UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REDES ANDINAS DE : COMUNICACIONES S.R.L., : : Petitioner, : Civil Action No.: 22-3631 (RC) : v. : Re Document Nos.: 26, 32 : THE REPUBLIC OF PERU, et al., : : Respondents. :

MEMORANDUM OPINION

DENYING RESPONDENT PROGAMA NACIONAL DE TELECOMUNICACIONES’ MOTION TO DISMISS; GRANTING PETITIONER’S MOTION FOR LEAVE TO FILE SUR-REPLY

I. INTRODUCTION

Redes Andinas de Comunicaciones S.R.L. (“Redes”) brought this action to confirm two

arbitration awards against Respondents the Republic of Peru, Peru’s Ministry of Transportation

and Communications (the “Ministry”), and Programa Nacional de Telecomunicaciones, or

PRONATEL. The Clerk of Court entered default against all three Respondents. The Court

subsequently granted Redes’s motion for default judgment as to Peru and the Ministry.

PRONATEL, however, entered an appearance and moved to set aside the Clerk’s entry of

default. The Court granted that motion.

Now PRONATEL moves to dismiss the claims against it, arguing that the Court lacks

personal and subject-matter jurisdiction; that Redes’s petition for enforcement fails to meet

certain procedural requirements; and that Redes failed to effect proper service. For the reasons

discussed below, the Court denies the motion to dismiss. II. BACKGROUND

The Court described the factual background in its prior memorandum opinion. See Redes

Andinas de Comunicaciones S.R.L. v. Republic of Peru (“Redes Andinas I”), No. 22-cv-3631,

at *1 (D.D.C. Sept. 24, 2024); Mem. Op. Granting in Part and Denying in

Part Pet’r’s Mot. for Default J.; Granting Respondent PRONATEL’s Mot. to Set Aside Entry of

Default, ECF No. 25. An overview follows.

Redes is a Peruvian corporation that engages in construction work. Pet. for

Confirmation, Recognition, and Enforcement of Foreign Arbitral Awards (“Pet. Confirm Arbitral

Awards”) ¶¶ 3, 13–14, ECF No. 1. In December 2015, Redes entered into two agreements with

Peru’s Telecommunications Investment Fund (“FITEL”) to install broadband infrastructure

across Peru. Ex. 1 to Pet’r’s Mot. Default J., ECF No. 14-3; Ex. 3 to Pet’r’s Mot. Default J.,

ECF No. 14-5. In 2018, FITEL was absorbed by merger into the Ministry of Transportation and

Communications and was renamed PRONATEL. Ex. A to Reply to Resp’t PRONATEL’s

Opp’n to Pet’r’s Mot. Default J. & Confirmation of Arbitral Awards & Opp’n to PRONATEL’s

Mot. Set Aside Default (“Supreme Decree”), ECF No. 20-2; see also Pet. Confirm Arbitral

Awards ¶¶ 5, 6 (describing PRONATEL as an “organ of” the Ministry); Resp’t’s Mem. Supp.

Mot. Set Aside Default & Opp’n Pet’r’s Mot. Default J. at 1 (“Resp’t’s Default Opp’n”), ECF

No. 17-1. Following construction delays, PRONATEL terminated the parties’ contracts in April

2019. Pet. Confirm Arbitral Awards ¶¶18–22. In response, Redes initiated two arbitrations

pursuant to the arbitration clauses in the parties’ contracts.

¶¶ 25–27.

On August 2, 2022, an arbitral tribunal in Lima, Peru rendered awards in favor of Redes.

See Award 24471/JPA, Ex. B. to Pet. Confirm Arbitral Awards, ECF No. 1-3; Award

24472/JPA, Ex. D to Pet. Confirm Arbitral Awards, ECF No. 1-5 (collectively, the “Awards”).

2 Redes then filed this action seeking to enforce the Awards under the Federal Arbitration Act

(“FAA”), 9 U.S.C. §§ 201–208 (2022), which codifies the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517,

330 U.N.T.S. 3 (entered into force June 7, 1959) (the “New York Convention”). The New York

Convention obligates each member state to “recognize [foreign] arbitral awards as binding and

enforce them in accordance with” local procedural law. Id. art. III.

On December 8, 2022, the Court granted Redes’s motion for issuance of letters rogatory

to effect service of process on Respondents. 1 Order Granting Pet’r’s Mot. Issuance Letters

Rogatory, ECF No. 5. After Respondents failed to respond to the petition, Redes moved for

entry of default. Pet’r Redes Andinas De Comunicaciones S.R.L. Request for Entry of Default

Against Resp’ts the Republic of Peru, the Ministry of Transp. & Commc’ns, & PRONATEL,

ECF No. 12. On February 1, 2023, the Clerk of Court entered default against all three

Respondents. Entry of Default, ECF No. 13.

Redes moved for a default judgment on February 20, 2024. See Pet’r’s Mot. Default J. &

Confirmation of Arbitration Awards, ECF No. 14. PRONATEL entered an appearance for the

first time on March 5, 2024, opposed the motion for default judgment, and moved to set aside the

default. Resp’t’s Default Opp’n at 1. PRONATEL appeared “solely on its own behalf”; Peru

and the Ministry did not appear. Id. at 1 n.1.

The Court granted Redes’s motion for default judgment as to Peru and the Ministry.

Redes Andinas I,

, at *9. But it denied the motion as to PRONATEL, finding

that PRONATEL had established a “hint of a suggestion” that it may have a meritorious defense

1 A letter rogatory is “a formal request from a court in which an action is pending[] to a foreign court to perform some judicial act” including “the serving of a summons.”

.

3 against default.

at *6–9 (citing Keegel v. Key W. & Caribbean Trading Co.,

(D.C. Cir. 1980)). It also granted PRONATEL’s motion to set aside the Clerk’s entry of

default. Id. at *9.

Now PRONATEL has moved to dismiss the claims against it under Federal Rule of Civil

Procedure 12(b)(1), (2), and (6). Resp’t PRONATEL’s Mot. Dismiss (“Mot. Dismiss”), ECF

No. 26. Redes filed an opposition; PRONATEL filed a reply; and Redes filed a sur-reply. 2 Pet’r

Redes Andinas de Comunicaciones S.R.L.’s Opp’n to PRONATEL’s Mot. Dismiss (“Pet’r’s

Opp’n”), ECF No. 27; Resp’t Programa Nacional de Telecomunicaciones’ Reply Mem. of L. in

Supp. of Mot. Dismiss Pet. to Enforce Arbitral Award (“Resp’t’s Reply”), ECF No. 31; Pet’r’s

Sur-Reply in Supp. of Opp’n to PRONATEL’s Mot. Dismiss Pet. (“Sur-Reply”), ECF No. 32-6.

