UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARCHIRODON CONSTRUCTION (OVERSEAS) COMPANY LIMITED,

Petitioner, v. Civil Action No. 22-1571 (JEB) GENERAL COMPANY FOR PORTS OF IRAQ, et al.,

Respondents.

MEMORANDUM OPINION

The Al Faw Grand Port in Iraq, which harbors ambitions to become one of the largest

ports in the world, already holds the Guinness World Record for the longest breakwater. But its

ambitions have come at a cost: specifically, here, a sizable arbitration award rendered in

Switzerland for Petitioner Archirodon Construction (Overseas) Company Limited, which

contracted with General Company for Ports of Iraq (GCPI) to construct a staging pier and eastern

breakwater for the port. Archirodon then brought this action to recognize and enforce that award

against Respondents GCPI, the Ministry of Transport for Iraq, and the Republic of Iraq itself.

Respondents never appeared in this action. On January 30, 2024, this Court thus granted the

Petition and entered judgment in the amount of $119,928,596.4 plus interest.

Archirodon now moves to authorize attachment and execution under the Foreign

Sovereign Immunities Act. Finally arriving on the scene, Respondents oppose that Motion.

They have also filed Motions to Vacate the Judgment and to Dismiss the case, asserting a range

of jurisdictional and procedural defects with the Petition. Finding that none of these objections

has merit and that a reasonable time has elapsed since judgment, the Court will deny

1 Respondents’ Motions, grant Petitioner’s, and thereby authorize the commencement of

attachment and execution efforts.

I. Background

As most of the relevant details of the dispute that gave rise to this suit were recounted in

the Court’s prior Opinion granting the Petition, see Archirodon Construction (Overseas) Co. Ltd.

v. GCPI,

, at *1–2 (D.D.C. Jan. 30, 2024), a summary will suffice here.

Archirodon contracted with GCPI to design and construct a staging pier and breakwater for the

Al Faw Grand Port. See ECF Nos. 1 (Pet.), ¶¶ 6, 14; 1-4 (Contract) at 4–5. The contract

contained an arbitration clause stipulating the parties’ intention to submit any disputes to the

International Chamber of Commerce in Switzerland for arbitration. See Pet., ¶ 19; Contract at

10–11. When a dispute arose over construction delays, the parties accordingly commenced

arbitration proceedings in the agreed-upon venue. See Pet., ¶¶ 26–27. A three-judge tribunal

unanimously rendered a foreign arbitral award of €82,944,276.76, plus $7,490,565.74 in costs

and expenses, in favor of Petitioner. Id., ¶ 39. After GCPI refused to pay, id., ¶ 4, Archirodon

filed this action under Section 207 of the Federal Arbitration Act,

, et seq., which

codifies the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(New York Convention). Id., ¶ 1. Archirodon seeks to enforce the Award against GCPI as well

as against the Ministry of Transport and the Republic of Iraq. Id., ¶¶ 1, 54, 67.

Petitioner served all three Respondents in October 2023, see ECF Nos. 12 (First

Certificate of Service), 13 (Second Certificate of Service), 14-2 (GCPI First Return Receipt);

15-2 (Ministry of Transport First Return Receipt); 16-2 (Iraq Return Receipt). None appeared or

filed an opposition to the Petition. The Court subsequently granted Archirodon’s Petition and

entered a judgment awarding Petitioner the full Award amount, plus pre- and post-judgment

interest. See ECF No. 17 (Order) at 1.

2 On April 26, 2024, Petitioner moved to authorize attachment and execution against

Respondents. See ECF No. 30 (Mot. to Attach). Respondents opposed this Motion and

concurrently filed a Motion for Relief from Judgment under Federal Rules of Civil Procedure

60(b)(1) and 60(b)(4) and a Motion to Dismiss under Rule 12(b) for insufficient service, lack of

subject-matter jurisdiction, and lack of personal jurisdiction. See ECF Nos. 34 (Attachment

Resp.); 35 (Mot. to Vacate); 36 (MTD). All Motions are now ripe.

