BCB HOLDINGS LIMITED et al v. GOVERNMENT OF BELIZE

Filing 59

MEMORANDUM OPINION Regarding 58 ORDER GRANTING Petitioners' 53 Motion for an Order Pursuant to 28 U.S.C. § 1610(c) Authorizing Enforcement of Judgment, DENYING WITHOUT PREJUDICE Petitioners' 54 Motion for Anti-Suit Injunction, and DENYING Petitioners' 54 Motion for Temporary Restraining Order. Signed by Judge Colleen Kollar-Kotelly on 2/6/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (lcckk3)

BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

[9] enforcement of award would not violate public policy.
110 F.Supp.3d 233
United States District Court,
District of Columbia.
BCB Holdings Limited and The Belize
Bank Limited, Petitioners/Plaintiffs
v.
The Government of Belize, Respondent/Defendant.
Civil Action No. 14–1123 (CKK)
|
Signed June 24, 2015
Synopsis
Background: Belize-registered parent holding company
and its banking subsidiary petitioned to confirm
foreign arbitral award, pursuant to Federal Arbitration
Act (FAA) and Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York
Convention), to convert award plus costs and interests to
United States dollars, and to enter judgment in their favor
against Government of Belize (GOB) or, alternatively,
filed complaint to recognize and enforce foreign money
judgment pursuant to District of Columbia ForeignMoney Judgments Recognition Act. GOB moved to
dismiss petition and complaint.

Holdings: The District Court, Colleen Kollar-Kotelly, J.,
held that:
[1] New York Convention applied;
[2] Foreign Sovereign Immunities Act (FSIA) arbitration
exception applied;
[3] personal jurisdiction was exercisable over GOB;
[4] petition was not time barred;
[5] petition was not barred by res judicata;
[6] forum non conveniens dismissal was not warranted;
[7] arbitration agreement in settlement deed was valid;
[8] subject matter was appropriate for arbitration; and

Petition granted; motion denied.

Attorneys and Law Firms
Dana C. MacGrath, Louis B. Kimmelman, Sidley Austin,
LLP, New York, NY, Kristin Graham Koehler, Sidley
Austin *238 LLP, Washington, DC, for Petitioners/
Plaintiffs.
Creighton R. Magid, Juan C. Basombrio, Dorsey
& Whitney LLP, Costa Mesa, CA, for Respondent/
Defendant.

MEMORANDUM OPINION
COLLEEN KOLLAR–KOTELLY
District Judge

United

States

This matter comes before the Court on review of an
arbitration award pursuant to 9 U.S.C. § 207 and
the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (“New York Convention”
or “Convention”). Petitioners BCB Holdings Limited
and the Belize Bank Limited (“BBL”) (collectively
“petitioners”) initiated an arbitration on October 16,
2008, before the London Court of International
Arbitration (“LCIA”) in London, England. The
Government of Belize (“GOB”) opted to abstain from the
arbitration, and the proceedings were conducted ex parte.
On August 18, 2009, the arbitral tribunal issued an award
in favor of petitioners and concluded that the GOB owed
petitioners BZ$40,843,272.34 in damages plus interest
and costs (“Award”). 1 On July 1, 2014, BCB and BBL
filed a Petition to Confirm Foreign Arbitration Award
and to Enter Judgment or, Alternatively, Complaint to
Recognize and Enforce Foreign Money Judgment. See
Petition to Enforce (July 01, 2014), Docket No. [1]
(“Pet.”). On January 30, 2015, the GOB filed a motion
to dismiss the petition and complaint 2 (see Motion to
Dismiss (Jan. 30, 2015), Docket No. [26] “Mot.”) and a
response to the petition (see Response to Petition (Jan. 30,
2015), Docket No. [28] “Resp. to Pet.”). For the reasons
explained below, the Court shall GRANT the petition and
DENY respondent's motion to dismiss.

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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

I. BACKGROUND
BCB Holdings, previously known as Carlisle Holdings
Limited, entered into a Settlement Deed with the GOB
on March 22, 2005. See Pet. ¶ 4. The Settlement Deed
was subsequently amended on June 21, 2006. See id.
The Settlement Deed contains an arbitration clause which
memorialized the parties' intention to arbitrate all disputes
pursuant to the arbitration rules of the LCIA. See id. ¶
20. In 2008, a dispute arose between the parties related to
Clauses 4.1 and 4.2 of the Settlement Deed, in which the
GOB agreed to provide favorable tax treatment 3 to BBL
and BCB Holdings. 4 See id. ¶ 21. Specifically, in August
2008, the Belize Commissioner of Income Tax rejected
tax returns that were filed by BBL in accordance with
the Settlement Deed. See id. ¶ 22. Petitioners considered
this rejection a repudiation of the Settlement Deed and
sought to *239 engage the GOB in arbitration before the
LCIA on October 16, 2008. See id. ¶ 23. The GOB did not
participate in the arbitral proceedings. See id. ¶ 24.
The arbitral tribunal, consisting of three arbitrators,
unanimously rendered a foreign arbitral award in favor of
petitioners on August 18, 2009. See id. ¶ 27. The arbitral
tribunal concluded that the GOB had promised to provide
certain tax treatment to petitioners and that “[i]n refusing
to accept [petitioners'] tax returns based on this treatment,
Respondent [GOB] breached its contractual warranty and
clearly evinced its intention not to honour the agreement.”
Award ¶ 97 5 ; Pet. ¶ 27. The arbitral tribunal also awarded
petitioners BZ$40,843,272.34 in damages plus interest and
costs to be paid by the GOB for breach of contract. See
Pet. ¶ 27.
On August 21, 2009, petitioners sought to enforce the
arbitral award in Belize. See id. ¶ 55. Opposing the
enforcement of the Award, the GOB argued that the
Award was contrary to the law and public policy of Belize.
See id. The Supreme Court of Belize enforced the Award
in late 2010, and the GOB appealed this decision in early
2011 to the Belize Court of Appeals. See id. ¶¶ 56–57. The
appellate court reversed the decision below and held that
the Award would not be enforced. See id. ¶ 58. On July
26, 2013, the Caribbean Court of Justice (“CCJ”), Belize's
final court of appeal, affirmed on public policy grounds,
holding that the implementation of the tax treatment
provisions of the Settlement Deed were not legislatively

