UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
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LUPAKA GOLD CORP. |
Plaintiff, |
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v. |
No. 26-702 |
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REPUBLIC OF PERU |
Defendant. |
Plaintiff Lupaka Gold Corp. (“Lupaka”), by and through its undersigned attorneys, brings this action against Defendant Republic of Peru (“Peru”) to enforce an arbitral award issued by the International Centre for Settlement of Investment Disputes. Plaintiff alleges as follows:
1. This is an action to enforce an arbitral award issued by the International Centre for Settlement of Investment Disputes (“ICSID”) against Peru in favor of Lupaka.
2. On June 30, 2025, an ICSID tribunal issued an arbitral award finding that Peru violated several of its obligations to Lupaka under the Canada-Peru Free Trade Agreement (“FTA”) in connection with its seizure of a gold mine from Lupaka in 2019. See Lupaka Gold Corp. v. Republic of Peru, ICSID Case No. ARB/20/46 (June 30, 2025) (the “Award”). The tribunal ordered Peru to pay Lupaka USD $40.4 million, plus costs and interest. A true and
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correct copy of the Award is attached as Exhibit A, and a true and correct copy of the Canada-Peru Free Trade Agreement is attached as Exhibit B.1
3. Peru has not satisfied any portion of the Award. As of the date of this submission, Peru owes Lupaka approximately USD $68,523,419.
4. Pursuant to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “ICSID Convention”), Mar. 18, 1965, 17 U.S.T. 1270 (attached as Exhibit C), and the federal statute implementing the Convention, 22 U.S.C. § 1650a, a court asked to enforce an ICSID award “may do no more than examine the [award]’s authenticity and enforce the obligations imposed by the award.” Valores Mundiales, S.L. v. Bolivarian Republic of Venezuela, Ministerio del Poder Popular para Relaciones Exteriores, 87 F.4th 510, 515 (D.C. Cir. 2023). There is no doubt about the Award’s authenticity here. Lupaka accordingly respectfully asks this Court to enter judgment enforcing the Award.
5. Plaintiff Lupaka Gold Corp. is a Canadian corporation with its head office at 1569 Dempsey Road, North Vancouver, British Columbia, Canada.
6. Defendant Republic of Peru is a foreign state within the meaning of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1603(a).
7. This Court has subject matter jurisdiction over this action pursuant to 22 U.S.C. § 1650a(b), which vests “exclusive jurisdiction over actions and proceedings” to enforce ICSID awards in the federal district courts, and 28 U.S.C. § 1330(a), which grants district courts
1 The copy of the Award attached as Exhibit A reflects redactions that the ICSID tribunal applied to protect the identity of one of Lupaka’s witnesses in the arbitration. The certificate included with Exhibit A is the certificate to the original unredacted award. Lupaka can file a copy of the unredacted Award under seal upon request. ↩
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jurisdiction over “any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity.”
8. Peru is not entitled to sovereign immunity in this action for two reasons. First, this is an action to enforce an arbitral award governed by the ICSID Convention, a treaty to which the United States is a party providing for the recognition and enforcement of arbitral awards. Accordingly, this matter falls within the FSIA’s arbitral enforcement exception. See 28 U.S.C. § 1605(a)(6).
9. Second, Peru impliedly waived its immunity by agreeing to arbitrate disputes with Canadian investors in the Canada-Peru Free Trade Agreement. See 28 U.S.C. § 1605(a)(1).
10. This Court has personal jurisdiction over Peru pursuant to 28 U.S.C. § 1330(b) because Peru is a foreign sovereign; it is not entitled to immunity for the reasons above; and it will be duly served as required by the FSIA, 28 U.S.C. § 1608(a).
11. Venue is proper in this district under 28 U.S.C. § 1391(f)(4).
12. In 2008, Canada and Peru entered into the Canada-Peru Free Trade Agreement. The FTA imposes various obligations on each party with respect to investors of the other party. As relevant here, the FTA obligates Peru to “accord to covered investments . . . full protection and security” and “fair and equitable treatment,” Ex. B art. 805(1), and forbids Peru from “expropriat[ing] a covered investment either directly[] or indirectly,” id. art. 812(1).
13. The FTA establishes arbitration as a “mechanism for the settlement of investment disputes.” Ex. B art. 818. “[I]nvestor[s] of a Party may submit to arbitration . . . a claim that the other Party has breached [] an obligation” imposed by the FTA “and that the investor has incurred loss or damage by reason of, or arising out of, that breach.” Id. art. 819(1). After
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following certain pre-filing procedures, including delivering a notice of intent to submit a claim to arbitration to the adverse party, id. art. 821, “a disputing investor . . . may submit the claim to arbitration under [] the ICSID Convention,” id. art. 824(1)(a).
