I. INTRODUCTION
In 1997, Hardy Exploration and Production (India), Inc. ("HEPI") entered into a contract with the Government of India that would allow HEPI to search for and potentially extract hydrocarbons from an area off of India's southeastern coast. The contract provided that if HEPI found crude oil, it would have two years to ascertain if that oil was commercially viable, but that if it found natural gas, that assessment period would last for five years. HEPI discovered a reserve of hydrocarbons in 2006 and claimed that it was natural gas, entitling it to a five-year appraisal period. India disagreed, and after two years, it informed HEPI that its rights to the Block had been relinquished. When the Indian Government refused to change its position on the type of hydrocarbons that had been discovered, HEPI initiated arbitration proceedings pursuant to the contract. The Tribunal ultimately found in HEPI's favor and ordered India to allow HEPI back onto the Block for another three years to continue its assessment of whether the natural gas it had discovered was commercially viable. The Tribunal also awarded HEPI interest on its original investment in the Block, as well as certain costs. India immediately appeаled the award to the Delhi High Court, and HEPI filed a separate suit in the Delhi High Court to enforce the award. As far as the Court is aware, those cases remain pending. Three years after it had won the arbitral award, HEPI had still not been allowed back onto the Block, and therefore filed a petition for confirmation of its arbitral award in this court under the Federal Arbitration Act. India opposed the confirmation, claiming that the enforcement of the award's specific performance order would violate U.S. public policy, as would confirmation of the interest portion of the award, which India claimed is punitive and coercive, rather than compensatory. For the reasons set forth below, the Court finds that confirmation and enforcement of the specific performance portion of the award would violate U.S. public policy, and therefore, the Court declines to confirm that portion of the award. Additionally, the Court finds that granting the award of interest, which is predicated on India complying with an order that this Court cannot issued, would also violate U.S. public policy, and therefore declines to confirm that pоrtion of the award as well.
II. FACTUAL AND PROCEDURAL BACKGROUND
This case stems from HEPI's participation in a Production Sharing Contract
Each participant in the PSC entered the agreement at their own risk. If a participant discovered a reserve of hydrocarbons that was capable of being extracted and produced commercially, then it would be entitled to extract and produce the hydrocarbons, and would be entitled to keep a percentage of the hydrocarbons for itself, with the rest going to the Government of India. See PSC arts. 14-15. If participants' work on the Block yielded no commercially viable discovery, the participants would be entitled to no compensation for the investment they had put into the Block. See PSC art. 7.4 (providing that the contractor shall "conduct all Petroleum Operations at its sole risk, cost and expense and provide all funds necessary for the conduct of Petroleum Operations ..." unless otherwise provided in the PSC); see also Award at 41 (observing that "[t]here is no dispute" that a contractor "is not entitled to any compensation if it is unable to get commercial discovery of the product within the period specified in the contract").
The PSC outlined the procedures the parties would follow in the event of a hydrocarbon discovery. See PSC art. 9. Under the PSC, after the discovery of hydrocarbons, the participants would enter into an appraisal period to determine whether the production of the hydrocarbons in the newly discovered reserve would be commercially feasible. See Pet'r's Mem. at 4; PSC arts. 9.5, 21.4.4. The PSC provided for appraisal periods of different lengths depending on the type of hydrocarbons discovered. If the discovery was crude oil, the appraisal period would be two years, see PSC art. 9.5; if it was natural gas, the appraisal period would be five years, see PSC art. 21.4.4.
