LLC SPC Stileks v. Republic of Moldova

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2020 Decided January 15, 2021

No. 19-7106

LLC SPC STILEKS,

APPELLEE

v.

THE REPUBLIC OF MOLDOVA ,

APPELLANT

Consolidated with 19-7142

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01921)

George C. Grasso argued the cause and filed the briefs for

appellant.

Gene M. Burd argued the cause and filed the brief for

appellee.

Before: HENDERSON and ROGERS, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON , Circuit Judge: This appeal

arises from a long-running dispute between the Republic of

Moldova and a Ukrainian energy provider called

Energoalliance. For the better part of 1999 and 2000,

Energoalliance sold electricity to a Moldovan state-owned

utility. After the utility failed to pay its bill in full,

Energoalliance alleged that Moldova violated its obligations

under the Energy Charter Treaty. An arbitration panel agreed

and a company called Stileks—which company, through a

series of corporate transactions, owns the right to

Energoalliance’s arbitration award—now attempts to recover.

Stileks and Moldova are proceeding against each other in

multiple forums. In this court, the main issue is whether the

district court correctly confirmed the arbitration award which,

with interest, now exceeds $58 million. We uphold

confirmation of the award but remand for the district court to

consider whether Moldova had a settled expectation that an

adverse judgment would be denominated in Moldovan lei

rather than U.S. dollars.

I. Background

Ukraine and Moldova have highly interconnected

electrical systems—a legacy of the years when both states were

subject to direction from Moscow. When the Soviet Union

collapsed, contracts and treaties replaced central planning. An

example is the Energy Charter Treaty (ECT), a multilateral

agreement signed by governments on both sides of the old Iron

Curtain, including Ukraine and Moldova. See Energy Charter

Treaty, Dec. 17, 1994, 2080 U.N.T.S. 95 [hereinafter ECT]. Its

purpose is to encourage and protect cross-border investment in

the energy industry.

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In 1999, Energoalliance signed a series of contracts to sell

electricity to Moldtranselectro, a utility owned by the Republic

of Moldova. These were not ordinary sales contracts.

Ukrenergo, a Ukrainian state-owned utility, sold electricity to

Energoalliance, which sold it to a British Virgin Islands (BVI)

entity called Derimen Properties; that entity sold it to

Moldtranselectro. The agreements were structured this way

because Energoalliance wanted to avoid certain implications of

the Ukrainian government’s currency controls. But

Energoalliance still assumed the risk of non-payment by

Moldtranselectro in May 2000—after Moldtranselectro had

fallen behind on its payments—and Derimen assigned the debt

to Energoalliance.

Energoalliance sought recourse in Moldovan courts to

collect this debt. These decade-long proceedings were

unsuccessful, due in significant part to the Moldovan

government’s actions. To give one example, the government

transferred most of Moldtranselectro’s assets to several new

state-owned entities, leaving the old utility with financial

obligations and few tangible assets. Energoalliance claimed

Moldova’s actions violated the ECT. Unable to reach an

amicable resolution, Energoalliance initiated arbitration

proceedings under the rules of the United Nations Commission

on International Trade Law (UNCITRAL) pursuant to Article

26 of the ECT.

In the summer of 2012, a three-day arbitral proceeding

took place in Paris. On October 23 of the following year, the

tribunal issued an award in favor of Energoalliance in the

amount of some 593 million Moldovan lei in damages and

interest plus 540,000 U.S. dollars in attorneys’ fees and costs.

Energoalliance soon began enforcement proceedings in

multiple jurisdictions, including the United States, where it

filed a petition to confirm the arbitral award pursuant to 9

4

U.S.C. § 207. Confirmation is the process by which an

arbitration award is converted to a legal judgment. Once

Energoalliance had a judgment in hand, it could go about

enforcing the arbitration award by, for example, attaching

Moldova’s commercial assets in the United States.