14. In the FTA, Canada and Peru both “consent[ed] to the submission of a claim to arbitration in accordance with the procedures” of the treaty. Ex. B art. 825. In the event an award is issued, the FTA provides that “a disputing party shall abide by and comply with [the] award without delay” and that the prevailing party “may seek enforcement of [the award] under the ICSID Convention.” Id. art. 842(2), (6).
15. Plaintiff Lupaka Gold Corp. is a mineral exploration and mining company incorporated in British Columbia, Canada. In 2012, Lupaka acquired over 99% of the shares of Invicta Mining Corporation (“Invicta”) by acquiring its parent, Andean American Gold Corporation. Ex. A ¶¶ 94, 427. At that time, Invicta held six mining concessions in the mountains of Peru as well as a 1.2-kilometer mining tunnel. Id. ¶ 427. Invicta later obtained permits from the Peruvian government to develop those holdings into a gold mine. Id. ¶ 98.
16. This case arises out of actions that a Rural Community, the Parán Community, took to disrupt Invicta’s operation of the mine. Rural Communities are “self-contained and self-governing groups with deep pre-colonial roots.” Ex. A ¶ 86. There are over six thousand Rural Communities in Peru, mostly concentrated in the country’s remote highland regions. Id. They “own land collectively, make collective decisions on matters involving community interests, exercise significant forms of governmental authority, and often maintain armed [Rural Patrols].” Id. ¶ 90. Rural Communities are the structure through which Peru integrates remote indigenous communities into its legal order. See id. ¶¶ 212-239 (surveying “the position of Rural Communities in Peru’s legal order”).
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17. Invicta was able to reach agreements with most of the Rural Communities affected by the mining project. Ex. A ¶¶ 100, 276. But it could not reach agreement with the Parán Community. “[R]elations between [Invicta] and the Parán Community deteriorated over time.” Id. ¶ 102.
18. In June 2018, amidst negotiations with Invicta, members of the Parán Community “occupied the mine site for a day” and “damaged property and detained and assaulted Invicta’s personnel.” Ex. A ¶¶ 102, 518. “The dispute intensified in October 2018,” when members of the Parán Community “initiated a blockade of the access road to the mining camp . . . thereby preventing the continuation of preparatory work by [Invicta] or its contractors.” Id. ¶ 104.
19. Following a “short-lived agreement” in February 2019 that allowed some Invicta employees to return to the mine, the Parán Community “took physical control of the mine site and expelled the handful of [Invicta] employees.” Ex. A ¶¶ 105-106. “The occupiers subsequently retained control of and began to exploit the mine.” Id. ¶ 106. In 2019, Invicta learned that members of the Parán Community were selling ore that Invicta had stockpiled at the site. Id. ¶ 109. The Parán Community “continued to carry on illegal mining” at the site through at least 2023. Id. ¶ 431. Lupaka “never regained possession of the site.” Id. ¶ 106.
20. In May 2019, Lupaka hired a private security firm to attempt to recover the mine. Ex. A ¶ 107. Security personnel gained access to the site on May 14, but were subsequently attacked by “a large number of Parán Community members, some of [whom were] armed.” Id. Two of Lupaka’s guards were shot in the assault, and the security personnel fled. Id. The following day, members of the Parán Community accosted a group of guards on the access road, shooting and killing one of them. Id.
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21. Invicta made numerous requests to Peruvian officials to intervene to protect its rights. Ex. A ¶ 108. “The State’s response essentially consisted of urging the parties to engage in dialogue.” Id. ¶ 326; see also id. ¶ 108. Peru’s position was that “protection and security of [Lupaka’s] investment depended upon its willingness or ability to satisfy the Parán Community’s demands” – “[t]he burden was on [Lupaka],” and “there was no corresponding burden on the Parán Community to enter into dialogue, or to participate in it in good faith.” Id. ¶ 348. In effect, Peru “instructed [Lupaka] to gain its security through negotiations with an interlocutor that [Lupaka] believed was not negotiating in good faith.” Id. ¶ 328.
22. Peruvian officials ignored civil and criminal complaints arising out of the occupation, as well as reports that Community members were stealing Lupaka’s stockpiled ore. Ex. A ¶¶ 339-340. Moreover, “Peru’s law enforcement authorities were not even-handed” in dealing with Lupaka. Id. ¶ 341. Peru did not attempt to identify and arrest the perpetrators after Lupaka’s security guard was killed. Id. ¶ 107. In short, Peru “took no effectual action in response” to the Parán Community’s seizure of the mine. Id. ¶ 443.