2 Following the conclusion of scheduled briefing, Redes moved for leave to file a sur- reply, which PRONATEL opposed. Pet’r’s Mot. for Leave to File Sur-Reply in Supp. of Opp’n to PRONATEL’s Mot. Dismiss (“Sur-Reply Mot.”), ECF No. 32; Mem. P. & A. in Opp’n to Pet’r’s Mot. for Leave to File a Sur-Reply in Resp. to PRONATEL’s Reply to Pet’r’s Opp’n to PRONATEL’s Mot. Dismiss (“Sur-Reply Opp’n”), ECF No. 33; see also Pet’r’s Reply in Supp. of its Mot. for Leave to File Sur-Reply in Supp. of Opp’n to PRONATEL’s Mot. Dismiss, ECF No. 34. A sur-reply is appropriate “when a party is unable to contest matters presented to the court for the first time in the last scheduled pleading.” Ben-Kotel v. Howard Univ.,

(D.C. Cir. 2003) (internal quotation marks and citation omitted); Connecticut v. U.S. Dep’t of Interior,

, 307 n.24 (D.D.C. 2018). The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the district court. Flynn v. Veazey Constr. Corp.,

(D.D.C. 2004).

PRONATEL’s reply in support of its motion to dismiss raises new facts related to its degree of independence from Peru. Resp’t Programa Nacional de Telecomunicaciones’ Reply Mem. of L. in Supp. of Mot. Dismiss Pet. to Enforce Arbitral Award at 4–8, ECF No. 31. Permitting Redes to file a sur-reply is “helpful to the resolution of the pending motion by providing additional clarity on certain . . . arguments, particularly in response to issues raised in depth for the first time in [PRONATEL’s] reply brief.” See Moore v. Hayden, No. 18-cv-2590,

, at *7 n.3 (D.D.C. Feb. 22, 2021). And prejudice to PRONATEL appears minimal. The Court therefore concludes that Redes may file the sur-reply and will consider its contents in deciding the motion to dismiss.

4 Neither party has requested jurisdictional discovery. The motion to dismiss is thus ripe for

review.

III. LEGAL STANDARDS

A. Lack of Subject-Matter Jurisdiction

Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action

when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for

dismissal under Rule 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.”

Haase v. Sessions,

(D.C. Cir. 1987). On a Rule 12(b)(1) motion, the

petitioner “bears the burden of establishing jurisdiction by a preponderance of the evidence.”

Bagherian v. Pompeo,

, 91 (D.D.C. 2020); see also Lujan v. Defs. of Wildlife,

(1992) (same). Because subject-matter jurisdiction focuses on the Court’s

power to hear a claim, the Court must give a petitioner’s factual allegations closer scrutiny than

would be required for a 12(b)(6) motion for failure to state a claim. See Grand Lodge of

Fraternal Ord. of Police v. Ashcroft,

(D.D.C. 2001).

B. Lack of Personal Jurisdiction

To withstand a motion to dismiss for lack of personal jurisdiction under Federal Rule

12(b)(2), the petitioner bears the burden of making a prima facie showing of specific and

pertinent jurisdictional facts. See Reuber v. United States,

(D.C. Cir. 1984);

Naegele v. Albers,

(D.D.C. 2005). “A [petitioner] makes such a

showing by alleging specific acts connecting the defendant with the forum.” United States v.

Philip Morris Inc.,

(D.D.C. 2000) (citing Naartex Consulting Corp. v.

5 Watt,

(D.C. Cir. 1983)). When considering personal jurisdiction, the Court

need not treat the petitioner’s allegations as true. Instead, the Court “may [also] receive and

weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.”

Philip Morris Inc.,

n.4; see also Brunson v. Kalil & Co.,

, 223 n.1 (D.D.C. 2005) (same). However, the court must resolve any factual discrepancies

in favor of the petitioner. See Crane v. New York Zoological Soc’y,

(D.C. Cir.

1990).

C. Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) requires petitioners to “state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) does

not test a petitioner’s ultimate likelihood of success on the merits. See Scheuer v. Rhodes,

(1974), abrogated on other grounds by Harlow v. Fitzgerald,

(1982). Instead, a court considering a Rule 12(b)(6) motion presumes that the petition’s factual

allegations are true and construes them in the light most favorable to the petitioner. See, e.g.,

Philip Morris, Inc.,

n.4. Nevertheless, “[to] survive a motion to dismiss,

a complaint [or petition] must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell

Atl. Corp. v. Twombly,

(2007)).

IV. ANALYSIS

PRONATEL makes four arguments in its motion to dismiss. One, that the Court lacks

personal jurisdiction over it. Two, that Redes failed to comply with Article IV of the New York

Convention, which requires a party seeking to enforce an arbitral award to include the arbitration

agreement with its petition. Three, that Redes failed to properly serve PRONATEL under

6 Peruvian law. And four, that this Court lacks subject-matter jurisdiction because Redes did not

submit the parties’ arbitration agreements with its petition. The Court first considers whether it

has subject-matter jurisdiction and then turns to PRONATEL’s other arguments.

A. Subject-Matter Jurisdiction

Under the Foreign Sovereign Immunities Act (“FSIA”),

, 1602–11, a

foreign state and its instrumentalities are “presumptively immune from the jurisdiction of United

States courts.” 3 E.g., Saudi Arabia v. Nelson,

(1993). But there are

exceptions to that presumptive immunity. 28 U.S.C. §§ 1605–07. One of those exceptions is for

actions brough to confirm certain arbitral awards.

(a)(6)(B) (abrogating

sovereign immunity for any action brought to confirm an arbitral award where the award is

“governed by a treaty or other international agreement in force for the United States calling for

the recognition and enforcement of arbitral awards”). The D.C. Circuit has held that the FSIA’s

arbitration exception requires three “jurisdictional facts”: (1) an arbitration agreement, (2) an

arbitration award, and (3) a treaty potentially governing award enforcement. E.g., NextEra

Energy Glob. Holdings B.V. v. Kingdom of Spain,

, 1100 (D.C. Cir. 2024).

The Court has already found those facts here. Redes Andinas I,

, at *4.

PRONATEL argues that the Court was wrong—not because there is any doubt about the

existence or authenticity of the underlying arbitral awards, but because Redes did not attach

copies of the parties’ arbitration agreements to its petition for enforcement. Mot. Dismiss at 10–

13. Instead, Redes attached copies of the arbitral awards, which reproduced the text of the

parties’ arbitration agreements. See Ex. A to Pet. Confirm Arbitral Awards (“Award

3 The parties agree that PRONATEL is an instrumentality of Peru. Redes Andinas I,

, at *6.