II. Legal Standard

Federal Rule of Civil Procedure 60(b) governs the vacatur of judgments. It lists multiple

grounds for relief, only two of which are relevant here. First, Rule 60(b)(1) permits a court to

“relieve a party . . . from a final judgment . . . for the following reasons: mistake, inadvertence,

surprise, or excusable neglect.” Motions thereunder must be filed “within a reasonable

time . . . and . . . no more than a year after the entry of the judgment.” Fed. R. Civ. P. 60(c)(1).

Second, Rule 60(b)(4) permits vacatur when the judgment is “void,” such as for lack of

subject-matter or personal jurisdiction. See United Student Aid Funds, Inc. v. Espinosa,

(2010). Because a Rule 60(b)(4) motion is a collateral jurisdictional attack on a

final order, “federal courts . . . generally have reserved relief only for the exceptional case in

which the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.”

The arguable-basis standard does not apply, however, to a foreign-sovereign defendant who

never appeared in the original suit and thus has not yet litigated the question of jurisdiction. See

Bell Helicopter Textron, Inc. v. Islamic Republic of Iran,

, 1181–82 (D.C. Cir.

2013). In such circumstances, courts must apply “the traditional understanding of voidness” and

give “full consideration” to the sovereign’s “jurisdictional objection[s].”

(emphasis

omitted) (quoting Practical Concepts, Inc. v. Republic of Bolivia,

(D.C. Cir.

1987).

3 III. Analysis

The Court will first clear away a smattering of procedural issues in the parties’ briefing.

It next addresses the jurisdictional questions raised by Respondents in their Rule 60(b)(4) Motion

before turning to their Rule 60(b)(1) argument that the Court erred by entering a default

judgment without first requiring an entry of default. With those issues resolved, the Court

concludes with a discussion of Petitioner’s Motion to Authorize Attachment and Execution.

A. Procedural Miscellany

Archirodon urges the Court to summarily deny Respondents’ Motion to Vacate the

Judgment as untimely, arguing that filing four months after judgment does not meet Rule

60(c)(1)’s “reasonable time” restriction. See ECF No. 41 (Resp.) at 26–27; see also McMillian

v. District of Columbia,

(D.D.C. 2006) (“Rule 60(b) motions are almost

uniformly denied as untimely when they are filed more than three months after judgment.”)

(quoting Brannum v. Buriltanu,

, at *2 (D.D.C. July 28, 1999)). But Petitioner

acknowledges, as it must, that the D.C. Circuit has foreclosed that argument as to Rule 60(b)(4)

motions. See Bell Helicopter,

(joining “almost every other circuit court of

appeals” in “reject[ing] a time limit that would bar Rule 60(b)(4) motions”). Since Respondents

submitted their Motion to Vacate under both Rules, the Court will consider both grounds timely

raised.

Petitioner next argues that Respondents’ Motion to Dismiss is improper because the

Court has already entered judgment. See Resp. at 28. As the Court will deny Respondents’

Motion to Vacate, a necessary prerequisite before seeking dismissal, Archirodon is technically

correct that the Motion to Dismiss is not properly before the Court. That procedural

requirement, however, raises a small wrinkle: Respondents’ jurisdictional arguments are fleshed

out primarily in their Motion to Dismiss, which is then cross-referenced in their Rule 60(b) 4 Motion. To grant Respondents the benefit of their briefing, the Court will therefore treat the

Motion to Dismiss as incorporated by reference in the Motion to Vacate.

With those preliminaries out of the way, the Court will now turn to the parties’ arguments

on the merits.

B. Jurisdictional Issues

Respondents contend that the judgment in favor of Archirodon should be vacated as void

because the Court lacked both subject-matter and personal jurisdiction. See Mot. to Vacate at 5.

Jurisdiction in this case is governed by the FSIA and FAA. As applied here, the “interlocking

provisions” of these two statutes compress subject-matter and personal jurisdiction into three

prerequisites. Maritime Int’l Nominees Establishment v. Republic of Guinea,

(D.C. 1982). First, “there must be a basis upon which a court in the United States may

enforce a foreign arbitral award.” Diag Human, S.E. v. Czech Republic—Ministry of Health,

(D.C. Cir. 2016) (quoting Creighton Ltd. v. Gov’t of the State of Qatar,

(D.C. Cir. 1999)); see 9 U.S.C. §§ 201–203. Second, a statutory exception to

sovereign immunity must apply. See Saudi Arabia v. Nelson,

(1993). And

third, service on the foreign state must be “properly made pursuant to

.”