In late 2006, HEPI and GAIL discovered a reserve of hydrocarbons and promptly informed the Ministry of Petroleum and Natural Gas of their discovery. Pet'r's Mem. at 4; Award at 7-8. HEPI believed that the hydrocarbons it had discovered was natural gas, and more particularly, Non-Associated Natural Gas ("NANG"), and therefore that its declaration of commerciality would not be due until January 7, 2012. Id. at 6-7, 9-11. However, the Ministry insisted that the discovery was in
Article 33 of the PSC provides that "any unresolved dispute, difference or claim which cannot be settled amicably within a reasonable time may ... be submitted to an arbitral tribunal for final decision," PSC art. 33.3; sets forth the procedures for any arbitration; and selects Kuala Lumpur, Malaysia as the venue for the proceedings, PSC art. 33.12. Article 33 further provided that "[t]he decision of the arbitral tribunal, and, in the case of difference among the arbitrators, the decision of the majority, shall be final and binding upon the Parties." PSC art. 33.8.
The Tribunal first turned to preliminary issues, and issued an order on May 28, 2011 finding that the dispute between the parties was subject to arbitration and within the Tribunal's jurisdiction. See MacKenzie Decl. Ex. 7, ECF No. 1-9; see also Award at 5. The Tribunal heard argument on the merits of the dispute on August 20-22, 2012, in Kuala Lampur, Malaysia. Award at 5. During the course of these proceedings, HEPI presented the testimony of two expert witnesses to support its contention that the discovery was of natural gas, and India produced no expert testimony to the contrary. Id. at 26-29. On February 2, 2013, the Tribunal, still sitting in Kuala Lampur, issued a unanimous 43-page Award to HEPI, finding that "the nature of the discovery in the Block ... would unequivocally qualify under the term of the [PSC] as Non Associated Natural Gas." Id. at 29. Because the discovery was natural gas, not crude oil, the Tribunal decided that HEPI was "denied the time provided for in the contract for appraisal and to come to [a] conclusion about the commerciality of the discovery." Id. at 36. The Tribunal concluded that severing HEPI's interest in the Block was "illegal, being on the erroneоus impression that the discovery was Oil." Id. at 43.
To remedy what it found to be a breach of the PSC, the Tribunal ruled that India's "order of relinquishment is declared to be null and void." Id. Because India had ordered the relinquishment of the Block before HEPI was able to determine the commercial viability of the hydrocarbons it had discovered, the full extent of the monetary damage to HEPI due to India's breach of the PCS remained unclear. Id. at 41. Therefore, the Tribunal ordered that "the parties shall be immediately relegated to the position in which they stood prior to the order of the relinquishment and the block shall be restored to [HEPI]." Id. at 43. Additionally, it ordered India to pay interest on HEPI's Rs. 500 crores investment in the Block, at a rate of 9% per year up to the date of the award, and 18% per year thereafter until the fulfillment of the award. Id. The Tribunal also awarded certain costs to HEPI. Id.
To date, the Government of India has only complied with the latter portion of the Award, the payment of Rs. 51 lakhs for
In October 2016, India filed for leave to appeal the dismissal with the Supreme Court of India. 4th MacKenzie Decl. ¶ 23. It also moved for the Supreme Court to stay the arbitration award, which the court denied. Id. Arguments on the appeal were delayed for almost a year due to the unavailability of India's counsel and the Supreme Court, and the docket in this case does not indicate whether the appeal has yet been fully heard, nor does it indicate whether the Supreme Court has ruled on the appeal. Id. ¶ 27. In the meantime, HEPI's petition for execution of the Award before the Delhi High Court has been repeatedly adjourned pending the disposition of India's appeal. Id. ¶ 28.
Due to this delay, HEPI decided to avail itself of the enforcement powers of this Court as well, and in January 2016 filed the instant petition for enforcement of the arbitral award. See Pet'r's Pet. to Confirm Arbitration Award ("Pet'r's Pet."), ECF No. 1. Following briefing and an order from this Court regarding proper service of India, India filed its response to HEPI's petition, arguing that the Court should decline to enforce the arbitral award because confirming both the specific performance and interest aspects of the Award would violate U.S. public policy. See Resp't's Resр. Pet'r's Pet. ("Resp."), ECF No. 28. It further moved for the Court to stay these proceedings while its petition to set aside the arbitral award remains pending in India. Id. HEPI's petition, and India's request that the Court stay these proceedings, are now ripe for decision.
