Notice: We are currently performing maintenance to improve the italaw platform. The site remains fully accessible. Thank you for your patience.

Africard v. Niger, Memorandum Opinon of the United States District Court for the District of Columbia, September 27, 2016

27 Sep 2016
Africard Co Ltd. v. State of Niger, CCJA Case No. 003/2013/ARB
View case details
Memorandum Opinon of the United States District Court for the District of Columbia
Document Details:
LISTED PARTICIPANTS
Memorandum Opinon of the United States District Court for the District of Columbia
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Respondent appointee
Tribunal/Panel chair
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Amy Berman Jackson
Claimant's counsel
Christopher D. Man, Mark D. Beckett
Claimant's law firm
Respondent's counsel
Respondent's law firm
Other counsel
Claimant's expert
Claimant's expert firm
Respondent's expert
Respondent's expert firm
Claimant's witness
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
Niger, Africard Co Ltd.
Country
United States
Print reporter
Document Summary
Memorandum Opinon of the United States District Court for the District of Columbia
This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This Memorandum Opinion and accompanying Order from the United States District Court for the District of Columbia address a petition filed by Africard Company, Ltd. to confirm a foreign arbitral award rendered against the Republic of Niger. The underlying dispute arose from Niger's unilateral termination of a 2011 contract for the production of biometric and electronic passports. Following an arbitration seated in Abidjan, Côte d'Ivoire, under the auspices of the OHADA Common Court of Justice and Arbitration (CCJA), the tribunal issued a Final Award in December 2014 granting Africard damages for costs, lost profits, and reputational harm. Niger failed to appear or respond to the enforcement proceedings in the United States, prompting Africard to move for a default judgment.

Jurisdiction and Sovereign Immunity

The Court first conducted a rigorous jurisdictional analysis, noting that under the Foreign Sovereign Immunities Act (FSIA), a default judgment against a foreign state requires the claimant to establish its right to relief by evidence satisfactory to the court. The Court determined it possessed subject matter jurisdiction under the Federal Arbitration Act (FAA), which codifies the New York Convention. The Court found that the arbitration agreement was in writing, provided for arbitration in a signatory state (Côte d'Ivoire), involved commercial subject matter, and was not entirely domestic in scope. Consequently, the Court held that Niger was stripped of its presumptive sovereign immunity pursuant to the FSIA’s treaty exception (28 U.S.C. § 1605(a)(6)), as the action sought to confirm an award governed by the New York Convention. The Court further confirmed that service of process was properly effectuated upon Niger's Ministry of Foreign Affairs in accordance with 28 U.S.C. § 1608(a)(3), thereby establishing personal jurisdiction.

Court's Analysis and Decision

In evaluating the merits of the petition, the Court emphasized the narrow discretion afforded to district courts under the FAA to refuse enforcement of a foreign arbitral award. Given Niger's default, the respondent failed to meet its heavy burden of establishing any of the exclusive grounds for refusal under Article V of the New York Convention. Furthermore, the Court found no basis to deny enforcement on public policy grounds or lack of arbitrability. Granting the motion for default judgment, the Court confirmed the arbitral award and converted the damages from West African CFA Francs to United States Dollars. Applying the exchange rate applicable on the date of the Final Award—due to the depreciation of the CFA Franc since the breach—the Court entered a final judgment in favor of Africard in the total amount of $46,128,410.46, inclusive of accrued interest.