904 F. Supp. 2d 131
D.D.C.2012Background
- DEI filed to confirm an ICSID Award under 22 U.S.C. §1650a and ICSID, seeking full enforcement of a $2,740,218 award.
- Peru moved to dismiss or remand for clarification; the court previously denied both points in DEI I (Sept. 14, 2012).
- Peru challenges amended Article 38 of its Tax Code and the applicability of SUNAT rates to the Award; Peru argues the award is ambiguous on the correct interest rate.
- The court held the Award is clear on its face and applicable interest rate, denying remand and confirming the Award.
- The Court concludes the TIM (tax refund) rate applies and DEI is to receive taxpayer-rate interest; the award amount remains $2,740,218.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the ICSID Award sufficiently clear to determine the applicable interest rate? | Peru argues ambiguity requires remand. | DEI argues clarity allows confirmation without remand. | No remand; award is sufficiently clear to apply the correct rate. |
| Does amended Article 38 apply to the Award’s interest calculation? | Peru contends Article 38 does not apply or is misapplied. | DEI asserts Article 38 applies as interpreted by the Tribunal. | Article 38 applies as interpreted; court denies Peru’s challenge. |
| Is Peru entitled to remand due to alleged tax-law ambiguity? | Peru seeks remand to clarify tax-rate calculation. | DEI argues remand is inappropriate where the Award is clear. | Remand denied; not warranted given clarity of Award. |
| Does the Tribunal’s directive establish DEI as taxpayer-rate recipient despite payment by Egenor? | Peru argues subsidiary payment negates taxpayer rate. | Tribunal required taxpayer-rate; subsidiary’s role irrelevant. | Tribunal directive binding; DEI receives taxpayer-rate interest. |
Key Cases Cited
- Travelers Indemn. Co. v. Bailey, 557 U.S. 137 (U.S. 2009) (plain-terms analysis governs unambiguous orders)
- Connecticut Nat’l Bank v. Germain, 503 U.S. 249 (U.S. 1992) (unambiguous statutory language governs judicial inquiry)
- Ethyl Corp. v. United Steelworkers of America, AFL-CIO, 768 F.2d 180 (7th Cir. 1985) (remand is exceptional to avoid delay in final arbitration)
- Telenor Mobile Comms. AS v. Storm LLC, 351 F. App’x 467 (2d Cir. 2009) (remand appropriate when award is ambiguous about liability)
- Hyle v. Doctor’s Assocs., Inc., 198 F.3d 368 (2d Cir. 1999) (remand where arbitrator’s meaning is unclear)
- In re Fitzgerald Marine & Repair, Inc., 619 F.3d 851 (8th Cir. 2010) (remand appropriate where contract interpretation is unclear)