Foremost-McKesson, Inc. v. Islamic Republic of Iran,

(D.C. Cir. 1990).

Although Respondents concede that GCPI, as a non-sovereign — unlike the Ministry of

Transport or the Republic of Iraq — must meet the higher bar of showing that the Court lacked

even an “arguable basis” for jurisdiction, see Mot. to Vacate at 6, the Court will give “full

consideration” to the “jurisdictional objection[s]” as to each Respondent in light of its conclusion

that GCPI, the Ministry, and the Republic are one and the same for the purposes of FSIA

jurisdiction. Bell Helicopter,

.

5 Even with the benefit of that standard, however, Respondents do not show that the Court

lacked either subject-matter or personal jurisdiction over any of them. Because Respondents do

not appear to contest the Court’s finding that the first prerequisite has been met, see Archirodon,

, at *2, the Court will discuss the remaining two before addressing GCPI’s

separate jurisdictional argument under the Due Process Clause.

1. Exception to Sovereign Immunity

The Court previously held that both the Ministry and the Republic were subject to suit

under the FSIA’s exception for arbitral enforcement. See Archirodon,

, at *3–

4;

(a)(6). That exception permits suits against foreign sovereigns where “a

foreign state has agreed to arbitrate,” “there is an award based on that agreement,” and “the

award is governed by a treaty signed by the United States calling for the recognition and

enforcement of arbitral awards.” Chevron Corp. v. Ecuador,

(D.C. Cir. 2015).

As the Court previously reasoned, GCPI signed the arbitration agreement as an agent of the

Ministry of Transport, which itself is an inseparable part of the Republic, and therefore all three

parties entered into the arbitration agreement and fall under the arbitration exception. See

Archirodon,

, at *3–4.

Respondents resist these conclusions. See Mot. to Vacate at 7. They argue that GCPI did

not act as an agent of the Ministry of Transport, and that, even if it did, the arbitration exception

cannot apply because neither the Ministry nor the Republic was listed on the agreement. See

MTD at 10–22. Neither contention holds water.

Start with the first argument, which is the stronger one. Respondents are right that, as a

“general rule,” “agencies and instrumentalities of a foreign nation are presumed to be separate

from . . . the foreign state.” GSS Grp. Ltd. v. Nat’l Port Auth. of Liberia,

(D.C. Cir. 2016) (cleaned up); see TMR Energy Ltd. v. State Prop. Fund of Ukraine,

6 296, 301 (D.C. Cir. 2005) (explaining that presumption of independence “applies to the question

of subject matter jurisdiction under the FSIA”). Even assuming that GCPI is entitled to a

presumption of separateness from the Ministry, however, that presumption may be overcome “if

the instrumentality is the sovereign’s alter ego,” TIG Ins. Co. v. Republic of Argentina,

, at *10 (D.C. Cir. July 30, 2024), either because (1) the “corporate entity is so

extensively controlled by its owner that a relationship of principal and agent is created,” or (2)

“recognition of the instrumentality as an entity apart from the state ‘would work fraud or

injustice.’” Transamerica Leasing, Inc. v. La Republica de Venezuela,

(D.C.

Cir. 2000) (quoting First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba (Bancec),

(1983)). “Under either scenario, the actions of the alter ego corporation can

be imputed to a sovereign to work a waiver of sovereign immunity.” TIG,

, at

*10. Archirodon has not pursued the latter theory, nor has it claimed that the relationship

between the Ministry and GCPI was one of “complete domination.” See Pet., ¶ 56 (quoting

Transamerica,

). Instead, it has argued that the Ministry exercised control over

GCPI “in such a way as to make the instrumentality its agent.” Transamerica,

.

Determining whether a principal-agent relationship exists “is inherently fact specific.”