But Moldova was not ready to concede. In its view, the

tribunal lacked jurisdiction to arbitrate the dispute because the

byzantine arrangement that Energoalliance struck with

Derimen to avoid Ukrainian currency controls was not an

“investment” within the meaning of the ECT. Moldova made

this and other arguments to the Paris Court of Appeal, seeking

to annul the award. The Paris court agreed with Moldova and

annulled the arbitration award on Moldova’s jurisdictional

theory. Energoalliance appealed to France’s highest civil

court, the Court of Cassation. In March 2018, that court

vacated the Paris court’s judgment, reinstated the award and

remanded Moldova’s annulment application to the Paris court.

Back to the United States. After Moldova filed its

annulment application with the Paris court, it submitted a letter

to the U.S. District Court for the District of Columbia,

requesting a stay pending resolution of its application. Before

the district court could rule, the Paris court had ruled in

Moldova’s favor. The tables now turned, a company called

Komstroy—by this point the successor-in-interest to

Energoalliance—consented to Moldova’s request for stay

pending Komstroy’s appeal to the Court of Cassation. The

district court entered the stay. But in March 2018, after the

Court of Cassation reinstated the award, Energoalliance moved

to lift the stay and confirm the award. Moldova opposed lifting

the stay until the Paris court could resolve its remaining

challenges to the award. The district court sided with

Energoalliance, lifting the stay. See LLC Komstroy v. Republic

5

of Moldova, No. 14-cv-01921, 2018 WL 5993437, at *4

(D.D.C. Nov. 13, 2018).

Once the substantive confirmation proceedings were

underway, Moldova argued for dismissal on grounds of

sovereign immunity, forum non conveniens and various

defenses under the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (New York

Convention), June 10, 1958, 21 U.S.T. 2517. The district court

rejected each argument and confirmed the arbitral award. See

LLC Komstroy v. Republic of Moldova, No. 14-cv-01921, 2019

WL 3997385, at *14 (D.D.C. Aug. 23, 2019). It also awarded

Komstroy prejudgment interest and ordered that the resulting

judgment be converted from Moldovan lei into U.S. dollars.

Pursuant to the district court’s instructions, Komstroy filed a

proposed order of judgment, calculating a total judgment

amount. Rather than responding to Komstroy’s calculations,

Moldova filed a notice of appeal and a response, arguing that

the appeal divested the district court of jurisdiction. The

district court confirmed its jurisdiction and entered a judgment

in favor of Komstroy. See LLC Komstroy v. Republic of

Moldova, No. 14-cv-1921, 2019 WL 4860826, at *1 (D.D.C.

Oct. 2, 2019). Moldova now appeals the district court’s stay-

lifting order, the confirmation of the arbitral award and the final

judgment. The judgment is defended by Stileks, Komstroy’s

assignee in bankruptcy.

II. Analysis

This appeal presents four major issues. First, Moldova

claims that the district court lacked jurisdiction under the

Foreign Sovereign Immunities Act. Second, even if the district

court had jurisdiction, Moldova says that it was error to

confirm the arbitral award during the pendency of certain

foreign proceedings. We reject both of these arguments and

6

affirm the district court’s confirmation of the award. 1 The third

and fourth issues deal with how the district court calculated and

denominated its judgment. Moldova argues that the district

court should not have awarded prejudgment interest and that,

in any event, the judgment and any interest should have been

denominated in Moldovan lei instead of U.S. dollars. We think

the district court did not abuse its discretion in awarding

prejudgment interest to appropriately compensate Stileks for

the time value of money. When it converted the award to U.S.

dollars without considering Moldova’s settled expectation that

the award would be payable in Moldovan lei, however, we

believe it abused its discretion. We vacate that portion of its

order and remand for evaluation of Moldova’s reliance

interests.

1

Moldova makes two additional arguments that do not require

sustained discussion. First, it argues that the district court should

have dismissed the case under the forum non conveniens doctrine.