approved, which was “repugnant to the established legal
order of Belize.” Id. ¶ 59 (quoting BCB Holdings Ltd., et
al., v. Attorney General of Belize, CCJ Appeal No. CV 7
of 2012, ¶ 53).
Petitioners also sought enforcement of the Award in
England. The High Court of Justice, Queen's Bench
Division, Commercial Court, in the United Kingdom,
granted petitioners leave to enforce the Award as a
judgment and issued a foreign money judgment on
February 26, 2013 (“U.K.Judgment”). See Pet. ¶ 84–87.
The U.K. Judgment recognized and confirmed the arbitral
award and provided pre- and post-judgment interest at an
annual rate of 3.38%, compounded annually, and past and
future costs of the arbitration. See id. ¶ 87.
On March 31, 2010, the GOB enacted a criminal statute
that penalized parties that violated Belize Supreme Court
injunctions and those that aided such violations. See id.
¶ 41. Penalties included mandatory fines between $50,000
and $250,000 and/or imprisonment for a minimum of five
years. See id. ¶¶ 42–43. This statute applied to offenses
committed both in Belize and in other jurisdictions. See
id. ¶ 43. In the meantime, the GOB initiated litigation
to enjoin several enforcement proceedings in any forum
other than Belize courts. See id. ¶ 29. According to
Petitioners, “the ease with which the GOB obtained
injunctive relief in the Belize courts, coupled with the new
mandatory penalties for violating such injunctions, had
a chilling effect upon companies in Belize asserting legal
claims against the GOB outside of Belize.” Id.
BCB Holdings, BBL, and other companies challenged this
criminal statute in legal proceedings in Belize. See id. ¶
47. Although the Belize Supreme Court upheld the law,
the Belize Court of Appeals and the CCJ concluded in
2012 and 2014 respectively, that the sections of the law
*240 that created a criminal offense with mandatory
penalties for violating Belize Supreme Court injunctions
were unconstitutional and unenforceable. See id. ¶¶ 49–
50. In its final decision on the validity of the 2010 criminal
statute, the CCJ outlined limited circumstances in which
the Belize Supreme Court could issue injunctions related
to arbitration proceedings. See id. ¶ 52.
Between early 2009 and January 2014, while the
mandatory penalties on parties who violated Belize
court injunctions were still in effect, the GOB obtained
numerous injunctions against parties with claims against

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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

the GOB. See id. ¶ 54. One such injunction was obtained
against the British Caribbean Bank (“BCB Bank”), a
subsidiary of BCB Holdings. BCB Bank had filed a treaty
arbitration against the GOB in 2010, but the GOB filed
a claim in Belize Supreme Court seeking a declaration
that the Belize Supreme Court was the proper forum for
addressing a dispute between the parties. See id. ¶¶ 39–
40. In so doing, the GOB obtained an anti-arbitration
injunction against BCB Bank that restrained BCB Bank
from pursuing the arbitration outside of Belize. See id.
¶ 40. This injunction was only discharged by the CCJ in
2013. See id. ¶¶ 51–52. The GOB did not request or obtain
a similar injunction against BCB Holdings or BBL.
Petitioners filed this action on July 1, 2014, to confirm
the arbitral Award pursuant to Section 207 of the Federal
Arbitration Act (“FAA”), convert the Award plus costs
and interests to United States dollars, and enter judgment
in favor of petitioners. In the alternative, petitioners filed
a complaint to recognize and enforce a foreign money
judgment (U.K.Judgment) pursuant to the District of
Columbia Foreign–Money Judgments Recognition Act of
2011, D.C.Code § 15–361 et seq.
The GOB timely filed a motion to dismiss the petition and
motion to dismiss or strike the complaint. In addition,
the GOB also submitted a response to the petition. In
these two filings, the GOB lodges a series of arguments
why this Court should not confirm the arbitral award or
enforce the U.K. judgment. Namely, the Settlement Deed
containing the arbitration clause is invalid; enforcement
would violate the revenue rule; the Award is against
U.S. public policy; the New York Convention does not
apply to the dispute between the parties; the Court lacks
subject-matter jurisdiction because Belize is entitled to
foreign sovereign immunity; the Court lacks personal
jurisdiction; the petition is time barred; the doctrines of
res judicata, collateral estoppel, or international comity
preclude enforcement of the Award; and there is a more
convenient alternative forum. See Resp. to Pet. at 1; Mot.
at 1. In addition, the GOB urges the Court to dismiss
the complaint to recognize the U.K. Judgment because
it was improperly joined with this confirmation action,
the Court lacks subject matter and personal jurisdiction,
res judicata and international comity must be applied, the
foreign judgment is against public policy, and it conflicts
with the final CCJ judgment. See Mot. at 2. Petitioners
oppose all of these arguments. See Pet'r Opp. to Mot.

(Mar. 2, 2015), Docket No. [29]; Opp. to Resp. to Pet.
(Mar. 2, 2015), Docket No. [30].

