UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PERENCO ECUADOR LTD.,

Petitioner, Civil Action No. 1:19-cv-2943 (JMC)

v.

REPUBLIC OF ECUADOR,

Respondent.

MEMORANDUM OPINION

Perenco Ecuador Ltd. (“Perenco”), a company that explores and exploits hydrocarbons

internationally, invested in two blocks of oil reserves in Ecuador in the early 2000s.1 Within a few

years, Perenco and Ecuador reached an impasse: Ecuador cancelled Perenco’s contracts because

Ecuador was not sharing in the extraordinarily high revenues Perenco earned while oil prices

soared. The Parties submitted their dispute to the International Convention on the Settlement of

Investment Disputes (“ICSID”), an international organization created to arbitrate this type of

investor-state dispute. ICSID granted Perenco an Award for about $400 million. Perenco then

petitioned this Court to enforce the Award against Ecuador.

In its response, Ecuador asks this Court to set off a portion of the Award with unpaid tax

debts that Perenco allegedly owes, and to stay another portion of the Award while other tax issues

are resolved. Ecuador also asks this Court to order that post-judgment interest be calculated at the

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.

1 statutory rate specified in

, rather than the post-award interest rate provided in

the ICSID Award.

The Court grants Perenco’s Petition to Enforce the Arbitration Award. Because there is a

genuine dispute about the finality of the tax debts in this case, the Court denies Ecuador’s requests

to set off a portion of the ICSID Award and to stay the case pending resolution of the Parties’ tax

dispute. However, the Court agrees with Ecuador that post-judgment interest should be calculated

in accordance with

.

I. BACKGROUND

A. ICSID Convention

Created in 1965, the ICSID Convention is a “multilateral treaty aimed at encouraging and

facilitating private foreign investment in developing countries.” Mobil Cerro Negro, Ltd. v.

Bolivarian Republic of Venezuela,

(2d Cir. 2017). Contracting states—those

countries that signed the treaty—can use ICSID to resolve disputes with private investors by

submitting legal issues to an arbitral Tribunal. See ICSID Convention art. 36–49. The Tribunal

will consider the issues posed, publish a written decision stating the reasons for its decision, and,

if applicable, grant the prevailing party an award.

art. 48.

A party may challenge the Tribunal’s decision in one of two ways. First, a party may

request a revision in light of a previously unknown fact.

art. 51(1). Alternatively, a party may

request an annulment of an award based on any of five specified grounds: the Tribunal was not

properly constituted; the Tribunal manifestly exceeded its powers; corruption infected the

Tribunal’s proceedings; there was a serious departure from a fundamental rule of procedure; or the

award failed to state the reasons upon which it was based.

art. 52(1). Enforcement of the original

award may be stayed while challenges are resolved.

art 51(4); 52(5). Upon resolution, the award

becomes “binding on the parties and shall not be subject to any appeal or to any other remedy

2 except those provided for in this Convention.”

art. 53. The parties must then comply with the

terms of the award.

While the ICSID Convention requires the Tribunal to resolve the merits of a dispute,

enforcement of the Tribunal’s decision is left to the contracting states. Article 54 provides that

“[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.”

art. 54(1). The enforcement proceedings in the courts

of contracting states are highly circumscribed. Courts may not re-adjudicate the merits of an award,

they can only “examine the judgment’s authenticity and enforce the obligations imposed by the

award.” Mobil Cerro Negro,

.

The ICSID Convention is not a self-executing treaty. See Medellin v. Texas,

,

505–06 (2008). The United States therefore enacted legislation to implement its provisions. The

relevant statute, 22 U.S.C. § 1650a(a), provides:

An award of an arbitral tribunal rendered pursuant to chapter IV of the convention shall create a right arising under a treaty of the United States. The 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.

B. Perenco’s Contract and its Termination

The Parties do not dispute the following facts. Perenco, a company owned by French

nationals and incorporated under the laws of the Commonwealth of the Bahamas, explores and

exploits hydrocarbon resources. Perenco Ecuador Ltd. v. Republic of Ecuador, ICSID Case No.