Such a relationship cannot arise, however, unless (1) “the parent has manifested its desire for

the subsidiary to act upon the parent’s behalf,” (2) “the subsidiary has consented so to act,” (3)

“the parent has the right to exercise control over the subsidiary with respect to matters entrusted

to the subsidiary,” and (4) “the parent exercises its control in a manner more direct than by

voting a majority of the stock in the subsidiary or making appointments to the subsidiary’s Board

of Directors.”

In addition to these factors, courts have also looked to the so-called “Bancec

factors,” which include “(1) the level of economic control by the government; (2) whether the

7 entity’s profits go to the government; (3) the degree to which government officials manage the

entity or otherwise have a hand in its daily affairs; (4) whether the government is the real

beneficiary of the entity’s conduct; and (5) whether adherence to separate identities would entitle

the foreign state to benefits in United States courts while avoiding its obligations.” Rubin v.

Islamic Republic of Iran,

(2018) (quoting Walter Fuller Aircraft Sales, Inc. v.

Republic of Philippines,

, 1380 n.7 (5th Cir. 1992)). The principal-agent analysis

“roughly map[s] onto Bancec factors one through four.” Amaplat Mauritius Ltd. v. Zimbabwe

Mining Dev. Corp.,

, at *3 (D.D.C. Feb. 9, 2024).

Evaluating these factors anew, the Court declines to disturb its prior determination that

GCPI acted as an agent of the Ministry of Transport during the period relevant to this litigation.

As the Court previously explained, “[T]he Ministry controlled the Al Faw construction project

from start to finish”:

The official tender announcement stated that “[t]he Iraqi Ministry of Transport / General Company for Ports of Iraq (GCPI)” were announcing the tender and that the Ministry of Transport had nominated “the fully owned organi[z]ation [GCPI] to act as implementing agency.” [Pet.,] ¶ 58. Initially, the Ministry reviewed the contract with Archirodon, and it was ultimately signed by “Hadi Al Ameri, Minister of Transportation.” Id., ¶ 59. Throughout construction, GCPI sought guidance from the Ministry of Transport on basic administrative support. Id., ¶ 60. When Archirodon requested extensions of time and reimbursement for additional costs, Ministry officials responded and told Archirodon that senior Ministry officials would need to participate in any discussions to “bind our party.” Id., ¶¶ 61–65.

Archirodon,

, at *4. To this list could be added other indicia. For instance,

funds for the Al Faw construction project came from the “National Budget of the Republic of

Iraq.” Contract at 6. As an Iraqi State Company, moreover, GCPI’s revenues are not subject to

taxation and may be “deposited in the State’s treasury,” along with a substantial portion of its

8 profits. See ECF 7-2 (Decl. of Sermid D. Al-Sarraf), ¶¶ 24, 52. On top of all this, minutes from

a key meeting describes the Ministry as the “Employer” for the project, see Pet., ¶ 61; ECF No.

1-8 (10/15/2015 Minutes) at 1, while the Minister of Transportation himself has enjoyed “veto

power over major financial decisions.” Al-Sarraf Decl., ¶ 51. All of which may help to explain

why GCPI has previously claimed in separate litigation that “the Iraqi Ministry of Transport has

full control over GCPI,” which is “a government department of the Ministry of Transport” and

therefore “(part of) a foreign state body.” ECF 7-12 (Hague Proc.) at 1. The Court agrees.

Respondents do not seriously dispute any of the above. Instead, they argue that GCPI is

“structured as a commercial entity” with an “independent legal personality”; that the Ministry

does not exercise “plenary authority over GCPI”; and that the Ministry has merely exercised its

influence as a “sole shareholder.” MTD at 16–22. In support of the last contention, Respondents

point to multiple meetings that took place between GCPI and Archirodon where no

representatives from the Ministry were present.

at 20–22.

These arguments do not move the needle. That GCPI is structured as a commercial entity

with independent legal status and some modicum of control over its own affairs does not affect

whether, with respect to this dispute, it acted as an agent of the Ministry. See TIG Ins. Co. v.

Republic of Argentina,

, at *9 (D.D.C. Apr. 18, 2022) (notwithstanding earlier

evidence of independence, “relevant time” for principal-agent analysis is when contracts in

dispute “were made”), order corrected and superseded,

(D.D.C. Aug. 23,

2022), aff’d in part, vacated in part, remanded,

(D.C. Cir. July 30, 2024).