7 No. 24471/JPA”), ECF No. 1-2 (original award rendered in Case No. 24471/JPA); Ex. B to Pet.

Confirm Arbitral Awards ¶ 17, ECF No. 1-3 (English translation of award rendered in Case

No. 24471/JPA); Ex. C to Pet. Confirm Arbitral Awards (“Award No. 24472/JPA”), ECF No. 1-

4 (original award rendered in Case No. 24472/JPA); Ex. D to Pet. Confirm Arbitral Awards ¶ 17,

ECF No. 1-5 (English translation of award rendered in Case No. 24472/JPA). Ultimately Redes

submitted the parties’ contracts, including the arbitration clauses, with its motion for default

judgment. Ex. 1 to Pet’r’s Mot. Default J. art. 22, ECF No. 14-3; Ex. 3 to Pet’r’s Mot. Default J.

art. 22, ECF No. 14-5.

The Court once again concludes that Redes has established each jurisdictional fact. First,

Redes has proved the existence of an arbitration agreement between the parties by producing

(1) the underlying contracts and (2) the arbitral awards, which include the text of the parties’

agreements to arbitrate. See Ex. 1 to Pet’r’s Mot. Default J. art. 22; Ex. 3 to Pet’r’s Mot. Default

J. art. 22; Award No. 24471/JPA; Award No. 24472/JPA; see also Chevron Corp. v. Ecuador,

, 204–05 (D.C. Cir. 2015) (stating that a plaintiff satisfies its burden of production

under the FSIA’s arbitration exception by producing the arbitration agreement and the resulting

arbitral award). Redes has plainly made a “prima facie showing that there was an arbitration

agreement.” See Chevron Corp.,

; Marseille-Kliniken AG v. Republic of

Equatorial Guinea, No. 20-cv-3572,

at *2 (D.D.C. Nov. 17, 2023) (holding

that petitioner seeking to enforce a foreign arbitral award met its burden of production when it

produced the “[a]greement containing the dispute clause calling for arbitration” and “the

arbitration award”). Redes also plead facts that bring the suit within the Court’s jurisdiction,

contra Mot. Dismiss at 12, because it stated in the petition that the parties had valid arbitration

agreements. See Pet. Confirm Arbitral Awards ¶ 23.

8 PRONATEL does not dispute that Redes has proven the second and third jurisdictional

facts. See generally Mot. Dismiss at 12–13; see also Redes Andinas I,

, at *6

(holding that the arbitration awards at issue are subject to enforcement under the New York

Convention). The Court agrees: Redes produced copies of the two arbitral awards, which both

fall under the New York Convention—“exactly the sort of treaty Congress intended to include in

the arbitration exception.” See Creighton Ltd. v. Gov’t of the State of Qatar,

, 123–

24 (D.C. Cir. 1999) (internal quotation omitted). The Court therefore has subject-matter

jurisdiction over this action under the FSIA’s arbitration exception. Cf. Redes Andinas I,

, at *4 (same).

B. Personal Jurisdiction

The Court now considers personal jurisdiction. Under the FSIA, a federal court generally

has personal jurisdiction over a foreign state or instrumentality if there is subject matter

jurisdiction and if service is made pursuant to the FSIA’s service of process provision,

.

(b); Practical Concepts, Inc. v. Republic of Bolivia,

,

1548 n.11 (D.C. Cir. 1987). The FSIA defines “instrumentality of a foreign state” to include any

entity that is (1) “a separate legal person, corporate or otherwise”; (2) “an organ of a foreign state

or political subdivision thereof”; and (3) not a “citizen of a State of the United States” or

“created under the laws of any third country.”

(b). Governments in developing

countries often use instrumentalities “to obtain the financial resources needed to make large-

scale national investments.” First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba

(“Bancec”),

(1983). The parties agree that PRONATEL is an

instrumentality of Peru. See supra at 7 n.3.

9 Whenever a defendant is a foreign instrumentality, personal jurisdiction under the FSIA

has an added layer. This is because the Due Process Clause of the Fifth Amendment provides

that no “person” shall be deprived of life, liberty, or property without “due process of law.” U.S.

Const. amend. V. Any “person” not present within a forum must have “certain minimum

contacts” with the forum “such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington,

(1945). The term “person” in the Fifth Amendment does not include a foreign state itself, see

Price v. Socialist People’s Libyan Arab Jamahiriya,

(D.C. Cir. 2002), but may

include a foreign instrumentality under certain conditions.

The case setting out those conditions is TMR Energy Limited v. State Property Fund of

Ukraine,

(D.C. Cir. 2005). There the D.C. Circuit held that an instrumentality is

treated as a foreign state for due process purposes if the foreign sovereign has “plenary control”

over it.

at 325–26. Although “government instrumentalities established as juridical entities

distinct and independent from their sovereign[s] should normally be treated as such,” that

presumption gives way “[w]henever a foreign sovereign controls an instrumentality to such a

degree that a principal-agent relationship arises between them.” 4 GSS Grp. Ltd. v. Nat’l Port

Auth. of Liberia (“GSS Group I”),

(D.C. Cir. 2012); see also Bancec, 462

U.S. at 626–27. Under those circumstances, “the instrumentality receives the same due process

protection as the foreign sovereign: none.” GSS Group I,

. The petitioner bears

4 The presumption of separateness can also give way if “recognition of the instrumentality as an entity apart from the state ‘would work fraud or injustice.’” TIG Ins. Co. v. Republic of Argentina,

, 238 (D.C. Cir. 2024) (quoting Transamerica Leasing, Inc. v. La Republica de Venezuela,

(D.C. Cir. 2000)). Redes does not advance that argument.

10 the burden of asserting facts sufficient to overcome the presumption of separateness. GSS Grp.

Ltd. v. Nat’l Port Auth. of Liberia (“GSS Group II”),

, 605 n.9 (D.C. Cir. 2016).

The Supreme Court explained in First National City Bank v. Bancec that when evaluating

an instrumentality’s separateness, courts should consider certain “characteristic features of

independence,” including:

creation by an enabling law that prescribes the instrumentality’s powers and duties; establishment as a separate juridical entity with the capacity to hold property and to sue and be sued; management by a government-selected board; primary responsibility for its own finances; and operation as a distinct economic enterprise that often is not subject to the same administrative requirements that apply to government agencies.

DRC, Inc. v. Republic of Honduras,

(D.D.C. 2014) (citing Bancec,

). None of these factors, however, is dispositive, see Bancec,

, and

additional characteristics may indicate an entity’s dependence or independence. Entes Indus.

