Commissions Import Export S.A. v. Republic of the Congo

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2014 Decided July 11, 2014

No. 13-7004

COMMISSIONS IMPORT EXPORT S.A.,

APPELLANT

v.

REPUBLIC OF THE CONGO AND CAISSE CONGOLAISE

D'AMORTISSEMENT,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00743)

Francis A. Vasquez Jr. argued the cause for appellant. With

him on the briefs was Jack Landman Goldsmith III.

Boaz S. Morag argued the cause for appellees. With him on

the brief were Michael R. Lazerwitz and Jesse D.H. Sherrett.

Before: ROGERS, BROWN and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Commissions Import Export S.A.

(“the Company”) prevailed in 2000 in an arbitration in Paris,

France against the Republic of the Congo and Caisse Congolaise

2

d’Amortissement (collectively “the Congo”). For over eight

years, the Company sought with little success to collect on the

arbitral award pursuant, in part, to an international treaty known

as the New York Convention. After obtaining a judgment in

2009 from a court in England enforcing the arbitral award, the

Company sued in the United States to enforce the foreign

judgment under state law. The district court denied the

Company’s motion for summary judgment and dismissed the

complaint on the ground that the three-year period to confirm a

foreign arbitral award under Chapter 2 of the Federal

Arbitration Act (“FAA”), 9 U.S.C. § 207, preempted the longer

period to enforce a foreign money judgment under the D.C.

Uniform Foreign-Country Money Judgments Recognition Act

(“D.C. Recognition Act”), D.C. Code § 15-369.

The Company maintains that FAA Chapter 2 and the D.C.

Recognition Act are two entirely separate regimes — one a

federal scheme for enforcing foreign arbitral awards, the other

a state regime for enforcing foreign court judgments — and that

the federal regime does not preempt the longer enforcement

period in the D.C. regime because the latter poses no obstacle to

the accomplishment of the purposes of the former. We invited

the United States to participate as amicus because an

international treaty is at issue, and the United States agrees with

our conclusion that the Company’s attempt to enforce the

foreign court judgment by a lawful, parallel enforcement scheme

does not stand as an obstacle to accomplishment of the purposes

of FAA Chapter 2. Accordingly, we reverse the dismissal of the

Company’s complaint and remand the case for further

proceedings.

I.

As background to the discussion of preemption, we

describe FAA Chapter 2 and the particular circumstances of this

3

case.

A.

Chapter 2 of the FAA implements the United Nations

Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T.

2517, 330 U.N.T.S. 38, otherwise known as the “New York

Convention.” See 9 U.S.C. §§ 201–208; Scherk v. Alberto-

Culver Co., 417 U.S. 506, 520 n.15 (1974); TermoRio S.A.

E.S.P. Grp., LLC v. Electranta S.P., 487 F.3d 928, 933–34 (D.C.

Cir. 2007). The Convention is a multilateral treaty that, with

exceptions, obligates participating countries to honor

international commercial arbitration agreements and to

recognize and enforce arbitral awards rendered pursuant to such

agreements. See N.Y. Conv’n Arts. I, II, III; see also S. EXEC.

REP. NO. 10, at 3–4 (1968) (testimony of Amb. Richard D.

Kearney, Office of the Legal Adviser, Dep’t of State). The

United States did not join the New York Convention when it

was opened for signature in 1958, but did finally join in 1970

when Congress enacted the Act To Implement the Convention

on the Recognition and Enforcement of Foreign Arbitral

Awards, Pub. L. No. 91-368, 84 Stat. 692 (1970) (“Foreign

Arbitral Awards Convention Act”), as Chapter 2 of the FAA.

Chapter 2 provides in 9 U.S.C. § 201 that the Convention

“shall be enforced in United States courts in accordance with

this chapter,” and in section 202 limits the application of the

Convention to international commercial disputes. It establishes

a federal forum for disputes concerning arbitrations falling under

the Convention, see id. §§ 203–204, while providing an optional

right of removal by defendants for Convention-related disputes

pending in a state court, see id. § 205. It also provides for a

court to compel arbitration and appoint arbitrators. See id.

§ 206. Of significance here, it imposes a time limit for seeking

confirmation of an arbitral award. Section 207 provides:

4

Within three years after an arbitral award falling under

the Convention is made, any 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. The 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 said Convention.

Finally, Chapter 2 provides that Chapter 1, regarding non-

Convention domestic arbitration, has residual application where

there is no conflict with Chapter 2 or the New York Convention

as ratified. See id. § 208.

