                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
 OI EUROPEAN GROUP B.V.,            )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )              Civil Action No. 16-1533 (ABJ)
                                    )
BOLIVARIAN REPUBLIC OF              )
VENEZUELA,                          )
                                    )
                  Defendant.        )
____________________________________)

                                   MEMORANDUM OPINION

       Plaintiff Owens-Illinois European Group (“OIEG”) brought this action pursuant to 22

U.S.C. § 1650a and Article 54 of the International Centre for Settlement of Investment Disputes

(“ICSID”) Convention against the Bolivarian Republic of Venezuela seeking to confirm and

enforce an arbitration award of more than $400 million. Compl. [Dkt. # 1]. In October of 2010,

OIEG’s factories were expropriated by the Venezuelan government, then headed by Hugo

Chávez, and on September 7, 2011, OIEG commenced arbitration against Venezuela pursuant to

the Netherlands-Venezuela Bilateral Investment Treaty. Id. ¶¶ 6, 12; Final Award [Dkt. # 1-10]

¶¶ 1, 110. On March 10, 2015, the tribunal found in favor of plaintiff, and it awarded OIEG

$372,461,982 for the expropriation and $5,750,000 in costs and expenses. See Final Award

[Dkt. # 1-14] ¶¶ 880–81, 976.

       A motion to dismiss has already been heard and denied, see Mar. 8, 2019 Hr’g Tr. [Dkt.

# 54] (“3/8 Hr’g Tr.”), and plaintiff has filed a motion for summary judgment seeking

confirmation of the Award. Pl.’s Mot. for Summ. J. [Dkt. # 60] (“Pl.’s Mot.”). Because 22

U.S.C. § 1650a requires this Court to confirm an arbitral award obtained under ICSID, and the
sole issue raised in defendant’s opposition pertains to the applicable post-judgment interest rate,

the Court will enter judgment for plaintiff.

                                               BACKGROUND

  I.   International Centre for Settlement of Investment Disputes (“ICSID”)

       The International Convention on the Settlement of Investment Disputes between States

and Nationals of Other States is a multilateral treaty designed to provide a legal framework for

resolving disputes between private investors and governments. Preamble, Mar. 18, 1965, 17

U.S.T. 1270 (“ICSID Convention”). The ICSID Convention established the International Centre

for Settlement of Investment Disputes, which has the authority to convene arbitration tribunals to

adjudicate disputes between international investors and host governments in contracting states.

Id. art. 1. “Any Contracting State or any national of a Contracting State” may request that ICSID

convene an arbitration tribunal. See id. art. 36. The tribunal, which consists of either a single

arbitrator or “any uneven number of arbitrators,” id. art. 37, considers the dispute and issues a

written award, which “deal[s] with every question submitted to the [t]ribunal, and . . . state[s] the

reasons upon which it is based.” Id. art. 48.

       The parties have multiple avenues for contesting the tribunal’s award: A party may

request “revision” if there is a newly-discovered material fact previously unknown to the parties

and arbitrator, see id. art. 51, or an “annulment” if a party challenges the tribunal’s substantive

decision. Id. art. 52. When a party seeks annulment, ICSID convenes an ad hoc committee of

three members to review the award determination. Id. At a party’s request, enforcement of an

award is “stayed provisionally until the [c]ommittee” renders its decision. Id. But, “except to

the extent that enforcement” has been stayed, the tribunal’s award remains “binding on the

parties and shall not be subject to any appeal or to any other remedy” other than those set forth in

the ICSID Convention. Id. art. 53.

                                                 2
       ICSID is not empowered to enforce awards. Prevailing parties must register their awards

with a court of a member state. The courts of member states are required to “recognize an award

. . . as binding and [to] enforce the pecuniary obligations imposed by that award within its

territories as if it were a final judgment of a court in that [s]tate,” or, for a member state with “a

federal constitution,” to “treat the award as if it were a final judgment of the courts of a

constituent state.” Id. art. 54; see 22 U.S.C. § 1650a(a).