II. LEGAL BACKGROUND
[1] United States federal courts have a robust history
of enforcing arbitral awards. Indeed, the Supreme Court
has recognized an “emphatic federal policy in favor of
arbitral dispute resolution.” Mitsubishi Motors Corp. v.
Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 631, 105
S.Ct. 3346, 87 L.Ed.2d 444 (1985); see also *241 Dean
Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217, 105
S.Ct. 1238, 84 L.Ed.2d 158 (1985) (noting that there is
a “strong federal policy in favor of enforcing arbitration
agreements.”) In 1970, the United States acceded to the
New York Convention. The New York Convention was
implemented in the United States by amendment of the
FAA. See Act of July 31, 1970, Pub.L. 91–368, 84 Stat.
692, codified at 9 U.S.C. §§ 201–208.
[2] [3] This Court has jurisdiction to enforce an arbitral
award against a foreign state pursuant to the Foreign
Sovereign Immunities Act, 28 U.S.C. § 1330 et seq
(“FSIA”). See 28 U.S.C. § 1330(a) (“The district courts
shall have original jurisdiction without regard to amount
in controversy of any nonjury civil action against a foreign
state as defined in section 1603(a) of this title as to any
claim for relief in personam with respect to which the
foreign state is not entitled to immunity.”). It is undisputed
that the GOB is a foreign state under 28 U.S.C. § 1603(a).
Under the FSIA,
[a] foreign state shall not be immune
from the jurisdiction of courts of
the United States in any case—...
in which the action is brought,
either to enforce an agreement made
by the foreign state with or for
the benefit of a private party to
submit to arbitration all or any
differences which have arisen or
which may arise between the parties
with respect to a defined legal
relationship ... or to confirm an
award made pursuant to such an
agreement to arbitrate, if ... the
agreement or award is or may
be governed by a treaty or other

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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

international agreement in force
for the United States calling for
the recognition and enforcement of
arbitral awards.
28 U.S.C. § 1605(a), (a)(6), & (a)(6)(B). “The New York
Convention is exactly the sort of treaty Congress intended
to include in the arbitration exception.” Creighton Ltd.
v. Gov't of the State of Qatar, 181 F.3d 118, 121
(D.C.Cir.1999).
[4] United States courts have little discretion to refuse
to confirm an award under the FAA. The FAA provides
that in exercising its original jurisdiction over enforcing
international arbitral awards, the district court “shall
confirm the award unless it finds one of the grounds for
refusal or deferral of recognition or enforcement of the
award specified in the ... Convention.” 9 U.S.C. § 207.
See Yusuf Ahmed Alghanim & Sons, W.I.L. v. Toys “R”
Us, Inc., 126 F.3d 15, 20 (2d Cir.1997) (“There is now
considerable case law holding that, in an action to confirm
an award rendered in, or under the law of, a foreign
jurisdiction, the grounds for relief enumerated in Article
V of the Convention are the only grounds available for
setting aside an arbitral award.”). The grounds for refusal
enumerated in the Convention are as follows:
1. Recognition and enforcement of the award may be
refused, at the request of the party against whom it is
invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is
sought, proof that:
(a) The parties to the agreement ... were, under the
law applicable to them, under some incapacity, or
the said agreement is not valid under the law to
which the parties have subjected it or, failing any
indication thereon, under the law of the country
where the award was made; or

(e) The award has not yet become binding, on the
parties, or has been set aside or suspended by a
competent authority of the country in which, or
under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award
may also be refused if the competent authority in the
country where recognition and enforcement is sought
finds that:
(a) The subject matter of the difference is not capable
of settlement by arbitration under the law of that
country; or
(b) The recognition or enforcement of the award
would be contrary to the public policy of that
country.
New York Convention, art. V, June 10, 1958, 21 U.S.T.
2517, 330 U.N.T.S. 38 (effective for the United States on
Dec. 29, 1970).
In its response to the petition to enforce the award and
enter judgment, the GOB argues that the Court should
refuse to enforce the award pursuant to Article V(1)
(a), 2(a), and (2)(b) of the New York Convention. See
Resp. to Pet. at 1. In its motion to dismiss, the GOB
submitted numerous defenses to enforcing the Award,
none of which fall within Article V of the New York
Convention because, according to the GOB, the New
York Convention does not apply because 1) the dispute
between the parties was not commercial, and 2) Belize has
not ratified the Convention. See Mot. at 16. Although, as
discussed above, the Court may only refuse to enforce an
award pursuant to Article V of the New York Convention,
the Court will first take up the GOB's jurisdictional and
other non-Article V arguments. It will then address the
merits of the GOB's Article V arguments.

(b) The party against whom the award is invoked was
not given proper notice of the appointment of the
arbitrator or of the arbitration proceedings ...; or
*242 (c) The award deals with a difference not
contemplated by or not falling within the terms of
the submission to arbitration ...; or
(d) The composition of the arbitral authority or the
arbitral procedure was not in accordance with the
agreement of the parties ...; or

III. DISCUSSION
A. Jurisdiction
1. Applicability of the New York Convention
Petitioners rightly argue that the New York Convention
governs the enforcement of the Award. See Pet'r Opp.
to Mot. at 7–10. The New York Convention covers “the

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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

recognition and enforcement of arbitral awards made in
the territory of a State other than the State where the
recognition and enforcement of such awards are sought.”
N.Y. Convention, art. I(1). Pursuant to the framework set
forth by the New York Convention, “[e]ach Contracting
State shall recognize arbitral awards as binding and
enforce them in accordance with the rules of procedure of
the territory where the award is relied upon.” Id. at art. III.