Plants, Constr. & Erection Contracting Co. v. Kyrgyz Republic (“Entes”), No. 18-cv-2228,

, at *3 (D.D.C. Apr. 22, 2020). In other words, the Bancec factors should not be

applied mechanically or without considering context.

The parties vigorously dispute whether PRONATEL is a separate legal entity from Peru

entitled to Fifth Amendment protection. Compare Mot. Dismiss at 3–5 (stating that

PRONATEL is a “person” within the meaning of the Fifth Amendment), with Pet’r’s Opp’n at

16–17 (arguing that PRONATEL, as an “extensively-controlled instrumentalit[y],” is not a

“‘person’ under the Fifth Amendment’s Due Process Clause,” and “thus ha[s] no right to assert a

personal jurisdiction defense” (quoting Gebre LLC v. Kyrgyz Republic, No. 20-cv-1795,

, at *7 (D.D.C. June 14, 2022))). Redes takes the position that Peru has “plenary

control” over PRONATEL and that “[s]ince its establishment, PRONATEL [] has been part of

11 the [Ministry].” 5 Pet’r’s Opp’n at 16. In support of that argument, Redes invokes the following

facts: PRONATEL was “created by a Supreme Decree signed by the Peruvian president and the

minster of the Ministry of Transportation and Communications”; the Ministry appoints

PRONATEL’s top official; PRONATEL’s budget is financed by the institutional budget of the

Ministry; PRONATEL is represented by the Ministry’s public attorney; and PRONATEL serves

a quintessential governmental function by “conducting, formulating, and supervising investment

projects and activities designed to achieve universal access to broadband telecommunications

services.”

at 16–17. Redes concedes that PRONATEL has no contacts with the United

States. See Resp’t’s Reply at 2–3; see also GSS Group I,

n.3 (holding that in

FSIA actions, “the relevant frame of reference for the minimum contacts analysis is the United

States as a whole, rather than the specific jurisdiction in which the suit is filed”).

In reply, PRONATEL argues that Redes has not overcome the presumption of

separateness. Resp’t’s Reply at 3. PRONATEL emphasizes that it was created by an enabling

statute, Supreme Decree No. 018-2018-MC, that establishes its objective and functions; it

operates as a distinct economic enterprise; it functions independently from Peru and under its

own management that exercises day-to-day supervisory and operational authority; it is

responsible for its own budget and other financial matters; it enters into its own contracts; it has

the capacity to hold property; and it can sue and be sued.

at 7–12; see also Supreme Decree

No. 018-2018-MTC, Diario Oficial El Peruano, June 29, 2018 (Peru). Taken together,

5 The parties agree that the Ministry, as part of the executive branch of the Peruvian government, has the same legal identity as the Republic of Peru. E.g., Pet’r’s Opp’n at 16; see also Redes Andinas I,

, at *4 (holding that the Ministry of Transportation and Communication is “synonymous with the Republic of Peru”).

12 PRONATEL argues, these facts establish that PRONATEL is a separate legal entity from the

Ministry and from Peru itself. Resp’t’s Reply at 12.

Redes’s sur-reply argues that PRONATEL is not constitutionally distinct from the

Ministry because its managing board reports directly to the Ministry; its administrative office is

required to coordinate its functions with the Ministry; it obtains financial resources from the

institutional resources of the Ministry and must coordinate with the Ministry when conducting its

budgeting process, managing its financing, and administering debt; its sole function is to serve a

government objective and to implement a specific public policy; and because it is “a national

program of the” Ministry. Sur-Reply at 2–6. Redes also points out that in other legal

proceedings, Peru has conceded that PRONATEL was “formed [as] part of the [Ministry of

Transportation and Communications] and d[oes] not enjoy an autonomous legal personality

separate from the Government.” Decl. of Cristina Ferraro Delgado in Supp. of Pet’r’s Sur-Reply

in Supp. of Opp’n to PRONATEL’s Mot. Dismiss Pet. (“Ferraro Delgado Due Process Decl.”)

¶ 16, ECF No. 32-1.

Taking all of the jurisdictional facts into account, the Court concludes that Redes has

established that PRONATEL is not entitled to Fifth Amendment protection. The Court bases its

decision on PRONATEL’s enabling law, Supreme Decree No. 018-2018-MTC, and its official

Operations Manual, which was drafted by the Vice-Ministry of Communications and approved

by the Ministry. Supreme Decree; Ex. 1 to Resp’t’s Reply, ECF No. 31-2 (“Operations Manual

Part I”); Ex. C to Pet’r’s Mot. Leave File Sur-Reply in Supp. of Opp’n to PRONATEL’s Mot.

Dismiss (“Operations Manual Part II”), ECF No. 32-4; see Supreme Decree arts. 8.1, 8.2, and

add’l provision one. The parties do not dispute the authenticity of these materials or the content

of their English translations.

13 First and foremost, Redes has shown that PRONATEL is formally a part of the Ministry

of Transportation and Communications. See Pet’r’s Opp’n at 16. Bancec’s central holding is

that when a sovereign elects to create an instrumentality with a separate legal personality, that

decision should normally be respected. See Bancec, 462 U.S. at 626–27. PRONATEL,

however, does not appear to have a separate legal personality from the Ministry. Sur-Reply at 1–

2. PRONATEL was created by a law that merged the now-defunct Telecommunications

Investment Fund, or FITEL, into the Ministry. Sur-Reply at 5–6; see Supreme Decree at 2

(establishing that “[t]he Ministry of Transportation and Communications and FITEL must merge,

with MTC being the acquiring entity”); see also Supreme Decree art. 1 (“The approval of the

merger of the Telecommunications Investment Fund (FITEL) with legal personality, with the

Ministry of Transportation and Communications; the latter shall hold the positing of the

absorbing entity . . . .”). The Supreme Decree expressly situates PRONATEL “within the ambit

of the Ministry of Transportation and Communications.” Sur-Reply at 4 (citing Supreme Decree

art. 4). And the Operations Manual confirms that PRONATEL is “a national program of the”

Ministry of Transportation and Communications, dependent on the Viceministerial Office of

Communications.

(quoting Operations Manual Part II, art. 3); see also id. at 5 (same).

Possession of a separate juridical identity is “the defining characteristic of the independent

instrumentality.” DRC, Inc.,

; see also

(holding that an

instrumentality was independent where the enabling law contained an “unequivocal

statement . . . establishing [the entity’s] independent juridical identity”). PRONATEL lacks that

characteristic. Sur-Reply at 4–5.