ARB/08/6, Decision on Remaining Issues of Jurisdiction and on Liability (Sept. 12, 2014), ECF

1-3 ¶¶ 1, 46. In September 2002, Perenco invested alongside two other companies in two oil

fields—known as Blocks 7 and 21—located in the Ecuadorian Amazon. Id. ¶¶ 1, 43, 62. Perenco

3 purchased additional equity in the two blocks a few years later, giving it a majority ownership

interest of 57.5% in Block 7, and 53.75% in Block 21. Id. ¶ 73.

Before 1993, Ecuador used “service contracts” to facilitate investment in its hydrocarbon

industry. Id. ¶ 55. In exchange for a fixed fee, international oil companies agreed to develop

Ecuador’s oil deposits. Id. But the fixed payment structure gave oil companies little incentive to

maximize oil output. Id. ¶¶ 55–56. So, in 1993, Ecuador passed Law 44 and switched to

“participation contracts.” Id. ¶¶ 57–58. This new scheme gave oil companies a share of the oil they

produced, meaning that their revenue partially depended on the price of oil. Id.

When oil prices skyrocketed in the early 2000s, so too did Perenco’s profit margin. Perenco

signed its participation contract with Ecuador in 2002 when the price of oil hovered around $15

per barrel. Id. ¶ 82. The price quadrupled by 2005, soaring to $60 per barrel. Id. ¶ 83. It nearly

touched $120 per barrel in 2008. Id. The Ecuadorian government grew increasingly dissatisfied

with the exorbitant revenues collected by oil companies under participation contracts. Id. ¶¶ 84–

92. In April 2006, the legislature passed Law 42, stating that the “exploitation [of hydrocarbons]

must take place on the basis of national interests and in accordance with the principle of

reasonability.” Id. ¶ 93. The law withheld for the government 50% of “extraordinary income”

earned by oil companies, defined as revenue earned when oil prices exceeded the price that was

effective at the time the Participation Contracts were executed. Id. ¶¶ 94–97. In 2007, the

Ecuadorian government expanded its share to 99% of extraordinary revenue. Id. ¶ 109.

Realizing the untenable nature of the situation, Perenco and Ecuador began to renegotiate

their participation contract. Id. ¶¶ 117–22. They nearly reached a compromise in 2008, but

Ecuadorian President Rafael Correa effectively ended the negotiations by declaring that all

4 existing participation contracts would be terminated and that new service contracts would be

drafted. Id. ¶ 123.

C. The Arbitration

On April 30, 2008, after President Correa publicly stated that all participation contracts

would be terminated, Perenco filed for arbitration with ICSID. Id. ¶ 6. Perenco alleged that

Ecuador violated the participation contract and a treaty between the governments of France and

Ecuador, both of which had clauses that required disputes to be resolved through ICSID

arbitration.2 Id. Ecuador responded and filed counterclaims against Perenco, alleging that the

company caused significant environmental harm and infrastructure damage to Blocks 7 and 21 by

violating Ecuadorian environmental laws and failing to properly maintain the oil grids. Id. ¶ 280.

While the arbitration proceeding was pending, Ecuador started implementing collection

measures—known as “coactivas”—against Perenco to recover money allegedly owed under Law

42. Id. ¶¶ 150–53. Ecuador seized control of Blocks 7 and 21 and auctioned oil from those blocks

for 50% of the market price. Id. ¶¶ 159, 167–79, 195. In response, Perenco suspended its operation

of the Blocks. Id. ¶¶ 203–09. Ecuador then assumed control of the Blocks and officially terminated

its participation contract with Perenco by declaring caducidad. Id. ¶¶ 210, 215.

On September 12, 2014, the ICSID Tribunal held that Ecuador’s actions breached the terms

of the participation contracts and the treaty. Id. ¶ 713. The Tribunal concluded that Ecuador’s

decision to increase its share of “extraordinary income” under Law 42 from 50% to 99% was

unlawful. Id. ¶ 411 (contractual violation), id. ¶ 607 (treaty violation). Also unlawful was

Ecuador’s official termination of the participation contracts. Id. ¶ 442 (contractual violation as to

Block 21), id. ¶ 710 (treaty violation). Five years later, on September 27, 2019, the Tribunal

2 Perenco also filed for arbitration against Petroecuador, but those claims were dismissed. See ECF 20-1 at 13.

5 determined a damages amount. Perenco Ecuador Ltd. v. Republic of Ecuador, ICSID Case No.

