ) v. ) Civil No. 12-743 (RCL) THE REPUBLIC OF THE CONGO ) AND CAISSE CONGOLAISE ) , ) Defendants. )
MEMORANDUM OPINION Pending before the Court are motion for summary judgment and defendants the Republic of the Congo and
Caisse Amortissement motion for substitution pursuant to Fed. R. Civ. P. 25(c). ECF Nos. 37, 54. The Court previously denied the summary judgment motion and dismissed this case. ECF No. 43. The Court of Appeals reversed, remanding the case for further proceedings in accordance with its opinion. ECF No. 47. In light of the Court legal authorities, the Court shall grant motion for summary judgment and deny
motion for substitution. I. BACKGROUND The factual predicate for this lawsuit was ably set forth by the Court of Appeals in its 2014 opinion and the Court incorporates it herein:
In the 1980s, [Commisimpex] entered into contracts with the Republic of the Congo to perform public works and supply materials. The contracts were
financed through supplier credits extended by [CCA] that were formalized through promissory notes issued by CCA and guaranteed by the Republic of the Congo. In 1992, the parties signed an agreement for the repayment over ten years in equal, consecutive monthly payments of certain outstanding debts owed to [Commisimpex] under the contracts. Article 10 provided that any disputes arising from or relating to the agreement would be resolved by final binding arbitration CCA drew up promissory notes endorsed in favor of the Company, and in 1993 the Republic of the Congo issued a series of commitment letters; each commitment letter contained an irrevocable waiver of immunity from legal proceedings or execution and a commitment to submit all disputes to ICC arbitration in Paris, France, governed by French law. When the Congo failed to pay the promised amounts as they came due, and formal demand for payment, [Commisimpex] filed a request in 1998 for arbitration with the International Court of Arbitration of the ICC and the matter was submitted to arbitration. On December 3, 2000, the arbitral tribunal in Paris issued a final award in favor of [Commisimpex] The Award included outstanding principal owed under the agreement, interest, penalty interest on various promissory notes, and costs. The Award was summarily confirmed by the Tribunal de Grande Instance of Paris on December 12, 2000, and was upheld on May 23, 2002 by the Court of Appeals of Paris after the Congo appealed to rescind the Award. The Company filed eleven judicial enforcement proceedings to enforce the Award in France, as well as 82 non-judicial bailiff actions. [Commisimpex] also obtained judicial recognition of the Award pursuant to the New York Convention in Belgium and Sweden, but obtained no recovery on the amounts owed. On June 17, 2009, [Commisimpex] initiated proceedings pursuant to the Convention in the Queen s Bench Division of the High Court of Justice, Commercial Court in London, England ]. The [English] Court entered an order on July 10, 2009, ruling that the Award was enforceable in the same manner as a judgment under section 101 of the 1996 Arbitration Act of England, and recalculating the amount due to include additional interest and other Under English law, the judgment became final, conclusive, and enforceable on March 2, 2010, and remains enforceable for six years from that date. The [English] Court amended the judgment on November 1, 2011 to account for [Com successful seizure of French Francs in partial satisfaction of the Award. Shortly before, on September 2, 2011, [Commisimpex] filed a complaint in the federal court in the Southern District of New York to recognize and enforce the English Judgment under the New York Uniform Foreign Country Money Judgments Recognition Act, N.Y. C.P.L.R. Article 53. That court transferred the case to the federal court in the District of Columbia and the Company amended and supplemented its complaint to recognize and enforce the English Judgment under
[the Uniform Foreign-Country Money Judgments Recognition Act of 2011, D.C. Code § 15-361 et seq. D.C. Recognition Act . Commissions Import Export S.A. v. Republic of the Congo, 757 F.3d 321, 324 25 (D.C. Cir. 2014) (internal citations omitted). At summary judgment, this Court held that the D.C. Recognition Act was preempted by the Federal Arbitration Act three year statute of limitations, codified at 9 U.S.C. § 207. Commissions Import Export, S.A. v. Republic of the Congo, 916 F. Supp. 2d 48, 57 58 (D.D.C. 2013), , 757 F.3d at 333. The , motion for summary judgment, and dismissed the case. Id. The Court of Appeals reversed, holding that federal law did not preempt the D.C. Recognition Act . Commissions Import Export, 757 F.3d at 333. It remanded the case with instructions for this Court to Id. On March 31, 2015, the Court issued an order allowing the parties to submit supplemental motion for summary judgment given the substantial length of time since its filing. ECF No. 51. The parties submitted briefs and responses in accord with this order. ECF Nos. 52, 53, 56, 57. As the Court stated it would do in the March 31 order, the motion was taken under advisement at the conclusion of this round of supplemental briefing. II. MOTION FOR SUMMARY JUDGMENT Commisimpex has moved for summary judgment on its claim that the English Judgment should be recognized and enforced under the D.C. Recognition Act. 1
1 The Court previously held that it has subject matter jurisdiction over this case. Commissions Import Export, 916 F. Supp. 2d at 51. The Court of Appeals affirmed. Commissions Import Export, 757 F.3d at 325.