Second, PRONATEL’s sole function is to serve a government objective by implementing

a specific national policy. See Sur-Reply at 3–4. Courts have found that when an instrumentality

14 “implements national policies,” it is typically not entitled to due process protection as a separate

juridical entity. See TMR Energy Ltd.,

. Same here. PRONATEL conducts,

formulates, and supervises investment projects and activities designed to achieve nationwide

access to broadband services. Pet’r’s Opp’n at 16–17; see also Supreme Decree art. 6.1

(describing PRONATEL’s “scope of activity” as “national”). Per the Supreme Decree, “the

[Peruvian] Government is responsible for driving the development, use and broad dissemination

of Broadband throughout the national territory.” Supreme Decree at 2. PRONATEL’s purpose

is to implement universal access to broadband throughout Peru. Sur-Reply at 5; see also

Supreme Decree at 2 (stating that PRONATEL’s objective is to “materialize the policies of

universal access to telecommunications services”); Supreme Decree art. 5 (“The objective of

PRONATEL is the provision of universal access to telecommunications services; the

development of Broadband in its field of involvement; the promotion of services, content,

applications and digital skills; the reduction of the communications infrastructure divide at the

national level, in coordination with government entities, within the framework of their

responsibilities and under the guidelines that apply.”). Under Peruvian law, programs like

PRONATEL are “functional structures created to address a problem or critical situation, or to

implement a specific public policy in the area of responsibility of the entity to which they

belong.” Supreme Decree at 2 (citing Ley Orgánica del Poder Ejecutivo [Organic Law of the

Executive Branch], Law No. 29158, art. 38, Diario Oficial El Peruano, Aug. 26, 2007 (Peru));

see also Sur-Reply at 3 (discussing how PRONATEL is a “program” within the Ministry).

PRONATEL’s status as a program implementing a specific public policy indicates that it “should

not be treated as an independent juridical entity.” See TMR Energy Ltd.,

; Sur-

Reply at 5.

15 Third, PRONATEL’s functions are directed and controlled by the Ministry to at least an

extent. Sur-Reply at 2–3. Separate instrumentalities generally “manage their operations on an

enterprise basis while” enjoying “a greater degree of flexibility and independence from close

political control than is generally enjoyed by government agencies.” Bancec, 462 U.S. at 624–

25. But PRONATEL’s Operations Manual provides that its functions may be “assigned to it by

the Ministry of Transportation and Communications.” See Sur-Reply at 4 (quoting Operations

Manual Part I tit. I, ch. I, art. 4(i)). The Ministry appoints PRONATEL’s Executive Director,

who reports to the Vice Ministry of Communications. Pet’r’s Opp’n at 16; see also Supreme

Decree arts. 7, 8.1, 8.2. The Executive Director heads the Executive Directorate, which is tasked

with PRONATEL’s general management and administration, including “functions delegated or

entrusted to it by the Vice Minister of Communications.” 6 Sur-Reply at 2; Operations Manual

Part I tit. II, ch. II, arts. 7, 8(v). The Executive Directorate reports directly to the Ministry about

the “progress of projects, their physical and financial results, management indicators, penalties

and relevant information for each project, demand for the required financial resources,” and

more. Ferraro Delgado Due Process Decl. ¶ 11; see also Sur-Reply at 2 (noting the Executive

Directorate reports directly to the Ministry). And PRONATEL’s Administrative Office, which

manages procurement, accounting, treasury, human resources, digital governance, asset control,

and more, is required to “coordinate its functions” with the Ministry. Ferraro Delgado Due

Process Decl. ¶ 12. Same with PRONATEL’s “recruitment, compensation, performance

evaluations and other human resources procedures.” Sur-Reply at 3 (quoting Ferraro Delgado

Due Process Decl. ¶ 10); see also Operations Manual Part I tit. II, ch. III, art. 14(b). That is the

type of “daily management” that “significantly exceeds the normal supervisory control exercised

6 It is not clear on this record how the members of the Executive Directorate are selected.

16 by any corporate parent over its subsidiary.” See Helmerich & Payne Int’l Drilling Co. v.

Petroleos de Venezuela, S.A. (“Helmerich”),

, 49 (D.D.C. 2024) (quoting

Transamerica Leasing,

).

Additionally, PRONATEL personnel are government employees subject to generally

applicable civil service laws. Ferraro Delgado Due Process Decl. ¶ 10; see also Operations

Manual Part II art. 25 (same). That fact cuts against PRONATEL’s independence because, as

the Supreme Court explained in Bancec, independent instrumentalities are typically not subject

to the same “personnel requirements with which government agencies must comply.” 7 Bancec,

.

Details about PRONATEL’s finances also demonstrate that it is not independent from

Peru. Sur-Reply at 3; see Helmerich, 754 F. Supp. 3d at 48–49 (considering a foreign

sovereign’s degree of economic control over an entity in determining whether to give the entity

Fifth Amendment protection). The typical independent instrumentality is “primarily responsible

for its own finances.” Bancec, 562 U.S. at 624. PRONATEL has a Planning and Budget Office,

but that office coordinates with the Ministry in “formulat[ing] and proposi[ing] institutional

programs, guidelines, and strategies”; in managing PRONATEL’s investment portfolio; in

7 Nor do they typically have to follow the same administrative requirements as government agencies. Bancec,

. Though Redes does not make this argument, it appears that PRONATEL is subject to the same administrative requirements as other Peruvian agencies. See, e.g., Operations Manual Part I tit. II, ch. II, art. 8(q) (establishing that PRONATEL’s “communications, institutional image, and public relations” and “initiatives related to disaster risk management” must be “within the framework of [the Ministry’s] provisions”);

tit. II, ch. II, art. 10(c) (providing that PRONATEL’s investment management system must comply with the Peruvian government’s “Multiannual Investment Program”);

tit. II, ch. II, art. 10(k) (stating that PRONATEL’s administrative modernization process is subject to “the rules and guidelines set forth by [the Ministry]”);

tit. II, ch. II, art. 10(q) (requiring PRONATEL to “ensure compliance with the [Ministry’s] Internal Control initiatives”);

tit. II, ch. III, art. 14(t) (requiring PRONATEL to adhere to the Ministry’s “continuous improvement and internal control initiatives”).

17 budgeting; in allocating credits and budget modifications; in managing external financing and

debt; and more. Operations Manual Part I tit. II, ch. III, arts. 10(b), (c), (e), (i), (j); see also

Ferraro Delgado Due Process Decl. ¶ 15 (describing how the Planning and Budget Office “must

coordinate with the [Ministry of Transportation and Communications] when conducting and

supervising the budgeting process as well as when managing and administering financing and

debt”). Contra Resp’t’s Reply at 7–8 (describing PRONATEL as being solely responsible for its

own budget and other financial matters). PRONATEL also obtains financial resources from the

institutional budget of the Ministry. Sur-Reply at 3 (citing Ferraro Delgado Due Process Decl.

