BCB Holdings Limited v. Government of Belize, 650 Fed.Appx. 17 (2016)


                                                              [2] Belize failed to show that enforcement of foreign
                                                              arbitral award would violate the most basic U.S. notions
                   650 Fed.Appx. 17
                                                              of morality and justice; and
             This case was not selected for
       publication in West's Federal Reporter.
                                                              [3] equitable tolling of the statute of limitations for
      See Fed. Rule of Appellate Procedure 32.1
                                                              bringing suit to enforce arbitral award was appropriate.
   generally governing citation of judicial decisions
       issued on or after Jan. 1, 2007. See also
    U.S.Ct. of App. D.C.Cir. Rule 32.1 and Rule 36.           Affirmed.
            United States Court of Appeals,
             District of Columbia Circuit.
                                                               *18 Appeals from the United States District Court for
              BCB Holdings Limited and                        the District of Columbia (No. 1:14-cv-01123)
            Belize Bank Limited, Appellees
                          v.                                  Attorneys and Law Firms
           Government of Belize, Appellant.
                                                              Louis Benjamin Kimmelman, Esquire, Attorney, Dana
                       No. 15-7063                            Chandler MacGrath, Counsel, Sidley Austin LLP, New
                            |                                 York, NY, Kristin Graham Koehler, Ryan Conway
                Consolidated with 15-7069                     Morris, Esquire, Sidley Austin LLP, Washington, DC, for
                            |                                 Petitioners–Appellees.
                 September Term, 2015
                                                              Juan C. Basombrio, Dorsey & Whitney LLP, Costa Mesa,
                            |
                                                              CA, Creighton Reid Magid, Esquire, Dorsey & Whitney
                 Filed On: May 13, 2016
                                                              LLP, Washington, DC, for Respondent–Appellant.
Synopsis
                                                              Before: Rogers, Griffith, and Kavanaugh, Circuit Judges.
Background: Belize-registered parent holding company
and its banking subsidiary petitioned to confirm
foreign arbitral award, pursuant to Federal Arbitration
                                                                                    JUDGMENT
Act (FAA) and Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York              This appeal was considered on the record from the United
Convention), to convert award plus costs and interests        States District Court for the District of Columbia and on
to United States dollars, and to enter judgment in their      the briefs and oral arguments of the parties. The Court has
favor against Government of Belize or, alternatively,         afforded the issues full consideration and has determined
filed complaint to recognize and enforce foreign money        that they do not warrant a published opinion. See D.C.
judgment pursuant to District of Columbia Foreign-            Cir. R. 36(d). It is
Money Judgments Recognition Act. Belize moved to
dismiss petition and complaint. The United States District    ORDERED and ADJUDGED that the judgment of the
Court for the District of Columbia, Colleen Kollar-           District Court is hereby AFFIRMED.
Kotelly, J., 110 F.Supp.3d 233, granted petition and
denied motion. Belize appealed.                               BCB Holdings Limited and Belize Bank Limited are
                                                              two Belizean banking companies. In 2005, those two
                                                              companies signed an agreement with the Belizean
Holdings: The Court of Appeals held that:                     Prime Minister regarding, among other things, their tax
                                                              treatment. In 2008, the Government of Belize repudiated
[1] the doctrine of international comity was not a “rule of   that agreement. In response, BCB Holdings and Belize
procedure” of the United States, and so did not constitute    Bank invoked the agreement's arbitration clause. On
a basis for denying enforcement of the foreign arbitral       August 20, 2009, an arbitral tribunal in London ruled
award under the New York Convention;                          against Belize and ordered the country to pay a substantial
                                                              amount (approximately $20.5 million in U.S. dollars), plus



              © 2017 Thomson Reuters. No claim to original U.S. Government Works.                                     1
BCB Holdings Limited v. Government of Belize, 650 Fed.Appx. 17 (2016)