participate in the subsequent arbitration proceedings. See
id. The arbitral tribunal issued a final award stating
that it had jurisdiction over Telemedia's claim, that the
agreement was valid, and that Telemedia was entitled to
relief. See id. Subsequently, Telemedia filed a petition to
enforce the award in the District Court for the District
of Columbia, and on appeal of an Order to Stay, the
D.C. Circuit analyzed the claims within the framework
of the New York Convention. See id. at 727. “The fact
[5]
[6]
[7] Under the FAA, arbitration agreements that Belize is not a party to the New York Convention
arising out of a legal relationship that are considered
is irrelevant. If the place of the award is ‘in the territory
commercial fall under the New York Convention. See 9
of a party to the Convention, all other Convention
U.S.C. § 202. This affirms the notion that the purpose
states are required to recognize and enforce the award,
of the New York Convention is “to ‘encourage the
regardless of the citizenship or domicile of the parties
recognition and enforcement of commercial arbitration
to the arbitration.’ ” Id. at 731 n. 3 (quoting Creighton,
agreements in international contracts.’ ” TermoRio
181 F.3d at 121). Similarly, the arbitral tribunal in the
S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 933
case at bar issued the Award in England and petitioners
(D.C.Cir.2007) (quoting Scherk v. Alberto–Culver Co.,
seek enforcement of it in the United States. Both the
417 U.S. 506, 520 n. 15, 94 S.Ct. 2449, 41 L.Ed.2d
United States and England are parties to the New York
270 (1974)). The commercial relationship requirement,
Convention, and thus, the New York Convention applies.
however, is construed broadly. *243 See Bautista v. Star
Cruises, 396 F.3d 1289, 1298 (11th Cir.2005) (“Congress
meant for ‘commercial’ legal relationships to consist
2. Subject-matter jurisdiction
of contracts evidencing a commercial transaction ...
as well as similar agreements.”) The Settlement Deed
The GOB also argues that this Court does not have subject
resolved a previous dispute between the parties that arose
matter jurisdiction. The GOB argues that the FSIA
from the GOB's purchase of shares of stock in Belize
exception to sovereign immunity for arbitration governed
Telecommunications Limited from Carlisle Holdings
by an international treaty does not apply, and the former
Limited, the predecessor of BCB Holdings. See Opp. to
Prime Minister lacked authority to enter into the initial
Resp. to Pet. at 9. The Settlement Deed and included
agreement with BCB Holdings, and consequently, Belize
arbitration agreement “resolved the dispute between the
did not agree to arbitrate. See Mot. at 21. The Court
parties relating to this purchase and sale of stock.” Id.
is satisfied that it has subject matter jurisdiction in this
The underlying transaction was commercial, and the
matter.
agreement to resolve the dispute arising out of this
transaction facilitated the commercial legal relationship
[9]
[10]
[11] “The FSIA confers upon district courts
between the parties. Therefore, the Settlement Deed was
subject matter jurisdiction as to ‘any claim for relief
indeed commercial for purposes of the FAA and the New
in personam with respect to which the foreign state
York Convention.
is not entitled to immunity.’ ” TMR Energy Ltd.
[8] In Belize Soc. Dev. Ltd. v. Gov't of Belize, the D.C.
Circuit confronted nearly identical facts as those at hand.
Specifically, the former Prime Minister of Belize executed
an agreement with Belize Telemedia Limited on behalf
of the GOB that included an agreement to submit any
unresolvable disputes to arbitration under the LCIA
rules. See 668 F.3d 724, 728 (D.C.Cir.2012). In 2008,
Belize's newly appointed Prime Minister declared that
the contractual agreement and the included agreement
to arbitrate were invalid, and the GOB declined to

v. State Prop. Fund of Ukraine, 411 F.3d 296, 324
(D.C.Cir.2005) (quoting 28 U.S.C. § 1330(a)); see also,
Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d
1543, 1548 (D.C.Cir.1987) (“If an exception to the main
rule of sovereign immunity applies, then the FSIA confers
subject matter jurisdiction on the district courts.”). The
FSIA provides an exception to foreign *244 sovereign
immunity for actions to confirm arbitration awards that
are governed by an international treaty in force in the
United States calling for the recognition and enforcement
of arbitral awards. See 28 U.S.C. § 1605(a)(6)(B) (quoted

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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

above). Despite the GOB's arguments to the contrary, all
of these requirements have been met.
[12] The GOB argues that the arbitration exception to
foreign sovereign immunity does not apply because the
agreement to arbitrate is void ab initio because the former
Prime Minister of Belize lacked actual authority to execute
the Settlement Deed, including the arbitration clause. See
Mot. at 22–23. However, the proposition that this Court
must conduct a de novo review of the arbitrability of the
dispute to find subject-matter jurisdiction “runs counter
to the clear teaching of this Circuit on the purpose and
role of the FSIA. The FSIA is a jurisdictional statute that
‘speak[s] to the power of the court rather than to the rights
and obligations of the parties.’ ” Chevron Corp. v. Republic
of Ecuador, 949 F.Supp.2d 57, 63 (D.D.C.2013) (quoting
Creighton, 181 F.3d at 124). Inquiring into the merits of
whether this dispute was rightly submitted to arbitration is
beyond the scope of the FSIA's jurisdictional framework.
See id. at 63–64 (reviewing case law and concluding that in
assessing subject-matter jurisdiction, federal courts have
examined only “whether the award was made pursuant
to an appropriate arbitration agreement with a foreign
state and whether the award ‘is or may be’ governed
by a relevant recognition treaty.”) Regardless, the Court
considers the merits of the GOB's argument pursuant to
Article V of the Convention in Section III(E)(1) of this
opinion. However, as to the FSIA exception, the Court
is satisfied that the FSIA's arbitration exception applies,
and the Court has subject-matter jurisdiction to enforce
the Award.

held that the FSIA requirements suffice, and therefore,
“subject matter jurisdiction plus service of process equals
personal jurisdiction.” Practical Concepts, 811 F.2d at
1548 n. 11 (quoting Texas Trading & Milling Corp.
v. Federal Republic of Nigeria, 647 F.2d 300, 308 (2d
Cir.1981)) (internal quotation marks omitted); see also
FSIA 28 U.S.C. § 1330(b) (“Personal jurisdiction over a
foreign state shall exist as to every claim for relief over
which district courts have jurisdiction under subsection (a)
where service has been made under section 1608 of this
title.”). The GOB has not contested proper service.

B. Statute of Limitations
The FAA provides that “[w]ithin three years after an
arbitral award falling under the Convention is made,
any *245 party to the arbitration may apply to any
court having jurisdiction under this chapter for an order
confirming the award as against any other party to the
arbitration.” 9 U.S.C. § 207. The arbitral panel issued
the award on August 18, 2009, and petitioners filed their
petition for enforcement of the award on July 1, 2014. The
GOB argues that the petition is time-barred by the FAA,
and petitioners' right of action was not equitably tolled
by the 2010 criminal statute. See Mot. at 8. The Court
disagrees.