¶ 14); see also Supreme Decree art. 10.2 (providing that PRONATEL is “financed from the

institutional budget of the Ministry of Transportation and Communications”). True,

appropriations from a foreign sovereign to its instrumentality constitute a “normal aspect” of

their relations, “not an instance of ‘day-to-day’ involvement in the affairs of the

[instrumentality].” Transamerica Leasing, Inc.,

. But PRONATEL’s financial

management is so intertwined with the Ministry that it cannot be said to be financially

independent. See Sur-Reply at 3.

All that said, some jurisdictional facts cut the other way. For one thing, PRONATEL was

established by a Supreme Decree jointly issued by the President of the Republic of Peru and the

Minister of Transportation and Communications. Resp’t’s Reply at 3–4; Supreme Decree at 5.

Bancec instructs that “[a] typical government instrumentality . . . is created by an enabling statute

that proscribes the powers and duties of the instrumentality.” Bancec,

; see also

DRC, Inc.,

(similar). Superficially, the Supreme Decree qualifies. But it

does not clearly establish PRONATEL’s “independence or autonomy” from the Ministry. See

Sur-Reply at 4–5. Instead, PRONATEL’s enabling law defines it as a part of the Ministry. Sur-

18 Reply at 4 (discussing how PRONATEL was “created as a program ‘within the ambit of the

Ministry of Transportation and Communications, under the Vice Ministry of Communications’”

(quoting Ferraro Delgado Due Process Decl. ¶ 6)). It is the text of an enabling law that matters,

“not just the fact that there [is] an enabling law to point to.” Entes,

, at *4.

For another thing, PRONATEL can hold property, sue and be sued, and enter into

contracts. See Resp’t’s Reply at 8–9. But these qualities “‘add[] little, if anything, when it

comes to [PRONATEL’s] autonomy or degree or separation from the state.’” Sur-Reply at 5

(quoting Entes,

, at *4). For example, PRONATEL’s financial resources may

only be deposited into accounts approved by Peru’s Ministry of Economy and Finance. Id. at 3;

see also Supreme Decree art. 10.3 (same). That does not indicate independence. And though

PRONATEL is managed by a government-selected Executive Director who heads an executive

board, see Bancec,

, that characteristic is not determinative. See Entes,

, at *4. The Court also finds it immaterial that PRONATEL is represented by a public

attorney. Resp’t’s Reply at 10–11; UAB Skyroad Leasing v. OJSC Tajik Air, No. 20-cv-763,

, at *10 (D.D.C. Jan. 26, 2021), aff’d, No. 21-7015,

(D.C.

Cir. June 17, 2022) (holding that even if an entity has a government lawyer, “such a modest

mixing of government and corporate resources cannot bear the burden of overcoming the

presumption of separateness”).

PRONATEL does have some degree of independence in managing its affairs. See

generally Resp’t’s Reply at 4–8. Its internal structure encompasses an Administration Office,

Planning and Budget Office, Legal Advisory Office, and three directorates. Id. at 6.

PRONATEL prepares its own monthly, quarterly, and annual financial statements. Id. at 8.

Other courts have found that maintaining accounting records and financial statements is the type

19 of day-to-day management consistent with the presumption of separateness. See, e.g., UAB

Skyroad Leasing,

, at *9. And it is possible that some members of the

Executive Directorate are not appointed by the Peruvian government and are not government

officials. See supra at 16 n.6. But the rest of PRONATEL’s employees work for the Peruvian

government. Sur-Reply at 3. As discussed, PRONATEL is obligated to “coordinate” many of

its actions with the Ministry. And it is formally a program within the Ministry of Transportation

and Communications, not a separate juridical entity. Id. That a program within a government

has its own internal structure and some internal functions does not establish, in and of itself, that

the program is juridically independent.

In reaching this decision, the Court takes as instructive the D.C. Circuit’s holding in TMR

Energy,

. See Sur-Reply at 5. There the Circuit held that the State Property Fund

of Ukraine was not a “person” within the meaning of the Fifth Amendment because of certain

“structural features.”

at 301–03. Like PRONATEL, the State Property Fund was a “body of

the State” that “implement[ed] national policies”; its chairman was appointed by government

officials; and its expenses were paid from the state budget. See

. But there are

distinctions between the State Property Fund and PRONATEL. The State Property Fund’s full

board was approved by the Ukrainian parliament; the State Property Fund was expressly

“subordinated and accountable to” the parliament; and unlike the State Property Fund,

PRONATEL obtains some of its funding from sources other than the national treasury. Id.;

Resp’t’s Reply at 10 (describing how some of PRONATEL’s budget comes from fees it charges

to entities operating in the marketplace). This case is not as clear-cut as TMR Energy. Still, the

Court concludes that on the whole, Redes has shown that PRONATEL is not a separate person

from the Ministry of Transportation and Communications.

20 There is a “high bar against” disregarding the presumption of separateness afforded to

government instrumentalities. DRC, Inc.,

(citing Bancec, 462 U.S. at 626–

27 and Bank of New York v. Yugoimport,

(2d Cir. 2014)). Courts have “long

struggled” to determine when a petitioner has cleared that bar. Transamerica Leasing, Inc.,

. The Court does not take lightly its decision here. But as Redes has emphasized,

Peru has elsewhere conceded that PRONATEL was “formed [as] part of the [Ministry of

Transportation and Communications] and d[oes] not enjoy an autonomous legal personality

separate from the Government.” Ferraro Delgado Due Process Decl. ¶ 16. That concession is no

small deal. It supports the Court’s conclusion that PRONATEL is not entitled to due process

protection as a separate legal person from Peru itself. Because the Court finds that PRONATEL

is not subject to the Fifth Amendment, it will deny PRONATEL’s motion to dismiss for lack of

personal jurisdiction. 8

C. New York Convention

Next PRONATEL argues that this action must be dismissed because Redes failed to

comply with Article IV of the New York Convention, which provides that “at the time of the

application” seeking enforcement of an arbitral award, the petitioner must “supply . . . [t]he

original agreement” to arbitrate. Mot. Dismiss at 5–6 (quoting New York Convention

art. IV(1)(b)). PRONATEL relies on Al-Qarqani v. Chevron Corp.,

, 1023 (9th Cir.

2021), where the Ninth Circuit stated the obvious: “without an agreement to arbitrate, the [New

York] Convention does not provide for enforcement.”

8 PRONATEL also argues that it is not subject to personal jurisdiction because it was not served in accordance with the FSIA. Mot. Dismiss at 5. The Court addresses that argument in Part IV(D), infra.

