Enron Nigeria Power Holding, Ltd. v. Federal Republic of Nigeria

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2016 Decided December 27, 2016

No. 15-7121

ENRON NIGERIA POWER HOLDING, LTD.,

APPELLEE

v.

FEDERAL REPUBLIC OF NIGERIA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01106)

David Elesinmogun argued the cause and filed the briefs for

appellant.

Kenneth R. Barrett argued the cause and filed the briefs for

appellee.

Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: In 1999, the Republic of Nigeria

entered into a power purchase agreement (“PPA”) with Enron

Nigeria Power Holding, Ltd. (“ENPH”), for construction of

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electrical facilities. Days later, Nigeria suspended

implementation of the PPA, and after years of attempted

renegotiation over one phase of construction proved fruitless,

ENPH filed under the PPA for arbitration by the International

Chamber of Commerce’s International Court of Arbitration

(“ICC”). The ICC issued an Award in ENPH’s favor. When

collection efforts failed, ENPH filed a petition for confirmation

and enforcement of the Award in the federal district court here.

Nigeria now appeals from the order granting enforcement of the

Award.

Invoking Article V(2)(b) of The Convention on the

Recognition and Enforcement of Foreign Arbitral Awards

(known as the “New York Convention”), 21 U.S.T. 2517,

Nigeria contends that enforcement of the Award violates the

public policy of the United States not to reward a party for

fraudulent and criminal conduct. It maintains that ENPH and

Enron International Corporation (“Enron”) are alter egos, and,

alternatively, that ENPH made false and fraudulent

representations about Enron to induce Nigeria to enter the PPA.

Although the question whether enforcement of the Award

should be denied on public policy grounds is a question for the

courts to answer, the interpretation of the PPA, by its terms, was

for the ICC. The ICC’s findings, to which an enforcing court

owes substantial deference, doom Nigeria’s public policy

defense in the absence of evidence or equities warranting the

piercing of Enron’s corporate veil. Accordingly, for the

following reasons, we affirm the order enforcing the Award.

I.

The New York 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

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agreements. Comm’ns Import Export S.A. v. Republic of the

Congo, 757 F.3d 321, 324 (D.C. Cir. 2014). The United States

and Nigeria are signatories to the Convention, 21 U.S.T. 2517,

and Chapter 2 of the Federal Arbitration Act implements the

Convention. 9 U.S.C. §§ 201–08. The FAA provides that 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.” Id. § 207. Article V

of the Convention sets forth the grounds for refusal or deferral

of enforcement. As relevant, Article V(2)(b) of the New York

Convention provides:

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 . . . [t]he recognition or enforcement of the

award would be contrary to the public policy of that

country.

The following facts found by the ICC bear on Nigeria’s

appeal. In 1999, Lagos State, a regional government in Nigeria,

was “in desperate need of energy.” ICC Partial Award (“ICC”)

¶ 45 (incorporated by reference in the Final Award). By letter

of June 19, 1999, Enron International expressed interest in

working with Lagos State, stating that “Enron is the highest

ranking power and gas company and is the leading company

worldwide in such industry.” ICC ¶ 246. A month later, Enron

formed ENPH as a special-purpose vehicle to construct and

operate power plants in Lagos State. ICC ¶ 2. The following

month, Lagos State entered into a Memorandum of

Understanding (“MOU”) on the first and second phases of the

construction project with ENPH and YFP (a Nigerian power

company) in which it was agreed that the companies and their

affiliates (including Enron) had the technical and financial

capacity to perform the project, having developed gas pipelines

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in the United States, Colombia, Bolivia, and Brazil, and electric

power plants worldwide. ICC ¶ 247. On November 17, 1999,

ENPH representatives and an employee of Enron International

met with representatives of Nigeria, including President

Obasanjo of Nigeria and the Governor of Lagos State. At the

meeting, ENPH gave a PowerPoint presentation touting Enron’s

vast financial and technical capabilities and describing Enron as

the company with which ENPH was “affiliated.” ICC ¶¶ 239-

40.