III. LEGAL STANDARD
"The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, also known as the ' New York Convention,' [21 U.S.T. 2517,] is enforced through the Federal Arbitration Act,
"Consistent with the 'emphatic federal policy in favor of arbitral dispute resolution' recognized by the Supreme Court[,] ... the FAA affords the district court little discretion in refusing or deferring enforcement of foreign arbitral awards." Belize Social Development Ltd. v. Government of Belize ,
IV. ANALYSIS
India has presented two major arguments for why HEPI should not be granted the confirmation it seeks. First, it argues that confirmation of the two remaining portions of the arbitral award-specific performance and interest-would violate U.S. public policy. See Resp. at 6-7. Second, it argues that if the Court finds that the award does not violate U.S. public policy, and therefore that it should be confirmed, the Court should stay the enforcement of the award while India's appeal of the award and HEPI's parallel litigation to enforce the award proceed through the Indian court system. Id. at 40. The Court first addresses India's arguments regarding a stay of these proceedings, and, finding that a stay is not warranted, then addresses India's arguments regarding whether confirmation of the award would violate U.S. public policy.
A. Request for Stay
India has moved for a stay of these proceedings pending the resolution of its aрpeal of the arbitral award in India pursuant to Article VI of the New York Convention, which provides that "[i]f an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award." New York Convention, art. VI. A "competent authority" referred to in Article V(1)(e) is one "of the country in which, or under the law of which, that award was made." New York Convention, art. V(1)(e). India further argues that this Court should stay the proceedings pursuant to the doctrines of forum non conveniens and international comity. See Resp. at 40. HEPI counters that because India brought a set-aside suit in India, rather than Malaysia, the requirements of an Article VI stay have not been met. See Pet'r's Mem. P. & A. Resp. Resp't's Opp'n ("Pet'r's Resp.") at 34-35, ECF No. 29. It further argues that forum non conveniens and international comity
The D.C. Circuit has explained that "the FAA affords the district court little discretion in refusing or deferring enforcement of foreign arbitral awards: the Convention is 'clear' that a court 'may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention,' " and a court "may adjourn enforcement proceedings only on the grounds explicitly set forth in Article V(1)(e) of the Convention." Belize Soc. Dev. Ltd. v. Gov't of Belize ,
India filed suit with the Delhi High Court to set aside the arbitration award in 2013, and HEPI filed suit with the Delhi High Court to enforce the arbitration award, also in 2013. Pet'r's Pet. at 5; Resp. at 13. The court dismissed India's set-aside action in July 2015, finding that it did not have jurisdiction and that the action should have been brought in Chennai, which is the locality closest to the Block. Resp't's Resp. at 13. India's request for reconsideration was denied in January 2016, on the ground that Indian courts do not have the authority to set aside this award.
HEPI and India contest whether Indian courts have power under the New York Convention to set aside the award, and therefore, whether a petition in India to set aside the arbitral award counts as an application with "a competent authority of the country in which, or under the law of which, that award was made." New York Convention, arts. V, VI; see Pet'r's Mem. at 12-13; Resp. at 14-18. India argues that Indian courts are one such competent authority because India was the country under whose law the arbitration award was made. Resp. at 14-18. HEPI argues that "India has failеd to initiate any action before the courts of a competent authority, and therefore has no basis to apply for a stay" because Malaysian courts, rather than Indian courts, are the only courts of competent authority to set aside the award. Pet'r's Resp. at 32.
Europcar instructs courts to look at:
(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 the parties ...; and
(6) Any other circumstance that could tend to shift the balance in favor of or against adjournment ....