A. Legal Standard 1. Summary judgment
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and Fed. R. Civ. P. 56(a). some . Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 48 (1986). Material facts are those which could affect the outcome of a case, as determined by the substantive law underlying the suit. Id. at 248. A dispute Id.
When the m with credible evidence using any of the materials specified in Rule 56(c) that would entitle it
Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). In response, the nonmoving party must present specific facts beyond mere allegations or conclusory statements, which would enable a reasonable jury to find in its favor. Anderson, 477 U.S. at 256. 2. D.C. Recognition Act The D.C. Recognition Act states that any foreign country judgment entitled to recognition between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in the District of Columbia would be conclusive; and (2) [e]nforceable in the same manner and to the same extent as a judgment rendered in the District of -367.
The Act [g]rants or denies recovery of a sum of money; and (2) [u]nder the law of the foreign country where rendered, is final; conclusive; and enforceabl Id. § 15-363(a) (internal subdivisions omitted). The Act does not apply, however, to judgments for taxes, fines or other penalties, divorce, support or maintenance, or other judgments rendered in connection with domestic relations. Id. § 15-363(b). The party seeking recognition of a foreign country judgment has the burden to show that the Act applies to that judgment. Id. § 15-363(c). The D.C. Recognition Act requires a court of the District of Columbia to recognize a foreign country judgment to which the Act applies, unless a statutorily defined exception covers the judgment at issue. Id. § 15-364(a). There are both mandatory and discretionary exceptions to recognition. As to the former exceptions, the Act provides that a court may not recognize a foreign country ju udgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law foreign court lacked subject matter or personal jurisdiction. Id. § 15- laundry list of discretionary exceptions to recognition, the only one at issue in this case is that
which allows or the cause of action on which the judgment is based is repugnant to the public policy of the District of Columbia or of the United States. Id. § 15-364(c)(3). In any event, the party objecting to the recognition of a foreign country judgment to which the Act applies bears the burden of establishing one of these mandatory or discretionary exceptions. Id. § 15-364(d). The mandatory exception to recognition for lack of personal jurisdiction is further elaborated in a subsequent section of the statute. The statute sets out a number of conditions that, if met, conclusively establish personal jurisdiction for purposes of the Act. Id. § 15-365(a). These
bases of personal jurisdiction are not exclusive, however, and the Act states that a court may recognize other bases of personal jurisdiction sufficient to support a foreign-country judgment. Id. § 15-365(b). time during which the foreign-country judgment is effective in the foreign country or 15 years
from the date that the foreign- Id. § 15-369. There is no dispute that this action was timely under this provision. B. Discussion 1. D.C. Recognition Act applies to the English Judgment Commisimpex has satisfied its burden to show that the D.C. Recognition Act applies to the English Judgment under section 15-363. The English Judgment grants a certain sum of money. Am. Compl., Exs. B, C, ECF Nos. 35-2, 35-3. Under English law, it is final, conclusive, and enforceable. John A. Higham Decl. ¶ 13, ECF No. 37-3. Congo has raised nothing in its response to rebut that the Act applies to the English Judgment. 2 It is worth exploring briefly one issue not briefed by the parties. The English Judgment . See Am. Compl., Ex. B ¶ 2(e). This portion of the judgment appears to be rooted in the 2000 Arbitration the partie See Am. Compl., Ex. A at 63 65, 68 69, ECF No. 35-1. Although
this portion of the judgment is given the name of penalty, the Court concludes that it is not the sort of judgment for a penalty that would preclude recognition under the D.C. Recognition Act.
2 Congo has not contested the currency amounts awarded in the English Judgment and so the Court generally adopts the amounts set forth in Commisimpe - 30. The Court does not however recognize the before the English Court. These may not be recognized because that portion of the judgment is not for a specific sum of money. See Sea Search Armada v. Republic of Colombia, 821 F. Supp. 2d 268, 274 75 (D.D.C. 2011).