On December 6, 1999, Nigeria, Lagos State, the National

Electric Power Authority of Nigeria (“NEPAN”), and ENPH

executed the PPA, with ENPH as “Owner” of the energy

facilities, Lagos State as “Purchaser” of the energy, NEPAN as

regulator of the facilities it would connect to Nigeria’s power

grid, and Nigeria as “Guarantor.” PPA Recitals (Dec. 6, 1999);

ICC ¶¶ 25, 28. Enron was not a party to the PPA, nor was its

participation in the construction project mentioned in the PPA.

ICC ¶ 243. The PPA provided for three phases of construction:

Phase I, three offshore, barge-mounted electricity generating

units; Phase II, an on-shore power plant in Lagos; and Phase III,

an additional set of barge-mounted units. PPA Clause 1; ICC

¶ 27. As regards Phase II, ENPH’s obligations were contingent

upon satisfaction of certain conditions by December 31, 2000,

including possession of a plant site, all necessary easements

from Lagos State and Nigeria, and a security letter of credit.

PPA Clause 3.1. ENPH was authorized to seek independent

“financing for at least 70 percent of the full capital costs” of the

onshore power plant, pipeline, and other Phase II facilities. PPA

Clause 3.1(iii). The parties were bound to use all reasonable

efforts to ensure that the conditions were timely satisfied. PPA

Clause 3.2. Additionally, the PPA provided that all disputes not

informally resolved between the parties would be settled by

binding arbitration under the Rules of Arbitration of the ICC.

PPA Clause 23.3.

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Nine days after the PPA was executed, NEPAN wrote to

ENPH that implementation of the PPA was “stayed until further

notice.” ICC ¶ 50 (quoting NEPAN Ltr. Dec. 15, 1999). Five

days earlier, the World Bank had written to Nigeria, Lagos

State, and NEPAN to express economic criticisms of a draft of

the PPA. ICC ¶ 49. Nigeria’s President informed Lagos State

in January 2000 that the Attorney General of Nigeria had

concluded the PPA was invalid under Nigerian law and

suggested that the PPA be renegotiated. ICC ¶ 52. In June

2000, the parties agreed to an amended PPA regarding Phases I

and III — along with Enron Nigeria Barge Ltd., to which ENPH

had transferred its rights and obligations with respect to those

phases. ICC ¶¶ 51, 60. Thereafter, AES Nigeria Holdings Ltd.

(“AES”) acquired the rights to Phases I and III, along with an

option to purchase Phase II, provided agreement was reached

with Nigeria on amending the PPA. ICC ¶ 61.

In November 2001, Enron’s collapse became public

knowledge, and it filed for Chapter 11 bankruptcy protection on

December 2, 2001. ICC Final Award (“ICC Award”) ¶ 40. The

same day, ENPH wrote to the Nigerian parties that ENPH would

be unaffected by the bankruptcy and remained free to perform

its obligations under Phase II. ICC Award ¶ 41. Nigeria

apparently did not respond. AES contacted ENPH to express

interest in extending its Phase II option; ENPH did not respond

and the option expired. ICC Award ¶ 42; ICC ¶ 66. Three years

later, ENPH wrote to Nigeria seeking to implement Phase II.

ICC Award ¶ 43. In November 2005, after various

communications, Nigeria confirmed that Phase II “was

suspended and remains so.” ICC Award ¶ 43 (quoting NEPAN

Ltr. Nov. 22, 2005).

On June 12, 2006, ENPH filed a Request for Arbitration

with the ICC regarding Phase II. The ICC found that Nigeria’s

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December 1999 suspension of the PPA was an anticipatory

breach, but of no legal effect. ICC ¶¶ 395, 398. Nigeria had

argued that because ENPH did not accept the anticipatory

breach, the other parties were entitled to void Phase II of the

PPA as a result of Enron’s 2001 collapse. The ICC disagreed,

finding that Nigeria and NEPAN had breached the PPA almost

a year prior to Enron’s collapse, when the December 31, 2000

deadline for satisfying Phase II conditions passed without any

effort to meet those conditions. ICC ¶ 404. The ICC also found

that the breach was “mainly for commercial reasons,” ICC

¶ 416, and that but for concerns over price, “it would appear that

the Nigerian Government would have been happy to proceed

with the Original PPA,” ICC Award ¶ 122. Nigeria’s earlier

view that the PPA was void because it violated Nigerian law was

not advanced in arbitration, leading the ICC to conclude that the

legal objection was not well-founded. ICC ¶ 411. Due to the

breach by Nigeria and NEPAN, the ICC found, ENPH and

Lagos State could not be held responsible for failing to use all

reasonable efforts to perform their obligations given the

deadlock caused by Nigeria and NEPAN. ICC ¶¶ 421, 454.