interest and costs. The two companies first tried to enforce
the award in Belize itself. But that effort failed because     Belize also argues that the District Court should have
Belize's highest court ruled that the award contravened        refused to enforce the arbitral award based on two other
Belize's separation-of-powers system. So on July 1, 2014,      public policies: the separation of powers and international
BCB Holdings and Belize Bank sought to enforce the             comity. But enforcement in this case would not violate any
award in the U.S. District Court for the District of           “basic notion of morality and justice” rooted in either of
Columbia. Belize moved to dismiss the suit on a variety        those two doctrines.
of grounds, including international comity, public policy,
forum non conveniens, and the statute of limitations.          Belize contends that the District Court should have
The District Court found none of Belize's arguments            dismissed the enforcement action on forum non
persuasive, and it enforced the arbitral award. See BCB        conveniens grounds. That argument is squarely foreclosed
Holdings Ltd. v. Belize, 110 F.Supp.3d 233 (D.D.C. 2015).      by our precedent. In TMR Energy Ltd. v. State Property
                                                               Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005), we held
 [1] We affirm. Under the Federal Arbitration Act, U.S.        that the doctrine of forum non conveniens does not apply
courts must enforce foreign arbitral awards unless they        to actions in the United States to enforce arbitral awards
find “one of the grounds for refusal or deferral of            against foreign nations. See id. at 303–04.
recognition or enforcement of the award specified in”
the United Nations Convention on the Recognition and            [3] Finally, Belize claims that BCB Holdings and Belize
Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517         Bank were time-barred from bringing their enforcement
(1958), also known as the New York Convention. 9 U.S.C         action. Generally, parties must bring suit to enforce an
§ 207. In this case, Belize asks us to deny enforcement        arbitral award within “three years after [it] is made.”
on the basis of international comity. Belize argues that       9 U.S.C. § 207. Here, BCB Holdings and Belize Bank
the Convention instructs courts to *19 enforce arbitral        took almost five years. But the District Court equitably
awards “in accordance with the rules of procedure of the       tolled the statute of limitations so that their claims were
territory” where the enforcement action is brought. New        not time-barred. BCB Holdings Ltd., 110 F.Supp.3d at
York Convention art. III. But Belize has failed to provide     245. The District Court reasoned that BCB Holdings
support for its assertion that the doctrine of international   and Belize Bank had pursued their rights to the arbitral
comity is a “rule of procedure” of the United States.          award diligently. Id. According to the District Court,
                                                               the two companies had failed to enforce the award only
 [2] Belize also claims that the District Court should         because of an external obstacle—a 2010 Belize criminal
have refused to enforce the arbitral award because it          statute that, as relevant here, imposed imprisonment and
was the result of a corrupt bargain between the two            substantial fines on those who violated a Belize Supreme
companies and the former Belizean Prime Minister. Under        Court injunction, including injunctions against pursuing
the New York Convention, courts may decline to enforce         enforcement of arbitration awards against Belize. Cf.
an arbitral award if “enforcement of the award would be        Belize Social Development Ltd. v. Belize, 668 F.3d 724, 729
contrary to the public policy of that country.” New York       (D.C. Cir. 2012). That statute was ruled unconstitutional
Convention art. V(2)(b). But courts should rely on the         in January 2014. But up until that point, the District
public policy exception only “in clear-cut cases” where        Court observed, the statute had a “chilling effect” on
“enforcement would violate the forum state's most basic        enforcement efforts. BCB Holdings Ltd., 110 F.Supp.3d at
notions of morality and justice.” Termorio S.A. E.S.P.         245. This Court has not resolved the appropriate standard
v. Electranta S.P., 487 F.3d 928, 938 (D.C. Cir. 2007)         of appellate review for equitable tolling decisions. But
(citations omitted). In this case, Belize has not shown that   even under de novo review, we agree with the District
enforcement would violate the most basic U.S. notions of       Court that equitable tolling was appropriate under all the
morality and justice. The arbitral tribunal did not find any   circumstances here. The companies persuasively explain
corruption. And Belize's highest court refused to enforce      that they *20 and their lawyers were reasonably chilled
the award not because the underlying agreement was             from enforcing the award in the United States because
tainted by corruption, but rather because the agreement        they might thereby run afoul of the Belizean statute and
violated Belize's separation of powers. Belize has failed to   risk criminal penalties. So long as the statute was in
justify the use of the public policy exception in this case.   effect, therefore, it was reasonable for BCB Holdings



               © 2017 Thomson Reuters. No claim to original U.S. Government Works.                                     2
BCB Holdings Limited v. Government of Belize, 650 Fed.Appx. 17 (2016)



and Belize Bank to avoid any action—including starting           Pursuant to D.C. Circuit Rule 36, this disposition will not
                                                                 be published. The Clerk is directed to withhold issuance
an enforcement suit in the United States. And once
                                                                 of the mandate herein until seven days after resolution of
the statute was ruled unconstitutional, it was reasonable
                                                                 any timely petition for rehearing or rehearing en banc. See
for BCB Holdings and Belize Bank to then file the
                                                                 Fed. R. App. P. 41(b); D.C. Cir. R. 41.
enforcement action in the District Court within six
months.
                                                                 All Citations
We have carefully considered all of Belize's arguments. We
affirm the judgment of the District Court.                       650 Fed.Appx. 17



End of Document                                              © 2017 Thomson Reuters. No claim to original U.S. Government Works.




              © 2017 Thomson Reuters. No claim to original U.S. Government Works.                                             3