Persuasive authority indicates that this portion of the Act penal in nature, punishing an offen See Desjardins Ducharme v.
Hunnewell, 585 N.E.2d 321, 323 (Mass. 1992) (citing Chase Manhattan Bank, N.A. v. Hoffman, 665 F. Supp. 73, 75 76 (D. Mass. 1987)) (interpreting a Massachusetts recognition statute similar to the Act) granted in the English Judgment, derived from the Award, is remedial in nature because it simply awards interest on unpaid debts. It is not designed to punish an offense against the public justice. Because the D.C. Recognition Act applies to the English Judgment, the Court is statutorily obligated to enforce it unless one of the exceptions to recognition applies. Congo is the party arguing against enforcement and, therefore, bears the burden of proof as to these exceptions. Congo points to two exceptions to recognition, one mandatory and one discretionary. 2. The English Court had personal jurisdiction Congo argues that the Court may not recognize the English Judgment because it was rendered by a foreign court that lacked personal jurisdiction. Congo contends that none of the statutorily enumerated grounds requiring the Court to find a valid assertion of personal jurisdiction are satisfied. See D.C. Code § 15-365(a). Nonetheless, the Court may find that the English Court had personal jurisdiction over Congo on the basis of any other ground that is sufficient to support a foreign- Id. § 15-365(b). Case law is sparse in D.C. federal and local courts regarding this latter portion of the statute, which confers discretion on courts in determining whether personal jurisdiction has properly been asserted for purposes of the D.C. Recognition Act. Decisions interpreting identical or substantially similar statutes in other jurisdictions are instructive however. The New York Court of Appeals
holds co Sung Hwan Co. v. Rite Aid
Corp., 850 N.E.2d 647, 651 (N.Y. 2006). In carrying out these principles, New York courts typically use long arm statute as a framework for determining whether the foreign assertion of personal jurisdiction comports with local requirements. Id. A federal district court in New York stated the rule somewhat more broadly, concluding that New York courts may the judgment [is] predicated on any jurisdictional basis [New York] recognizes in Canadian Imperial Bank of Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1252 53
(S.D.N.Y. 1995) (quoting Porisini v. Petricca, 456 N.Y.S.2d 888, 889 90 (N.Y. App. Div. 1982)). The Ninth Circuit holds that a similar provision in California recognition act requires
between the defendant and the foreign court and adequate notice is given. Bank of Montreal v.
Kough, 612 F.2d 467, 471 (9th Cir. 1980). -arm statute is co-extensive with the requirements of federal constitutional due process, Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008), it follows that the inquiry under the California and New York recognition acts is fundamentally the same: personal jurisdiction should only be accepted as validly asserted if it comports with the internal law of the state where recognition is sought and if constitutional minimums are met. A major wrinkle must be considered in analogizing these authorities to the D.C. Recognition Act and the facts of this case. The Republic of the Congo and CCA are both foreign
states Commissions Import Export, 916 F. Supp. 2d at 51. As a result, there are two key differences between these defendants and the parties being analyzed in the New York and California cases above. First, foreign states Williams v. Romarm, SA, 756 F.3d 777, 782 (D.C. Cir. 2014). Therefore, a United States court may assert personal jurisdiction over a foreign state regardless of whether doing so would comport with due process. See id. (holding that . Second, the FSIA is the sole ground
upon which a court in the United States may assert personal jurisdiction over a foreign state. Af- Cap, Inc. v. Republic of Congo, 462 F.3d 417, 426 (5th Cir. 2006). As a result, state long arm statutes are irrelevant to determining whether the assertion of personal jurisdiction over a foreign state is valid. Turning to this case, the Court first holds that the English Court had personal jurisdiction over Congo as a matter of English law. Commisimpex has submitted argument and authorities satisfactorily demonstrating that English law permits the method of service that Commisimpex used before the English Court. Higham Decl. ¶ 12. Congo has not contested this showing. is valid under the D.C. Recognition Act. As set forth above, persuasive authority indicates that a court considering recognition under a statute like the Act should normally ask (1) whether the foreign federal constitutional due process and (2) whether the assertion of personal jurisdiction is cognizable . Here, a modification of this standard inquiry is called for. Because the exclusive basis for assertion of personal jurisdiction over a foreign sovereign in the United States is satisfaction of 28