The ICC rejected several affirmative defenses that bear on

Nigeria’s current public-policy defense to enforcement of the

Award. The ICC found that Enron was not a party to the PPA,

nor was its participation in the project an express or implied

contract term. ICC ¶¶ 203, 206. The PPA included an

integration clause whereby the PPA constituted the entire

agreement between the parties, which, the ICC reasoned, was a

term Nigeria would never have agreed to if there had been a

separate understanding that Enron would participate in Phase II.

ICC ¶ 202. The ICC also found that there was no reason to infer

that Enron’s participation was necessary to ENPH’s

performance of Phase II because the PPA contemplated that

ENPH would “cause” the design and construction of the facility

and “cause” the financing of the project by subcontracting with

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third parties (not necessarily Enron). ICC ¶¶ 188-194. For the

same reasons, the ICC declined to find a collateral contract

between Enron and Nigeria. ICC ¶ 210.

The ICC further rejected Nigeria’s arguments that it had

been induced to enter into the PPA because of fraud or

misrepresentation. Allegedly false statements regarding the

financial attributes of Enron made at the November 1999

PowerPoint presentation to President Obasanjo were not

relevant, the ICC found, because of the legal framework of the

PPA. ICC ¶ 242. Enron was not a party to the PPA and there

was “no clear evidence” that these statements induced Nigeria

to enter the PPA. ICC ¶ 242. Not only was there was no reason

to think the parties confused Enron with ENPH, ICC ¶ 240, the

PPA contained no express or implied guarantee from Enron as

the parent company, ICC ¶ 242, and there was no evidence that

the statements regarding Enron’s technical capabilities were

false. ICC ¶¶ 239–241. Further, the ICC noted, as to financial

capability, the PPA provided ENPH had “recourse to

independent financing of at least 70% of the full capital costs in

the absence of any pre-identification of the entity or entities

which might have financed the project.” ICC ¶ 242 (quoting

PPA Clause 3.1(iii) (emphasis added)). No misrepresentations

were shown to be contained in Enron International’s June 1999

letter to Lagos State and, in any event, the letter related to Enron

and not ENPH. ICC ¶ 246. Similarly, the prior MOU regarding

the financial and technical capabilities of ENPH, YFP, and their

affiliates referred to Enron, not the recently incorporated ENPH.

ICC ¶ 247. If the financial and technical capabilities of Enron

and its affiliates were so important as to induce Nigeria to enter

the agreement, the ICC reasoned, then Nigeria could have

sought inclusion of a statement to that effect in the PPA. ICC

¶ 248. The ICC also rejected arguments that ENPH implicitly

misrepresented its own capabilities by entering into a contract

that it was incapable of performing inasmuch as the PPA

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contemplated ENPH obtaining assistance from third parties.

ICC ¶ 249-51. So too, the ICC found that Enron’s accounting

fraud had no connection to ENPH or to Phase II of the PPA.

ICC ¶ 256-57. Evidence showed only that Enron and Merrill

Lynch, Pierce, Fenner & Smith engaged in a sham transaction,

allowing Enron to “book” an imaginary $12 million profit,

relating to Enron’s Nigerian barges constructed under Phases I

and III of the PPA. Id.; see also United States v. Brown, 459

F.3d 509, 514–16 (5th Cir. 2006).