But in TMR Energy Ltd. v. State Prop. Fund of Ukraine, we said that

forum non conveniens is not available in proceedings to confirm a

foreign arbitral award because only U.S. courts can attach foreign

commercial assets found within the United States. See 411 F.3d 296,

303–04 (D.C. Cir. 2005). Moldova asks us to reconsider TMR

Energy in light of the Second Circuit’s reasoning that “the adequacy

of the alternate forum depends on whether there are some assets of

the defendant in the alternate forum, not whether the precise asset

located here can be executed upon there.” Figueiredo Ferraz E

Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384, 391

(2d Cir. 2011) (emphasis added). Regardless of whether we find

Figueiredo persuasive, we are bound by our precedent. Second,

Moldova reasserts its arguments that it was denied due process

during the arbitral proceedings, which is a defense to confirmation

under Article V(1)(b) of the New York Convention. But the district

court ably refuted Moldova’s due process arguments, see LLC

Komstroy v. Republic of Moldova, No. 14-cv-01921, 2019 WL

3997385, at *7–9 (D.D.C. Aug. 23, 2019), and we affirm its analysis.

7

A.

In 1976, the Congress enacted the Foreign Sovereign

Immunities Act (FSIA). Under the FSIA, foreign governments

are generally immune from the jurisdiction of federal and state

courts. See 28 U.S.C. § 1604. But the FSIA also established

various exceptions, see 28 U.S.C. § 1605 (general exceptions),

id at § 1607 (exception for counterclaims), which provide “the

sole basis for obtaining jurisdiction over a foreign state in our

courts.” Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 434 (1989).

The district court determined that it had jurisdiction under

the so-called “arbitration exception.” See 28 U.S.C. §

1605(a)(6). Our first task is to determine whether that

exception applies. See Creighton Ltd. v. Gov’t of State of

Qatar, 181 F.3d 118, 121 (D.C. Cir. 1999). 2 We review the

2

Creighton states that the moving party must also demonstrate

“a basis upon which a court in the United States may enforce a

foreign arbitral award.” 181 F.3d at 121. That requirement is plainly

satisfied. The New York Convention allows for “the recognition and

enforcement of arbitral awards” made in countries that are parties to

the Convention. See art. I, ¶ 1. Under the Federal Arbitration Act,

the New York Convention is federal law, see 9 U.S.C. § 201, and

“[a]n action or proceeding falling under the Convention shall be

deemed to arise under the laws and treaties of the United States,” id.

§ 203. Because Komstroy moved to confirm an arbitral award that

was rendered in France, a party to the Convention, we may enforce

the award under U.S. law. See Restatement (Third) of Foreign

Relations Law § 487 cmt. B (1987) (“the critical element is the place

of the award” not the “citizenship or domicile of the parties to the

arbitration”); accord Creighton, 181 F.3d at 121; Belize Soc. Dev.

Ltd. v. Gov’t of Belize, 668 F.3d 724, 731 n.3 (D.C. Cir. 2012).

8

district court’s determination de novo. See Kirkham v. Societe

Air France, 429 F.3d 288, 291 (D.C. Cir. 2005).

Under the FSIA’s arbitration exception, a foreign state is

not immune from jurisdiction of U.S. courts in any case:

in which the action is brought . . . to confirm an

award made pursuant to such an agreement to

arbitrate, if . . . the agreement or award is or

may be governed by a treaty or other

international agreement in force for the United

States calling for the recognition and

enforcement of arbitral awards.

28 U.S.C. § 1605(a)(6). In Chevron Corp. v. Republic of

Ecuador, we clarified that jurisdiction under the arbitration

exception requires more than a claim invoking an arbitration

award. See 795 F.3d 200, 204 (D.C. Cir. 2015). Rather, the

existence of an arbitration agreement, an arbitration award and

a treaty governing the award are all jurisdictional facts that

must be established. See id.; cf. Agudas Chasidei Chabad of

U.S. v. Russian Federation, 528 F.3d 934, 940–41 (D.C. Cir.

2008).