       The United States has been a member of the ICSID Convention since 1966, and Congress

has enacted legislation implementing the Convention:

               An award of an arbitral tribunal rendered pursuant to chapter IV of the
               convention shall create a right arising under a treaty of the United States.
               The pecuniary obligations imposed by such an award shall be enforced
               and shall be given the same full faith and credit as if the award were a
               final judgment of a court of general jurisdiction of one of the several
               States. The Federal Arbitration Act (9 U.S.C. 1 et seq.) shall not apply to
               enforcement of awards rendered pursuant to the convention.

22 U.S.C. § 1650a(a).

 II.   Factual and Procedural Background

       Plaintiff is a corporation organized and existing under the laws of the Netherlands. Pl.’s

Statement of Undisputed Material Facts [Dkt. # 63] (“Pl.’s SOF”) ¶ 1. Plaintiff is part of a group

of companies that operates glass container factories around the world, including in Venezuela.

See Final Award [Dkt. # 1-10] ¶¶ 86–87. Plaintiff operated its Venezuelan glass factories

through two of its subsidiaries, – Fábrica de Vidrios los Andes, (“Favianca”) and Owens-Illinois

de Venezuela, C.A. (“OIdv”) – through which plaintiff held 72.983% equity interest in the

Venezuelan factories. Id. ¶ 87; id. [Dkt. # 1-14] ¶ 881. A group of minority shareholders held

the remaining 27.017% equity interest.        See id.   Defendant is the Bolivarian Republic of

Venezuela. Pl.’s SOF ¶ 2.



                                                  3
       In October of 2010, the Venezuelan government expropriated plaintiff’s Venezuelan

glass factories, Final Award ¶¶ 110–14, and OIEG commenced arbitration against Venezuela on

September 7, 2011. Id. ¶ 1. An arbitral tribunal was assembled by March 30, 2012, id. ¶ 21, and

on September 16–21, 2013, the tribunal held a hearing in Paris, France to receive testimony and

hear argument. Id. ¶¶ 66–67. On March 10, 2015, the tribunal issued a final arbitration award

(“Award”) in OIEG’s favor. Pl.’s SOF ¶ 3; see Final Award. That Award consisted of:

           •   $372,461,982 for the expropriation in principal amount, plus interest from
               October 26, 2010 until payment in full calculated at a LIBOR interest rate
               for one-year deposits in U.S. dollars, plus a margin of 4% with annual
               compounding of accrued interest, Final Award ¶ 984(6);

           •   $5,750,000 for costs and expenses in the ICSID arbitration, plus interest
               from March 10, 2015 until payment in full calculated at a LIBOR interest
               rate for one-year deposits in U.S. dollars, plus a margin of 4% with annual
               compounding of accrued interest. Id. ¶ 976.

See also Pl.’s SOF ¶ 5.

       Shortly thereafter, Venezuela sought annulment of the award in accordance with the

ICSID convention. Pl.’s SOF ¶ 4; ICSID Convention art. 52. On July 17, 2015, the Annulment

Committee entered a provisional stay of enforcement of the Award, but on April 4, 2016, that

stay was terminated based upon the risk of Venezuela’s non-compliance. Decision on Stay of

Enforcement of the Award, Ex. B to Neudhardt Decl. [Dkt. # 27-8] ¶¶ 123–28, 130.

Subsequently, OIEG filed suit in this Court to enforce its arbitration award, and after a year of

multiple service attempts, plaintiff effectuated service on June 28, 2017. See Return of Service

[Dkt. # 16].

       On September 27, 2017, defendant moved to dismiss the complaint arguing that OIEG

was not the real party in interest and Federal Rule of Civil Procedure 17 mandated dismissal, that

OIEG had waived its right to claim that the decision is an enforceable final award, that OIEG


                                                4
was impermissibly seeking double recovery, 1 and that the award was unenforceable because one

of the arbitrators on the tribunal was biased. See Def.’s Mot. to Dismiss or Stay the Proceeding

[Dkt. # 23]. In the alternative, defendant moved to stay the proceedings pending the annulment

proceedings. See id. On December 21, 2017, the Court granted defendant’s motion to stay.