Gold Reserve Inc. v. Bolivarian Republic of Venezuela ,
Courts in this District have often utilized the Europcar factors in determining whether to grant a stay of arbitral enforcement proceedings. See, e.g., Hulley Enterprises Ltd. v. Russian Fed'n ,
The Court begins by considering the first and second Europcar factors, which "should weigh more heavily in the district court's determination," "[b]ecause the primary goal of the Convention is to facilitate the recognition and enforcement of arbitral awards." Europcar ,
The Court agrees with HEPI's assessment of the timeliness of the Indian proceedings and the likelihood of their resolution in the near future. India filed its suit to set aside the arbitral award nearly five years ago, in July 2013. 4th MacKenzie Decl. ¶ 9. After several years of delay by both the Government of India and the courts, India's set-aside action was dismissed for lack of jurisdiction in July 2016. Id. ¶ 22. India appealed to the Supreme Court of India in October 2016. Id. ¶ 23. There is no indication on the docket that the Supreme Court has ruled on this appeal, which has been delayed over and over again due to the actions of the Government of India and the Supreme Court. Id. ¶¶ 23-27. Additionally, the parties have given no indication of how long they expect it will take the Indian court system to reach a final resolution in this case once the Supreme Court of India has dеtermined whether the Delhi High Court has jurisdiction to hear the set-aside action on its merits, or whether only the courts in Malaysia do, forcing India to refile its suit there. Similarly, the parties have given no indication of how long they expect it will take for the Delhi High Court to reach the merits of HEPI's enforcement action, given that the courts have been inclined to postpone deciding that case until India's set-aside action has been resolved. Id. ¶ 28.
As HEPI has pointed out, courts in this district have readily found stays inappropriate when foreign set-aside proceedings have remained pending for half a decade. Pet'r's Resp. at 35-38. In Chevron , the court took into account the fact that the underlying arbitration had occurred over six years prior and the protractedness of set-aside litigation pending in The Hague when it decided not to stay its confirmation of Chevron's arbitral award.
The fourth factor instructs the court to examine the characteristics of the foreign proceedings in several respects, including
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.
Europcar ,
The fifth factor likewise counsels against a stay. India's initial breach of its contract with HEPI occurred nine years ago, and the arbitral award in question was handed down five years ago. While the interest that HEPI was awarded through arbitration would continue to accrue in the event of a stay, there is no doubt that, given the length of time HEPI has waited to receive the award, and the amount of money at issue, HEPI would be burdened should the Court delay confirmation of the award. See Chevron Corp. ,
Overall, examination of the six Europcar factors demonstrates that a stay is not warranted in this case. Because the Court determines that the application of the six Europcar factors counsels against staying this enforcement action, the Court need not determine whether Indian courts, under Indian law, have the power to set aside the arbitral award. Because the Court need not determine the "seat" of the arbitration for the purposes of considering whether it will grant a stay in this case, the Court need not consider the arguments raised in HEPI's proposed sur-reply and India's proposed sur-sur-reply. Because this is not a situation in which the "proposed surrepl[ies] would be helpful to the resolution of the pending motion," Glass v. Lahood ,
B. The Arbitration Award
Having ruled against India's request to stay these proceedings, the Court now turns to HEPI's petition for enforcement of the Award. Because it has already received the costs portion of the arbitral award, see 4th MacKenzie Decl. ¶ 8, HEPI urges this Court to affirm and enforce the two remaining portions of the award: return of the Block to HEPI for a period of three years and interest on its original investment in the Block. India responds that the Court should decline to enforce these two components of the award on public policy grounds, as permitted by the New York Convention. See New York Convention, art. V(2)(b). First, it argues that because confirmation of the award "would not lead to the usual result this Court is used to seeing-a monetary judgment that the petitioner can then enforce against the sovereign nation's commercial assets located within the U.S.," but rather "would divest [India] of possession and control of its own territorial waters and natural resources," the confirmation "would be contrary to the public policy of [the United States]." Resp. at 19. It further argues
As both parties acknowledge, the burden of demonstrating that the confirmation of an arbitral award would violate U.S. public policy is a heavy one. Analysis of a proposed public-policy defense "begins with the strong public policy favoring confirmation of foreign arbitration awards," Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Def. Sys., Inc. ,
Therefore, the Court must determine whether the confirmation of the specific performance and interest portions of the arbitral award violate the United States' most basic notions of morality and justice, defined by its laws and legal precedents.