23. The disruptions at the mine had a dramatic effect on Lupaka’s financial situation. Throughout the project, Lupaka relied on “investors and loans for operating capital,” primarily from a lender named Pandion. Ex. A ¶¶ 94, 556-558. Lupaka had pledged its shares in Invicta as collateral for one of those loans. Id. ¶ 110. The Parán Community’s blockade and seizure of the mine “greatly aggravated [Lupaka’s] financial difficulties by preventing economic development of the mine.” Id. ¶ 94. Without the cash flow it was expecting, Lupaka “fell increasingly into default on payment and other obligations under its financing agreements.” Id. ¶ 110. As a result, Pandion sold Lupaka’s debt to PLI Huaura, and in August 2019, PLI Huaura foreclosed on the shares. Id. ¶¶ 110, 358, 433.
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24. On December 12, 2019, Lupaka served a Notice of Intent to Submit Claims to Arbitration on Peru (attached as Exhibit D), as required by Article 821 of the FTA. Lupaka then filed a request for arbitration with ICSID on October 21, 2020 (attached as Exhibit E).
25. Lupaka urged three principal breaches of the FTA: that the Parán Community and Peru did not accord “full protection and security” to Lupaka’s investment; that they did not accord “fair and equitable treatment” to the investment, and that they directly or indirectly expropriated the investment. Ex. A ¶ 113.
26. Peru acknowledged Lupaka’s request for arbitration on October 28, 2020. Ex. A ¶ 8. Peru then participated fully in the ICSID proceedings, represented by experienced arbitration counsel at Arnold & Porter Kaye Scholer LLP. Id. ¶ 58.
27. The ICSID tribunal received extensive written submissions with hundreds of exhibits and conducted a multi-day hearing at which seven fact witnesses and five expert witnesses testified. Ex. A ¶¶ 7-84. The tribunal then ruled unanimously in favor of Lupaka on all claims and granted Lupaka the full measure of damages it sought – a strikingly decisive outcome by international arbitration standards.
28. The tribunal first rejected two jurisdictional objections by Peru. The tribunal ruled that Lupaka did not cease to be an “investor” protected by the FTA merely because it lost its interest in the investment before the arbitration began. Ex. A ¶¶ 129-143. And the tribunal rejected Peru’s argument that Lupaka failed to comply with a waiver of judicial remedies provision in the FTA. Id. ¶¶ 144-151.
29. On the merits, the tribunal concluded that Peru was responsible for the actions of the Parán Community as a matter of international law. Ex. A ¶¶ 201-256. Following a thorough
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analysis, the tribunal concluded that “Rural Communities are substantially integrated into the legal structure of the State” and “perform important functions that are distinctly governmental in character.” Id. ¶ 227. The Parán Community was thus an “organ of the state” under Article 4 of the International Law Commission’s Articles on State Responsibility. Id. ¶¶ 154, 244. The tribunal also independently concluded that members of the Parán Community who seized the mine were “exercising elements of governmental authority” under Article 5, noting that they did not act “for their private individual gain” and that the Parán Community’s President had threatened to “evict” Invicta from the site “in accordance with the prerogatives of the Political Constitution of the State.” Id. ¶¶ 251-252, 256.
30. The tribunal then ruled that the Parán Community’s actions breached Peru’s obligations under the FTA. The June 2018 occupation of the site, the March 2019 blockade and seizure, and the May 2019 attack on Lupaka’s security personnel all failed to accord Lupaka’s investment “full protection and security” or “fair and equitable treatment” as required by the FTA. Ex. A ¶¶ 319-322, 389. Those actions also resulted in a direct expropriation of Lupaka’s investment. Id. ¶ 425.
31. The tribunal further concluded that Peru’s meager response to the crisis independently breached its obligations under the FTA. “Given the character, duration, gravity, and dire economic consequences . . . [Peru’s] calls for dialogue did not meet its obligation under the FTA” to accord full protection and security. Ex. A ¶ 326. Peru’s “combination of inaction and patently insufficient measures in response to the actions of the Parán Community” also breached its fair and equitable treatment obligation. Id. ¶ 391. Finally, Peru’s failures also amounted to an indirect expropriation of Lupaka’s investment. Id. ¶¶ 441, 451.
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32. The tribunal found that Peru’s conduct caused Lupaka’s claimed losses. Ex. A ¶¶ 494-566. And it agreed with Lupaka’s calculation of damages. Id. ¶¶ 586-606.
