SCIENCE APPLICATIONS INTERNATIONAL CORPORATION v. HELLENIC REPUBLIC
MEMORANDUM OPINION to the Order granting Petitioner's Petition to Enforce the Award of the Hellenic Republic. Signed by Judge Gladys Kessler on 1/5/17. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In The Matter of the
Arbitration of Certain
Civil Action No. 13-cv-1070(GK)
THE HELLENIC REPUBLIC,
International Corporation ("Petitioner" or "SAIC"), now "Leidos,
Inc.," filed a Petition to Confirm Arbitration Award ("Petition")
"Hellenic Republic") .
Petitioner now asks
and to enter judgment against the Hellenic
On September 5, 2013, while the Petition with this Court was
the Hellenic Republic filed an action to set aside the
ICC award in the Athens Court of Appeals.
See Pet.'s Motion to
Confirm Arbitration Award and to Enter Judgment at 2-3
On March 27,
the Parties filed a Joint Motion for a
Stay pending a decision by the Athens Court of Appeals
16], which was granted on March 28,
[Dkt. No. 17]. On June
18, 2014, the Athens Court of Appeals issued a decision annulling
the ICC award. See Consent Motion for Briefing Schedule [Dkt. No.
18]. On September 8,
Petitioner filed a Motion to Confirm
the Arbitration Award and Enter Judgment [Dkt. No. 20]. On November
2014, Respondent filed a Cross-Motion to Dismiss or to Deny
Petition to Confirm Award [Dkt. No. 25].
On January 9, 2015, Petitioner filed an appeal of the Athens
Court of Appeals annulment decision with the Supreme Court of the
("the Greek Supreme Court"). As of November 6,
received any decision by the Greek
Supreme Court. Thereafter, the Parties filed Joint Status Reports
on the proceedings before the Greek Supreme Court, until it issued
On November 2, 2016, the Parties filed a Joint Status Report
notifying this Court of the September 22,
decision of the
Greek Supreme Court [Dkt. No. 48]. It ruled in favor of Petitioner
original ICC award to Petitioner. In addition,
the Greek Supreme
Court remanded the case back to the Athens Court of Appeals for a
new hearing to address only one rather minor issue discussed in
the Supreme Court's decision.
That hearing is now scheduled for
November 16, 2017.
In response to the November 2, 2016 Joint Status Report, the
Court Ordered the Parties to submit their positions as to what, if
this Court should do,
Court had ruled
given the fact
that the Greek
On December 16,
Arbitration Award Enforcement Petition of Supreme Court of the
Hellenic Republic's Decision ("Pet. 's Position Br.") [Dkt. No. 51] .
Respondent submitted its Position Statement that this Court should
deny the Petitioner's request for enforcement of the decision of
the Greek Supreme Court.
[Dkt. No. 52].
STANDARD OF REVIEW
Under the New York Convention, which has been implemented by
the Federal Arbitration Act, 9
a court "may,
if it considers it proper, adjourn the decision on the enforcement
of the award.
, " New York Convention Article VI
ongoing in the originating country and there is a possibility that
the award will be set aside." Europcar Italia v. Maiellano Tours,
156 F.3d 310,
court is not required to do so. See id.
against a foreign state, this Court must balance the factors which
weigh in favor of or against enforcement. Chevron Corp. and Texas
Petroleum Company v. Republic of Ecuador, 949 F. Supp. 2d 57, 7173 (D.D.C. 2013)
(applying Europcar, 156 F.3d at 316-18).
the Second Circuit cautioned courts that "[a]
encourage abusive tactics by the party that lost in arbitration."
F.3d at 316-18.
In order to aid judges as
exercise their discretion, the Second Circuit enumerated a number
of factors that should be considered. They are:
" ( 1) the general objectives of arbi trg.tion-the expeditious
resolution of disputes and the avoidance of protracted and
(2) the status of foreign proceedings and the estimated time
for those proceedings to be resolved;
(3) whether the award sought to be enforced will receive
greater scrutiny in the foreign proceedings under a less
deferential standard of review;
(4) the characteristics of the foreign proceedings including
(i) whether they were brought to enforce an award (which would
tend to weigh in favor of a stay) or to set the award aside (which
would tend to weigh in favor of enforcement); (ii) whether they
were initiated before the underlying enforcement proceeding so as
to raise concerns of international comity; (iii) whether they were
initiated by the party now seeking to enforce the award in federal
court; and (iv) whether they were initiated under circumstances
indicating an intent to hinder or delay resolution of the dispute;
( 5) a balance of the possible hardships to each of the
parties, keeping in mind that if enforcement is postponed under
Article VI of the Convention, the party seeking enforcement may
receive "suitable security" and that, under Article V of the
Convention, an award should not be enforced if it is set aside or
suspended in the originating country.
( 6) any other circumstances that could tend to shift the
balance in favor of or against adjournment."
Europcar, 156 F.3d at 317-18.
A. Factors One and Two
Factor One focuses on "the general objectives of arbitrationand
156 F.3d at 317.
Factor Two focuses on "the status of
proceedings to be resolved."