ARB/08/6, Award (Sept. 27, 2019), ECF 1-2. The Tribunal ordered Ecuador to pay Perenco

$448,820,400 for violating the contract and the treaty and to pay $23,000,000 in legal fees. Id. ¶

1023. However, the Tribunal also found in favor of Ecuador on its counterclaim and ordered

Perenco to pay $54,439,517 to repair damage to the environment and damage to the infrastructure

of the Blocks, and $6,276,153 for legal fees. Id.

D. The Annulment Decision and Proceedings in this Court

On October 1, 2019, Perenco filed a Petition to Enforce Arbitral Award in this Court,

arguing that the Court is obligated to recognize the award “as binding and enforce the pecuniary

obligations imposed by that award . . . as if it were a final judgment of a court in that State.” ECF

1 ¶ 29 (quoting ICSID Convention art. 54). However, the proceedings in this Court were paused

almost immediately when Ecuador asked ISCID to annul the Award. See ECF 7; Min. Order

12/26/2019. Ecuador’s application for annulment was based on three grounds: that the Tribunal

had “manifestly exceeded its powers;” committed “a serious departure from a fundamental rule of

procedure;” and “failed to state the reasons” upon which the decision was based. Perenco Ecuador

Ltd. v. Republic of Ecuador, ICSID Case No. ARB/08/6, Decision on Annulment (May 28, 2021),

ECF 15-1 ¶ 6. At the same time, Ecuador sought to stay enforcement of the award because it was

concerned that, if it was forced to pay the award before the annulment issue was resolved, Perenco

might never return proceeds owed to Ecuador from a favorable ruling in the annulment proceeding.

Perenco Ecuador Ltd. v. Republic of Ecuador, ICSID Case No. ARB/08/6, Decision on Stay of

Enforcement of the Award (Feb. 21, 2020), ECF 8-1 ¶ 31. Perenco harbored similar concerns about

Ecuador: the company feared that Ecuador might not pay the damages assessed by the Tribunal.

Id. ¶¶ 21–22. Ecuador’s Attorney General and its Minister of Economy and Finance disclaimed

Perenco’s concerns and pledged to carry out Ecuador’s financial obligations. See ECF 30 at 17.

6 Ultimately, the ICSID Committee stayed enforcement of the Award on the condition that an

official with the “full authority to bind Ecuador” sign and submit a letter committing to pay the

Award unconditionally within 60 days of the Committee’s decision and attesting that such payment

would “not be subject to any enforcement proceedings or to the intervention of Ecuador’s courts.”

ECF 8-1 ¶ 82. On April 20, 2020, Ecuador complied with that requirement by submitting a letter

from the Minister of Economy and Finance of the Republic of Ecuador. ECF 15-1 ¶ 23.

The ICSID Committee ultimately held in favor of Ecuador on two of its twenty grounds

for annulment. The Committee excised part of the Award because the Tribunal “failed to state

reasons” for granting Perenco $25,000,000 for its “loss of opportunity” claim. Id. ¶¶ 469–70. The

Committee also deducted $9,000,000 from the Award because the Tribunal failed to state reasons

for deciding that certain costs were tax-deductible. Id. ¶ 574.

The Parties reconciled their mutual debts and settled upon an interest calculation. ECF 17

at 2. In a Supplemental Joint Status Report to this Court, the Parties agreed that Ecuador’s net

financial obligations reached $391,393,984 “subject to additional post-Award interest until full

and final payment.” Id.

E. Perenco’s Tax Obligations

While the Parties do not dispute the facts recited above, they strongly dispute the following.

According to Ecuador, Perenco was obligated to pay income taxes for itself and its business

partners on Blocks 7 and 21, but underpaid its tax liabilities from 2002 through 2009. ECF 20-1 at

24–25; ECF 48-1 at 2. Ecuador alleges that tax debts reaching $52,715,349.62 are final and

enforceable against Perenco, while another $21,120,203.56 in tax debts are still in the process of

7 being adjudicated.3 ECF 48-1 at 2. Ecuador asks this Court to set off the “final and enforceable”

tax debts against the Award, and to stay enforcement of a portion of the Award equaling the value

of tax debts still being adjudicated. ECF 20-1 at 18–19. Perenco, for its part, contests the finality

and enforceability of the tax debts alleged by Ecuador. ECF 30 at 20–21. Perenco claims that it

still has valid challenges to those tax assessments, and that litigation of the disputes could take

years to resolve. Id.