33. The tribunal awarded Lupaka USD $40.4 million in compensation for Peru’s breaches. Ex. A ¶ 606. It further awarded pre- and post-Award interest at the rate of LIBOR plus 4% from August 26, 2019 until June 30, 2023, and the U.S. Treasury rate plus 5% from July 1, 2023 to the date of payment, compounded annually. Id. The tribunal finally awarded $4,215,956.42 in costs and expenses, plus compound interest at the U.S. Treasury rate plus 5% from the date of the Award to the date of payment. Id. ¶¶ 630, 631(viii).
34. Article 52 of the ICSID Convention permits a party to request annulment of an award by filing an application with ICSID within 120 days. Ex. C art. 52. Peru never filed a request for annulment with ICSID, and the time for doing so has now expired.
35. As of the date of this filing, the total amount due on the Award with interest is approximately USD $68,523,419. A claim calculation is attached as Exhibit F. Peru has not paid any portion of that amount.
36. The United States ratified the ICSID Convention on June 1, 1966. Ex. C. Under Article 54(1), “[e]ach Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” Id. art. 54(1).
37. The United States has implemented that obligation by statute: “An award of an arbitral tribunal rendered pursuant to . . . the [ICSID] convention shall create a right arising under a treaty of the United States.” Convention on the Settlement of Investment Disputes Act of 1966, Pub. L. No. 89-532, § 3, 80 Stat. 344, 344 (codified at 22 U.S.C. § 1650a). The statute
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further provides that “[t]he pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.” 22 U.S.C. § 1650a(a). Section 1650a gives federal district courts “exclusive jurisdiction over actions and proceedings under subsection (a).” Id. § 1650a(b). It provides that “[t]he Federal Arbitration Act . . . shall not apply to enforcement of awards rendered pursuant to the [ICSID] convention.” Id. § 1650a(a).
38. As a result of those provisions, enforcement of an ICSID award differs from enforcement of other awards governed by treaties like the New York Convention. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517. All challenges to the validity of an ICSID award are handled by ICSID itself, not by enforcing courts. Article 52 of the ICSID Convention prescribes a self-contained mechanism by which ICSID itself can review and annul an award if a tribunal exceeded its jurisdiction or if other fundamental defects undermined the integrity of the arbitration. Ex. C art. 52. That process is “[t]he only route for setting aside an ICSID Arbitral Tribunal’s award.” Valores Mundiales, S.L. v. Bolivarian Republic of Venezuela, Ministerio del Poder Popular para Relaciones Exteriores, 87 F.4th 510, 515 (D.C. Cir. 2023).
39. Under Article 54 of the Convention and 22 U.S.C. § 1650a, enforcing courts are “not permitted to examine an ICSID award’s merits, its compliance with international law, or the ICSID tribunal’s jurisdiction to render the award.” Valores Mundiales, 87 F.4th at 515 (quoting Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, 863 F.3d 96, 102 (2d Cir. 2017)). Whereas the New York Convention allows a respondent to oppose enforcement on a number of grounds such as absence of a valid arbitration agreement, inability to present one’s case, or violation of fundamental public policy, see New York Convention art. V, under the ICSID
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Convention, a court “may do no more than examine the [award]’s authenticity and enforce the obligations imposed by the award,” Valores Mundiales, 87 F.4th at 515.
40. Because ICSID awards are not subject to the Federal Arbitration Act, enforcement does not proceed under the streamlined procedures of that statute. See 9 U.S.C. §§ 6, 9, 207, 208. Instead, ICSID awards are enforced by plenary civil action under the Federal Rules of Civil Procedure, typically through a motion for judgment on the pleadings. See Micula v. Gov’t of Romania, 104 F. Supp. 3d 42, 47-52 (D.D.C. 2015); Mobil Cerro Negro, 863 F.3d at 117-18. That process matches how federal courts enforce state court judgments and thus complies with the Convention’s full faith and credit requirement. Micula, 104 F. Supp. 3d at 49-50. But the fact that the procedure is technically plenary “does not portend a proceeding in which the court must entertain all manner of substantive defenses.” Mobil Cerro Negro, 863 F.3d at 117-18. Instead, the district court simply decides whether it has jurisdiction, whether venue is proper, and whether the award is authentic – findings that normally require only limited proceedings. Id.
41. Those threshold requirements are met here. This Court has subject matter jurisdiction over Peru pursuant to the FSIA’s arbitral enforcement exception, 28 U.S.C. § 1605(a)(6). That exception “requires three elements: (1) an arbitration agreement, (2) an arbitral award, and (3) a treaty potentially governing confirmation.” Deutsche Telekom, A.G. v. Republic of India, 155 F.4th 694, 697 (D.C. Cir. 2025). This case satisfies all three.