Min. Order (Dec. 21, 2017).

       Almost a year later, on December 10, 2018, plaintiff notified the Court that the

annulment committee had rejected defendant’s application for annulment on December 6, 2018.

See Pl.’s Status Report [Dkt. # 52]; Annulment Comm. Decision [Dkt. # 52-1] (“Annulment

Decision”). And, the committee awarded plaintiff an additional $3,864,811.05 for costs and

expenses related to the annulment proceeding, plus interest from December 6, 2018 until

payment at the same rate provided for in the Award. Annulment Decision ¶ 398.

       The Court therefore lifted the stay on December 18, 2018, see Min. Order, and it denied

defendant’s motion to dismiss in open court on March 8, 2019. See 3/8 Hr’g Tr. With respect to

the real party in interest issue, the Court found that Federal Rule of Civil Procedure 25, not Rule

17, applied, and Rule 25 did not mandate dismissal of the case. Id. at 10:11–15:2. It also held

that OIEG had not waived its right to enforce the award, that OIEG was not impermissibly

seeking double recovery, and that the arbitrator bias argument was not available to defendant




1       In addition to the OIEG Arbitration, the two subsidiaries, Favianca and OIdv, filed
another, separate arbitration against Venezuela. See Decl. of Diego Brian Gosis in Supp. of Mot.
to Dismiss Compl. [Dkt. # 23-1] (“Gossis Decl.”) ¶¶ 4–5. This arbitration was presented to a
different tribunal, and a final hearing for this arbitration was held on April 4–8, 2016. Id. ¶ 5.
On December 7, 2017, while the motion to dismiss was pending, plaintiff notified the Court that
the tribunal in the Parallel Arbitration had dismissed Favianca and OIdv’s claims on November
13, 2017, because the tribunal found that it was without jurisdiction with respect to the dispute
that had been submitted to it. See Pl.’s Suppl. Mem. in Supp. of Pl.’s Opp. to Def.’s Mot. to
Dismiss [Dkt. # 37] (“Pl.’s Suppl. Mem.”).


                                                5
during an enforcement proceeding for an award issued pursuant to the ICSID Convention. Id. at

15:3–25:16.

       Thereafter, the Court entered a schedule for briefing summary judgment. See Min. Order

(Mar. 15, 2019). But before any briefs were filed, the parties entered into a stipulation for final

judgment. Stipulated Order for Final J. [Dkt. # 56] (“Stipulation”). The next day, new counsel

for defendant, representing Venezuela under the authority of the President of the Venezuelan

National Assembly, Juan Guaidó, entered an appearance, Appearance of Counsel [Dkt. # 57],

and moved to strike the stipulation on the grounds that it was the Guaidó government, and not

the Maduro government, that had been formally recognized by the United States. Guaidó Gov’t

Emergency Mot. to Strike [Dkt. # 58]. Considering Venezuela’s political climate and possible

change of administration, OIEG informed the Court that it would not oppose the motion, Resp. to

Emergency Mot. [Dkt. # 59], and it filed its motion for summary judgment. See Pl.’s Mot. In

light of plaintiff’s consent to the Guaidó government motion, the Court granted the motion to

strike, see Min. Order (Apr. 2, 2019), but on April 4, counsel for Venezuela under the authority

of the Nicolás Maduro government, which had entered into the stipulation and been litigating

this case since its inception, moved for reconsideration of the motion to strike. Maduro Gov’t

Mot. for Recons. [Dkt. # 65]. The Guaidó government then moved to strike the motion for

reconsideration. Guaidó Gov’t Mot. to Strike Mot. for Recons. [Dkt. # 67]. 2 Both sets of

attorneys for defendant also filed oppositions to the motion for summary judgment. Guaidó

Gov’t Opp. to Pl.’s Mot. [Dkt. # 71] (“Guaidó Gov’t Opp.”); Maduro Gov’t Opp. to Pl.’s Mot.

[Dkt. # 72] (“Maduro Gov’t Opp.”).