Here, only one jurisdictional fact is in dispute: whether

Energoalliance’s award was made pursuant to the ECT.3

Stileks has produced copies of the ECT, the notices of

3

There is no disagreement that Moldova is a party to the ECT,

which provides for arbitration of certain disputes. Nor is there doubt

that the New York Convention, ratified by the United States, calls

for the enforcement of arbitral awards. See Creighton, 181 F.3d at

123–24 (New York Convention “is exactly the sort of treaty

Congress intended to include in the arbitration exception” (quoting

Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1018 (2d

Cir. 1993))).

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arbitration and the tribunal’s decision. In Chevron, we said that

the petitioners, by producing similar documents, demonstrated

that the arbitration exception applied. See 795 F.3d at 204.

Moldova counters that the ECT did not give the arbitral

tribunal jurisdiction of the dispute and thus the resulting award

was not “made pursuant to such an agreement to arbitrate.” 28

U.S.C. § 1605(a)(6). Its argument goes something like this:

the ECT protects “investments” but Derimen’s claim against

Moldtranselectro was not an investment within the meaning of

the ECT because Derimen, a BVI entity, was not a qualifying

investor. Under Moldova’s jurisdictional theory, Stileks’ filed

documentation is insufficient. Although the ECT may

establish that Moldova agreed to arbitrate certain disputes, it

does not prove that it agreed to arbitrate this particular dispute;

similarly, the tribunal’s decision demonstrates only that it

purported to make an award pursuant to the ECT, not that it in

fact did so.

If Moldova is correct, it might have a defense to

confirmation under the New York Convention, which provides

for non-recognition of an award if “[t]he award deals with a

difference not contemplated by or not falling within the terms

of the submission to arbitration, or it contains decisions on

matters beyond the scope of the submission to arbitration.” See

New York Convention, art. V(1)(c). We have held, however,

that the arbitrability of a dispute is not a jurisdictional question

under the FSIA. See Chevron, 795 F.3d at 205–06. Moldova’s

brief uses Article V(1)(c) to bolster its claim of sovereign

immunity, and, in so doing, it “conflates the jurisdictional

standard of the FSIA with the standard for review under the

New York Convention.” Id. at 205. The FSIA’s arbitration

exception therefore applies and we reject Moldova’s immunity

claim. We construe Moldova’s arbitrability argument as a

defense under Article V(1)(c) of the Convention.

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Before passing on the merits of that defense, we must

answer a question that is logically antecedent: Who Decides?

Moldova says that we should decide whether Energoalliance’s

claim was arbitrable under the ECT. And indeed, the

background understanding is that courts, not arbitrators, decide

questions of arbitrability. See BG Grp., PLC v. Republic of

Argentina, 572 U.S. 25, 34 (2014). That understanding is

overcome, however, if “the parties clearly and unmistakably

provide otherwise.” Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79, 83 (2002) (internal quotations omitted). If

arbitrability itself is delegated to the arbitrators, “the court’s

standard for reviewing the arbitrator’s decision about that

matter should not differ from the standard courts apply when

they review any other matter that parties have agreed to

arbitrate.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,

943 (1995). That standard is more than mere deference. A

recent, unanimous opinion of the Supreme Court drove this

point home. If an agreement assigns the arbitrability

determinations to an arbitrator, “a court possesses no power to

decide the arbitrability issue,” even if it thinks the argument for

arbitrability is “wholly groundless.” Henry Schein, Inc. v.

Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019).4

Moldova agreed to assign arbitrability determinations to

the tribunal. Under Article 26 of the ECT, all parties agree to

arbitration under UNCITRAL’s rules. See ECT, art. 26(4)(b).

Those rules state that the “arbitral tribunal shall have the power

to rule on its own jurisdiction.” UNCITRAL Arbitration

4

Citing three cases from sister circuits, Moldova asks us to

apply the “wholly groundless” exception. Each of these cases was

abrogated—by name—in Henry Schein. See 139 S. Ct. at 528–29

(abrogating, inter alia, Douglas v. Regions Bank, 757 F.3d 460 (5th

Cir. 2014); Turi v. Main St. Adoption Servs., LLP, 633 F.3d 496 (6th

Cir. 2011); and Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366 (Fed.