U.S.C. § 1330(b), the Court shall evaluate the procedure used before the English Court as compared to that statute. jurisdiction according to minimum contacts due process jurisprudence or the D.C. long arm statute. Both of these authorities are irrelevant to evaluating personal jurisdiction over a foreign sovereign in the United States. Under the FSIA, personal jurisdiction exists over a foreign state when there is subject matter jurisdiction and proper service of process under the statute. GSS Grp. Auth., 680 F.3d 805, 811 (D.C. Cir. 2012); see 28 U.S.C. § 1330(b). As the Court has already
determined, there is subject matter jurisdiction over this action to recognize the English Judgment 1992 commitment letters accompanying the promissory notes that form the basis for the 2000 Arbitration Award. See Commissions Import Export, 916 F. Supp. 2d at 51, as to this issue, 757 F.3d at 325. For the same reason, a U.S. court would have subject matter jurisdiction over a suit, like that giving rise to the English Judgment, to enforce the Award itself. Moving to the second component of personal jurisdiction under the FSIA, the service of process made at the English Court is sufficient because it is substantially similar to that prescribed by 28 U.S.C. § 1608(a)(4), both as to the types of documents served and the method of service used. Under section 1608(a)(4), a defendant must be served w complaint and a notice of suit, together with a translation of each into the official language of the
of Michael Aughey Polkinghorne (with accompanying exhibits), First Witness Statement of
Christophe Seraglini (with accompanying exhibits), the Judgment, and translations into French of 3 Higham Decl. ¶ 10. These documents were then served through diplomatic channels. Specifically, the British Embassy in Kinshasa, Democratic Republic of the Congo delivered the documents to the Ministry of Foreign Affairs and Cooperation of the Government of the Republic of Congo in Brazzaville, Congo on February 4, 2010. Higham Decl. ¶ 11. Service was confirmed by a letter from the British Foreign and Commonwealth Office on May 19, 2010. Id. These actions are substantially similar to the procedure laid out by section 1608(a)(4). Although the documents served and the method used were not entirely identical to the procedures specified by the FSIA, a court should not conclude that a foreign judgment is unenforceable on the Cf. Canadian Imperial Bank, 899 F. Supp. at 1252. sufficient to support recognition of a foreign country judgment. The Court concludes that Congo
has failed to demonstrate that the English Judgment should not be recognized for lack of personal jurisdiction. 3. Recognition is not repugnant to public policy Congo also argues that the Court may and should decline to recognize the English Judgment because it is repugnant to the public policy of the District of Columbia. See D.C. Code § 15-364(c)(3). Congo invokes a recent D.C. Court of Appeals case for the proposition that it is
3 See The World Factbook: Republic of the Congo, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world- factbook/geos/cf.html (last visited July 28, 2015).
contrary to D.C. public policy to enforce a foreign judgment that itself enforces a foreign arbitral award. See Ahmad Hamad Al Gosaibi & Bros. Co. v. Standard Chartered Bank, 98 A.3d 998 (D.C. 2014). Presumably, Congo sees this public policy exception as partly rooted in the fact that the 2000 Arbitration Award cannot itself be enforced in the United States because it is time barred under the FAA. See Commissions Import Export, 916 F. Supp. 2d at 50. At various points in its briefing, Congo refers to this maneuver of seeking recognition of a judgment that itself recognizes an arbitration award award. E.g. Law at 8, ECF No. 52. Ahmad does not provide support for the claimed public policy. Thus, Congo has failed to satisfy its burden of demonstrating that the public policy exception applies. In Ahmad, the D.C. Court of Appeals considered whether the Uniform Enforcement of Foreign Judgments Act provided a basis for enforcing a New York judgment that enforced a judgment from Bahrain. Ahmad, 98 A.3d at 1002. The court held that it did not. Id. at 1008. The UEFJA, as enacted in D.C., . . . that is entitled to full faith and credit. Id. at 1001 (quoting D.C. Code § 15-351) (alteration in original). More than simply streamlining the process, however, the UEFJA
Id. (quoting D.C. Code §§ 15-352 353). The Ahmad court
contrasted this scheme with the D.C. Id.