The Ministry’s involvement in the Al Faw construction project, moreover, far exceeded what

would be expected of a sole shareholder. This case is therefore unlike Transamerica and GSS

Group, neither of which concerned, as here, the intimate involvement of a government ministry

9 in the management of a commercial contract. See Transamerica,

, 850–53; GSS

Group,

, 606–08; cf. Amaplat,

, at *7 (finding principal-agent

relationship where, among other things, government ministry exerted substantial control over

state-owned corporation).

Respondents cannot avoid this conclusion by observing that the Ministry of Transport

and the Republic of Iraq are not listed as parties on the arbitration contract. See MTD at 11–13.

GCPI acted as an agent of the Ministry in forming the contract, and it has already been conceded

that the Ministry is an inseparable part of the Republic, to which the presumption of separateness

does not apply. See ECF No. 42 (Reply) at 7–8. The Ministry and the Republic were therefore

parties to the contract under ordinary agency principles. See Thomson-CSF, S.A. v. Am. Arb.

Ass’n,

(2d Cir. 1995) (“Traditional principles of agency law may bind a [third

party] to an arbitration agreement.”); Oehme, van Sweden & Assocs., Inc. v. Maypaul Trading &

Servs. Ltd.,

(D.D.C. 2012) (similar). The Court therefore reaffirms its

holding that the Ministry of Transport and the Republic of Iraq are subject to suit under the

arbitration exception to the FSIA.

Before moving to service of process, one last piece of jurisdictional housekeeping is in

order. Archirodon has argued — and the Court previously accepted — that jurisdiction could

alternatively be established on the theory that Respondents “have effected an implicit waiver of

their immunity.” Archirodon,

, at *5;

(a)(1) (excepting from

FSIA protection any “foreign state [that] has waived its immunity either explicitly or by

implication”) (emphasis added). Given, however, that the D.C. Circuit has declined to “wade

into th[ose] murky waters” when the arbitration exception actually applies, Process & Indus.

Devs. Ltd. v. Fed. Republic of Nigeria,

, 775 n.3 (D.C. Cir. 2022) (citing

10 “significant policy concerns” with waiver exception raised by United States in amicus brief), the

Court will follow suit and base its finding of jurisdiction solely on the applicability of the

arbitration exception.

2. Service of Process

The proper method of service in this case differs by the identity of each Respondent.

GCPI concedes that, as an “instrumentality of a foreign state,” it need only be served in

accordance with

(b). See MTD at 8; Reply at 7–8. Here, that required service

“by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of

the court to the agency or instrumentality to be served.”

(b)(3)(B). Service

under this section, even if “technically faulty,” may be valid if it “gives adequate notice to the

foreign state.” Transaero, Inc. v. La Fuerza Aerea Boliviana,

(D.C. Cir. 1994).

By contrast, both the Ministry and the Republic must be served under Section 1608(a), which

governs service “upon a foreign state or political subdivision of a foreign state” and requires

“strict adherence” to its terms. Transaero,

. Here, those terms mandated service

“by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of

the court to the head of the ministry of foreign affairs of the foreign state concerned.”

(a)(3). All agree that Archirodon attempted service on the Republic under 1608(a)(3) and,

“out of an abundance of caution,” on GCPI and the Ministry under both Sections 1608(a)(3) and

1608(b)(3)(B). Archirodon,

, at *5; see MTD at 4.

Respondents lodge two primary objections to Petitioner’s attempts at service. First, they

maintain that service was insufficient as to them all because Petitioner utilized DHL, a private

mail courier, instead of the U.S. Postal Service. See MTD at 7–8; Reply at 4–7. Second,

Respondents contend that the Ministry and the Republic were not properly served because the

11 materials bore only the title, and not the personal name, of Iraq’s Minister for Foreign Affairs.

See MTD at 6; Reply at 1-4. Both arguments miss the mark.

The former runs headlong into both statutory language and precedent within this Circuit.