B.

In the 1980s, the Company entered into contracts with the

Republic of the Congo to perform public works and supply

materials. The contracts were financed through supplier credits

extended by Caisse Congolaise d’Amortissement (“CCA”) that

were formalized through promissory notes issued by CCA and

guaranteed by the Republic of the Congo. In 1992, the parties

signed an agreement for the repayment over ten years in equal,

consecutive monthly payments of certain outstanding debts

owed to the Company under the contracts. Article 10 provided

that any disputes arising from or relating to the agreement would

be resolved by final binding arbitration under the Rules of the

International Chamber of Commerce (“ICC”). CCA drew up

promissory notes endorsed in favor of the Company, and in

1993 the Republic of the Congo issued a series of commitment

letters; each commitment letter contained an irrevocable waiver

of immunity from legal proceedings or execution and a

commitment to submit all disputes to ICC arbitration in Paris,

France, governed by French law.

When the Congo failed to pay the promised amounts as they

5

came due, and did not respond to the Company’s formal demand

for payment, the Company filed a request in 1998 for arbitration

with the International Court of Arbitration of the ICC and the

matter was submitted to arbitration. On December 3, 2000, the

arbitral tribunal in Paris issued a final award in favor of the

Company (“the Award”). The Award included outstanding

principal owed under the agreement, interest, penalty interest on

various promissory notes, and costs. The Award was summarily

confirmed by the Tribunal de Grande Instance of Paris on

December 12, 2000, and was upheld on May 23, 2002 by the

Court of Appeals of Paris after the Congo appealed to rescind

the Award. The Company filed eleven judicial enforcement

proceedings to enforce the Award in France, as well as 82 non-

judicial bailiff actions.

The Company also obtained judicial recognition of the

Award pursuant to the New York Convention in Belgium and

Sweden, but obtained no recovery on the amounts owed. On

June 17, 2009, the Company initiated proceedings pursuant to

the Convention in the Queen’s Bench Division of the High

Court of Justice, Commercial Court in London, England. The

High Court entered an order on July 10, 2009, ruling that the

Award was enforceable in the same manner as a judgment under

section 101 of the 1996 Arbitration Act of England, and

recalculating the amount due to include additional interest and

other costs (“the English Judgment”). Under English law, the

judgment became final, conclusive, and enforceable on March

2, 2010, and remains enforceable for six years from that date.

See Declaration of John Arthur Higham, Q.C. ¶¶ 13, 17. The

High Court amended the judgment on November 1, 2011 to

account for the Company’s successful seizure of French Francs

in partial satisfaction of the Award.

Shortly before, on September 2, 2011, the Company filed a

complaint in the federal court in the Southern District of New

6

York to recognize and enforce the English Judgment under the

New York Uniform Foreign Country Money-Judgments

Recognition Act, N.Y. C.P.L.R. Article 53. That court

transferred the case to the federal court in the District of

Columbia, see 9 U.S.C. § 204, and the Company amended and

supplemented its complaint to recognize and enforce the English

Judgment under the D.C. Recognition Act. The D.C.

Recognition Act provides that “[a]n action to recognize a

foreign-country judgment” must be commenced before the

judgment expires in the rendering country or within 15 years of

the judgment’s becoming effective in the foreign country,

whichever is earlier. D.C. Code § 15-369. “[A] court of the

District of Columbia,” subject to limited exceptions, “shall

recognize a foreign-country judgment” that “[g]rants or denies

recovery of a sum of money” and is final, conclusive, and

enforceable where rendered. Id. §§ 15-363(a)(1)–(2); 15-

363(b); 15-364(a).

The district court denied the Company’s motion for

summary judgment and dismissed the complaint on the ground

that the three-year period for confirmation of foreign arbitral

awards in 9 U.S.C. § 207 preempted the D.C. statute’s longer

enforcement period for foreign money judgments, D.C. Code

§ 15-369. See Commissions Import Export S.A. v. Republic of

Congo, 916 F. Supp. 2d 48, 55 (D.D.C. 2013). The Company

appeals, and this court has jurisdiction in view of the Congo’s

waiver of any claim of sovereign immunity in the commitment

letters that accompanied the promissory notes. See 28 U.S.C.

§ 1605(a)(1). Our review is de novo. See, e.g., Indep. Bankers

Ass’n of Am. v. Farm Credit Admin., 164 F.3d 661, 666 (D.C.