Finally, regarding the amount of damages to be awarded to

ENPH, the ICC acknowledged that Phase II had attractive

prospects on paper but found that it never got off the ground and

that if it had, the collapse of Enron “would almost certainly have

stopped [it] in its tracks.” ICC Award ¶¶ 97-98, 105. That is,

because the project was conceived under the assumption that

Enron and its subsidiaries would construct and finance the Phase

II facilities, Enron’s collapse would have forced ENPH to find

new contracting partners and financing. ICC Award ¶¶ 101-103,

105-06. The ICC accordingly found that ENPH’s claim of $494

million in expected profits was too speculative and that instead

“loss of chance” damages were appropriate. ICC Award ¶¶ 109-

111. AES’s unexercised option to purchase Phase II could have

earned ENPH as much as $34 million, depending on the terms

of an amended PPA. ICC Award ¶ 120. Finding a one-third

chance the contingencies would have been met to allow AES to

exercise the option, the ICC awarded ENPH $11.22 million in

damages, plus 2% interest, legal costs and expenses. ICC

Award ¶¶ 127, 175 (Nov. 19, 2012).

On July 19, 2013, after efforts to collect proved

unsuccessful, ENPH filed a petition for confirmation of the

Award in the United States District Court for the District of

Columbia, pursuant to 9 U.S.C. § 207. Nigeria moved to quash

service and dismiss the petition, arguing that ENPH failed to

9

properly effect service, that the district court lacked jurisdiction

due to Nigeria’s sovereign immunity, and that enforcement of

the Award would violate United States public policy. Upon

allowing ENPH to accomplish service through alternative means

under the Foreign Sovereign Immunities Act, the district court

granted ENPH’s motion to confirm the Award, having ruled that

Nigeria had waived its sovereign immunity in the PPA and had

failed to show why enforcement should be denied on public

policy grounds simply because an Enron-related entity is

involved.

II.

On appeal, Nigeria contends that enforcement of the ICC’s

Award to ENPH should have been denied pursuant to Article

V(2)(b) of the New York Convention because its enforcement

would violate the longstanding public policy that “no one shall

be permitted to profit by his own fraud, or to take of his own

wrong, or to found any claim upon his own iniquity or to acquire

property by his own crime.” Appellant’s Br. 17 (quoting Riggs

v. Palmer, 115 N.Y. 506, 511 (1889), and citing Stone v.

Freeman, 298 N.Y. 268, 271 (1948)). ENPH presents several

threshold objections to Nigeria’s appeal.

A.

In ENPH’s view, Nigeria has failed to identify a well-

defined public policy. See, e.g., United Paperworks Int’l Union

v. Misco, Inc., 484 U.S. 29, 43 (1987). Nigeria’s position is that

the district court erred by enforcing an award based on a

contract that was tainted by fraud. ENPH acknowledges that

enforcing a contract with an illegal purpose would violate public

policy. See Appellee’s Br. 31. Hence, it is difficult to

understand how enforcing a contract induced by fraud would

not.

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In Simon & Schuster, Inc. v. Members of N.Y. State Crime

Victims Board, 502 U.S. 105 (1991), the Supreme Court

observed that “most if not all States . . . ha[ve] long recognized

the fundamental equitable principle that ‘no one shall be

permitted to profit by his own fraud,’” noting state statutes to

that effect. Id. at 119 (quoting Riggs, 115 N.Y. at 511-12)

(internal quotation marks and citation omitted). In Riggs, the

New York Court of Appeals held that it would violate

“universal” public policy to allow a grandson to inherit his

grandfather’s estate after he murdered the grandfather to prevent

his being cut out of the will. 115 N.Y. at 508-09, 511-12.

Likewise, in Stone, 298 N.Y. 268, the New York Court of

Appeals recognized that “[i]t is the settled law of this State (and

probably of every other State) that a party to an illegal contract

cannot ask a court of law to help him carry out his illegal

object.” Id. at 271. It thus dismissed a suit by one conspirator

seeking reimbursement for a bonus it paid illegally to a co-

conspirator. Id. at 270.

ENPH attempts to limit Riggs and Stone to their facts, but

the New York Court of Appeals recognized — and the Supreme

Court affirmed in Simon and Schuster — that each of those

cases rests on the “fundamental equitable principle” preventing

courts from being made parties to fraud or other criminal acts.