[15]
[16] A “petitioner is entitled to equitable tolling
only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances
stood in his way and prevented timely filing.” Holland
v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177
L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)
3. Personal Jurisdiction
(internal quotation marks omitted). Petitioners have
shown that they have been pursuing their rights to the
[13]
[14] The GOB also argues that this Court does
arbitral award diligently since 2009. On August 21, 2009,
not have personal jurisdiction over Belize because “[t]he
petitioners sought enforcement of the award in Belize.
minimum contacts requirements of Due Process cannot
They also brought their claim to the United Kingdom
be satisfied as to GOB.” Mot. at 32. The GOB asserts
and received a foreign money judgment in 2013. In
that “compelling reasons exist to safeguard sovereigns
April 2010, petitioners joined in litigation challenging the
against the unfettered exercise of personal jurisdiction.”
constitutionality of the 2010 criminal statute. See Pet. ¶ 47;
Id. However, “foreign sovereigns and their extensivelysee also Pet'r Opp. to Mot. at 14. Also, BCB Bank, a BCB
controlled instrumentalities are not ‘persons' under the
Holdings subsidiary, appealed an injunction issued by the
Fifth Amendment's Due Process Clause—and thus have
Belize Supreme Court that prevented it from resolving its
no right to assert a personal jurisdiction defense.” GSS
arbitration claim outside of Belize. See Pet'r Opp. to Mot.
Group Ltd. v. Nat'l Port Auth., 680 F.3d 805, 809
at 14. The 2010 criminal statute was dismantled by the
(D.C.Cir.2012) (citing TMR Energy, 411 F.3d at 300–
CCJ in January 2014, and petitioners initiated this action
01; Price v. Socialist People's Libyan Arab Jamahiriya,
six months later in July 2014. Petitioners have diligently
294 F.3d 82, 96–97 (D.C.Cir.2002)). The D.C. Circuit has
sought the enforcement and confirmation of the Award
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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

since it was issued in 2009 through both enforcement
actions and litigation of the statute that created a risk of
exposure to criminal penalties if petitioners had filed this
action within the three-year limitations period.
Petitioners have also shown that they faced extraordinary
circumstances that prevented them from timely filing an
enforcement action. The mandatory criminal penalties
in effect between 2010 and 2014 subjected petitioners
and their attorneys to the risk of imprisonment and a
substantial fine if they attempted to enforce the award
in this or any other jurisdiction. Although these facts
were described in detail in the petition, the GOB did
not contest them in its motion. Instead, the GOB
argues that petitioners slept on their rights because the
criminal statute did not affect petitioners considering
that the Belize Supreme Court had not issued an
injunction specifically barring their recovery. See Mot.
at 9. However, petitioners have demonstrated that the
2010 criminal statute had a “chilling effect” on seeking
enforcement of the Award. See Pet. ¶ 29. And once this
impediment to enforcement was lifted in 2014, petitioners
immediately took advantage of the changed circumstances
and filed this action.
Petitioners have satisfied the criteria for equitable tolling,
and the period during which they were barred from
pursuing their rights while the 2010 criminal statute was
in effect is excluded from the limitations period. Thus,
petitioners are not time-barred from seeking enforcement
of the arbitral award.

C. Effect of CCJ Decision
The GOB argues that the final judgment rendered by the
CCJ prevents petitioners from attempting to enforce the
Award in this jurisdiction. Specifically, the doctrines of res
judicata, collateral estoppel, and international comity bar
the Petition because a competent court, the CCJ, issued a
final judgment refusing to enforce the Award. See Mot. at
10–15. These arguments are unavailing.
[17]
[18]
*246 The New York Convention provides
that “1. Recognition and enforcement of the award
may be refused ... if ... (e) [t]he award ... has been
set aside or suspended by a competent authority of
the country in which, or under the law of which,
that award was made.” N.Y. Convention, art. V(1)
(e). The country under which an award was made is
considered the primary jurisdiction whilst other member-

countries to the New York Convention are designated
as secondary jurisdictions. Secondary jurisdictions may
refuse to enforce an award, but these decisions do not
preclude other jurisdictions from enforcing it. By contrast,
only a primary jurisdiction may set aside an award. See
Karaha Bodas Co., LLC v. Perusahaan Pertambangan
Minyak Dan Gas Bumi Negara, 335 F.3d 357, 364 (5th
Cir.2003) (“Under the Convention, ‘the country in which,
or under the [arbitration] law of which, [an] award
was made’ is said to have primary jurisdiction over the
arbitration award. All other signatory States are secondary
jurisdictions, in which parties can only contest whether
that State should enforce the arbitral award.”) Thus, the
GOB must show that Belize is a country under the law
of which the award was made in order to succeed on its
argument that the CCJ decision to refuse enforcement of
the award precludes this Court from granting the petition.
[19] The GOB cannot make such a showing. The
Settlement Deed provides that any disputes that cannot
be resolved by the parties shall be referred to and resolved
by “arbitration under the London Court of International
Arbitration (LCIA) Rules which Rules are deemed to be
incorporated by reference under this clause.” Award ¶
20 (quoting Settlement Deed); see also Settlement Deed
at 11.2. “The phrase ‘under the law of which’ in Article
V(1)(e) ... refers to the procedural law governing the
arbitration.” Belize Soc. Dev. Ltd., 668 F.3d at 731 (citing
Karaha Bodas v. Perusahaan Pertambangan Minyak Dan
Gas Bumi Negara, 364 F.3d 274, 289 (5th Cir.2004)).
Because the arbitration was conducted in England under
English arbitral laws, England is the country with primary
jurisdiction. See, e.g., Steel Corp. of the Philippines v. Int'l
Steel Servs., Inc., 354 Fed.Appx. 689, 692 (3d Cir.2009)
(concluding that Singapore is the country with primary
jurisdiction because the arbitrator applied Singapore
procedural law in reaching the award). As England is the
country with primary jurisdiction, only an English court
may set aside the arbitral award issued by the LCIA.
Consequently, although the CCJ decided not to enforce
the award, its decision to do so does not hold preclusive
effect on this Court.