The relevant provisions of Section 1608 authorize service “by any form of mail requiring a

signed receipt” (emphasis added). As Petitioner rightly notes, “That expansive language

connotes breadth, not restriction.” Resp. at 12 (citing United States v. Gonzalez,

(1997)). It is not the sort of language one would expect Congress to use to narrow the choices

available for service. Delivery by DHL is certainly a “form” of mail; indeed, the D.C. Circuit

has described DHL as “an express delivery service that moves mail and freight throughout the

United States and in many foreign countries.” DHL Express, Inc. v. NLRB,

(D.C. Cir. 2016) (emphasis added). Little surprise, then, that courts here — including this one —

have consistently found that service by DHL conforms to the requirements of Section 1608(a).

See, e.g., Gates v. Syrian Arab Republic,

, 4–5 (D.C. Cir. 2011); Doe v. Democratic

People’s Republic of Korea Ministry of Foreign Affs. Jungsong-Dong,

, 125

(D.D.C. 2019); Schertzman v. Islamic Republic of Iran,

, at *1, *4 (D.D.C.

July 11, 2019); Karcher v. Islamic Republic of Iran,

(D.D.C. 2017).

Respondents’ creative attempts to sidestep this authority by invoking out-of-circuit precedent

construing service under the Federal Rules, see MTD at 7; Reply at 5, do not persuade the Court

to chart a new course on this question. That conclusion holds doubly true as to GCPI, which

indisputably received “adequate notice” of the suit. Transaero,

.

Respondents fare little better on their second argument. Here, too, the statutory language

works against them — in this case because it nowhere requires that the service packet bear the

personal name of the foreign minister. Cf.

(a)(3) (requiring service

12 “addressed . . . to the head of the ministry of foreign affairs of the foreign state concerned”).

Rather, as the D.C. Circuit has made clear, the FSIA mandates only that the foreign minister be

“identified by name or title.” Barot v. Embassy of the Republic of Zambia,

(D.C. Cir. 2015) (cleaned up); see also Gates v. Syrian Arab Republic, No. 06-1500 (D.D.C.

2009), ECF No. 8-1 (DHL receipt addressed only to the title of the foreign minister), aff’d,

(upholding service); von Pezold v. Republic of Zimbabwe,

, at *3

(D.D.C. Sept. 6, 2022) (quoting Barot’s “name or title” language). Archirodon’s attempts

plainly cleared that bar.

To be sure, as Respondents point out, the Supreme Court has said in dicta that the “most

natural reading” of Section 1608(a)(3) is that “the service packet must bear the foreign minister’s

name and customary address.” Republic of Sudan v. Harrison,

(2019). But that

case did not present the question of whether service “to the head of the ministry of foreign

affairs” must bear the minister’s personal name, as opposed to merely her title.

(“The

question now before us is whether [Section 1608(a)(3)] is satisfied when a service packet that

names the foreign minister is mailed to the foreign state’s embassy in the United States.”). A

single passing comment in a case presenting a different question is too slender a reed on which to

rest an argument that would require this Court to buck otherwise binding authority.

3. Due Process

Loosing the last arrow in their quiver, Respondents assert that the Court lacks personal

jurisdiction over GCPI because the Petition fails to identify any contacts with the United States

that would satisfy the Due Process Clause. See Mot. to Vacate at 9; MTD at 25–29.

Unfortunately for GCPI, the Due Process Clause cannot provide its customary refuge. It is well

established within this Circuit that foreign governments do not have due-process rights. See

13 Price v. Socialist People’s Libyan Arab Jamahiriya,

(D.C. Cir. 2002). When

an instrumentality like GCPI acts as an agent of a foreign state, it “receives the same due process

protection as the sovereign: none.” GSS Grp. Ltd. v. Nat’l Port Auth.,

(D.C.

Cir. 2012).

C. Default Judgment?

That leaves Respondents’ other argument for vacatur on the table: that the Court

committed a “mistake” by “issu[ing] a default judgment without first entering default under Rule

55(a).” Mot. to Vacate at 2 (internal citation omitted); Reply at 14–15; see also Fed. R. Civ. P.

60(b)(1); Kemp v. United States,

, 533–34 (2022) (“mistakes” include “a judge’s

errors of law”). Respondents are, of course, correct that an entry of default must precede any

default judgment. See Swiss Inst. of Bioinformatics v. Glob. Initiative on Sharing All Influenza

Data,

(D.D.C. 2014). They also correctly observe that no entry of default

was entered on the Court’s docket.