Simon and Schuster, 502 U.S. at 119 (quoting Children of

Bedford, Inc. v. Petromelis, 77 N.Y.2d 713, 727 (1991)); Stone,

298 N.Y. at 271; Riggs, 115 N.Y. at 511-12. Indeed, this

principle is so well-established that it underlies numerous

federal statutes, such as a requirement that any person convicted

of engaging in a continuing criminal enterprise “shall

forfeit . . . claims against, and property or contractual rights

affording a source of control over, the continuing criminal

enterprise.” 21 U.S.C. § 853(a)(3).

Consequently, Nigeria has adequately identified a well-

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defined public policy for purposes of determining whether

enforcing the Award would be repugnant to that policy.

B.

ENPH also maintains Nigeria has contractually waived any

right to challenge the Award. The PPA provides that “any

determination or award [by the ICC] shall be final and binding

on all parties,” and that the parties “expressly waive, to the

fullest extent permitted by applicable law, any right to challenge

an award by the arbitrators anywhere outside the place of

arbitration agreed herein.” PPA Clause 23.3.5. ENPH

concludes that Nigeria’s failure to challenge the award in

London, Great Britain, where the arbitration took place, means

that U.S. courts were divested of jurisdiction to address

Nigeria’s enforcement challenge.

ENPH has confused Article V(1) of the New York

Convention, which addresses procedural grounds for refusing to

enforce “at the request of the [liable] party,” with Article

V(2)(b) of the Convention, which addresses public-policy

grounds on which a court may refuse to enforce “if the [court]

finds” on its own initiative that such grounds exist. N.Y.

Convention, art. V; RESTATEMENT (THIRD) OF THE U.S. LAW OF

INT’L COMMERCIAL ARBITRATION § 2-16(a) (2015). As Nigeria

responds, parties cannot waive their rights under Article V(2)(b)

because public policy violations implicate the integrity of the

enforcing court. See Hurd v. Hodge, 334 U.S. 24, 34-35 (1948);

RESTATEMENT (THIRD) OF THE U.S. LAW OF INT’L COMMERCIAL

ARBITRATION § 2-16(b) (2015). Under the PPA, the parties only

waived their rights “to the fullest extent permitted by applicable

law.” PPA Clause 23.3.5.

The implementing statute authorizes federal courts to

enforce arbitral awards under the New York Convention, 9

U.S.C. §§ 201, 207, which in turn, authorizes the enforcing court

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to deny enforcement where doing so would be contrary to the

public policy of the jurisdiction in which enforcement is sought,

N.Y. Convention, art. V(2)(b). This is distinct from Article

V(1)’s procedural defenses, which the parties do not dispute can

be waived. See Employers Ins. of Wausau v. Banco De Seguros

Del Estado, 199 F.3d 937, 942 (7th Cir. 1999). Although the

agreement by Nigeria and ENPH to arbitrate disputes arising

under the PPA meant the interpretation of their agreement was

delegated to the ICC, see Oxford Health Plans LLC v. Sutter,

133 S. Ct. 2064, 2070-71 (2013), “as with any contract,

however, a court may not enforce . . . an agreement that is

contrary to public policy.” W.R. Grace & Co. v. Local Union

759, Int’l Union of United Rubber Workers of Am., 461 U.S.

757, 766 (1983). The Supreme Court reemphasized in W.R.

Grace that “the question of public policy is ultimately one for

resolution by the courts,” and thus, if enforcement of the Award

based on the ICC’s interpretation of the PPA violates a public

policy of the United States, as Nigeria contends, then the district

court was “obligated to refrain from enforcing it.” Id.; see Hurd,

334 U.S. at 34–35; cf. Noonan v. Gilbert, 68 F.2d 775, 776 (D.C.

Cir. 1934). The Court’s analysis of the public policy issue

extended not only to the arbitral award but also to the underlying

contract. W.R. Grace, 461 U.S. at 768-69 & n.13.