Cir. 1999); Waterview Mgmt. Co. v. FDIC, 105 F.3d 696, 699

(D.C. Cir. 1997).

II.

It is “[a] fundamental principle of the Constitution . . . that

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Congress has the power to preempt state law.” Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 372 (2000); U.S. CONST.,

art. VI, cl. 2. In some cases, preemption occurs because

Congress has provided for it expressly; in the face of an express

preemption provision, “[t]here is no doubt” that federal law

prevails. Arizona v. United States, 132 S. Ct. 2492, 2500

(2012). But even without an express preemption provision,

“[s]tate law must also give way to federal law in at least two

other circumstances.” Id. at 2501. First, “the States are

precluded from regulating conduct in a field that Congress,

acting within its proper authority, has determined must be

regulated by its exclusive governance.” Id. Second, “state laws

are preempted when they conflict with federal law.” Id.

The Supreme Court has observed in the domestic arbitration

context that “[t]he FAA contains no express pre-emptive

provision, nor does it reflect a congressional intent to occupy the

entire field of arbitration.” Volt Info. Sciences, Inc. v. Bd. of

Trustees of the Leland Stanford Junior Univ., 489 U.S. 468, 477

(1989). Accordingly, as the parties agree, this case is governed

by the conflict preemption doctrine set forth in Hines v.

Davidowitz, 312 U.S. 54 (1941). Pursuant to Hines, federal law

will preempt state law where “under the circumstances of [a]

particular case, [the challenged state] law stands as an obstacle

to the accomplishment and execution of the full purposes and

objectives of Congress.” 312 U.S. at 67. “What is a sufficient

obstacle is a matter of judgment, to be informed by examining

the federal statute as a whole and identifying its purpose and

intended effects[.]” Crosby, 530 U.S. at 373; see also Wyeth v.

Levine, 555 U.S. 555, 565 (2009). Because what “must be

implied is of no less force than that which is expressed,” Crosby,

530 U.S. at 373 (quotation marks and citation omitted), federal

law may preempt state law even if the conflict between the two

is not facially apparent — as when, for example, the federal and

state laws govern different subject matters, see, e.g., Perez v.

Campbell, 402 U.S. 637 (1971). Furthermore, federal law may

8

preempt state law even if both pursue the same ends because “a

conflict in technique can be fully as disruptive to the system

Congress enacted as conflict in overt policy,” Arizona, 132 S.

Ct. at 2505 (quotation marks, alterations, and citation omitted);

see Crosby, 530 U.S. at 379. In accord with these general

principles, Hines preemption analysis entails two steps: first,

identifying the purposes of the federal statute; and second,

determining what, if any, obstacles are posed by the challenged

state law. Traditional preemption principles apply to District of

Columbia laws. See, e.g., Wash. Serv. Contractors Coal. v. Dist.

of Columbia, 54 F.3d 811, 813, 815 (D.C. Cir. 1995).

A.

The basic purpose of FAA Chapter 2 was to implement the

New York Convention. “The goal of the Convention, and the

principal purpose underlying [the United States’] adoption and

implementation of it, was to encourage the recognition and

enforcement of commercial arbitration agreements in

international contracts and to unify the standards by which

agreements to arbitrate are observed and arbitral awards are

enforced in the signatory countries.” Scherk, 417 U.S. at 520

n.15; see TermoRio S.A. E.S.P. Grp., 487 F.3d at 933–34. In

implementing the Convention, Congress addressed what a

former chairman of the ICC described as “the needs of

international trade for a rapid, simplified, efficient and

inexpensive procedure for eliminating disputes and

disagreements in business transactions.” Robert Briner &

Virginia Hamilton, The History and General Purpose of the

Convention, in ENFORCEMENT OF ARBITRATION AGREEMENTS

AND INTERNATIONAL ARBITRAL AWARDS 3, 14 (Emmanuel

Gaillard & Domenico Di Pietro eds., 2008) (hereinafter “Briner

& Hamilton”). But at the same time, Congress limited the scope

of the Convention’s application. As the Seventh Circuit

explained, “[t]he concern for an unintended effect on domestic

laws, which had counseled against the participation of the

United States in 1958, was addressed in the implementation.”