This line of attack presupposes, however, that the Court entered a default judgment in the

first place. It did not. As its Order states, the Court entered “[j]udgment” — not “default

judgment” — in favor of Archirodon. See ECF No. 20 (Order). Indeed, the Court could not

have granted a request for default judgment because there was no such motion before it. Its

Order instead simply granted Archirodon’s unopposed Petition to Enforce its Arbitral Award.

See Archirodon,

, at *8 (noting that Court will “issue a contemporaneous Order

granting the Petition to Recognize and Enforce Foreign Arbitral Award”) (emphasis added). To

show that there was a mistake meriting vacatur, then, Respondents must demonstrate that it was

legal error for the Court to grant the unopposed Petition without going through the procedures

for default judgment.

14 This they have not done. The Federal Rules of Civil Procedure govern proceedings under

the FAA “except as [the FAA] provide[s] other procedures.” Fed. R. Civ. P. 81(a)(6). The FAA,

in turn, provides that “[a]ny application to the court hereunder shall be made and heard in the

manner provided by law for the making and hearing of motions.”

(emphasis

added). The D.C. Circuit has thus held that petitioners seeking to enforce arbitration awards

“should proceed under motions practice, not notice pleading.” TermoRios S.A. E.S.P v.

Electranta S.P.,

(D.C. Cir. 2007). That respects Congress’s policy in the FAA

of “expedit[ing] judicial treatment of matters pertaining to arbitration.” World Brilliance Corp.

v. Bethlehem Steel Co.,

, 365–66 (2d Cir. 1965) (citing S. Rep. No. 536, 68th

Cong., 1st Sess. (1924); H.R. Rep. No. 96, 68th Cong., 1st Sess. (1924)). With this

understanding, courts of appeals have excused petitioners from complying with the pleading

requirements of Rule 12(b), see TermoRios,

; Productors Mercantile E.

Industriales, S.A. v. Faberge USA, Inc.,

, 46 (2d Cir. 1994); O.R. Sec., Inc. v. Pro.

Planning Assocs., Inc.,

(11th Cir. 1988), as well as — most relevant here —

the default-judgment procedures under Rule 55. See D.H. Blair & Co., Inc. v. Gottdiener,

(2d Cir. 2006) (“We agree . . . that Rule 55 does not operate well in the context of a

motion to confirm or vacate an arbitration award.”).

For example, some courts “approach an unopposed petition to confirm an arbitration

award as akin to a motion for summary judgment based on the movant’s submissions.” Bailey

Shipping, Ltd. v. Am. Bureau of Shipping,

, 364 (S.D.N.Y. 2019) (internal

quotation marks omitted); see also, e.g., Accelerated Sols., LLC v. Star Med. Ctr., LLC,

, at *1–2 (E.D. Tex. July 23, 2021) (same).

15 To be sure, as Respondents rightly point out, this Court and others in this district have

generally adhered to Rule 55’s procedures when evaluating unopposed petitions to confirm

arbitral awards. See Reply at 14–15 (citing cases); GPGC Ltd. v. Republic of Ghana, No.

24-169, ECF No. 16 (D.D.C. Aug. 6, 2024). But a habit does not a legal rule make. It is

Respondents’ burden to demonstrate that the Court committed an “error[] of law,” Kemp,

, in declining to treat Archirodon’s Petition as a complaint governed by the

default-judgment requirements of Rule 55. Although the Court has typically followed that path,

it sees no reason why it must, especially where, as here, Respondents have indicated no prejudice

as a result.

D. Attachment

Having disposed of Respondents’ various objections, the Court may now finally turn to

Petitioner’s Motion to Authorize Attachment and Execution. Parties may seek to enforce a

judgment by attaching certain property of the foreign state used for commercial activity in the

United States. See

(a)(6). They may do so, however, only once “the court

has . . . determined that a reasonable period of time has elapsed following the entry of judgment

and the giving of any notice required under section 1608(e) of” the FSIA. See

(c). That initial step helps “to ensure that a foreign power is always given an opportunity

to evaluate and respond to any court judgment entered against it which could subject its property

and interests in the United States to attachment or execution.” Baker v. Socialist People’s

Libyan Arab Jamahirya,

(D.D.C. 2011) (quoting Agudas Chasidel

Chabad of the United States v. Russian Fed’n,

(D.D.C. 2011)).