Nigeria could not waive an Article V(2)(b) public-policy

defense to enforcement of the Award simply as a result of

agreeing to challenge the Award only in London, where the

arbitration occurred. That would effectively negate the court’s

authority to deny enforcement under both Article V(2)(b) of the

Convention and Section 207 of the FAA, elevating the parties’

contractual choices above the fundamental need of the federal

courts to protect their own integrity.

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C.

ENPH also invokes the doctrine of forfeiture, maintaining

that Nigeria failed to argue in the district court that ENPH itself

had made false representations to induce Nigeria to enter the

PPA, and that ENPH should be held responsible for Enron’s

fraud as its alter ego. Even if Nigeria did not adequately raise

these arguments in the district court, but see Def’s Mot. to

Dismiss Petition at 8-13, forfeiture cannot divest the court of its

duty to resolve the public policy question any more than waiver

can. As this court held in Noonan, 68 F.2d 775, where a party

had failed to make a public policy objection at trial, that

objection “may not be waived by any system of pleading,” and

“the court itself was bound to raise [it] in the interest of the due

administration of justice.” Id. at 776 (internal quotation marks

omitted). Even were a party’s failure to recognize the public

policy issue until appeal to imply that the alleged violation is

hardly “repugnant to fundamental notions of what is decent and

just,” Tahan v. Hodgson, 662 F.2d 862, 864 (D.C. Cir. 1981),

the court must nevertheless decide the issue.

III.

The public policy defense under Article V(2)(b) of the New

York Convention is to be construed narrowly and is available

only where an arbitration award “tends clearly to undermine the

public interest, the public confidence in the administration of the

law, or security for individual rights of personal liberty or of

private property.” TermoRio S.A. v. Electranta S.P., 487 F.3d

928, 938 (D.C. Cir. 2007) (quoting Ackermann v. Levine, 788

F.2d 830, 841 (2d Cir. 1986)) (internal quotation marks

omitted). That heavy burden is due to the countervailing and

“emphatic federal policy in favor of arbitral dispute resolution

. . . . [which] applies with special force in the field of

international commerce.” Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985); TermoRio,

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S.A., 487 F.3d at 933; see also Chevron Corp. v. Ecuador, 795

F.3d 200, 209 (D.C. Cir. 2015).

Furthermore, “considerable deference” is to be afforded by

the enforcing court to the arbitrator’s interpretation and

application of the parties’ contract. B.G. Grp. PLC v. Republic

of Argentina, 134 S. Ct. 1198, 1210 (2014); see W.R. Grace, 461

U.S. at 768. In addressing the public policy question at the

enforcement stage, the Supreme Court has given significant

weight to the arbitrator’s findings of fact. See United

Paperworkers Int’l Union, 484 U.S. at 44-45. More generally

in arbitration, because the parties bargained for the ICC’s

construction of the PPA, the ICC’s “construction holds, however

good, bad, or ugly.” Oxford Health Plans LLC, 133 S. Ct. at

2070-71. “It is not enough . . . to show that the [arbitrator]

committed an error — or even a serious error.” Stolt-Nielsen

S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671 (2010). As

long as the arbitrator was “even arguably construing or applying

the contract and acting within the scope of his authority, that a

court is convinced [the arbitrator] committed serious error does

not suffice to overturn his decision.” United Paperworkers Int’l

Union, 484 U.S. at 38.

The district court found that Nigeria “fail[ed] to establish

why the [c]ourt should refrain from enforcing this international

arbitral award simply because it involves an entity that was

related to the Enron Corporation.” Mem. Op. at 4 (Aug. 6,

2015). Nigeria had identified no basis to impute Enron’s

accounting fraud to ENPH merely because it was an Enron

special purpose vehicle. And the ICC had determined that

Nigeria failed to provide “any evidence of [accounting] fraud in

connection to Phase II of the Original PPA.” ICC ¶ 257.

On appeal, Nigeria’s contentions have a similar flavor,

maintaining that ENPH is the “offshore shell affiliate” of a

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corporation that committed “one of the great financial frauds of

recent years,” Appellant’s Br. 17, again without attempting to

connect that fraud to Nigeria or Phase II of the PPA. To the

extent Nigeria’s contentions amount to urging that the district

court’s conclusion, as well as that of the ICC, about Enron’s

non-relationship to the PPA misses the forest for the trees,

because as a special purpose vehicle ENPH was necessarily a

mechanism through which Enron carried out its fraud, it still

shows no error by the district court. The ICC declined to pierce

the corporate veil despite Nigeria’s argument that Enron and

ENPH should be treated as a single enterprise under the PPA.