Given the fact that these two
Stays are undesirable because "the adjournment of enforcement
the goals of arbitration -
It is clear that granting a
this case would thwart those fundamental objectives. The dispute
between these two parties has now lasted almost 13 years.
14. The Petitioner, LEIDOS, filed its most recent demand
for arbitration in June 2009 - seven and a half years ago. Petition
Petition ~ 14. The ICC tribunal issued its opinion in 2013. And,
finally, Petitioner predicts that it will take the Athens Court of
Appeals and the Greek Supreme Court until at least 2020 to bring
the case to an absolute end.
it will have taken-at a
minimum-at least eleven years for the Petitioner to obtain the
fruits of this specific litigation.
The Petitioner argues that "[g]ranting a stay in this case
would thwart the objectives of arbitration." Pet.'s Position Br.
at 7. The Court agrees. In fact, there can be little disagreement
Petitioner has made clear,
this dispute has
already lasted almost 13 years and may .well last, at a minimum,
If that prediction is accurate-and there have been
many past road blocks and continuances in this litigation-it would
mean that the litigation may last for well over 15 years.
Courts have found that the first and second factors weighed
in favor of enforcement in cases involving far shorter litigation
Albania, 693 F. Supp.2d 132, 139 (D.D.C.2010), this Court concluded
arbitration sufficed to "plainly weigh in favor of confirmation
rather than adjournment." Id. This Court ruled similarly in Chevron
Corp. and Texas Petroleum Company v. Republic of Ecuador,
Supp. 2d 57, 72 (D.D.C. 2013), because the case had been submitted
to arbitration over six years earlier. The Court held that further
delay would "surely . . . not constitute 'expeditious resolution'
of the dispute which originated
[more than a decade earlier] . "
Venezuela, 146 F. Supp. 3d 112, 135 (D.D.C. 2015), appeal docketed,
(holding that the first
proceedings when a petitioner had filed for arbitration more than
six years earlier) .
resolved," it must be remembered that although the Greek Supreme
Court reversed the set aside and reinstated the award, years still
remain to fully litigate the one minor issue that remains. When
foreign proceedings are not likely to be reversed in the near
future, Courts have concluded that the second factor weighs against
a stay of enforcement. See Chevron Corp., 949 F. Supp. 2d at 72.
For all these reasons, the Court concludes that there is no
Factors One and Two weigh strongly in favor of
arbitration award, which was upheld by the Greek Supreme Court.
B. Factor Three
Factor Three focuses on whether the award requested will be
differential standard of review. Europcar, 156 F.3d at 317.
Regarding whether the Respondent's right to be heard will be
reviewed with a differential standard, Petitioner argues that the
Respondent will be unable to satisfy its burden of showing that
the "standard is not so much more exacting than the one applied
See Chevron Corp., 949 F. Supp. 2d at 72. There is nothing
to suggest that a differential standard will be used,
Respondent refer to any change in the standard of review.
C. Factor Four
Factor Four raises a number of questions. First, item (i)· of
Factor Four asks
[the foreign proceedings]
brought to enforce an award (which would tend to weigh in favor of
the stay] or to set the award aside (which would tend to weigh in
favor of enforcement)." The answer to that question is very simple
and that is that the Respondent initiated the foreign proceedings
to vacate the initial ICC Award. This clearly weighs in favor of
the answer is very simple,
and that is they
were not initiated before the underlying enforcement proceeding
there needs to be no concern about international
Item (iii) of Factor Four asks whether the foreign proceedings
were initiated by the Party now seeking to enforce the award in
The answer is simple, namely, that they were not
this factors weighs in favor of enforcement as well.
Gold Reserve Inc., 146 F. Supp. 3d at 136.
Item (iv) of Factor Four asks whether the foreign proceedings
were initiated under circumstances indicating an intent to hinder
or delay resolution of the dispute.
While the Petitioner does at
one point suggest such an intent on the part of Respondent,
Court does not have sufficient information to provide an answer.
Overall, Factor Four clearly weighs in favor of enforcement.
D. Factors Five and Six
Factors Five and Six may be viewed as residual factors- they
direct the Court to consider "a balance of the possible hardships
to the Parties," and if there is " [a] ny other circumstance that
adjournment," respectively. Europcar, 156 F.3d at 318. While there
is little information given by the Parties about Factor Five, it
is certainly clear that the Respondent,
the Hellenic Republic,
will not have to endure possible hardship given the fact that it
government has, whereas, the Petitioner is a private firm that may
well suffer hardship for not gaining access to the substantial
amount of money awarded by the Hellenic Supreme Court.
Neither party has presented any other factors that this court
should consider under Factor Six.
All of the issues covered by the Factors laid out in Europcar
are overwhelmingly in favor of the Petitioner.
Respondent has not been able to counter any of the reasons given
to show that the Petitioner is clearly entitled to prevail.
For all the reasons given, the Court concludes that the
Petitioner's Petition to Enforce the Award of the Hellenic
Republic should be granted. An Order shall accompany this
January 5, 2017
United States District Judge
Copies to: attorneys on record via ECF
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