D. Forum Non Conveniens
[20]
[21]
[22] The GOB also argues that dismissal is
warranted on forum non conveniens grounds. See Mot.
at 36. Under this doctrine, the Court “must decide (1)
whether an adequate alternative forum for the dispute is
available and, if so, (2) whether a balancing of private and

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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

public interest factors strongly favors dismissal.” Agudas
Chasidei Chabad of U.S. v. Russian Fed'n, 528 F.3d 934,
950 (D.C.Cir.2008) (citing Piper Aircraft Co. v. Reyno, 454
U.S. 235, 255 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)).
The GOB cannot satisfy the first step of the forum non
conveniens test: “only a court of the United States (or of
one of them) may attach the commercial property of a
foreign nation located in the United States.” TMR Energy,
411 F.3d at 303. The GOB argues that the D.C. Circuit's
holding in TMR Energy is no longer good law because of
the Supreme Court's holding in Sinochem Int'l Co. Ltd. v.
Malaysia Int'l Shipping Corp. that “[a] federal court has
discretion *247 to dismiss a case on the ground of forum
non conveniens ‘when an alternative forum has jurisdiction
to hear [the] case.’ ” 549 U.S. 422, 429, 127 S.Ct. 1184,
167 L.Ed.2d 15 (2007). However, these two cases are
not in conflict. In Sinochem, the Supreme Court held
that courts may dismiss a case on forum non conveniens
considerations before definitively determining jurisdiction
when such an inquiry is burdensome. 549 U.S. at 436, 127
S.Ct. 1184. By contrast, in TMR Energy, the Court did
not address the timing of assessing the appropriateness
of the forum, but rather, the D.C. Circuit plainly stated
that there is no alterative forum that has jurisdiction
to attach the commercial property of a foreign nation
located in the United States. 411 F.3d 296 at 303. Thus,
TMR Energy controls the specific forum non conveniens
question before the Court. The GOB cannot show that
an alternative forum exists, so the Court need not engage
in the balancing step of the forum non conveniens test.
TMR Energy, 411 F.3d at 303 (“The district court need not
weigh any factors favoring dismissal ... if no other forum
to which the plaintiff may repair can grant the relief it may
obtain in the forum it chose.”).

“the showing required to avoid summary confirmation is
high.” Id. (quoting Imperial Ethiopian Gov't v. Baruch–
Foster Corp., 535 F.2d 334, 336 (5th Cir.1976); Ottley v.
Schwartzberg, 819 F.2d 373, 376 (2d Cir.1987)) (internal
quotation marks omitted).
The GOB has brought three defenses under Article V to
the New York Convention against the enforcement of the
Award. For the reasons stated below, the GOB cannot
meet its burden under Article V.

1. Article V(1)(a)—Validity of the Agreement
The GOB argues enforcement of the Award should be
refused pursuant to Article V(1)(a). Specifically, the GOB
argues that the Settlement Deed was not valid under
Belizean law because the former Prime Minister did not
have actual authority to agree to it. See Resp. to Pet. at
13–15. As a result, the GOB was not a party to the contract
and was not able to agree to arbitrate any disputes thereto.
See id. at 15. The GOB has not challenged the validity of
the arbitration agreement itself beyond the assertion that
the arbitration provision is part of the allegedly invalid
contract.

The GOB relies on China Minmetals Materials Import
and Export Co., Ltd. v. Chi Mei Corp., 334 F.3d 274
(3d Cir.2003) for the proposition that this Court must
review the validity of the contract as a whole. See Resp.
to Pet. at 13–14. In China Minmetals, the party resisting
enforcement of the arbitral award claimed the contract
containing the arbitration clause had been forged, so the
parties had never agreed to arbitrate. See 334 F.3d at
277. Without issuing a written opinion, the district court
enforced the arbitral award. The Third Circuit framed the
E. New York Convention
*248 question before it as “whether a foreign arbitration
[23] [24] [25] As discussed above, courts “may refuse
award might be enforceable regardless of the validity of
to enforce the award only on the grounds explicitly set
the arbitration clause on which the foreign body rested its
forth in Article V of the Convention.” TermoRio, 487
jurisdiction.” Id. at 279. Applying the rule articulated in
F.3d at 935 (quoting Yusuf Ahmed Alghanim, 126 F.3d
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115
at 23) (internal quotation marks omitted). Because “the
S.Ct. 1920, 131 L.Ed.2d 985 (1995) to the international
New York Convention provides only several narrow
arbitration context, the court stated that the common
circumstances when a court may deny confirmation of
principles in arbitration decisions “suggest that the district
an arbitral award, confirmation proceedings are generally
court here had an obligation to determine independently
summary in nature.” Int'l Trading and Indus. Inv. Co. v.
the existence of an agreement to arbitrate even though an
DynCorp Aerospace Technology, 763 F.Supp.2d 12, 20
arbitration panel in a foreign state already had rendered
(D.D.C.2011). “[T]he burden of establishing the requisite
an award.” Id. at 284; see First Options, 514 U.S. at 944,
factual predicate to deny confirmation of an arbitral
115 S.Ct. 1920 (“If ... the parties did not agree to submit
award rests with the party resisting confirmation,” and
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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

the arbitrability question itself to arbitration, then the
court should decide that question just as it would decide
any other question that the parties did not submit to
arbitration, namely, independently.”).
Applying the facts before the Court, this reasoning is
consistent with that in Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d
1038 (2006), in which the Supreme Court “distinguished
between ‘[t]he issue of the contract's validity,’ which is
not for the court to resolve, and ‘the issue [of] whether
any agreement between the alleged obligor and obligee
was ever concluded,’ which the courts might be allowed
to consider.” Belize Soc. Dev. Ltd. v. Gov. of Belize, 5
F.Supp.3d 25, 39 n. 22 (D.D.C.2013) (analyzing China
Minmetals and quoting Buckeye, 546 U.S. at 444, 126
S.Ct. 1204). Unlike the respondent in China Minmetals,
the GOB does not argue that the arbitration clause of the
Settlement Deed was independently invalid and also failed
to raise its argument that the contract was void ab initio
before the arbitral panel. See Mot. at 5 (admitting the
GOB chose “not to participate in the arbitration”).