ICC ¶ 163. Repeatedly emphasizing that Nigeria had contracted

only with ENPH, see, e.g., ICC ¶¶ 191-92, 201-03, the ICC

noted the absence of any mention of Enron in the PPA. It also

interpreted PPA Clause 31 — stating “this Agreement shall be

binding upon . . . the Parties and their successors and permitted

assigns, and is not intended to and shall not confer any rights or

benefits on any third party not a signatory thereto” — to

preclude an implied, alter-ego relationship between ENPH and

non-signatory Enron. ICC ¶¶ 212-14. Nigeria baldly asserts as

an “undisputable fact” that ENPH lacked staff, an office, a bank

account, assets, earnings, and sufficient capital. Appellant’s Br.

27. Even if true, Nigeria conveniently ignores its own

concession that it had repudiated the PPA nearly two years

before Enron’s collapse was publically known. ICC ¶¶ 400,

404(a). Moreover, Nigeria ignores the ICC’s determination that

it was willing to cooperate in the completion of Phases I and III

of the project. ICC ¶¶ 256-57.

This does not mean that either the district court or the ICC

viewed Enron’s collapse as irrelevant to Phase II of the PPA.

The ICC credited the argument that ENPH was a “shell

company that could not implement Phase II by itself,” ICC

¶ 189, and considered Enron’s bankruptcy as a mitigating factor

in calculating the amount of damages, when the renegotiation

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and completion of Phase II became too uncertain in Enron’s

absence to allow ENPH to recover expectation damages. ICC

Award ¶¶ 105-09. That, however, is a separate question from

whether Nigeria was fraudulently induced to execute the PPA,

which the ICC found it was not, and from whether Enron’s fraud

and collapse had anything to do with Nigeria’s anticipatory

repudiation and subsequent breach of the PPA, which the ICC

found it did not.

No more persuasive is Nigeria’s contention that ENPH

itself made false representations regarding Enron’s financial

strength that induced Nigeria to enter the PPA. Appellant’s Br.

32-34. For instance, misrepresentations were made during the

November 1999 presentation to President Obasanjo, ICC ¶¶ 239,

242, but the ICC found that these statements were irrelevant.

ICC ¶ 243. Even if knowledge of the statements’ falsity should

be imputed to ENPH because its staff was employed by Enron,

the ICC found the allegations failed for lack of materiality to

Nigeria’s execution of the PPA, for such statements “could have

only induced [Nigeria] to enter into an agreement with Enron,”

not ENPH. ICC ¶ 243. As it does here, Nigeria asserted that

absent these representations it never would have agreed to

contract with ENPH. Appellant’s Br. 33; ICC ¶ 228. The ICC

was unpersuaded, finding that nine days after executing the PPA

Nigeria simply had a “change of mind about the convenience of

[its] bargain,” ICC ¶ 408, and noting that the PPA omitted a

financial guarantee by Enron or any mention of Enron’s

financial strength. ICC ¶ 242. Instead, the PPA provided that

ENPH was free to subcontract with third-party companies to

finance, design, and construct the power plant. PPA Clauses

3.1(iii), 4.2, 4.3; ICC ¶¶ 191-92.

Although the PPA was negotiated in Enron’s shadow, and

Nigeria seems to have believed Enron would lend its resources

and backing to the electric facilities project, see Appellant’s Br.

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33-34, the question before the enforcing court is limited. See

Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 727 (D.C.

Cir. 2012). Here, the district court had no choice other than to

conclude that enforcement of the Award on Phase II is not so

manifestly unjust that its confirmation would “undermine . . .

the public confidence in the administration of the law.”

TermoRio S.A., 487 F.3d at 938 (quoting Ackermann, 788 F.2d

at 841). Accordingly, we affirm the order confirming the

Award.