Archirodon argues that the Court should grant this Motion because four months

constitutes a “reasonable period of time” since the entry of judgment. See Mot. to Attach at 3–5;

(c). Respondents counter that they were not properly served with notice of the 16 judgment under Section 1608(e) and that, besides, Petitioner’s Motion is premature. See

Attachment Resp. at 3–7. Here, too, Archirodon has the better of the argument.

To start, Section 1608(e)’s service requirement is not applicable to this case because it

applies only to default judgments, and, as just explained, no such judgment is at issue here. See

supra Part III.C. Even if it were, Respondents were served with a copy of the judgment the same

way they were served with notice of the suit, see ECF No. 29 (Decl. of Alexandra C. Eynon),

and the Court has already held that such service was proper. See supra Part III.B.2.

As to whether a “reasonable period of time” has elapsed, the Court, like others in this

district, starts by evaluating “the procedures necessary for the foreign state to pay the judgment

(such as the passage of legislation), evidence that the foreign state is actively taking steps to pay

the judgment, and evidence that the foreign state is attempting to evade payment of the

judgment.” Ned Chartering & Trading, Inc. v. Republic of Pakistan,

(D.D.C. 2001) (citing H.R. Rep. 1487, 94th Cong., 2d Sess. 1, 30 (1976)). Here, the thin

evidence that the parties have presented indicates that Respondents have taken no steps to pay

the judgment, resting instead on their intent to challenge the basis for the Court’s jurisdiction.

See ECF No. 30-2 (Decl. of Robert Kry, Exh. A (email correspondence between counsel)) at 1

(indicating that Respondents will oppose Motion to Authorize Attachment only because they

were not “properly served, and the Court lacks jurisdiction”); Attachment Resp. at 7 (similar).

But the intent to challenge the Court’s judgment does not toll the clock for the purposes of

Section 1610(c)’s reasonable-time requirement, which starts running from the entry of judgment.

See Owens v. Republic of Sudan,

, 10–11 (D.D.C. 2015) (requirement does not

“give foreign states an automatic stay of execution pending the resolution of postjudgment

motions”).

17 Respondents have, moreover, presented no other argument to explain the four-month —

now eight-month — delay in paying up. They point, instead, to cases in which parties (including

Respondents, apparently) have dragged their feet for even longer. See Attachment Resp. at 6–7

(citing Wye Oak Tech., Inc. v. Republic of Iraq,

, at *1 (D.D.C. Oct. 27, 2023)

(10 months), and Teco Guatemala Holdings, LLC v. Republic of Guatemala,

,

at *2 (D.D.C. June 2, 2020) (6 months)). As their own authorities nevertheless reveal, “[T]he

sweep of the case law supports Petitioner’s contention that even a few months is sufficient to

satisfy 1610(c)’s ‘reasonable period of time’ requirement, especially when the defendant has

offered no evidence that it is making efforts to satisfy the judgment.” Teco Guatemala Holdings,

, at *2; see Saint Gobain Performance Plastics Eur. v. Bolivarian Republic of

Venezuela,

, at *2 (D.D.C. July 13, 2021) (4 months); Warmbier v.

Democratic People’s Republic of Korea,

, at *2 (D.D.C. Apr. 9, 2019) (3.5

months); Owens, 141 F. Supp. at 9 (3 months); Ned Chartering,

(1.5

months). Because the delay in this case sits comfortably within that range, and Respondents

have offered no evidence that they are making efforts to satisfy the judgment, the Court finds

that the prerequisites of Section 1610(c) are met and will accordingly grant Archirodon’s

Motion.

IV. Conclusion

For the foregoing reasons, the Court will issue a contemporaneous Order denying

Respondents’ Motions to Vacate the Judgment and to Dismiss the case and granting Petitioner’s

Motion to Authorize Attachment and Execution.

18 /s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: August 16, 2024

19