Cir. 2006)).

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Rules, art. 23, ¶ 1 (rev. 2010 ed.). In Chevron, we said that the

parties’ adoption of UNCITRAL’s arbitration rules was “clear

and unmistakable evidence that the parties agreed to arbitrate

arbitrability.” 795 F.3d at 208 (quoting Oracle Am., Inc. v.

Myriad Grp. A.G., 724 F.3d 1069, 1077 (9th Cir. 2013)).

The conjunction of Chevron and Henry Schein means that

we must accept the arbitral tribunal’s determination that

Energoalliance’s claim fell within the ECT. It makes no

difference that Henry Schein dealt with a domestic,

commercial contract and the ECT is an international treaty.

“[A] treaty is a contract, though between nations. Its

interpretation normally is, like a contract’s interpretation, a

matter of determining the parties’ intent.” BG Group, 572 U.S.

at 37.

Moldova’s only counterargument is that “the ECT is not

applicable to the dispute.” In other words, the ECT’s

incorporation of the UNCITRAL rules is not controlling

because Stileks’ claim does not fall within the ECT. This is

unadorned question-begging. Whether the ECT applies to the

dispute and whether the tribunal had jurisdiction under the

ECT are different ways of framing the same question. The

tribunal’s jurisdictional grant derived from Moldova’s

signature on the treaty itself, and—under our law—it is up to

the tribunal to determine what the treaty means. We thus have

no authority to delve into the merits of Moldova’s argument.

Admittedly, this analysis sits uncomfortably alongside the

general principle that legal issues relating to defenses under the

New York Convention are reviewed de novo. See TMR Energy

Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 304 (D.C.

Cir. 2005). Here, however, the question that receives de novo

review is whether the arbitrability decision was delegated to

the arbitrators. It was. As a consequence, it is the only

12

question that receives de novo review. Cf. BG Group, 572 U.S.

at 29 (rejecting de novo review of a treaty’s “local litigation

requirement” in favor of deference to the arbitrator’s

determination). We therefore reject Moldova’s argument that

the tribunal lacked jurisdiction.

B.

Under the New York Convention, a district court may, “if

it considers it proper,” adjourn—that is, impose a stay of—

confirmation proceedings if an application to vacate the award

has been made in another jurisdiction. New York Convention,

art. VI. In Europcar Italia, S.p.A. v. Maiellano Tours, Inc., the

Second Circuit enumerated six factors that district courts

should consider when making adjournment decisions. See 156

F.3d 310, 317–18 (2d Cir. 1998). Applying the Europcar

factors, the district court lifted the stay it entered in April 2016.

Moldova argues that, given pendency of its case in the Paris

Court of Appeal, this was error.

We have yet to pronounce the standard of review for a

district court’s grant or denial of a motion to stay confirmation

proceedings under the New York Convention. That said, we

agree with the Second Circuit that “in light of the permissive

language of Article VI of the Convention and a district court’s

general discretion in managing its own caseload and suspense

docket,” the appropriate standard of review is abuse of

discretion. Id. at 316–17. Applying that standard, we affirm

the district court’s stay-lifting order.

We view the Europcar decision as the first federal

appellate opinion to subject the adjournment clause to a

sustained analysis. Under Europcar, a district court deciding

an adjournment motion under the New York Convention

should consider:

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(1) the general objectives of arbitration—the

expeditious resolution of disputes and the

avoidance of protracted and expensive

litigation;

(2) the status of the foreign proceedings and the

estimated time for those proceedings to be

resolved;

(3) whether the award sought to be enforced

will receive greater scrutiny in the foreign

proceedings under a less deferential standard of

review;

(4) the characteristics of the foreign

proceedings including (i) whether they were

brought to enforce an award (which would tend

to weigh in favor of a stay) or to set the award

aside (which would tend to weigh in favor of

enforcement); (ii) whether they were initiated

before the underlying enforcement proceeding

so as to raise concerns of international comity;

(iii) whether they were initiated by the party

now seeking to enforce the award in federal

court; and (iv) whether they were initiated

under circumstances indicating an intent to

hinder or delay resolution of the dispute;

(5) a balance of the possible hardships to each

of the parties . . . ; and

(6) any other circumstances that could tend to

shift the balance in favor of or against

adjournment.