[27] [28] [29] The LCIA arbitral panel examined the
question of the legality of the contract in assessing its
jurisdiction and concluded that “the widely accepted
doctrine of the separability of the arbitration clause
contained in a contract would preserve the validity of the
arbitration clause in the Settlement Deed as Amended
and the jurisdiction of this Tribunal in this *249 case.”
Award at ¶ 62. 6 Contrary to the GOB's assertion that
the arbitration clause cannot be severed from the contract
in this manner (see Mot. at 28), it is settled law that “an
arbitration provision is severable from the remainder of
the contract.” Buckeye, 546 U.S. at 445, 126 S.Ct. 1204
(holding that an arbitrator should consider claims that a
contract containing an arbitration provision is void for
illegality). 7 Again, the GOB has not provided any proof
to the Court that the provision in which the parties agreed
to arbitrate is invalid under Belizean law, so the GOB's
challenge under Article V(1)(a) fails.

2. Article V(2)(a)—Appropriateness of Arbitration
[26] The GOB's insistence that it did not agree to arbitrate
because the contract is invalid is also inconsistent with
the language of the New York Convention. Article V(1)
(a) provides that an arbitral award may be refused only
if the party that is challenging enforcement furnishes to
the competent authority proof that “[t]he parties to the
agreement referred to in article II were, under the law
applicable to them, under some incapacity, or the said
agreement is not valid under the law to which the parties
have subjected to it ...” N.Y. Convention, art. V(1)(a).
The agreement referred to in Article II of the Convention
is “an agreement in writing under which the parties
undertake to submit to arbitration all or any differences....
The term ‘agreement in writing’ shall include an arbitral
clause in a contract.” Id. at art. II. Therefore, a challenge
brought under Article V(1)(a) must be brought against
the agreement to arbitrate, not against the contract as
a whole. See Restatement (Third) of Int'l Comm. Arb.
§ 4–12 cmt. e. (Draft No. 3, 2011) (Under Article V(1)
(a), “courts do not review the arbitral tribunal's rulings
on challenges to the validity of the contract as a whole,
such as a claim that a contract including an arbitration
clause was fraudulently induced or is illegal.”); see also
Nanosolutions, LLC v. Prajza, 793 F.Supp.2d 46, 54–55
(D.D.C.2011) (“[T]he FAA prohibits a district court from
considering ... challenges [to] the contract as a whole.”).

[30] The GOB also claims that this Court should deny
confirmation of the revenue rule which precludes U.S.
courts from adjudicating foreign tax liabilities. See Resp.
to Pet. at 16. Article V(2)(a) of the New York Convention
allows courts to refuse to enforce an award when “[t]he
subject matter of the difference is not capable of settlement
by arbitration under the law of that country.” N.Y.
Convention, art. V(2)(a). “The revenue rule is a longstanding common law rule that prevents the courts of one
sovereign from enforcing or adjudicating tax claims from
another sovereign.” Rep. of Honduras v. Philip Morris
Co., Inc., 341 F.3d 1253, 1256 (11th Cir.2003). In cases
in which the revenue rule has been applied, “[t]he main
object of the action ... was the collection of money that
would pay foreign tax claims.” Pasquantino v. U.S., 544
U.S. 349, 364, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005).
In Pasquantino, the Supreme Court articulated the link
between the revenue rule and the rule against foreign penal
enforcement, analyzing the “analogy between foreign
revenue laws and penal laws.” See id. at 361, 125 S.Ct.
1766.
[31] No such link is present in the instant case. Petitioners
did not bring their claim to the arbitral tribunal in an
attempt to enforce Belize's tax laws. Indeed, the LCIA
determined that the revenue rule did not apply because

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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

this is a contract case, not an action to enforce Belizean
tax laws. See Award ¶ 180. The crux of the dispute was
contract enforcement rather than the enforcement of a
foreign revenue law. See Opp. to Resp. to Pet. at 27
(explaining the dispute arose out of an alleged breach of
warranties contained in the Settlement Deed). Thus, the
subject matter arbitrated was contemplated by the parties
and capable of settlement by arbitration.

190 F.Supp.2d 936, 955 (S.D.Tex.2001). See also Indus.
Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141
F.3d 1434, 1445 (11th Cir.1998).