2       In addition to the motions to strike, both the Maduro government and Guaidó government
filed a number of other motions, including a motion to stay [Dkt. # 71] and a motion for
substitution or joinder [Dkt. # 73].
                                                6
       After considering this unusual procedural posture, the Court ordered that the parties,

including both sets of attorneys for defendant, appear in Court for a status conference. Min.

Order (Apr. 10, 2019). The Court had doubts concerning its authority to determine which set of

lawyers represented any defendant, much less which political leader represented a foreign

sovereign. At a hearing on May 2, 2019, the lawyers for the Guaidó government informed the

Court of a decision reached by the D.C. Circuit the day before that governed this issue. Status

Conference Hr’g Tr. [Dkt. # 81] (“5/2 Hr’g Tr.”) at 9:12–25. The Court took the matter under

advisement but also inquired whether the parties could resolve the question of representation

among themselves, and in the event the stipulation that had been previously negotiated might

have been favorable to the Venezuelan government, it gave the Guaidó lawyers the opportunity

to ascertain their client’s position with respect to a stipulation. Id. at 10:3–9, 20:13–17. Both

sets of attorneys filed notices with the Court two weeks later indicating that the Guaidó counsel

were unable to obtain the necessary authorization to enter into a stipulation, Guaidó Gov’t Notice

[Dkt. # 82] at 1, and that the Maduro counsel did not agree to voluntarily withdraw. Id.; see

Maduro Gov’t Notice [Dkt. # 83] at 2.

                                      STANDARD OF REVIEW

       ICSID’s enabling statute makes clear that the Court may not re-examine the propriety of

the award:

               The pecuniary obligations imposed by such an award shall be enforced
               and shall be given the same full faith and credit as if the award were a
               final judgment of a court of general jurisdiction of one of the several
               States. The Federal Arbitration Act (9 U.S.C. 1 et seq.) shall not apply to
               enforcement of awards rendered pursuant to the convention.

22 U.S.C. § 1650a(a) (emphasis added). While this Circuit has not explicitly discussed a court’s

authority to review ICSID awards, the Second Circuit has addressed this issue. In Mobil Cerro

Negro, Ltd. v. Bolivarian Republic of Venezuela, the Second Circuit observed:

                                                7
              [The Federal Arbitration Act (“FAA”)] prescribes grounds for vacating an
              arbitral award where the award was tainted by, among other things, fraud,
              corruption, or misconduct by the arbitrator. By expressly precluding the
              FAA’s application to enforcement of ICSID Convention awards, Congress
              intended to make these grounds of attack unavailable to ICSID award-
              debtors in federal court enforcement proceedings. Congress’s exclusion of
              the FAA’s provisions from Section 1650a may suggest an expectation that
              actions to enforce ICSID awards would not be protracted, as emphasized
              by the District Court.

863 F.3d 96, 120–21 (2d Cir. 2017) (internal citations omitted), citing 112 Cong. Rec. 13148,

13149 (daily ed. June 15, 1966) (written statement of Sen. Fulbright) (conveying that substantive

attack to ICSID awards on grounds provided by FAA can be made “only through the annulment

proceedings provided for in the Convention,” not in federal court). Thus, courts have found “[a]

member state is ‘not permitted to examine an ICSID award’s merits, its compliance with

international law, or the ICSID tribunal’s jurisdiction to render the award;’ all it may do is

‘examine the judgment’s authenticity and enforce the obligations imposed by the award.’”

TECO Guat. Holdings, LLC v. Republic of Guat., No. CV 17-102 (RDM), 2018 WL 4705794, at

*2 (D.D.C. Sept. 30, 2018), quoting Mobil Cerro, 863 F.3d at 102; see also Mobil Cerro Negro

Ltd. v. Bolivarian Republic of Venez., 87 F. Supp. 3d 573, 578 (S.D.N.Y. 2015), rev’d on other

grounds, 863 F.3d 96 (2d Cir. 2017) (noting that ICSID “determinations are final” and national

courts “may review such awards solely to confirm their authenticity”).