Id. at 317–18. These factors are not all equally weighted.

Because “the primary goal of the Convention is to facilitate the

recognition and enforcement of arbitral awards,” the Second

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Circuit reasoned that the first and second factors should receive

additional heft. Id. at 318. Although our court has yet to

endorse the Europcar approach, it has been influential in the

district court. See, e.g., Hardy Expl. & Prod. (India), Inc. v.

Gov’t of India, Ministry of Petroleum & Nat. Gas, 314 F. Supp.

3d 95, 105–08 (D.D.C. 2018); Rusoro Mining Ltd. v.

Bolivarian Republic of Venezuela, 300 F. Supp. 3d 137, 149–

51 (D.D.C. 2018); Gold Reserve Inc. v. Bolivarian Republic of

Venezuela, 146 F. Supp. 3d 112, 134–37 (D.D.C. 2015);

Arbitration of Certain Controversies Bet. Getma Int’l &

Republic of Guinea, 142 F. Supp. 3d 110, 113–19 (D.D.C.

2015).

We agree with the Europcar court that a district court

would abuse its discretion if it failed to consider the first and

second factors. We think these factors directly implicate the

court’s responsibility to “balance the Convention’s policy

favoring confirmation of arbitral awards against the principle

of international comity embraced by the Convention.” Four

Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377

F.3d 1164, 1172 (11th Cir. 2004). Nevertheless, we doubt that

a six-factor balancing test—enforced by appellate review—is

consistent with the district court’s “broad discretion to stay

proceedings as an incident to its power to control its own

docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). And the

language of the New York Convention itself does nothing to

alter this background understanding; indeed, it is difficult to

conceive of a greater delegation of discretion than “if [the

court] considers it proper.” New York Convention, art. VI.

We thus focus our attention on the district court’s analysis

of the first two factors. It was in the summer of 2010—more

than 10 years ago—that Energoalliance handed Moldova a

notice of arbitration. As the district court noted, this is “hardly

an ‘expeditious resolution’ of the dispute.” LLC Komstroy,

15

2018 WL 5993437, at *3 (quoting Hardy Expl., 314 F. Supp.

3d at 106). Additionally, the previous appeal-reversal-remand

round at the Paris court and the Court of Cassation took over

four years. Id. at *4. Thus, failing to lift the stay might have

forced Stileks to sit on its award for several additional years.

Id.

In reply, Moldova simply asserts that it would be

“premature” to lift the stay because of the “high probability”

that the award will be overturned. The ipse dixit is insufficient;

Moldova points to no evidence of a fair probability—much less

a “high probability”—other than the fact of the remand itself.

And even were we inclined to trust Moldova’s

prognostications, its failure to address the district court’s

concerns about further delay means that it has spoken to only

one aspect of our inquiry. Moldova has plainly not met its

burden to demonstrate that the district court abused its

discretion.

C.

The United States Supreme Court has called payment of

appropriate interest “a dictate of natural justice” necessary “to

repair all the damages that accrue naturally” from the breach of

an obligation. Curtis v. Innerarity, 6 How. 146, 154 (1848).

Regarding a foreign arbitral award, there are three possible

categories of interest: pre-award, prejudgment (i.e., after the

arbitration award but before the award is converted into a U.S.

judgment) and post-judgment. Here, Moldova challenges the

district court’s decision to grant Komstroy prejudgment

interest. Applying the deferential abuse of discretion standard,

see Bucheit v. Palestine Liberation Org., 388 F.3d 346, 351

(D.C. Cir. 2004), we affirm.