The court concluded that the New York judgment could not be enforced pursuant to the UEFJA because it was not a judgment to which the statute applied. Id. at 1008. The court took a behind foreign country judgment. Id. at 1007 08. Thus, the UEFJA did not apply because the New York judgment was not entitled to full faith and credit. See id. at 1008. This Court concludes that the D.C. Court of Appeals was not stating a D.C. public policy against recognizing judgments that recognize foreign arbitral awards. Instead, it was merely interpreting the UEFJA and deciding what types of judgments are covered by that statute. Put another way, the Ahmad court decided, in a particular case, what the UEFJA means when it states that it applies t See id. at 1001, 1008. Such a determination did not involve holding that D.C. has a public policy against the type of judgment at issue in this case. This latter point is made clear by the Ahmad on the distinction between D.C. Recognition Act. Id. at 1001. Along this line, the court noted
in dicta that its holding did not preclude seeking recognition for the same Bahraini judgment under the D.C. Recognition Act. Id. at 1008. This observation aligns with the fact that the Act has a specific and separate definition of the types of judgments to which it applies, one that was not explored by the Ahmad court. Furthermore, it appears that D.C. public policy would favor or at least stand neutral as to the maneuver executed here. The D.C. Court of Appeals holds that D.C. has a strong public policy in favor of arbitration, one that is identical to that expressed in federal law. See Masurovsky v. Green, 687 A.2d 198, 201 (D.C. 1996). Although the Court is not aware of a D.C. court
confronting this precise issue, the D.C. Circuit held on prior appeal in this case that the federal and frequently will be advanced through recourse to parallel enforcement mechanisms that exist independently of Commissions Import Export, 757 F.3d at 330. The D.C. Recognition Act is just such a parallel enforcement mechanism. The Court concludes that a D.C. court would make the same determination, given the identical policy in D.C. law favoring arbitration. At a minimum, nothing in D.C. statutory or case law indicates that the high burden for a public policy based argument against enforcement is met here. Cf. TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 938 (D.C. Cir. 2007) (holding that the public policy exception to enforcement of arbitration awards nd quotation marks omitted).
The Court concludes that Congo has failed to demonstrate the existence of a public policy rationale for rejecting the English Judgment. 4. Prejudgment interest Commisimpex also seeks prejudgment interest on the English Judgment. It argues that it is entitled to prejudgment interest under D.C. Code § 15-108. Section 15-108 states that liquidated debt on which int
invokes this provision on the ground that it is entitled to interest under the 1992 agreement with Congo that underlies the 2000 Arbitration Award. This argument is inapposite, however, because this action is not one to recover on the 1992 agreement. It is an action to recognize the English
Judgment. The fact that the 1992 agreement underlies the English Judgment does not make this an action to recover on that agreement. Commisimpex has also made some reference to its entitlement to section 15-108 interest based on post-judgment interest arising out of the English Judgment. It has not submitted any argument or authorities indicating that such an entitlement to post-judgment interest exists or how much that amount would be under English law. This failure is fatal to argument for section 15-108 interest, regardless of its validity as a matter of D.C. law. See Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75, 105 (D.D.C. 2014) ( independent research into foreign law, if the parties fail to provide an adequate statement of the quotation marks omitted).
Commisimpex also makes general claims that it is entitled to an award of prejudgment interest on an equitable basis. It has failed however to sufficiently brief the basis for such an equitable award or the amount of interest it believes should be applied. In the absence of such argument, the Court shall deny the request for prejudgment interest. III. MOTION FOR SUBSTITUTION Congo has moved to substitute liquidation trustees appointed by a Congolese court for Commisimpex pursuant to Federal Rule of Civil Procedure 25(c). ECF No. 54. Commisimpex opposes the motion, primarily on the ground that the liquidation order was procured in fraudulent proceedings. A. Background impex, handed down by the Commercial Court of Brazzaville on October 30, 2012. Gaston Mossa Decl. ¶ 2, ECF No. 54-7.