9

Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co.,

500 F.3d 571, 577 (7th Cir. 2007). Section 202 limited disputes

“falling under the Convention” to commercial relationships

involving a foreign party or having a “reasonable relation with

one or more foreign states.” 9 U.S.C. § 202; see S. REP. NO. 91-

702, at 6 (1970) (Kearney testimony). So, “although the

Convention would displace certain domestic laws, it would do

so only in the narrow context of truly international disputes.”

Certain Underwriters, 500 F.3d at 577.

Congress also set a three-year limit for seeking summary

confirmation of “an arbitral award falling under the

Convention.” 9 U.S.C. § 207. To understand the purpose of

section 207, “[c]ongressional intent is discerned primarily from

the statutory text.” CTS Corp . v. Waldburger, No. 13-339, slip

op. at 10 (U.S. June 9, 2014); see N.Y. State Conf. of Blue Cross

& Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655

(1995). The three year limit in section 207 applies specifically

to the confirmation of “arbitral award[s] falling under the

Convention,” and the court must “presume that [the] legislature

says in a statute what it means and means in a statute what it

says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249,

253–54 (1992). Neither section 207 nor any other provision of

Chapter 2 mentions foreign court judgments. Nor is there a

reference to foreign court judgments in FAA Chapter 1, which

has residual application. As a matter of textual analysis, the

Company persuasively maintains that section 207’s “relatively

demanding statute of limitations is tied to its relatively generous

summary confirmation process,” Appellant’s Br. 43, and is best

read “as evincing an interest in finality in the specific context of

foreign award enforcement under the streamlined procedures of

FAA Chapter 2,” Reply Br. 15 (emphasis added).

Section 207 was modeled on a similar provision in FAA

Chapter 1, which provides that “any time within one year after

the award is made any party to the arbitration may apply to the

10

court so specified for an order confirming the award[.]” 9

U.S.C. § 9 (emphasis added); see H.R. REP. NO. 91-1181, at 4

(1970). The sole textual difference between section 9 and

section 207 is that the latter gives prevailing parties two

additional years in which to seek confirmation “to allow time

for . . . initial enforcement efforts outside the United States.” S.

REP. NO. 91-702, at 8 (1970) (Kearney testimony). The Congo

does not dispute the well-established proposition that the

permissively worded provision in section 9, which enables but

does not require a party to seek award enforcement pursuant to

the FAA, is tied exclusively to award enforcement procedures

under Chapter 1 and does not preempt longer enforcement

periods available under state law. See Hall St. Assocs., LLC v.

Mattel, Inc., 552 U.S. 576, 590 (2008); see also Photopaint

Techs., LLC v. Smartlens Corp., 335 F.3d 152, 159 (2d Cir.

2003); Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th

Cir. 1953). Although the context is different — Chapter 1

concerns domestic arbitration while Chapter 2 concerns

international arbitration — the use of identical language in the

two provisions suggests, absent contrary indication, that

Congress intended them to operate in a similar manner. See

Smith v. City of Jackson, Miss., 544 U.S. 228, 233 (2005) (citing

Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427,

428 (1973)). In other words, Chapter 2, like Chapter 1,

preserves a prevailing party’s option to pursue other

enforcement mechanisms if it so chooses.

The New York Convention does not limit the period for

enforcement of arbitral awards and includes no restriction

regarding foreign judgments. Under Article III of the

Convention, signatory countries may apply their own statutory

periods for the enforcement of arbitral awards, so long as such

periods are not unduly short, or may choose, as many countries

have, not to impose any time limit on enforcement. The

Convention also expressly preserves, under Article VII, arbitral

parties’ right to rely upon domestic laws that are more favorable

11

to award enforcement than are the terms of the Convention:

“The provisions of the present Convention shall not . . . deprive

any interested party of any right he may have to avail himself of

an arbitral award in the manner and to the extent allowed by the

law . . . of the country where such award is sought to be relied

upon.” N.Y. Conv’n Art. VII. As one oft-quoted academic-

practitioner has written, the underlying rationale of Article VII

is that the “Convention is aimed at facilitating recognition and

enforcement of foreign arbitral awards; if domestic law or other

treaties make recognition and enforcement easier, that regime

can be relied upon.” Albert Jan van den Berg, The New York

Convention of 1958: An Overview, in ENFORCEMENT OF

ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL

AWARDS 39, 66 (Emmanuel Gaillard & Domenico Di Pietro

eds., 2008). Article XI presumes that countries with a “federal

or non-unitary” structure of government may implement the

Convention in a manner that is internally non-uniform. Id. Art.

