Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum and Natural Gas
219 F. Supp. 3d 50
| D.D.C. | 2016Background
- HEPI (Hardy Exploration & Production (India), Inc.) seeks confirmation in D.C. district court of a 2013 international arbitration award against the Government of India (Ministry of Petroleum & Natural Gas) under 9 U.S.C. § 207.
- The parties’ dispute arose under a Production Sharing Contract (PSC) governed by Indian law; PSC Article 33 provides for arbitration in Kuala Lumpur and Article 36 provides a contract notice procedure (registered post to addresses set in the PSC).
- HEPI attempted service on India by Federal Express relying on PSC Article 36; India moved to dismiss for insufficient service under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1608, arguing Article 36 is not a “special arrangement for service.”
- The principal legal question was whether Article 36 constituted a § 1608(a)(1) special arrangement for service (the first, preferred FSIA method), or whether HEPI must proceed to the Hague Service Convention or the subsequent FSIA methods.
- The court concluded Article 36’s phrase "hereunder" limits the provision to contract-prescribed communications (not judicial process) and therefore did not constitute a special arrangement for service; HEPI’s FedEx attempt was insufficient but the petition was not dismissed.
- The court granted HEPI leave to attempt service again using the FSIA’s ordered methods, and required strict compliance with § 1608(a); it denied HEPI’s request to skip the Hague Service Convention step.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PSC Article 36 is a § 1608(a)(1) "special arrangement for service" | Article 36’s broad language about “all notices, statements, and other communications” (and commercial sense) covers service; FedEx delivery therefore effective | Article 36 is limited by "hereunder" to contract-prescribed notices and does not consent to service of foreign judicial process or service by courier | Article 36 does not constitute a special arrangement for service; FedEx service insufficient |
| Whether Indian contract law requires construing Article 36 to include service of process | Contract interpretation favors harmonious, commercially sensible readings that would include service | Indian law prioritizes plain meaning; unambiguous contract language controls and cannot override Indian procedural law on service | Court applied Indian law principles and concluded plain meaning ("hereunder") restricts Article 36 to contract notices, not judicial service |
| Whether the petition should be dismissed for lack of personal jurisdiction due to defective service | Dismissal would be improper and unfair because HEPI made a colorable, timely attempt and SOL has run | FSIA service rules must be enforced; many D.D.C. cases dismissed for defective FSIA service | Court declined dismissal; allowed HEPI another opportunity to effect proper service under FSIA given Barot precedent and reasonable prospect of successful service |
| Whether HEPI may skip the Hague Service Convention step and proceed to mail under § 1608(a)(3) | Hague process can be slow or dilatory; circumvention warranted to avoid undue delay and prejudice to HEPI | § 1608(a) mandates strict, ordered adherence; subsection (2) (international convention) must be attempted before (3) | Court refused to allow skipping (a)(2); required HEPI to follow FSIA’s methods in order and strictly comply |
Key Cases Cited
- Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344 (1999) (service of process is a prerequisite to personal jurisdiction)
- Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987) (service requirement before federal court may exercise personal jurisdiction)
- Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994) (requirement of strict adherence to FSIA § 1608(a) service methods)
- Barot v. Embassy of the Republic of Zambia, 785 F.3d 26 (D.C. Cir. 2015) (district court abused discretion by dismissing for service failure where plaintiff had reasonable prospect to effect service; remand for another opportunity)
- Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543 (D.C. Cir. 1987) (FSIA confers subject-matter jurisdiction; personal jurisdiction requires proper service under § 1608)
- Int’l Road Fed’n v. Embassy of the Dem. Rep. Congo, 131 F. Supp. 2d 248 (D.D.C. 2001) (contract notice clause held to be a special arrangement for service where language was broad and unrestricted)
- Marlowe v. Argentine Naval Comm’n, 604 F. Supp. 703 (D.D.C. 1985) (contract notice clause found to permit service by mail/registered post)
- G.E. Transp. Sys. S.P.A. v. Republic of Albania, 693 F. Supp. 2d 132 (D.D.C. 2010) (court found a contract provision sufficient as a special arrangement for service)