Moldova’s primary argument is that the arbitral award

itself provides full compensation so prejudgment interest is

16

unnecessary. But confirmation petitions under the New York

Convention are “deemed to arise” under the laws of the United

States, 9 U.S.C. § 203, and “[p]rejudgment interest is an

element of complete compensation” in U.S. law, West Virginia

v. United States, 479 U.S. 305, 310 (1987); see also Matter of

Oil Spill by Amoco Cadiz, 954 F.2d 1279, 1331 (7th Cir. 1992)

(per curiam) (prejudgment interest is “an ordinary part of any

award under federal law”).

The primary purpose of prejudgment interest is “to

compensate the plaintiff for any delay in payment resulting

from the litigation.” Oldham v. Korean Air Lines Co., 127 F.3d

43, 54 (D.C. Cir. 1997). It also “promotes settlement and

deters any attempt to benefit unfairly from inevitable litigation

delay.” Moore v. CapitalCare, Inc., 461 F.3d 1, 13 (D.C. Cir.

2006) (awarding prejudgment interest to ERISA plaintiffs).

The second rationale is especially relevant in the arbitration

context, where expeditious resolution is a central objective.

Other circuits have argued that a decision to award

prejudgment interest “must be exercised in a manner consistent

with the underlying arbitration award.” Ministry of Def. of the

Islamic Republic of Iran v. Cubic Def. Sys., Inc., 665 F.3d

1091, 1103 (9th Cir. 2011); see also Waterside Ocean Nav. Co.

v. Int’l Nav. Ltd., 737 F.2d 150, 154 (2d Cir. 1984). Here,

although the arbitral award was silent on prejudgment interest,

the tribunal granted Energoalliance pre-award interest. It

reasoned that “the income which [Energoalliance] would have

received if this amount had been used in its commercial

activities is a part of [its] loss and is to be reimbursed by

[Moldova].” We can think of no reason that this same

reasoning should not apply to the award of prejudgment

interest here.

17

D.

Traditionally, U.S. courts render judgments in U.S.

dollars. See Restatement (Third) of Foreign Relations Law §

823 cmt. B (1987). Indeed, this court once believed that U.S.

dollar conversion was mandatory under the Coinage Act of

1792. See Int’l Silk Guild v. Rogers, 262 F.2d 219, 224 (D.C.

Cir. 1958) (“American courts are permitted to render

judgments only in dollars.”), superseded by statute as

recognized in Leidos, Inc. v. Hellenic Republic, 881 F.3d 213,

219 n.5 (D.C. Cir. 2018). Modern caselaw, however, has been

more accepting of foreign currency-denominated awards,

which are often desirable “when the commercial activity took

place in that currency.” Amoco Cadiz, 954 F.2d at 1328; see

also Restatement at § 823 cmt. B (“there is no impediment to

issuance by a court in the United States of a judgment

denominated in a foreign currency”).

Moldova claims that the district court abused its discretion

by rendering the award in U.S. dollars. Energoalliance asked

the arbitral tribunal for an award in Moldovan lei and later—

after the lei had depreciated substantially—asked the district

court for a dollar-denominated award. Had Energoalliance

requested a dollar-denominated award from the beginning,

Moldova might have been on notice and able to hedge against

the risk of a depreciating lei. We think the district court should

have considered the extent of Moldova’s reliance on

Energoalliance’s legal representations.

Our conclusion finds support from our decision in Leidos.

There, a defense contractor, Leidos, won confirmation of a

foreign arbitration award against a foreign state, Greece, and

thrice requested that the award be denominated in euros. See

881 F.3d at 219. But after a judgment was rendered in euros,

Leidos successfully moved under Rule 59(e) to convert the

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award to U.S. dollars. Id. at 215. Leidos’s about-face made it

impossible for Greece to protect itself against the risk of

exchange rate fluctuations by purchasing hedges. Id. at 219.

Because the “parties’ contract was in euros, the arbitral award

was in euros and Leidos repeatedly requested judgment in

euros,” we said that Greece had “a reasonable and settled

expectation that it would satisfy the judgment against it in

euros.” Id. (internal quotations omitted).