21 The Court has already found that the parties had agreements to arbitrate. Supra at 7–8.

Multiple federal courts of appeal have concluded that the New York Convention’s formalities are

not jurisdictional requirements, and this Court agrees. See Baker Hughes Servs. Int’l, LLC v.

Joshi Techs. Int’l, Inc.,

, 1145 (10th Cir. 2023) (rejecting “the notion that

[A]rticle IV’s rules are jurisdictional”); Reddy v. Buttar,

, 399 (4th Cir. 2022)

(holding that “the Convention’s requirements for an agreement that can give rise to an

enforceable award . . . do[] not go to the power of the court to make the determination”

(emphasis in original)); Al-Qarani, 8 F.4th at 1024 (holding that “the existence of a written

agreement to arbitrate is a merits question that does not affect subject-matter jurisdiction”);

Sarhank Grp. v. Oracle Corp.,

(2d Cir. 2005) (holding that whether the parties

have a valid arbitration agreement goes to “the merits of the case, and therefore does not involve

a lack of subject matter jurisdiction”); see also Santos-Zacaria v. Garland,

,416–17

(2023) (holding that a statutory rule is jurisdictional only if it is “unmistakably” clear that

Congress intended that result). But see Czarina, LLC v. W.F. Poe Syndicate,

(11th Cir. 2004) (holding that a petitioner seeking to confirm an international arbitration

award must comply with Article IV to establish the court’s subject matter jurisdiction). So

PRONATEL’s argument amounts to an “attempt[] to persuade the Court to refuse to confirm the

award on the basis of a mere technicality.” Belize Soc. Dev. Ltd. v. Gov’t of Belize,

(D.D.C. 2013), aff’d,

(D.C. Cir. 2015) (quoting Arb. Between Overseas

Cosmos, Inc. v. NR Vessel Corp., No. 97-cv-5898,

, at *5 (S.D.N.Y. Dec. 8,

1997)). The purpose of Article IV’s requirements is to “prove that the relevant documents

exist.”

“[W]here a respondent ‘challenges only the enforceability—not the existence or

genuineness—of the arbitration agreement or award,’ an Article IV challenge to a petition to

22 confirm a foreign arbitration award is unavailing.” Wong To Yick Wood Lock Ointment Ltd. v.

Madison One Acme Inc., No. 14-cv-7645,

, at *6 (C.D. Cal. Apr. 21, 2025)

(quoting Belize Soc. Dev., 5 F. Supp. 3d at 38–39).

That principle applies here. The Court will not dismiss this action on a technicality,

especially because “the central precept of comity teaches that, when possible, the decisions of

foreign tribunals should be given effect in domestic courts.” Laker Airways Ltd. v. Sabena,

Belgian World Airlines,

(D.C. Cir. 1984); see also Belize Soc. Dev.,

n.17 (stating that enforcing a foreign arbitral award despite technical defects is

“consistent with our federal treaty obligations and policies favoring arbitral dispute resolution,

deference to arbitrators, and comity with fellow treaty signatories”).

The Court is not persuaded that Al-Qarqani compels a different result. Contra Resp’t’s

Reply at 12–13. Unlike here, in Al-Qarqani the district court found that “there was no agreement

between the parties to arbitrate.” Al-Qarqani v. Chevron Corp., No. 18-cv-3297,

, at *5 (N.D. Cal. Sept. 24, 2019). The court also concluded that “numerous procedural

infirmities would independently preclude confirmation of the arbitral award”: the petitioners did

not file an authenticated or certified copy of the documents underlying their enforcement request;

they did not file an original English-language copy of the arbitration agreement, even though the

English-language version was controlling; and they filed multiple versions of the arbitration

award “appearing with and without suspect authentication stamps.”

In holding that those

issues collectively required dismissal, the district court relied on the Eleventh Circuit’s decision

in Czarina, LLC v. W.F. Poe Syndicate,

(11th Cir. 2004) that Article IV’s

conditions are jurisdictional.

But when the Ninth Circuit took up Al-Qarqani on appeal, it

expressly rejected the Eleventh Circuit’s position and held that the district court “incorrectly

23 attached a jurisdictional label to what should have been a decision on the merits.” Al-Qarqani, 8

F.4th at 1024, 1027 (holding that “[t]he requirement that a binding agreement exist is not

jurisdictional” (emphasis added)). That there was no valid arbitration agreement in Al-Qarqani

has no bearing on this case, where the parties’ arbitration agreements undisputably exist. The

Court accordingly rejects PRONATEL’s argument that Article IV is an independent basis for

dismissal.

D. Service of Process

Finally the Court addresses PRONATEL’s argument that it was not properly served

under Peruvian law. Personal jurisdiction under the FSIA requires that a foreign instrumentality

be served “in accordance with an applicable international convention on service of judicial

documents.” 9

(b) (stating that personal jurisdiction over foreign

instrumentalities exists where there is subject-matter jurisdiction and “service has been made

under section 1608 of this title”);

§ 1608(b)(2) (providing that “if no special arrangement

exists,” service may be made upon an instrumentality pursuant to a relevant international treaty).

Here the applicable treaty is the Inter-American Convention on Letters Rogatory and Additional

Protocol, Jan. 30, 1975, 14 I.L.M. 327, which provides for service of process pursuant to “the

laws and procedural rules of the State of destination.” Id. arts. 2(a), 10. So if PRONATEL was

not served in a manner recognized by Peruvian law, then the Court must dismiss this action for

lack of personal jurisdiction.

The following facts are not in dispute. On January 23, 2023, Peru’s Ministry of Foreign

Affairs received from this Court “packages for service” for each Respondent in this action. Decl.

9 The FSIA provides for other methods of service not relevant here. See

(b)(1) (service by special arrangement) and (3) (residual service methods if “service cannot be made under paragraphs (1) or (2)”).

24 of Cristina Ferraro Delgado in Supp. of Pet’r’s Reply to Resp’t PRONATEL’s Opp’n to Pet’r’s

Mot. Default J. & Confirmation of Arbitration Awards & Opp’n to PRONATEL’s Mot. Set

Aside Default (“Ferraro Delgado Service Decl.”) ¶ 3, ECF No. 19-1. Pursuant to Peruvian

protocol, the Ministry of Foreign Affairs initiated three separate judicial proceedings, randomly

assigned to different judges, to effect service on each of the Respondents. Id. ¶ 4; see also

Pet’r’s Opp’n at 13. PRONATEL should have been served in case number 2252-2023, but the

assigned court did not order service because it could not locate PRONATEL’s address. Pet’r’s

Status Report ¶ 5(c), ECF No. 10. The court refused to order service at a different address then

that listed in the letter rogatory. Ex. 3 to Resp’t’s Reply, ECF No. 31-4; see also Letter

Rogatory, ECF No. 6.