XI. Thus, the Convention sets minimum protections for the

enforcement of international commercial arbitration awards, but

does not limit treaty members from affording more protections

than the Convention requires. “The Convention . . . sets a

‘floor,’ but not a ‘ceiling,’ for enforcement of arbitral awards.”

Amicus United States Br. 7.

Neither does the legislative history of the Foreign Arbitral

Awards Convention Act indicate that Congress intended Chapter

2 of the FAA to govern not only arbitral awards but the

recognition of judgments as well. As explained by the State

Department’s Office of the Legal Adviser to the Senate Foreign

Relations Committee, although the general subject of arbitration

is within federal jurisdiction if it concerns foreign or interstate

commerce, “our purpose in adhering to the [New York]

Convention is for the beneficial effects it will produce for the

foreign commerce of the United States and not to make any

changes with respect to matters that are traditionally within the

jurisdiction of the 50 States of the Union.” Certain

12

Underwriters, 500 F.3d at 577 n.6 (quoting S. REP. NO. 91-702,

at 6 (1970) (Kearney testimony) (emphasis added)). In response

to the Committee Chairman’s question, “Does this [New York

Convention] seek in any way to extend Federal jurisdiction into

areas not now within Federal jurisdiction?” the answer by the

State Department was “No.” S. EXEC. REP. NO. 10, at 7 (1968)

(Kearney testimony). The opposition to signing the Treaty in

1958, because adherence “would entail interference with the

laws and judicial procedures of a substantial number of the

[domestic] States,” W.T.M. BEALE, OFFICIAL REPORT OF THE

U.S. DELEGATION TO THE UNITED NATIONS CONFERENCE ON

INTERNATIONAL COMMERCIAL ARBITRATION (1958), reprinted

in 19 AM. REV. INT’L ARB. 91, 115 (2008), was not overcome

until the “situation ha[d] changed rather dramatically,” S. EXEC.

REP. NO. 10, at 6 (1968) (Kearney testimony). Whatever one

may take away from the legislative history, it shows that

Congress was aware of the long-standing concerns relating to

interference with domestic state laws yet gave no clear

indication of an intent to bar alternative enforcement schemes.

The text of the Foreign Arbitral Awards Convention Act

and the circumstances of its enactment thus weigh in support of

concluding that Congress did not intend to speak beyond the

recognition and enforcement of arbitral awards. Permitting the

Company to have recourse to the D.C. Recognition Act to

enforce the English judgment, then, would appear to be

consistent with FAA Chapter 2’s objectives and to pose no

obstacle to the accomplishment of its purpose.

B.

The Congo suggests, however, that various obstacles to the

fulfillment of FAA Chapter 2’s purposes are created if the

English Judgment is enforced under the D.C. Recognition Act.

It maintains that the three-year period in 9 U.S.C. § 207

embodies purposes of “uniformity” and “finality” that would be

frustrated by allowing recourse to the D.C. Recognition Act

13

after expiration of the three-year period. See Commissions

Import Export S.A., 916 F. Supp. 2d at 53, 55. As the Congo

sees it, “instead of a single, uniform three-year limitations

period, defendants would face a multitude of diverse limitations

. . . if litigants could recognize an award in a Convention

signatory with no limitations period and then bring that

judgment to the United States.” Appellees’ Br. 44–45

(quotation marks omitted). The Congo maintains that the

carefully crafted framework of Chapter 2 of the FAA provides

it “a defense to recognition and enforcement of the Award in the

United States that may not be overcome by the expedient of [the

Company] pursuing under state law the same relief as in an

action to enforce the Award itself.” Id. at 50. But, as shown,

neither the text, context, nor legislative history of the Foreign

Arbitral Awards Convention Act indicates that Congress

intended to promote uniformity and finality in the manner the

Congo proposes, cf. Arizona, 132 S. Ct. at 2504–05.

Even assuming 9 U.S.C. § 207 may “promote finality,

repose, and the efficient and prompt administration of justice,”

Appellee’s Br. 33 (citation omitted); see Commissions Import

Export S.A., 916 F. Supp. 2d at 54, 55, such an assumption

implies little about the intended scope of the provision. Because

international arbitration is undoubtedly within the United States’

federal legislative power, the fact that Congress acted at the

federal level to carry out its obligations under the New York

Convention does not, as the Congo suggests, indicate a

particular preference for national uniformity in this area. See

N.Y. Conv’n Art. XI. Indeed, the fact that section 205 provides

for permissive removal from state proceedings, 9 U.S.C. § 205,

further bolsters the conclusion that uniformity was not

Congress’s exclusive concern in enacting section 207.