On November 8, 2021, the Tax Chamber of the Ecuadorian National Court of Justice

overturned a previous court decision that had held Perenco lacked standing to challenge a portion

of the tax debt pending against it. ECF 47 at 5–6; ECF 48 at 9. The Parties disagree about the

significance of this decision and its implications for Perenco’s other challenges. Perenco believes

that it “establishes that all of the purportedly final tax assessments are still subject to valid and

meritorious challenges and thus cannot be enforced against Perenco via a set-off in this case.” ECF

47 at 1. Ecuador, on the other hand, contends that the impact of the decision is limited to only one

of seven claims and should not bar setoff of the other six. ECF 48 at 4.

II. LEGAL STANDARD

The Court’s review of the Award is guided by both the ICSID Convention and the treaty’s

implementing statute. The ICSID Convention obligates courts of contracting states to enforce

ICSID awards if they are asked to do so by the prevailing party. ICSID Convention art. 54.

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.” Mobil Cerro Negro,

. Rather, a court “may do no more than examine the judgment’s authenticity and

3 The Court notes that earlier filings by Ecuador included different values. See ECF 20-1 at 23–24 (seeking setoff for $40,845,760.1 in final and enforceable tax liability and stay of enforcement for $30,671,645.44). The Court accepts the values stated in the most recent date filing, ECF 48, given the ongoing litigation.

8 enforce the obligations imposed by the award.”

The implementing statute does not alter the

procedures outlined by the ICSID Convention. It provides that ICSID awards “shall be enforced

and [] 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.

III. ANALYSIS

Perenco has petitioned this Court to enforce the ICSID Award. In response, Ecuador seeks

to set off a portion of the Award with what it contends are Perenco’s final and enforceable tax

debts, and to stay enforcement of another portion of the Award while other tax disputes are

resolved. Ecuador also asks the Court, over Perenco’s objection, to apply the post-judgment

interest rate specified in

(a).

The Court declines to reopen the merits of the arbitration proceedings and therefore denies

Ecuador’s setoff request. The Court also denies Ecuador’s stay request for similar reasons: given

this Court’s obligations under the ICSID Convention and its implementing statute, it is not

appropriate to indefinitely mire enforcement of the Award in the hopes that, at some undefined

point in the future, the Parties might reach an undisputed setoff. However, the Court agrees with

Ecuador that the interest rate dictated by

(a) should govern post-judgment

interest.

A. Ecuador may not set off Perenco’s tax debts against the ICSID Award.

The Court concludes that, as a general matter, the ICSID Convention and its implementing

statute do not permit setoffs in enforcement proceedings if the parties dispute the validity, finality,

or amount of one side of the transaction. Because there is a genuine dispute regarding the finality

of the tax debts in this case, those debts may not be set off against the ICSID Award.

9 1. Disputed setoffs are not permitted in ICSID enforcement proceedings.

The right of setoff is a remedy that two entities who owe each other money can use to apply

their mutual debts against each other and effectively cancel them out. 80 C.J.S., Set-Off and

Counterclaim § 6 (updated 2021). Setoff is not appropriate in ICSID enforcement proceedings

when it requires adjudication of substantive issues implicating the merits of the award.

Parties must raise substantive challenges to the merits of an award before an ICSID

Tribunal. See Mobil Cerro Negro, 863 F.3d at 101–02. That is for good reason: if they could

withhold such arguments and raise them during enforcement proceedings, the dispute resolution

process would be longer, costlier, and could result in inconsistent outcomes between the Tribunal

and enforcing courts. Christoph H. Schreuer, et al., The ICSID Convention: A Commentary 732

(2d ed. 2009) (“Schreuer, Commentary”); cf. Nat’l Wrecking Co. v. Int’l Brotherhood of

Teamsters, Loc. 731,

, 960 (7th Cir. 1993) (determining in non-ICSID arbitration that

“[f]ailure to present an issue before an arbitrator waives the issue in an enforcement proceeding”).

The ICSID Convention facilitates resolving all aspects of an arbitration by allowing parties to bring

“any incidental or additional claim[] or counterclaim[]” so long as it “aris[es] directly out of the

subject-matter of the dispute” and stays within the parties’ consent and ICSID’s jurisdiction.