The district court declined to apply Leidos on the ground

that the petitioner there did not request conversion until after

the district court’s judgment, whereas Komstroy requested

conversion before judgment. This distinction is accurate, as far

as it goes. A Rule 59(e) motion—which is filed after

judgment—is proper if there is a need to correct a “manifest

injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.

Cir. 1996) (per curiam) (internal quotations omitted). Leidos

held that there could be no manifest injustice if the petitioner

obtained an arbitration award in euros and requested a

judgment in euros, but later changed its mind. See 881 F.3d at

218. Strictly read, Leidos is more about Rule 59(e) motions

than the district court’s discretion to choose a currency

denomination in the first instance.

But the underlying logic of Leidos is applicable. The fact

that the petitioner requested an award in dollars after the

judgment was important because it determined the procedural

device used to make the request and the standard by which that

request was evaluated. Leidos did not, however, imbue

judgment day with a metaphysical significance in which

converting a judgment to U.S. dollars is proper if the request is

made pre-judgment and improper if made post-judgment. The

equitable consideration in Leidos was that the petitioner

unfairly delayed his request, disrupting the settled expectations

of the other party. Here, the district court should have

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considered whether Energoalliance took any actions that

created a settled expectation on Moldova’s part.

Energoalliance took at least two such actions. First, as the

arbitral tribunal made clear, Energoalliance requested an award

in U.S. dollars and then changed its mind and requested the

award in Moldovan lei:

Originally, the Claimant denominated its claim

(both with regard to the principal debt and the

interest) in US dollars. However later, it

changed its demands in its Alternative

Calculation Statement by denominating the

amounts in [lei]. . . . As far as the Arbitration

Court understands, the Claimant’s argument is

that any payments of Moldtranselectro to the

Claimant would be made in lei (in case of

monetary form of payments) therefore the most

accurate measurement of the Claimant’s loss

would be denominated in lei.

Second, Energoalliance’s November 2014 confirmation

petition in district court denominated the bulk of requested

relief in lei. Energoalliance’s first request for a dollar-

denominated award came in December 2018, more than five

years after its first request for an award in lei and more than

four years after its second such request.

We believe the district court wrongly focused on the most

recent request for dollars, noting only that granting dollar

conversion requests is “standard practice.” Allowing this

standard practice to override Moldova’s reliance interest lets

an arbitration winner make a riskless bet on the foreign

exchange market—always requesting the initial award in local

currency and then, during the course of U.S. confirmation

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proceedings, seeking a dollar judgment if and only if the local

currency suffers relative depreciation.

As the district court recognized, the Moldovan lei had

depreciated significantly since the arbitral award was issued on

October 25, 2013. At the time of the arbitral award, the

currency exchange rate of lei to dollars was 12.9207 lei to 1

dollar. As of the date of the district court’s order, the rate was

17.8856 lei to 1 dollar. Thus, the Moldovan lei depreciated

nearly 30 per cent over the relevant period. But neither Stileks

nor the district court explained why Moldova alone should bear

the cost of currency depreciation. In sum, we conclude the

district court inadequately accounted for the reliance interests

Moldova may have reasonably developed based on

Energoalliance’s actions during arbitration.

For the foregoing reasons, we affirm the district court’s

November 13, 2018, stay-lifting order, as well as the portion of

the August 23, 2019, order confirming the arbitral award and

awarding prejudgment interest. However, the district court

should have considered whether Moldova had a settled

expectation that the award would be paid in Moldovan lei.

Thus, we vacate the October 2, 2019, order entering judgment

against Moldova in the amount of $58,591,058.50. On remand,

the district court should evaluate Moldova’s reliance interest,

if any, that may have been created by Energoalliance’s requests

for a lei-denominated award. In light of our remand, we do not

reach Moldova’s argument regarding the district court’s

continuing jurisdiction vel non based on Moldova’s appeal

notice.

So ordered.