                                             ANALYSIS

  I.   The Court is required to recognize only the representatives of the Guaidó
       government.

       The D.C. Circuit has addressed the question of the legal representation of Venezuela, and

its decisions are binding on this Court. On May 1, 2019, the Court issued an Order denying a

“pro se application” filed by Reinaldo Enrique Muñoz Pedroza, the Attorney General of the

Bolivarian Republic of Venezuela under the authority of the Nicolás Maduro government. See


                                               8
Order, Rusoro Mining Ltd. v. Bolivarian Republic of Venez., No. 18-7044, Doc. No. 1785518

(D.C. Cir. May 1, 2019). The application requested that the Court bar Juan Guaidó and his

representatives from arguing the appeal on behalf of Venezuela. Id. In denying the application,

the Court reasoned:

               “What government is to be regarded here as representative of a foreign
               state is a political rather than a judicial question, and is to be determined
               by the political department of the government.” The executive branch’s
               “action in recognizing a foreign government . . . is conclusive on all
               domestic courts, which are bound to accept that determination . . . .”
               Furthermore, “the rights of a sovereign state are vested in the state rather
               than in any particular government which may purport to represent it, and .
               . . suit in its behalf may be maintained in our courts only by that
               government which has been recognized by the political department of our
               government as the authorized government of the foreign state.”

Id. (internal citations omitted), quoting Guaranty Trust Co. v. United States, 304 U.S. 126, 137–

38 (1938).

       In light of this Order, and because the United States has recognized Juan Guaidó as the

Interim President of Venezuela, 3 the Court will recognize the Guaidó government lawyers as the




3      See White House Statements & Releases, Statement from Donald J. Trump (Jan. 23,
2019) available at https://www.whitehouse.gov/briefings-statements/statement-president-donald-
j-trump-recognizing-venezuelan-national-assembly-president-juan-guaido-interim-president-
venezuela/ (last accessed May 17, 2019).


                                                 9
  appropriate representatives of Venezuela, 4 and the Court will consider the opposition brief filed

  by the Guaidó government in response to plaintiff’s motion for summary judgment. 5

II.      The Court will enter judgment in favor of the plaintiff.

             The Guaidó government makes no argument against the entry of judgment in favor of the

  plaintiff 6 – the only issue it raises is the applicable post-judgment interest rate. Since there has

      been no grounds presented to contest the authenticity of the Award, the Court will enter

      judgment in favor of the plaintiff and confirm the Award.

             The Court notes that granting judgment in favor of the plaintiff is entirely consistent with

      the intent of the Maduro government as it was expressed in its March 27, 2019 stipulation to the

      entry of judgment for the plaintiff. See Stipulation at 3. In the event that circumstances give rise

      to any reason to question the legitimacy or binding nature of a judgment rendered in accordance

      with the D.C. Circuit’s order in Rusoro Mining, or the position of the Department of State



  4       The Court has reviewed exhibits submitted to the Court by counsel for the Maduro
  government, which include a decision by an ICSID arbitration panel denying representation by
  Guaidó government lawyers, see Ex. A to Notice [Dkt. # 83-1], and a recent court order from the
  Southern District of Florida granting a 120-day stay rather than ruling on a motion for
  substitution. See Ex. B to Notice [Dkt. # 83-2]. Neither of these decisions are consistent with
  the D.C. Circuit precedent that the Court is bound to follow.

  5       In light of this finding, the Court will deny the Maduro government’s motion for
  reconsideration of the Court’s order granting the motion to strike the stipulation for judgment,
  see Mot. for Recons. [Dkt. # 65] and the Maduro government’s motion for substitution or joinder
  of the third-party in interest. See Mot. for Substitution or Joinder of the Third-Party in Interest
  [Dkt. # 73].

