Procedural Posture

This Order, issued by the High Court of Justice of England and Wales (Commercial Court), addresses an ex parte application by the Claimant under Sections 66(1) and 66(2) of the Arbitration Act 1996. The Claimant sought leave to enforce an arbitral award dated 26 January 2021 (PCA Case No. 2019-05) and to enter judgment against the Defendant, the Republic of Ghana.

Jurisdiction and State Immunity

Reviewing the application on the papers, including the witness statement of Christopher Bailey, the Court determined that the Defendant was not entitled to sovereign immunity. The Court specifically relied on the exceptions to immunity codified in Sections 2 and/or 9 of the State Immunity Act 1978, thereby establishing jurisdiction to enforce the underlying arbitral award.

Decision and Operative Directions

The Court granted leave to enforce the Award and entered judgment for the Claimant in the principal sum of US$ 134,348,661, plus compounded interest at LIBOR plus 6%, and US$ 3,309,877.74 in arbitration and legal costs. The Court credited US$ 34,348,661 previously paid by the Defendant against the judgment debt. Furthermore, the Court granted permission to serve the Order out of the jurisdiction and afforded the Defendant two months and 22 days to apply to set aside the Order, staying active enforcement during this period. The Defendant was also ordered to pay £65,000 in summarily assessed costs for the application.

Procedural Posture

This document is a Petition to Enforce Arbitral Award filed by GPGC Limited against the Government of the Republic of Ghana in the United States District Court for the District of Columbia. The Petitioner seeks the recognition and confirmation of a final arbitral award rendered on January 26, 2021, pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) and Chapter 2 of the Federal Arbitration Act (FAA).

Factual and Arbitral Background

The underlying dispute arose from an Emergency Purchase Agreement (EPA) executed in 2015, under which GPGC agreed to relocate, install, and operate two gas turbine power plants to alleviate Ghana's energy crisis. Following a change in government, Ghana repudiated the EPA in 2018, prompting GPGC to commence ad hoc UNCITRAL arbitration seated in London. The arbitral tribunal found that Ghana had breached its contractual obligations, notably by failing to provide unimpeded site access and necessary tax exemptions. The tribunal awarded GPGC an Early Termination Payment of over USD 134 million, plus interest and costs. Ghana subsequently sought to challenge the award in the English High Court of Justice, which dismissed the application upon finding the proposed grounds for challenge intrinsically weak.

Legal Arguments for Enforcement

In the present petition, GPGC asserts that the District Court possesses subject matter jurisdiction under 28 U.S.C. § 1330(a) and 9 U.S.C. § 203. The Petitioner contends that Ghana is precluded from asserting sovereign immunity due to an express waiver within the EPA and the arbitral enforcement exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6). Furthermore, GPGC argues that confirmation is mandatory under the FAA, as none of the narrow grounds for refusal under Article V of the New York Convention apply. Specifically, GPGC preemptively addresses and dismisses potential defenses regarding the validity of the arbitration agreement, procedural fairness, and public policy, noting that Ghana's prior attempts to litigate these issues were rejected by the supervisory court.

Relief Sought

The Petitioner requests that the Court grant the petition, recognize and confirm the arbitral award in its entirety, and enter judgment against Ghana in the amount of USD 128,657,880.98 (accounting for partial payments made by Ghana). Additionally, GPGC seeks post-judgment interest at the statutory rate prescribed by 28 U.S.C. § 1961, alongside recoverable fees and costs.

Procedural Background

This document is an Opinion (Conclusie) issued by the Advocate General to the Dutch Supreme Court (Hoge Raad) concerning an application for pre-judgment attachment (conservatoir beslag). The claimant sought to attach assets belonging to a respondent foreign State located in the Netherlands to secure a claim arising from an UNCITRAL arbitral award rendered on January 26, 2021. The lower courts, including the District Court and the Court of Appeal of Amsterdam, had previously denied the ex parte attachment request on the grounds of State immunity from execution.

Legal Issues and Positions

The principal legal issue before the Supreme Court was the allocation of the burden of proof regarding the susceptibility of State assets to execution. The underlying contract contained a waiver of immunity (Article 26), which included specific exceptions for defense-related, diplomatic, and other protected assets. The claimant argued that, given the general waiver, the burden shifted to the respondent State to prove that the targeted assets fell within the contractual exceptions. Conversely, the lower courts held that the claimant bore the burden of proving that the assets were not intended for public purposes and thus fell outside the scope of immunity.