“The States’ coordinate role in government counsels against

reading federal laws to restrict States’ sovereign capacity to

regulate in areas of traditional state concern.” CTS Corp., No.

14

13-339, slip op. at 10 (U.S. June 9, 2014) (quoting FTC v.

Phoebe Putney Health Sys., Inc., 568 U.S. —, 133 S. Ct. 1003,

1016 (2013) (internal quotation marks and ellipsis omitted)).

State courts have long recognized the conceptual difference

between arbitral awards and foreign court judgments on arbitral

awards, compare Gilbert v. Burnstine, 174 N.E. 706, 707 (N.Y.

1931), with Skandinaviska Granit Aktiebolaget v. Weiss, 234

N.Y.S. 202, 204–08 (N.Y. App. Div. 1929), and treated foreign

court judgments on awards as enforceable under state law, see

Wright, Graham & Co. v. Hammond, 154 S.E. 649, 650 (Ga. Ct.

App. 1930); Skandinaviska Granit Aktiebolaget, 234 N.Y.S. at

204–08. Although an arbitral award and a court judgment

enforcing an award are “closely related,” Appellees’ Br. at 34,

they are nonetheless “distinct” from one another, Amicus United

States Br. 14, and that distinction has long been recognized, see

Briner & Hamilton at 6 (quoting ICC Council Res. (Nov. 6,

1925)). The United States accordingly emphasizes:

It is essential to recognize that a foreign court

judgment confirming an arbitral award is not governed

by the New York Convention or the Foreign Arbitral

Awards Convention Act. As a matter of U.S. law, the

mechanism for obtaining recognition and enforcement

of a foreign money judgment arising out of an arbitral

award has been understood to be distinct from an

action seeking recognition and enforcement of an

arbitral award. See, e.g., Seetransport Wiking Trader

Schiffarhtsgesellschaft MBH & Co.,

Kommanditgesellschaft v. Navimpex Centrala Navala,

989 F.2d 572, 582-583 (2d Cir. 1993). Enforcement of

a foreign court money judgment has traditionally been

governed by state law. See Restatement (Third) of

Foreign Relations Law of the United States § 481

comment a (1987); see also Nat’l Conf. of

Commissioners on Uniform State Laws, Uniform

Foreign Country Money Judgments Recognition Acts

15

(1962 & 2005).

Amicus United States Br. 14. The distinction between awards

and judgments is amplified here by the fact that the English

Judgment includes interest that the Company could not have

collected had its prior efforts to collect on the Award under the

Convention been successful.

As noted, the overriding purpose of FAA Chapter 2 is to

facilitate international commercial arbitration by ensuring that

valid arbitration agreements are honored and valid arbitral

awards are enforced. See Scherk, 417 U.S. at 520 n.15. The

“amendment of the Federal Arbitration Act” to include Chapter

2 reflects a congressional judgment that the “emphatic federal

policy in favor of arbitral dispute resolution . . . applies with

special force in the field of international commerce.” Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,

631 (1985); see also BG Group, PLC v. Republic of Argentina,

134 S. Ct. 1198 (2014). That policy is not undermined — and

frequently will be advanced — through recourse to parallel

enforcement mechanisms that exist independently of the FAA.

See Amicus United States Br. 16 (quoting RESTATEMENT

(THIRD) OF U.S. LAW OF INTERNATIONAL COMMERCIAL

ARBITRATION, § 4-3(d), Reporter’s Notes g, Tentative Draft No.

2 (Apr. 16, 2012)); cf. Hall St. Assocs., 552 U.S. at 590. Of

course, the Congo is correct that merely sharing the same

“overarching objectives,” Appellees’ Br. 51, as federal law will

not necessarily save a state law from preemption if its methods

of achieving those objectives conflict with federal law. For

instance, in Arizona the Supreme Court held the state statute was

preempted to the extent that it imposed criminal penalties

contrary to Congress’s “comprehensive framework for

‘combating the employment of illegal aliens’” where the

legislative history indicated that Congress had “made a

deliberate choice not to impose criminal penalties on aliens who

seek . . . unauthorized employment.” 132 S. Ct. at 2504

16

(internal citation omitted); see Crosby, 530 U.S. at 378–80. No

such statutory intent or legislative history exists for FAA

Chapter 2 regarding the enforcement of foreign judgments. To

the extent the Congo relies on Volt Information Sciences, 489

U.S. at 478–79, involving a domestic arbitration agreement, to

support its contention that application of the D.C. Recognition

Act is contrary to the parties’ agreement French law would

apply to their arbitration, the choice of French law has no

bearing on subsequent proceedings to enforce an arbitral award

under the New York Convention.