      6       Instead, the Guaidó government moves for a 120-day stay of the proceedings, arguing
      that a stay is necessary to allow the newly installed government of President Guaidó to conduct
      an orderly transition to democracy. See Guaidó Gov’t Opp. at 4–5. But, as the Court stated
      during the May 2, 2019 status conference, a stay in this case would not lead to a different result
      and would only serve to delay plaintiff’s entitlement to judgment in a case that has been pending
      for three years and has already been stayed once before. Therefore, the Court finds that a stay is
      unnecessary and unwarranted. See 5/2 Hr’g Tr. at 19:18–24.


                                                      10
changes, the Court has also reviewed the opposition brief filed by the Maduro government.

Represented by its counsel, the Maduro government also makes no new argument in its

opposition to the entry of judgment, 7 and its pleading addresses the question of the interest rate.

See Maduro Gov’t Opp. at 8–11. The Court has separately considered the motion for summary

judgment in connection with the Maduro opposition, and finds that it would grant the motion if

that were the proper opposition to consider as well.

III.   Post-Judgment Interest Rate

       The sole issue raised by the Guaidó government in opposition to the motion for summary

judgment is what the applicable post-judgment interest rate should be. Venezuela asks the Court

to impose post-judgment interest at the rate set forth in 28 U.S.C. § 1961(a), which is applicable

to money judgments in a civil case recovered in a district court and provides that “interest shall

be calculated from the date of the entry of judgment, at a rate equal to the weekly average 1-year

constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve

System, for the calendar week preceding the date of judgment.” Plaintiff maintains that the post-

judgment interest rate should accrue at the rate set forth in the Award: “[U]ntil the date of actual

payment, [interest will be] calculated at a LIBOR interest rate for one-year deposits in U.S.

dollars, plus a margin of 4%, with annual compounding of accrued interest.” Pl.’s Mem. in

Supp. of its Mot. for Summ. J. [Dkt. # 61] (“Pl.’s Mem.”) at 7–8; Final Award ¶ 984.




7       The Maduro government repeats the arguments that the Court has already rejected in
ruling on the motion to dismiss, see Maduro Gov’t Opp. at 10–11, and raises no claims that
would bar the entry of judgment in accordance with ICSID and 22 U.S.C. § 1650a. The Maduro
government also argues that a genuine dispute exists as to whether the parties entered into a valid
stipulation for judgment, see Maduro Gov’t Opp. at 7–8, but the stipulation has already been
stricken by the Court, see Min. Order (Apr. 2, 2019). And, in any event, the judgment of the
Court reflects the terms of the stipulation. See Stipulation.
                                                11
       Under the doctrine of merger, “[w]hen the plaintiff recovers a valid and final personal

judgment, his original claim is extinguished and rights upon the judgment are substituted for it.

The plaintiff’s original claim is said to be ‘merged’ in the judgment.” Restatement (Second) of

Judgments § 18 cmt. a (1982); see Bayer CropScience AG v. Dow Agrosciences, LLC, 680 Fed.

Appx. 985, 1000–01 (Fed. Cir. 2017). Thus, numerous circuits have held that once a federal

court confirms an arbitral award, the award merges into the judgment, and the federal rate of

post-judgment interest presumptively applies. See, e.g., Tricon Energy Ltd. v. Vinmar Int’l, Ltd.,

718 F.3d 448, 456–60 (5th Cir. 2013); Newmont U.S.A. Ltd. v. Ins. Co. of N. Am., 615 F.3d 1268,

1275–77 (10th Cir. 2010); Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1023–24

(9th Cir. 2004).

       The language of § 1961 is “mandatory” and “[i]ts terms do not permit the exercise of

judicial discretion in its application.” Carte Blanche (Sing.) Pte., Ltd. v. Carte Blanche Int’l,

Ltd., 888 F.2d 260, 268–70 (2d Cir. 1989). However, the “parties may contract to, and agree

upon, a post-judgment interest [rate] other than that specified in § 1961.” Soc’y of Lloyd’s v.

Reinhart, 402 F.3d 982, 1004 (10th Cir. 2005). To do so, they must express their intent to

replace the federal interest rate through “clear, unambiguous and unequivocal language.”

Westinghouse Credit Corp. v. D’Urso, 371 F.3d 96, 102 (2d Cir. 2004).