ICSID Convention art. 46. For example, parties may raise ancillary claims based on third-party

contracts, interest accruals, or procedural costs. Schreuer, Commentary, at 740–50. Parties can

even ask for a revision of the award if new facts are discovered after the arbitration concludes.

ICSID Convention, art. 51.

But after the time for challenging an award expires, the award becomes “binding” and

insulated from “any appeal or [] any other remedy.” Id. art. 53(1). Enforcement proceedings are

therefore restricted affairs. Parties may raise certain procedural claims, perhaps to challenge the

court’s jurisdiction, see, e.g., Mobil Cerro Negro, 863 F.3d at 124–25 (concluding that the district

10 court lacked subject matter jurisdiction and personal jurisdiction in an ICSID enforcement

proceeding), but enforcing courts may not reexamine the merits of an ICSID award itself.

Enforcing courts may “do no more than examine the judgment’s authenticity and enforce the

obligations imposed by the award.” Micula v. Gov’t of Romania,

, 275 (D.D.C.

2019) (quoting Mobil Cerro Negro,

); TECO Guatemala Holdings, LLC v. Republic

of Guatemala,

, 101 (2019) (same).

Whether a setoff represents a substantive challenge to an award—and is therefore beyond

the reach of a court enforcing an ICSID award—depends on whether the parties dispute the

proposed offsetting debt. Courts would breach their obligation to enforce ICSID awards if they

entertained setoffs where there were genuine questions as to the validity, finality, or amount of the

underlying debt. This principle coheres with other cases that have commented on setoffs in ICSID

enforcement proceedings. In Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, the

Second Circuit Court of Appeals distinguished between “substantive attacks” on ICSID awards

and “non-merits challenges,” reasoning that Congress did not intend to deprive the parties of the

opportunity to litigate the latter in court.

. As an example of a “non-merits”

challenge, the Second Circuit posed “the possibility that an offset might apply to [an ICSID award]

that would make execution in the full amount improper.”

. Similarly, in Micula v. Gov’t

of Romania, the court assumed that “the defense of setoff . . . is available” in ICSID enforcement

proceedings, but it did not allow the defendant to set off disputed transactions, such as tax debts

found unlawful by Romanian courts. 404 F. Supp. 3d at 283–84. Instead, the court permitted

defendant to set off only payments that both parties agreed were owed to the defendant. Id. at 284.

Therefore, a setoff may not be brought in an ICSID enforcement proceeding if the parties

dispute the finality, validity, or amount of the underlying debt. Although the Court does not opine

11 on the circumstances in which a setoff might be appropriate in an ICSID enforcement proceeding,

it notes that undisputed setoffs, or setoffs involving frivolous objections, could present different

circumstances. For example, an undisputed setoff—where both parties agree to the setoff’s

terms—would not risk offending the ICSID Tribunal’s decision; it would be a simple accounting

mechanism performed to avoid “the absurdity of making A pay B when B owes A.” Citizens Bank

of Md. v. Strumpf,

(1995) (quoting Studley v. Boylston Nat’l Bank,

(1913)).

2. A setoff is not appropriate in this case because the Parties dispute the finality of Perenco’s tax debts.

Perenco challenges the finality of the tax debts, arguing that it has actionable appeals for

each individual debt. ECF 30 at 42. The Court does not opine on the merits of the dispute behind

this objection; it finds only that Perenco’s objection raises a genuine question about the finality of

the judgments that Ecuador seeks to set off against the ICSID Award.

On November 8, 2021, the Tax Chamber of the Ecuadorian National Court of Justice

overturned a district court’s decision, which had held that Perenco lacked standing to challenge

the tax debts assessed against it. ECF 46-1 at 12–13. While the Parties dispute whether this

judgment affects Perenco’s other debts, it proves that at least one of the debts that Ecuador

previously claimed was “final and enforceable” remains subject to further challenges. See ECF 48

at 6 (conceding that the tax debts involved in the November 8 decision should be moved from the

“final and enforceable” category to “the category for which the Republish seeks a partial stay of

enforcement”). The legal uncertainty spawned by this decision raises enough questions about the

finality of Perenco’s tax debts for the Court to conclude that setoff against the ICSID Award is

inappropriate in this enforcement proceeding.