The Congo’s remaining points are likewise unpersuasive.

Permitting recourse to the D.C. Recognition Act would, the

Congo maintains, “attach[] a significance to the English

Judgment that is directly at odds with the FAA’s and the

Convention’s ‘carefully crafted framework for the enforcement

of international arbitration awards.’” Appellees’ Br. 35 (quoting

Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 729 (D.C.

Cir. 2012) (quoting TermoRio S.A. E.S.P. Grp., 487 F.3d at

935)). The Congo emphasizes that England is a “secondary

jurisdiction” with respect to the French arbitral award, and that

“court proceedings in another secondary jurisdiction have ‘no

preclusive effect’ in recognition proceedings in the United

States.” Id. at 36 (quoting Belize Soc. Dev. Ltd., 668 F.3d at

730); see also Karaha Bodas Co., LLC v. Perusahaan

Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274,

308–10 (5th Cir. 2004). The Company acknowledges, however,

that its cause of action under the D.C. Recognition Act “does not

call for the [d]istrict [c]ourt automatically to accord preclusive

effect to the English Court’s determinations on the Award under

the Convention, but rather to assess the English Judgment under

the separate (and clearly distinct) factors for judgment

recognition under District of Columbia law.” Reply Br. 21–22.

The Congo’s contentions regarding the “limited territorial

effect” of the English Judgment and U.S. courts’ historical

reluctance to recognize “judgments on judgments,” Appellees’

17

Br. 36–37, 46, seem to present public policy arguments better

suited, at best, see Amicus U.S. Brief at 17 (citing Nat’l Conf.

of Comm’rs on Uniform State Laws, Uniform Foreign Country

Money Judgments Recognitions Act, § 4 cmt. (2005)), as

arguments to a court applying the D.C. Recognition Act than as

arguments for preemption.

The Congo further maintains that preemption of the D.C.

Recognition Act is supported by “a series of Supreme Court

decisions . . . preclud[ing] suits under state law that would

effectively deprive a defendant of a defense to liability, or deny

a benefit, afforded by a federal scheme.” Appellees’ Br. 47–48.

Yet those cases are of limited assistance because “the ultimate

touchstone in every pre-emption case” is necessarily “the

purpose of Congress.” Wyeth, 555 U.S. at 565. Determining

whether Congress intended a particular federal defense or

limitation to be available notwithstanding state law is a statute-

specific inquiry. There is no indication of such broad intent

here; thus, generalized comparisons to other cases applying

unrelated statutes are readily distinguishable. In any event, the

court is not presented with a case in which defenses under the

New York Convention were denied; the Congo invoked its

Convention defenses when it appealed, albeit unsuccessfully, in

the Paris Court of Appeals to rescind the Award for alleged non-

compliance with the adversary principle and international public

order on recognition and enforcement because the arbitrators

allegedly relied on forgeries or documents obtained by

fraudulent means; the French court rejected the Congo’s

Convention defenses.

C.

As the Supreme Court recently reemphasized, it is a “well-

established principle that it is incumbent upon the federal courts

to be certain of Congress’ intent before finding that federal law

overrides the usual constitutional balance of federal and state

powers.” Bond v. United States, 134 S. Ct. 2007, 2089 (2014)

18

(quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).

Against the historical backdrop of state law on the enforcement

of foreign judgments, it is unlikely that Congress would have

intended its implementation of the New York Convention to

cover both arbitral awards and judgments without mentioning

the latter in FAA Chapter 2. Congress’s “silence on the issue

[of preemption], coupled with its certain awareness of the

prevalence of state [foreign money judgment enforcement

statutes], is powerful evidence that Congress did not intend

[FAA Chapter 2] to be the exclusive means of ensuring”

arbitration agreements and arbitral awards are enforced. Wyeth,

555 U.S. at 575 (citing Bonito Boats, Inc. v. Thunder Craft

Boats, Inc., 489 U.S. 141, 166–67 (1989)). An alternative

conclusion could frustrate the collection of debts determined

pursuant to the parties’ voluntary arbitration agreement, and it

seems unlikely this was Congress’s intent. The Company

pursued the enforcement remedy available under the

Convention, yet the debt remains unsatisfied. Its use of a lawful

parallel enforcement scheme does not present an obstacle to the

summary process Congress adopted in implementing the

Convention. Cf. POM Wonderful LLC v. Coca-Cola Co., No.