       The plaintiff does not point to contractual language here, but it submits that the Award

should control. A number of courts have held that where an award specifies an interest rate

“until payment,” that language does not clearly portray the intent of the parties to replace the

federal interest rate. Rather, the award must explicitly state the interest rate to be applied “post-

judgment.” See, e.g., Bayer CropScience, 680 Fed. Appx. at 1001 (rejecting the interest rate

provided for in an arbitration award because it specified that it would accrue “from the date of



                                                 12
this Award until full payment,” but did not specify it “post-judgment”); Tricon Energy, 718 F.3d

at 456–60 (finding because the panel did not use the words “postjudgment interest,” and instead

stated that an 8.5% interest rate would apply “until paid,” that § 1961 applied); In re Riebesell,

586 F.3d 782, 794–95 (10th Cir. 2009) (rejecting a provision in a note that the debt “shall accrue

interest until payment at the rate of twenty-four percent” because the note did not contract for

that rate “post-judgment”); D’Urso, 371 F.3d at 102 (rejecting an explicit agreement to apply a

15.5% interest rate to any arbitration award “from the date payment was due to the date payment

is made” and instead applying the interest rate specified in § 1961).

       The ICSID enabling statute states that “an award shall be enforced and shall be given the

same full faith and credit as if the award were a final judgment of a court of general jurisdiction

of one of the several States.” 22 U.S.C. § 1650a. Thus, it appears to the Court that once the

Award is confirmed, it merges with the judgment and § 1961 applies. See Miminco, LLC v.

Democratic Republic of the Congo, 79 F. Supp. 3d 213, 218–19 (D.D.C. 2015) (applying § 1961

to an ICSID arbitration award). And, because the Award sets forth that it will apply “until the

date of actual payment” 8 and not “post-judgment,” then accordingly, the appropriate interest rate

post-judgment is set by § 1961.

       Plaintiff argues that the cases cited above do not apply in this case because the precedent

“originates in Federal Arbitration Act cases,” and the FAA does not apply to ICSID awards.

Pl.’s Reply in Supp. of Summ. J. [Dkt. # 78] (“Pl.’s Reply”) at 5–6. But the merger doctrine and

whether or not § 1961 applies does not find authority in the FAA – it is a common law doctrine



8      The arbitration was brought pursuant to the Netherlands-Venezuela Bilateral Investment
Treaty, which provides that any compensation to be awarded “shall include interest at a normal
commercial rate.” See Agreement on Encouragement and Reciprocal Protection of Investments,
Neth.-Venez., art. 6, Oct. 22, 1991, 1788 U.N.T.S. 73. The Tribunal considered this language
when it determined what interest rate should apply to the award. Final Award ¶ 935.
                                                13
that applies to all money judgments recovered in a federal district court.          And the ICSID

Convention provides that “courts shall treat the award as if it were a final judgment of the courts

of a constituent state.” ICSID Convention art. 54. If the award were simply self-executing as

written, then plaintiff would not have had to come into court and request that a judgment be

entered. See Compl., Prayer for Relief, ¶ a (seeking an order “that the pecuniary obligations in

the Final Award in favor of OI European Group B.V. and against Venezuela be recognized and

entered as a judgment by the Clerk of this Court in the same manner and with the same force and

effect as if the Final Award were a final judgment of this Court . . . .”) (emphasis added). But

see, id. ¶ b (asking for the award plus the interest rate set forth in the award). Therefore, the

Court sees no reason to deviate from this approach.

       Plaintiff cites to Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, No. 14

CIV. 8163, 2015 WL 926011, at *1–3 (S.D.N.Y. Mar. 4, 2015) in support of its position that the

interest rate set forth in the Award should apply.           The court there found if the court

“supervene[d] the ICSID panel’s determination of the interest rate to apply until payment,” that it

could lead to the possibility of “different interest rates applying in different countries in which an

arbitral award creditor sought to recognize and enforce the same ICSID award.” Id. But, the

language in the convention appears to contemplate that different countries may enforce the

award differently:

               Each Contracting State shall recognize an award rendered pursuant to this
               Convention as binding and enforce the pecuniary obligations imposed by
               that award within its territories as if it were a final judgment of a court in
               that State. A Contracting State with a federal constitution may enforce
               such an award in or through its federal courts and may provide that such
               courts shall treat the award as if it were a final judgment of the courts of a
               constituent state.

