Procedural Background

This document is a judgment issued by the Paris Court of Appeal (Pôle 5, Chambre 16) on January 7, 2020, concerning an application by the Democratic Republic of the Congo (DRC) to set aside an arbitral award rendered on November 7, 2018, under the auspices of the International Chamber of Commerce (ICC). The underlying dispute arose from the DRC's failure to issue presidential decrees approving two production sharing contracts (PSCs) concluded with Divine Inspiration Group (PTY) Ltd (DIGOil) and the subsequent reallocation of the oil blocks to third parties. The ICC tribunal had found the DRC in breach of its obligations, pronounced the resolution of the contracts at the exclusive fault of the DRC, and awarded DIGOil substantial damages.

Legal Issues and Parties' Positions

The DRC sought annulment of the award under Articles 1520(3) and 1520(5) of the French Code of Civil Procedure (CPC), arguing that the arbitral tribunal failed to comply with its mandate and that the recognition or execution of the award would violate international public policy. Specifically, the DRC contended that the tribunal, while bound to apply Congolese law, deliberately disregarded a 2010 decision of the Congolese Supreme Court of Justice. The DRC asserted that this domestic jurisprudence established the President's discretionary power to withhold approval for PSCs, and that the tribunal's refusal to apply this precedent constituted a breach of its mandate and a violation of universal principles of justice.

Court's Analysis and Reasoning

The Court of Appeal dismissed the DRC's arguments. Regarding the tribunal's mandate (Article 1520(3) CPC), the Court observed that the arbitrators expressly grounded their decision in Congolese law and explicitly analyzed the 2010 Supreme Court precedent. The Court noted that the tribunal distinguished the factual matrix of the 2008 contract from the 2010 case, concluding that no public interest justification had been advanced for the refusal to issue the decree in the present dispute. The Court emphasized that it is not within the purview of the annulment judge to review the merits of the tribunal's substantive interpretation of foreign law. Concerning international public policy (Article 1520(5) CPC), the Court held that the tribunal's interpretation of Congolese law and its assessment of the domestic jurisprudence did not contravene any fundamental values or principles recognized by the French conception of international public policy.

Dispositive Ruling

The Court of Appeal rejected the DRC's application for annulment in its entirety and consequently granted exequatur to the November 2018 ICC award. Furthermore, the Court dismissed DIGOil's claim for damages for abusive proceedings but ordered the DRC to bear the costs of the proceedings and to pay EUR 30,000 to DIGOil pursuant to Article 700 of the CPC.

This document is a Declaration submitted by Matthew S. Rozen, counsel for Petitioner DIGOIL, in support of a Petition to Confirm an Arbitral Award before the United States District Court for the District of Columbia. The underlying enforcement action involves DIGOIL and the Democratic Republic of Congo.

The primary procedural purpose of the declaration is to authenticate and introduce key exhibits into the judicial record for the enforcement proceedings. Specifically, the declaration formally submits a certified copy of the underlying arbitral award rendered on November 7, 2018, in International Chamber of Commerce (ICC) Arbitration No. 22370/DDA, along with its certified English translation. Additionally, the declarant introduces two Production Sharing Agreements executed between the parties on December 14, 2007, and January 21, 2008, respectively, as well as a January 7, 2020 decision by the Paris Court of Appeals affirming the arbitral award.

The document does not contain substantive legal arguments or judicial findings. Rather, it serves the strict procedural function of establishing the evidentiary foundation required under 28 U.S.C. § 1746 for the recognition and enforcement of a foreign arbitral award in a United States federal court.

This document constitutes a Motion for Default Judgment filed by the petitioner against the respondent State before the United States District Court for the District of Columbia. The procedural filing is brought pursuant to Federal Rule of Civil Procedure 55(b)(2) and the Foreign Sovereign Immunities Act (28 U.S.C. § 1608(e)), seeking the judicial confirmation and enforcement of a final arbitral award.

The underlying arbitral award was rendered on November 7, 2018, in International Chamber of Commerce (ICC) Arbitration No. 22370/DDA. Through this motion, the petitioner formally requests that the federal court enter a default judgment against the respondent State in the principal amount of $619,270,111.62. Furthermore, the petitioner seeks pre-judgment interest at a rate of 5.03%, compounded annually from the date of the arbitral award until the entry of judgment, alongside post-judgment interest calculated in accordance with the statutory rate specified in 28 U.S.C. § 1961.

Procedural Posture

This Memorandum Opinion, issued by the United States District Court for the District of Columbia, addresses a petition filed by DIGOIL to confirm a foreign arbitral award against the Democratic Republic of Congo (DRC). The underlying award was rendered on November 7, 2018, by an International Chamber of Commerce (ICC) tribunal, which found the DRC liable for breaching two hydrocarbon exploration and exploitation contracts. Following the DRC's failure to appear in the enforcement proceedings, the petitioner moved for default judgment pursuant to the Federal Arbitration Act (FAA) and the New York Convention.

Jurisdiction and Service of Process

The Court first established its subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). The Court determined that the DRC was not entitled to sovereign immunity, as the action fell squarely within the FSIA’s arbitration exception (28 U.S.C. § 1605(a)(6)). The Court found that the underlying contracts constituted written agreements providing for arbitration in a signatory state (France) and involved commercial subject matter, thereby satisfying the jurisdictional prerequisites of the New York Convention. Furthermore, the Court confirmed personal jurisdiction over the DRC, noting that the petitioner had successfully effectuated service of process through the Clerk of Court in accordance with the sequential requirements of 28 U.S.C. § 1608(a)(3), following the unavailability of special arrangements or applicable international conventions.

Court's Analysis on Default Judgment

In evaluating the motion for default judgment, the Court applied the standard under 28 U.S.C. § 1608(e), which requires the claimant to establish its right to relief by evidence satisfactory to the court. The Court emphasized that under the FAA, it possesses limited discretion to refuse enforcement of a foreign arbitral award and is compelled to confirm the award unless one of the exclusive grounds for refusal under Article V of the New York Convention applies. Because the DRC defaulted and failed to appear, it did not carry its heavy burden of establishing any affirmative defenses against enforcement. The Court further held that the dispute was capable of settlement by arbitration under United States law and that enforcement of the award would not violate U.S. public policy.

Decision and Relief

The Court granted the petition and the motion for default judgment, confirming the ICC arbitral award in its entirety. The Court ordered the DRC to pay the amounts stipulated in the award, including $617,400,178 in damages, $1,109,933.62 in legal representation costs, and $760,000 in arbitration costs. Additionally, the Court enforced the tribunal's award of prejudgment interest at a rate of 5.35 percent, compounded annually, and awarded post-judgment interest calculated at the statutory rate provided in 28 U.S.C. § 1961.