12 B. A stay is not appropriate.

Ecuador also asks this Court to stay enforcement of $21,120,203.56 of the ICSID Award

while Ecuadorian tax courts finish adjudicating other pending tax claims. ECF 20-1 at 31; ECF 48

at 6. Having held that setoffs of disputed debts are impermissible in ICSID enforcement

proceedings, the only reason to stay enforcement of this ICSID Award is the hope that resolution

of the pending litigation will lead to an undisputed setoff. But that remote possibility does not

justify prolonging enforcement of an ICSID Award indefinitely.

Arbitration is intended to resolve disputes in a quick and efficient manner. 6 C.J.S.

Arbitration § 1; Schreuer, Commentary, at 7. The ICSID Convention and its implementing statute

do not provide a deadline for enforcement of ICSID awards, but their command for courts to

“enforce the pecuniary obligations” of ICSID awards evinces a similar sense of urgency. See

ICSID Convention art. 54; 22 U.S.C. § 1650a(a).

The Parties have not provided a clear timetable as to when the ongoing tax disputes will be

resolved. Without seeing an end to those proceedings on the horizon, it is inappropriate to go

against the purposes of arbitration by indefinitely staying enforcement of the Award. This is

especially true where the substance of the parallel proceedings either should have been raised in

the ICSID Tribunal, or stands so far afield from the current subject matter that dragging it into a

setoff at this stage would undermine the Court’s task at hand. Therefore, the Court declines to stay

enforcement of the ICSID Award.

C. Postjudgment interest shall be calculated at the rate set out in

.

Perenco’s Petition to Enforce the Arbitral Award seeks interest for the outstanding liability

on the ICSID Award and the costs incurred during arbitration. Mirroring language from the Award,

Perenco requests interest on the liability portion of the Award to be computed at “LIBOR for three-

month borrowing plus two percent, compounded annually, accruing from December 1, 2019, until

13 full and final payment.” ECF 1 at 10; see also ECF 1-2 ¶ 1023. Perenco also requests interest on

legal fees and costs to be calculated at “an annual rate of three percent accruing from December 1,

2019, until full and final payment.”

While apparently conceding the applicability of these rates

to pre-judgment interest, Ecuador argues that these rates should not be used to calculated post-

judgment interest. Instead, Ecuador argues that correct interest rate is found in

(a).4

The bulk of federal courts agree with Ecuador when it comes to non-ICSID arbitration

judgments. See Bayer CropScience AG v. Dow Agrosciences LLC, 680 Fed. App’x 985, 1000 (Fed.

Cir. 2017) (collecting cases). The doctrine of merger provides that, “[w]hen [a] plaintiff recovers

a valid and final personal judgment, [their] original claim is extinguished and rights upon the

judgment are substituted for it.” Restatement (Second) of Judgments § 18. As applied to this case,

that means that interest on the Award will stop accruing at the previous rate once this judgment is

entered, and interest on the new obligation—the judgment to be satisfied—will begin accruing at

the rate governing federal monetary judgments.

Perenco does not dispute this general rule but argues that the Parties contracted around it.

Courts widely agree that “parties may contract to, and agree upon, a post-judgment interest [rate]

other than that specified in § 1961.” Soc’y of Lloyd’s v. Reinhart,

, 1004 (10th Cir.

2005); see also, e.g., Westinghouse Credit Corp. v. D’Urso,

, 101–02 (2d Cir. 2004).

Parties must express their intent to sidestep the general merger rule in “clear, unambiguous and

4 “Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefor may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding[] the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges.”

(a).

14 unequivocal language.” Westinghouse, 371 F.3d at 102. Perenco contends that the Parties did so

in a Supplemental Joint Status Report, in which the Parties agreed that Ecuador’s liabilities on the

Award were “subject to additional post-Award interest until full and final payment.” ECF 30 at 52

(emphasis omitted) (referencing ECF 17). According to Perenco, this language indicates the

Parties’ intent to apply the interest rates specified in the ICSID Award to post-judgment interest.

Even if it is true that the Parties meant to depart from § 1961, the language in the

Supplemental Joint Status Report fails to convey that intent unambiguously. Courts have routinely

held that contractual terms calling for a non-statutory interest rate to apply “until an award is

paid”—or other variations on the phrase highlighted by Perenco—do not unambiguously

communicate an intent to circumvent the general merger rule. See, e.g., Tricon Energy Ltd. V.