[34] The GOB relies on a broad policy statement, arguing
that “[j]ustice and U.S. public policy against corruption
will not be served by allowing this corrupt agreement and
tainted Award to burden the people of Belize.” Resp. to
Pet. at 18. In so doing, the GOB does not identify an
explicit or well-defined U.S. public policy that, if violated,
would offend the most basic notions of morality and
3. Article V(2)(b)—Public Policy
justice. Although this Court recognizes that “the United
[32] [33] Lastly, the GOB argues that confirmation of States has a strong public policy against corruption
abroad,” this policy does not reach the threshold required
the Award should be denied because the Award violates
to outweigh the policy in favor of enforcement. Belize Soc.
the public policy of the United States against government
Dev. Ltd., 5 F.Supp.3d at 43 (“U.S. courts have enforced
*250 corruption. See Resp. to Pet. at 17. “The publicarbitral awards in the face of public policy interests
policy exception under the New York Convention is
at least as weighty as the policy against corruption
construed extremely narrowly and applied ‘only where
abroad.”). Indeed, the GOB cannot point to any cases
enforcement would violate the forum state's most basic
in which a court declined to enforce an arbitral award
notions of morality and justice.’ ” Chevron Corp.,
because it violated the United States' public policy against
949 F.Supp.2d at 69 (D.D.C.2013) (quoting Parsons v.
government corruption. Additionally, the general public
Whittemore Overseas Co., Inc. v. Societe Generale De
policy the GOB relies upon implicates the politics of a
L'Industrie Du Papier (RAKTA), 508 F.2d 969, 974
foreign nation. Article V(2)(b) “was not meant to enshrine
(2d Cir.1974)); see also Termo Rio S.A. E.S.P., 487
the vagaries of international politics under the rubric of
F.3d at 938 (quoting Karaha Bodas, 364 F.3d at 305–
‘public policy.’ ” Parsons, 508 F.2d at 974. Refusal to
06). “Although this defense is frequently raised, it ‘has
enforce the Award on the public-policy grounds suggested
rarely been successful.’ ” Ministry of Def. & Support
by the GOB would undoubtedly implicate politics abroad.
for the Armed Forces of the Islamic Republic of Iran
The Court declines to do so. The GOB has not met the
v. Cubic Def. Systems, Inc., 665 F.3d 1091, 1097 (9th
substantial burden of proving its public-policy defense.
Cir.2011) (quoting Andrew M. Campbell, Refusal to
Enforce Foreign Arbitration Awards on Public Policy
Grounds, 144 A.L.R. Fed. 481 (1998) (collecting cases)).
F. The Award
Establishing a countervailing public policy that weighs
[35] Conversion of foreign currency into dollars at
against enforcement of an arbitral award is a “substantial”
judgment “is the norm, rather than the exception.”
burden and requires the moving party to “demonstrate a
Cont'l Transfert Technique Ltd. v. Fed. Gov't of Nigeria,
countervailing public policy sufficient to overcome [the]
932 F.Supp.2d 153, 158 (D.D.C.2013), aff'd, *251 603
strong policy favoring confirmation.” Id. at 1098. “Such
Fed.Appx. 1, 2015 WL 233385 (D.C.Cir. Jan. 16, 2015).
a public policy ... must be well defined and dominant,
The monetary relief in the Award shall be converted
and is to be ascertained by reference to the laws and
into U.S. dollars as of August 18, 2009, the date of the
legal precedents and not from general considerations of
Award, and the judgment will be entered in U.S. dollars.
supposed public interests.” United Broth. Of Carpenters
The Court also has discretion to award prejudgment
and Joiners of America, AFL–CIO v. Operative Plasterers'
interest and will exercise that discretion because doing
& Cement Masons' Int'l Ass'n of U.S. & Can., AFL–
so is “consistent with the underlying arbitration award.”
CIO, 721 F.3d 678, 697 (D.C.Cir.2013) (quoting W.R.
Cont'l Transfert, 932 F.Supp.2d at 164 (internal quotation
Grace & Co. v. Local Union 759, Int'l Union of United
marks omitted). See also Ministry of Def. & Support for the
Rubber, Linoleum & Plastic Workers, 461 U.S. 757, 766,
Armed Forces of the Islamic Republic of Iran, 665 F.3d at
103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)) (internal quotation
1103 (“[F]ederal law allows a district court to award postmarks omitted); see also Karaha Bodas Co., L.L.C. v.
award, prejudgment interest in actions under the New
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
York Convention.”); Waterside Ocean Nav. Co., Inc. v.
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BCB Holdings Limited v. Government of Belize, 110 F.Supp.3d 233 (2015)

Int'l Nav. Ltd., 737 F.2d 150, 153–54 (2d Cir.1984); Indus.
Risk Insurers, 141 F.3d at 1445. The arbitral tribunal
awarded petitioners pre- and post-judgment interest at
an annual rate of 3.38% compounded annually. Award
¶ 149. The Court accepts this determination and awards
petitioners interest consistent with the Award calculated
from the date the Award, August 18, 2009, to this date.
The parties are ordered to submit to the Court proposed
judgment amounts calculated with the conversions and
interest consistent with this opinion.

For the foregoing reasons, the Court shall GRANT the
Petition to Confirm Foreign Arbitration Award; convert
the monetary relief in the Award into U.S. dollars;
and award prejudgment interest. The complaint in the
alternative is dismissed as moot. Likewise, the motion
to dismiss is DENIED as moot. An appropriate Order
accompanies this Memorandum Opinion.

All Citations
110 F.Supp.3d 233

IV. CONCLUSION

Footnotes

1

2
3

4
5
6
7

In their petition, petitioners note that the Award was issued on August 20, 2009. See Pet. ¶ 27. However, in a later filing,
petitioners state that the Award was issued on August 18, 2009. See Opp. to Resp. to Pet. at 42. The first page of the
Award lists both dates, but the Court interprets this document to indicate that the issuance date is August 18, 2009, and
the later date is the certification date by the LCIA Registrar.
On April 29, 2015, petitioners filed a Motion for leave to file a sur-reply (Docket No. [38] ) to respondent's motion to
dismiss which the Court GRANTS.
Specifically, in Clauses 4.1 and 4.2 of the Settlement Deed, the GOB warranted that BBL could offset overpayment
of business taxes against future business tax payments and that petitioners would be indemnified against all costs,
expenses, losses and damages incurred by them arising out of any breach of warranties provided by the Settlement
Deed. See Pet. ¶ 21.
BCB Holdings and BBL are both Belize registered companies. BCB Holdings is the parent company of BBL. See Pet.
¶¶ 7–8.
The Award and the Settlement Deed are available in exhibit 2 to the petition. See Pet. Ex. 2, First Kimmelman Decl.
The CCJ judgment also found that the arbitration agreement was enforceable. See BCB Holdings Ltd, et al., v. Attorney
General of Belize, CCJ Appeal No. CV 7 of 2012, ¶ 55 (“The agreement to arbitrate was a free standing agreement
separable from the remainder of the Deed.”).
The GOB argues that the severability rule is inapplicable because it pertains to the FAA and not to the FSIA. See Mot.
at 26–28. As explained above, the Court is not required to conduct a de novo review of the arbitrability of the dispute
to satisfy the jurisdictional requirements of the FSIA. See infra at Section III(A)(2). Indeed, the Court's analysis of the
arbitrability of the dispute is confined to the GOB's Article V defense. Thus, principles available under the FAA, which
incorporates the New York Convention, are available to the Court. See, e.g., General Elec. Co. v. Deutz AG, 270 F.3d
144, 155 (3d Cir.2001) (“We recognize that First Options is a domestic arbitration case, but the international nature of
the present litigation does not affect the application of First Options' principles.”).

End of Document

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