Instead the court assigned to case number 2250-2023 (“the 2250-2023 court”), which was

initiated to serve Peru, ordered service of all three Respondents. Ferraro Delgado Service Decl.

¶¶ 4–5; see also Ex. 3 to Mot. Dismiss, ECF No. 26-4. Again there were issues locating

PRONATEL’s address, so on June 6, 2023, Redes requested that PRONATEL be served at its

legal defense office—the address listed in the parties’ arbitration agreements. Ferraro Delgado

Service Decl. ¶ 8; Pet’r’s Opp’n at 13. In July 2023, PRONATEL’s representative at the legal

defense office refused service because the numbering in the documents to be served went front to

back, not back to front. Ferraro Delgado Service Decl. ¶ 11. Redes requested that the 2250-

2023 court order service on PRONATEL again; and on October 5, 2023, PRONATEL was

finally served at its legal defense office. Id. ¶ 13; Ex. 4 to Mot. Dismiss, ECF No. 26-5.

PRONATEL never challenged that service before the Peruvian authorities. Pet’r’s Opp’n at 13.

The Ministry of Foreign Affairs then certified that the Peruvian court had successfully served

25 PRONATEL. Affidavit of Service at 6, ECF No. 11; see also Ferraro Delgado Service Decl.

¶ 14.

PRONATEL points to two procedural defects that it claims render its service invalid.

First, it argues that because case 2250-2023 was initiated to serve a different party, the 2250-

2023 court exceeded its authority by serving PRONATEL. Mot. Dismiss at 9. Next it argues

that the court was not permitted to order service at any address other than that listed in the letter

rogatory. Id. at 9–10. Considering the Peruvian legal authorities that the parties have submitted,

the Court rejects both arguments.

In arguing that the 2250-2023 court lacked the authority to order service on all three

Respondents or to order service at a different address, PRONATEL invokes Article VII of the

Peruvian Code of Civil Procedure’s Preliminary Title. Mot. Dismiss at 8 (citing Cód. Proc. Civ.

[Civil Procedure Code] tit. prelim., art. VII (Peru)). That provision provides that a Peruvian

judge “cannot go beyond the request or base his or her decision on facts other than those that the

parties have asserted.” Mot. Dismiss at 8; Ex. 1 to Mot. Dismiss, ECF No. 26-2. Pursuant to

that principle, “every judicial decision must have . . . [c]onsistency between what the parties

requested and the final decision, without omitting, altering or exceeding such requests.” Ex. 2 to

Mot. Dismiss, ECF No. 26-3 (excerpting Peruvian civil court decision from case no. Cassation

1099-2017). Any judicial action that contravenes that requirement is, according to PRONATEL,

void. Mot. Dismiss at 8; see also Ex. 1 to Mot. Dismiss.

But Peruvian law establishes that a “formal defect on service” does not “render the

service invalid if it is shown that the party subject to service has gained knowledge of its

content.” Decl. of Cristina Ferraro Delgado in Supp. of Pet’r’s Opp’n to PRONATEL’s Mot.

Dismiss (“Ferraro Delgado Procedural Congruence Decl.”) ¶ 13, ECF No. 27-1; Pet’r’s Opp’n at

26 14; see also Ex. 1 to Pet’r’s Opp’n (“Peruvian Code of Civil Procedure”) art. 172, ECF No. 27-2

(“In the event of defective service of notice, nullity is cured if the litigant acts in such a manner

which confirms that the party has become aware of the contents of the resolution in a timely

manner.”). The Peruvian Constitutional Court has held that service at an “address different from

the one indicated” is valid as long as “official notice was actually received.” Ex. 7 to Pet’r’s

Opp’n, ECF No. 27-8 (translated excerpt from Peruvian case No. 05229-2022-PA/TC). Because

PRONATEL was indisputably served at its legal defense office on October 5, 2023, it has

“actually received” official notice of this action. See Peruvian Code of Civil Procedure art. IX;

Pet’r’s Opp’n at 14 (“PRONATEL is clearly aware of the service.”). That PRONATEL was

served at an address different from that listed on the letter rogatory is immaterial. See Pet’r’s

Opp’n at 14.

Same with the fact that PRONATEL was served in a different legal proceeding than that

initiated specifically to effect its service. See Peruvian Code of Civil Procedure art. 172

(providing that defective service is cured “where the procedural act, in spite of the failure to

satisfy the formal requirements, achieves the purpose sought”). PRONATEL claims that

Peruvian law requires a judge executing a letter rogatory to “adhere as strictly as possible to what

is indicated by the requesting judge in the letter rogatory.” Resp’t’s Reply at 22 (quoting Ex. 2

to Resp’t’s Reply, ECF No. 31-3). But the letter rogatory issued in this action requested service

of all three Respondents. See Letter Rogatory. In ordering service of PRONATEL, the 2250-

2023 court did not exceed the letter’s scope.

The Court also rejects PRONATEL’s argument that dismissal is required because Redes

stated in its motion for entry of default that it had served PRONATEL pursuant to

(a), which governs service of foreign states, instead of § 1608(b), which governs service

27 of instrumentalities. See Mot. Dismiss at 7. For one thing, Redes’s motion for default judgment

acknowledges that PRONATEL was served under § 1608(b). Mem. L. in Supp. of Pet’r’s Mot.

Default J. & Confirmation of Arbitration Awards at 11–12, ECF No. 14-1. For another, the

relevant statutory language is identical: “if no special arrangement exists,” service may be made

“in accordance with an applicable international convention on service of judicial documents.”

(a)(2), (b)(2); see Pet’r’s Opp’n at 12 n.7.

And as Redes points out, Peru’s Ministry of Foreign Affairs submitted a certificate of

authority stating that each of the Respondents, including PRONATEL, was served as of

December 1, 2023. Pet’r’s Opp’n at 14; see Affidavit of Service. “[I]f PRONATEL had not

been properly served under Peruvian law, the Peruvian judge would have informed the Ministry

of Foreign Affairs that service was not completed[.]” Pet’r’s Opp’n at 14–15 (quoting Ferraro

Delgado Procedural Congruence Decl. ¶ 20). PRONATEL does not cite any case where a U.S.

court rejected a foreign authority’s certification of service. The Court will not do so here. The

Court therefore rejects PRONATEL’s argument that this action must be dismissed because

PRONATEL was improperly served.

V. CONCLUSION

For the foregoing reasons, PRONATEL’s motion to dismiss is denied. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: July 22, 2025 RUDOLPH CONTRERAS United States District Judge

28