to the Caisse Nationale de Securite Sociale, i.e. the National Social Security Fund of the Republic
of the Congo Robert Schwinger Decl., Ex. 6 at 3 4 of translation, ECF No. 54-8. The court appointed three Commisimpex S.A. shall be done or exercised, for the duration of the liquidation of assets by the
Id. at 26 of translation. The Court of Appeal of Brazzaville affirmed on May 13, 2013. Mossa Decl. ¶ 5. A further appeal was taken to the Common Court of Justice and Arbitration of the Organization for the Harmonization of Business Law in Africa. Marc Suskin Decl. ¶ 10, ECF No. 54-3. That court affirmed on January 14, 2015. Schwinger Decl., Ex. 9 at 6 of translation, ECF No. 54-11. B. Discussion the original party unless the court, on motion, orders the transferee to be substituted in the action
or joined with In accord with the plain language of the rule, Rule 25(c) is wholly permissive and does not require transferees to be substituted. FDIC v. SLE, Inc., 722 F.3d 264, 268 (5th Cir. 2013). As a result, the decision to grant or deny a Rule 25(c) motion is a matter within the dis Burka v. Aetna Life Ins. Co., 87 F.3d 478, 482 (D.C. Cir. 1996). The primary basis for deciding the motion is whether substitution would Citibank v. Grupo Cupey, Inc., 382 F.3d 29, 32 (1st Cir. 2004); see also
7C Charles Alan Wright et al., Federal Practice and Procedure § 1958 (3d ed. 2007). This criterion, rooted in considerations of convenience and economy, prevails because Rule 25(c) has no bearing on the substantive relationship between the
continue in an action, even if they do not remain the real party in interest, as long as the cause of action itself ELCA Enters., Inc. v. Sisco Equipment Rental & Sales, Inc., 53 F.3d 186, 191 (8th Cir. 1995) (emphasis in original). 4 The Court concludes that Rule 25(c) substitution is unnecessary in this case. The Order and Judgment that shall issue along with this Memorandum Opinion brings this litigation to a close. Thus, the Court fails to see how substitution would facilitate the conduct of this litigation. In light of this circumstance and the provision that a Rule 25(c) substitution has no bearing on the substantive rights of the parties, there is no reason to grant for substitution. In the alternative, the Court also concludes that the motion should be denied because to grant it would necessarily require the Court to recognize the legitimacy of the liquidation order entered against Commisimpex. ecognition of a judgment rendered in a foreign country is a matter of comity. See Hilton v. Guyot, 159 U.S. 113, 163 64 (1895). A court should accord deference to such a judgment so long as
there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect . . . .
4 A See 7C Charles Alan Wright et al., Federal Practice and Procedure action to continue against the dissolved corporation or against those to whom its assets have been transferred, Rule Therefore, the Court has not considered the issue.
de Csepel v. Republic of Hungary, 714 F.3d 591, 606 (D.C. Cir. 2013) (quoting Hilton, 159 U.S. at 202 03). The party seeking recognition of a foreign judgment bears the burden of proof. Id. at 607. The Court concludes that Congo has failed to demonstrate that the liquidation order rendered against Commisimpex should be afforded comity. As Commisimpex has persuasively shown arisen from fundamentally unfair The Court is particularly troubled by the fact that the liquidation order
was supported by nothing more than a document, signed by a manager of the CNSS, alleging the existence of the debt. See Francis A. Vasquez, Jr. Decl., Ex. 2, ECF No 58-3; Mohsen Hojeij Decl. ¶ 5, ECF No. 58-2. That the order was supported by such meager proof is especially problematic document with the extensive evidence submitted by Commisimpex in , much of which calls into serious question the accuracy of the claim. Hojeij Decl. ¶¶ 7 8. Additionally, the timing of the proceedings is suspicious to say the least, given that the debts, allegedly accrued many years prior, were only sought at a time when Commisimpex and Congo were in the middle of arbitration proceedings before the International Court of Arbitration of the ICC. Michael A. Polkinghorne Second Decl. ¶¶ 3, 5, ECF No. 58-12. Furthermore, the speed with which the proceedings at the trial court were conducted indicates that it is highly unlikely that Commisimpex received a fair and impartial administration of justice. At every step, the suit appears to have proceeded with extraordinary haste. For example, although it was later delayed briefly, the trial court scheduled a hearing to decide the merits of the case just 6 days after
the initial claim was filed. Polkinghorne Second Decl. ¶ 6. rendered just 34 days after the initial claim was filed. Hojeij Decl. ¶¶ 4, 10.
For these reasons, the Court declines to recognize the liquidation order that would give authority to the proposed substitute plaintiffs. This constitutes an independent, alternative basis to deny the motion for substitution. It is axiomatic that a motion for substitution because of a transfer of interest may only be granted if an interest has, in fact, been validly transferred. IV. CONCLUSION For the reasons stated above, the Co . An Order
and Judgment consistent with this Memorandum Opinion shall issue this date. Signed by Royce C. Lamberth, United States District Judge, on July 30, 2015.