12-761, slip op. at 11 (U.S. June 12, 2014).

Our conclusion that FAA Chapter 2 does not preempt

enforcement of the English Judgment accords with the

longstanding position of Second Circuit Court of Appeals, the

only other federal appeals court to have addressed the

relationship between 9 U.S.C. § 207 and state judgment

recognition laws. Shortly after the Foreign Arbitral Award

Convention Act was enacted, in Island Territory of Curacao v.

Solitron Devices, Inc., 489 F.2d 1313 (2d Cir. 1973), the Second

Circuit held that both the New York Convention and FAA

Chapter 2 “go only to the enforcement of a foreign arbitral

award and not to the enforcement of foreign judgments

confirming foreign arbitral awards,” id. at 1319. Subsequently,

in Seetransport Wiking Trader Schiffarhtsgesellschaft MBH &

19

Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 29

F.3d 79 (2d Cir. 1994) (“Seetransport II”), the Second Circuit

permitted the enforcement under the New York Uniform

Foreign Money-Judgments Recognition Act of a judgment of the

Paris Court of Appeals awarding the sums in an arbitral award

where, as here, the period for seeking confirmation of the award

under the FAA Chapter 2 had passed. The court had explained:

“[U]nlike the recognition of arbitral awards, which is governed

by federal law, the recognition of foreign judgments is governed

b y s t a t e l a w . ” S e e t r a n s p o r t Wi k i n g T r a d e r

Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v.

Navimpex Centrala Navala, 989 F.2d 572, 582 (2d Cir. 1993)

(“Seetransport I”) (citing REST. (THIRD) OF FOREIGN RELATIONS

LAW OF THE UNITED STATES § 481 cmt. a (1987)). The Congo’s

attempts to distinguish these cases are unpersuasive. For

instance, the Congo insists that Seetransport II “simply did not

address the preemption issue,” Appellees’ Br. 53, but that was

because the preemption issue had been resolved in Solitron

Devices, Inc., 489 F.2d at 1319, and the court had reaffirmed its

position, see Victrix Steamship Co. v. Salen Dry Cargo A.B., 825

F.2d 709, 713 n.2 (2d Cir. 1987); Waterside Ocean Navigation

Co., Inc. v. Int’l Navigation Ltd., 737 F.2d 150, 154 (2d Cir.

1984); Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 518 (2d

Cir. 1975). As the relevant facts here are virtually identical to

those in Seetransport, the reasoning of the Second Circuit is

instructive.

Our conclusion is also consistent with the presumption

against preemption, which demands that “in all pre-emption

cases, and particularly those in which Congress has legislated in

a field which the States have traditionally occupied” without

enacting an express preemption provision, the court must

assume “the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.” Wyeth, 555 U.S. at 565

(alterations and quotation marks omitted); cf. Bond, 134 S. Ct.

20

at 2089. As discussed, “the enforcement of foreign judgments

was, and remains, presumptively and primarily under the control

of the states.” Reply Br. 24; see RESTATEMENT (THIRD) OF

FOREIGN RELATIONS § 481 cmt. a (1987); see also Aetna Life

Ins. Co. v. Tremblay, 223 U.S. 185, 190 (1912); Johnston v.

Compagnie Generale Transatlantique, 152 N.E. 121, 123 (N.Y.

1926). Because “Congress does not cavalierly pre-empt state-

law causes of action,” Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996), the absence of a “clear and manifest” preemptive

purpose in FAA Chapter 2 reinforces the conclusion that

preemption is not warranted here.

Accordingly, we hold that the limitations period in FAA

Chapter 2, 9 U.S.C. § 207, does not preempt the longer

limitations period in the D.C. Recognition Act for enforcing a

foreign court judgment, D.C. Code § 15-369, and we reverse the

dismissal of the Company’s complaint. We remand the case for

the district court to determine whether the English Judgment is

enforceable under the D.C. Recognition Act. This court has no

occasion today to decide whether 9 U.S.C. § 207 preempts

longer State statutes of limitations related to State enforcement

of foreign arbitration awards.