Venco Imtiaz Construction Company v. Symbion Power LLC
Civil Action No. 2016-1737
D.D.C.May 31, 2017Background
- USAID funded construction of a Kabul power plant; The Louis Berger Group/Black & Veatch (LBG/BV) was the project manager, Symbion Power LLC was the prime contractor, and Venco Imitiaz Construction Co. was a subcontractor for power blocks.
- LBG/BV and Symbion disputed delays; LBG/BV withheld payment to Symbion, and Symbion withheld payment to Venco. Symbion contended its payments to Venco were conditioned on Symbion receiving payment from LBG/BV; Venco disputed that defense.
- Symbion and LBG/BV arbitrated first (ICC), and that tribunal found LBG/BV breached but held Symbion could not rely solely on invoices to prove entitlement to payment.
- Venco separately arbitrated against Symbion (ICC), presented evidence and testimony, and won a final award (July 11, 2016) requiring Symbion to pay roughly $8.46 million (unpaid invoices, interest, fees, arbitration costs).
- Symbion filed to set aside the Venco award in the U.K.; Venco petitioned this Court to confirm the award under the New York Convention. The U.K. High Court later denied Symbion’s challenge; Symbion sought leave to appeal.
- This Court evaluated whether to confirm the award and whether to stay enforcement pending the U.K. proceedings.
Issues
| Issue | Plaintiff's Argument (Venco) | Defendant's Argument (Symbion) | Held |
|---|---|---|---|
| Whether to confirm the ICC arbitral award under the New York Convention | The award is valid and enforceable; no Convention defense applies | Enforcement should be denied because it would violate public policy via issue preclusion from the prior LBG/BV–Symbion award | Confirmed the award; public policy exception did not apply |
| Whether issue preclusion (collateral estoppel) bars the Venco award | N/A (Venco argues award independently valid) | Prior LBG/BV award established rule that invoices alone cannot prove damages and should bind subsequent tribunal | Rejected: Venco was not a party to the prior arbitration; nonparty preclusion inapplicable given Taylor framework and lack of adequate representation |
| Whether to stay enforcement pending U.K. proceedings | Opposes stay; requests security only if stay granted | Requests stay pending U.K. appeal | Denied stay: key Europcar factors (speed of arbitration, status of foreign proceedings) favored enforcement; U.K. trial court had already ruled for Venco |
| Whether Venco may recover attorney’s fees for confirming the award in this Court | Requested fees and costs for this confirmation action | Opposed / not addressed substantively | Denied fee request for this federal action (no briefing or legal basis shown) |
Key Cases Cited
- Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (emphatic federal policy favoring arbitration)
- KPMG LLP v. Cocchi, 565 U.S. 18 (same principle regarding arbitration enforcement)
- TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C. Cir.) (narrow construction of New York Convention public policy exception)
- Taylor v. Sturgell, 553 U.S. 880 (nonparty preclusion limited to narrow categories; due process constraints)
- Europcar Italia S.P.A. v. Maiellano Tours, Inc., 156 F.3d 310 (2d Cir.) (factors for staying enforcement pending foreign proceedings)
- Montana v. United States, 440 U.S. 147 (policy reasons for issue preclusion)
- Belize Bank Ltd. v. Gov’t of Belize, 852 F.3d 1107 (D.C. Cir.) (burden on challenger to meet exacting public policy standard)