Advocate General's Analysis

The Advocate General analyzed the issue under Dutch law and customary international law, referencing the UN Convention on Jurisdictional Immunities of States and Their Property. Relying on established Supreme Court precedent (including the Morning Star/Gabon decision), the Advocate General reaffirmed that State property is presumed immune from execution unless established otherwise. The burden of proof rests strictly on the creditor seeking attachment to demonstrate that the specific assets are used or intended for other than non-commercial government purposes. The Advocate General found that the contractual waiver did not explicitly alter this evidentiary burden. Consequently, the claimant's assertion that the assets were prima facie outside the exceptions was deemed legally insufficient.

Conclusion

The Advocate General concluded that the Court of Appeal did not err in its application of the burden of proof or its interpretation of the waiver clause. Accordingly, the Advocate General recommended that the Supreme Court dismiss the cassation appeal.

Procedural Posture

This Memorandum Opinion, issued by the United States District Court for the District of Columbia, addresses a petition filed by GPGC Limited to recognize and enforce a foreign arbitral award against the Republic of Ghana. The underlying dispute arose from an Emergency Purchase Agreement (EPA) for the installation and operation of two gas-turbine power plants. Following Ghana's termination of the EPA, a London-seated UNCITRAL tribunal issued a Final Award in January 2021, finding that Ghana had wrongfully repudiated the contract and awarding GPGC early termination payments and costs. After Ghana made only partial payments, GPGC initiated the present enforcement action under Chapter 2 of the Federal Arbitration Act (FAA), which codifies the New York Convention. Ghana failed to appear, prompting GPGC to move for default judgment.

Jurisdiction and Sovereign Immunity

The Court first conducted a rigorous jurisdictional analysis, noting the heightened standard for default judgments against foreign sovereigns under the Foreign Sovereign Immunities Act (FSIA). The Court found subject-matter jurisdiction satisfied under two distinct FSIA exceptions. First, Ghana explicitly waived its sovereign immunity in Section 26(a) of the EPA. Second, the arbitration exception under 28 U.S.C. § 1605(a)(6) applied, as Ghana agreed to arbitrate, an award was issued, and the award is governed by the New York Convention. Personal jurisdiction was properly established through valid service of process under 28 U.S.C. § 1608(a)(3), effectuated via DHL delivery of the summons and petition to Ghana's Minister for Foreign Affairs and Regional Integration.

Enforcement Analysis

Turning to the merits of enforcement, the Court applied the highly deferential standard mandated by the New York Convention. With the threshold procedural requirements of Article IV satisfied, the Court noted that Ghana, having defaulted, failed to meet its burden of proving any of the grounds for refusal under Article V(1). Furthermore, the Court conducted a sua sponte review under Article V(2) and concluded that the commercial contract dispute was fully arbitrable under United States law and that enforcement of the Award presented no contravention of public policy.

Decision and Relief

The Court granted GPGC's motion for default judgment, confirming the arbitral award. The Court ordered Ghana to pay the outstanding balance of $111,493,828.92. Additionally, applying the presumption in favor of prejudgment interest for liquidated international arbitral awards, the Court awarded prejudgment interest at the contractually specified rates (six-month USD LIBOR plus 6% compounded monthly for the principal, and three-month USD LIBOR compounded quarterly for costs). Post-judgment interest was also awarded at the mandatory statutory rate prescribed by 28 U.S.C. § 1961(a).

This document is an Order issued by the United States District Court for the District of Columbia regarding a Motion for Fees filed by the Petitioner against the Respondent, the Government of the Republic of Ghana.

The Court, referencing the reasoning set forth in an accompanying Memorandum Opinion, ruled on the allocation of legal fees and costs arising from the enforcement proceedings. The principal procedural issue addressed was the quantification and entitlement of the Petitioner to recover its incurred legal expenses.

In its dispositive ruling, the Court granted in part and denied in part the Petitioner’s Motion for Fees. Consequently, the Court entered a final judgment in favor of the Petitioner and against the Respondent, awarding fees and costs in the quantified amount of $124,744.