Vinmar Int’l, Ltd.,

, 459–60 (5th Cir. 2013) (finding language that specified “post-

award interest” would be calculated at a different interest rate from “the date of the award, until

paid” did not indicate an intent to circumvent the merger rule); In re Riebesell,

, 794–

95 (10th Cir. 2009) (same for “shall accrue interest until payment”); Westinghouse, 371 F.3d at

102 (same for “from the date payment was due to the date payment is made”). For the most part,

where courts have found sufficient evidence of intent, parties have explicitly stated that an interest

rate different from § 1961 would apply post-judgment, as opposed to post-award. See, e.g., Hymel

v. UNC, Inc.,

, 265–66 (5th Cir. 1993) (finding clear intent where a promissory note

stated that a non-statutory interest rate would apply “both before and after judgment”). Because

the Supplemental Joint Status Report did not refer explicitly to post-judgment interest, it is not

clear that both Parties intended to apply a non-statutory interest rate.

Perhaps to differentiate this case from others that applied the § 1961 interest rate in

analogous circumstances, Perenco points to the unique enforcement scheme outlined in the ICSID

15 Convention. This Court has a duty to enforce “the pecuniary obligations” imposed by an ICSID

award and, according to Perenco, those obligations include applying post-award interest rates to

interest accrued after judgment. ECF 30 at 50–51 (citing 22 U.S.C. § 1650a). For two reasons, this

distinction fails to make a difference.

First, the ICSID Award contains the same ambiguity problem as the Supplemental Joint

Status Report. Just as courts decline to depart from the statutory interest rate in the absence of

explicit contract language to the contrary, courts are also hesitant to apply a non-statutory interest

rate to post-judgment interest if an arbitration award does not expressly state that result. See, e.g.,

Fid. Fed. Bank, FSB v. Durga Ma Corp.,

(2004); Tricon Energy,

(“When awarding a non-statutory rate, arbitrators must be . . . clear and unequivocal.”). Here,

the ICSID Award includes the same language as the Supplemental Joint Status Report: “Post-

award interest will accrue from 1 December 2019 until the date of full and final payment.” ECF

1-2 ¶ 1023. The Award does not explicitly state that a non-statutory rate applies to post-judgment

interest, so the Court does not attempt to make that leap.

Second, and more fundamentally, the ICSID Convention itself precludes Perenco’s

argument. Article 54(3) of the Convention provides that “[e]xecution of the award shall be

governed by the laws concerning the execution of judgments in force in the State in whose

territories such execution is sought.”5 That means that judgments enforcing ICSID awards are

subject to § 1961, just like judgments confirming other types of arbitral awards. Cf. Tricon Energy,

5 The fact that Article 54(3) uses the word “execution,” while other provisions of Article 54 use the word “enforcement,” does not alter the analysis. The word choice is likely due to translation difficulties. See Schreuer, Commentary, at 1134–36. The French and Spanish texts—equally as authoritative as the English version—do not suggest that the different words were meant to convey different meanings, so reconciling the three versions together suggest that the laws of the country in which enforcement is sought should govern enforcement proceedings. Id.

16

(“A judgment confirming an arbitration award—like any other civil judgment—

is subject to § 1961.”)

Granting Ecuador’s argument involving post-judgment interest rates, while denying its

argument concerning setoffs, does not apply the ICSID Convention or § 1650a inconsistently. The

ICSID Convention resolves the merits of arbitration disputes through self-contained procedures:

parties submit claims, counterclaims, and defenses to the ICSID Tribunal for resolution, then

request revision or annulment if they disagree with the Tribunal’s award. Enforcement of the

Award, on the other hand, steps outside of this framework and is governed by the laws of the

country in which enforcement is sought. Because Ecuador’s setoff argument raises substantive and

disputed issues that could have been raised before the ICSID Tribunal, they may not be raised

during enforcement proceedings. But its argument as to the correct post-judgment interest rate, on

the other hand, does not touch on the merits of the dispute. Rather, it concerns only enforcement

proceedings, which are governed exclusively by United States law in this case.

IV. CONCLUSION

Ecuador’s requests to set off the ICSID Award and stay the Award’s enforcement are

denied. Perenco’s Petition to Enforce Arbitration Award is granted, though post-judgment interest

shall be calculated according to the statutory interest rate specified by

. A separate

Order will issue.

SO ORDERED.

DATE: March 16, 2023

Jia M. Cobb U.S. District Court Judge

17