42. First, Peru’s express consent to ICSID arbitration in the FTA and Lupaka’s acceptance of that consent through its notice and request for arbitration constitute an “arbitration agreement” for purposes of the FSIA. Ex. B art. 825; Exs. D & E. As the D.C. Circuit has explained, “an investment treaty’s arbitration provision operates as ‘a unilateral offer to arbitrate’ by each sovereign to investors of the other signatory countries.” NextEra Energy Glob. Holdings
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B.V. v. Kingdom of Spain, 112 F.4th 1088, 1102 (D.C. Cir. 2024), cert. pending, No. 24-1130 (U.S.). An investor may accept that offer to arbitrate by “filing a notice of arbitration,” “thereby creat[ing] a second arbitration agreement” between the sovereign and the private party. Id. Thus, when a treaty “includes a standing offer to all potential . . . investors to arbitrate investment disputes, which [the investor] accept[s] in the manner required by the treaty,” the FSIA “allows federal courts to exercise jurisdiction over [the sovereign] in order to consider an action to confirm or enforce the award.” Chevron Corp. v. Ecuador, 795 F.3d 200, 206 (D.C. Cir. 2015). That is exactly what happened here.
43. Second, the ICSID tribunal constituted pursuant to the parties’ agreement issued an award in Lupaka’s favor on June 30, 2025, attached as Exhibit A.
44. Finally, this case is subject to a treaty potentially governing confirmation – specifically, the ICSID Convention. Ex. C. The ICSID Convention governs, and indeed compels, enforcement of ICSID awards by the courts of signatory states. Ex. C art. 54(1). The ICSID Convention is thus a paradigmatic “treaty in force in the United States which calls for the recognition and enforcement of [arbitral] awards” within the meaning of the FSIA’s arbitral enforcement exception. ConocoPhillips Petrozuata B.V. v. Bolivarian Republic of Venezuela, 628 F. Supp. 3d 1, 7 (D.D.C. 2022); see also Webuild S.p.A. v. Argentine Republic, No. 21-cv-2464, 2025 WL 1019246, at *4 (D.D.C. Apr. 4, 2025) (arbitral enforcement exception “has been ‘routinely’ applied to ICSID awards”).
45. The FSIA also provides personal jurisdiction over Peru. 28 U.S.C. § 1330(b). Under that statute, “personal jurisdiction over a foreign sovereign is ‘automatic’ whenever (1) ‘an exception to immunity applies’ and (2) ‘service of process has been accomplished.’” CC/Devas (Mauritius) Ltd. v. Antrix Corp., 605 U.S. 223, 232-33 (2025). Put differently,
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“subject matter jurisdiction plus service of process equals personal jurisdiction.” Id. Here, the arbitration exception to immunity applies for the reasons above, and Lupaka will serve Peru with this Complaint pursuant to the service provisions of the FSIA, 28 U.S.C. § 1608(a).
46. Venue is appropriate in this Court. Section 1391(f)(4) provides that “[a] civil action against a foreign state . . . may be brought . . . in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.” 28 U.S.C. § 1391(f)(4). Peru is a foreign state, so venue is proper here.
47. Finally, there can be no serious dispute over the Award’s authenticity. ICSID issued a certificate confirming the authenticity of the Award. Ex. A. ICSID has also published a copy of the Award on its website. See ICSID, Case Details: Lupaka Gold Corp. v. Republic of Peru (ICSID Case No. ARB/20/46), https://icsid.worldbank.org/cases/case-database/case-detail?CaseNo=ARB/20/46.
48. Accordingly, all the requirements for confirmation have been met. As soon as Peru has been duly served, Lupaka will move for judgment on the pleadings and submit an updated claim calculation computing the additional interest due and a proposed form of judgment. The Court should then enter a money judgment enforcing the Award. See Blasket Renewable Invs., LLC v. Kingdom of Spain, No. 20-cv-817, 2025 WL 2336428, at *2 (D.D.C. Aug. 13, 2025) (enforcing an ICSID award “converts it into a legal judgment” (citing NextEra, 112 F.4th at 1097)); Restatement of the U.S. Law of International Commercial & Investor-State Arbitration § 1.1 cmt. m (2023) (explaining that “enforcement” is “a determination by a court that reduces to judgment an award” and that “[t]he resulting judgment has the same status as any other judgment of the court”).
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WHEREFORE, Plaintiff respectfully requests that the Court enter judgment against Defendant Republic of Peru as follows:
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Dated: February 27, 2026 |
Respectfully submitted, /s/ Robert K. Kry Attorneys for Plaintiff Lupaka Gold Corp. |