ICSID Convention art. 54; see also 22 U.S.C. § 1650a.



                                                 14
       Furthermore, Mobil Cerro discussed the tension between § 1961 and § 1650a and

concluded, pursuant to canons of statutory construction, that it must adhere closely to § 1650a.9

Thus, “when an ICSID panel like the one here awards interest ‘until payment,’ a federal court

must recognize and enforce that pecuniary term. Any other reading of the Court’s obligations

would flout the plain language of the enabling statute.” Mobil Cerro, 2015 WL 926011, at *2.

In other words, even if this Court were to follow the direction of the Southern District of New

York, that direction would be: follow the statute. And here, the Court is faced with the language

in § 1650a that directs a court to give an award “the same full faith and credit as if the

award were a final judgment of a court of general jurisdiction of one of the several States.” 22

U.S.C. § 1650a. This would indicate that § 1961 should apply.

       Furthermore, using § 1961 to determine the post-judgment interest rate would not

disregard the pecuniary obligations imposed by the Award. The Award makes no mention of

what interest rate applies “post-judgment,” and the courts of this country have found that the

words “until payment” do not preclude application of § 1961. Furthermore, using § 1961 to

determine the post-judgment interest rate would not render the interest rate set forth in the Award

meaningless – the Award interest rate would apply in determining the interest plaintiff is entitled

to for the entire pre-judgment period. Thus, the Court finds § 1961 applies, and interest rate set




9       The Mobil Cerro court noted that the under canons of construction, “any tension between
§ 1961 and § 1650a must be resolved in favor of § 1650a, rather than § 1961” because “a specific
statute trumps a general one,” and § 1650a “is more targeted to the context of recognition and
enforcement of an ICSID award than the more general § 1961.” 2015 WL 926011, at *2 n.3,
citing RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (“[I]t is a
commonplace of statutory construction that the specific governs the general.”) (citation omitted).
Furthermore, § 1650a post-dates § 1961, and generally, a U.S. statute should be “construed so as
to not conflict with international law or international agreement.” Id. n.5, citing Rest. (Third) of
Foreign Relations Law § 114 (1987).
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forth in the federal statute will apply post-judgment, and the interest rate set forth in the Award

will apply pre-judgment. 10

                                              CONCLUSION

       For all those reasons, the Court will enter judgment for the plaintiff and confirm the

Award. Plaintiff is entitled to the sum of:

           •   The principal amount: $372,461,982, plus interest on this amount from
               October 26, 2010 through the date of judgment, calculated at a LIBOR
               interest rate for one-year deposits in U.S. dollars, plus a margin of 4%,
               with annual compounding of accrued interest;

           •   The costs and expenses of the arbitration: $5,750,000, plus interest on this
               amount from March 10, 2015 through the date of judgment, calculated at a
               LIBOR interest rate for one-year deposits in U.S. dollars, plus a margin of
               4%, with annual compounding of accrued interest;

           •   The costs and expenses of the annulment: $3,864,811.05, plus interest on
               this amount from December 6, 2018 through the date of judgment,
               calculated at a LIBOR interest rate for one-year deposits in U.S. dollars,
               plus a margin of 4%, with annual compounding of accrued interest; and

           •   Post-judgment interest on the total amount of the award, calculated at the
               rate set forth in 28 U.S.C. § 1961, from the date of judgment until full
               payment.




10      Upon consideration of the Maduro government’s arguments concerning the applicable
interest rate, see Maduro Gov’t Opp. at 8–10, the Court reaches the same conclusion.
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     A separate order will issue.




                                    AMY BERMAN JACKSON
                                    United States District Judge

DATE: May 21, 2019




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