1. Specific Performance
This case presents the Court with a unique opportunity to balance two important U.S. public policy values: respect for the sovereignty of other nations and respect for foreign arbitral agreements. India
In response, HEPI argues that India overstates the affront confirmation of the award would be to India's sovereignty, and also overstates the hesitancy of U.S. courts to hold foreign governments accountable when they harm private parties. See Pet'r's Resp. at 15-23. It also contends that India's emphasis on its belief that the award violates Indian statute is an attempt to reargue the merits of the arbitration award, something this Court is not allowed to consider. Id. at 25. It further argues that compliance with the award would not be too difficult to supervise, and that the doctrines of comity and act of state are inapplicable in arbitration award confirmation cases. Id. at 23-24.
Despitе HEPI's examples to the contrary, the Court finds that India does not overstate the United States' public policy interest in respecting the right of other nations to control the extraction and processing of natural resources within their own sovereign territories. The Court therefore finds that India has met its burden of demonstrating that confirmation of the specific performance portion of the award would be contrary to U.S. public policy, and therefore the Court declines to confirm this portion of the award. Because the Court declines confirmation of the award on this ground, it does not reach India's other arguments as to why the Court should decline to confirm this portion of the award.
There is no doubt that "[a]ctions against foreign sovereigns in our courts raise sensitive issues concerning the foreign relations of the United States" and other nations. Verlinden B.V. v. Cent. Bank of Nigeria ,
The United States' recognition and respect of other nations' sovereignty is expressed through the Foreign Sovereign Immunities Act, which provides that "foreign state[s] shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in" three subsequent subsections of the
To counter India's contention regarding U.S. public policy, HEPI first points out that courts have in the past enforced arbitral awards for specific performance in other countries, and that therefore, confirmation of arbitral awards that grant extraterritorial specific performance do not violate U.S. public policy. See Pet'r's Resp. at 20-21 (citing NTT DoCoMo v. Ultra d.o.o. , No. 10-cv-3823,
HEPI also highlights two instances in which American courts granted specific performance against defendant sovereign nations outside of the international arbitration context. In Chabad v. Russian Federation , a court in this district ordered Russia to "surrender to the United States Embassy in Moscow or to the duly appointed representatives of ... Chabad ... the complete collection" of certain expropriated religious texts and artifacts in Russia's possession.
While the injunction in Chabad stemmed from a suit seeking the return of expropriated property, the limited language of
The second case HEPI cites is also relevant, but ultimately does not convince the Court that HEPI must prevail. See Pet'r's Resp. at 22. In NML Capital v. Argentina , the Second Circuit affirmed a district court's orders permanently enjoining Argentina from making payments on bonds issued pursuant to its debt restructurings without making comparable payments on defaulted bonds.
India argues that a confirmation of the award would go even farther than the injunction in NML Capital , because it would require "India to give possession of its territorial waters to Hardy and permit Hardy to commercially develop India's natural resources." Resp. at 19. While the Court questions this assertion-after all, the PSC specifies that "India's natural resources
First, the Court agrees with India that confirmation of the award would lead to a U.S. court attempting to enforce an even more invasive order than the one in NML Capital . While the Court does not agree with India's contention that enforcement of the arbitral award would be too complicated for the Court to oversee,
Second, the Court is persuaded that the FSIA's contemplation of jurisdiction over foreign countries in suits seeking compensatory (but not punitive) damages, and allowing for specific, domestic methods of ensuring that plaintiffs receive those damages, demonstrates the United States' public policy commitment to respecting the sovereignty of foreign nations by only holding them liable for certain forms of relief. See, e.g. ,
Third, while the doctrine of international comity does not generally counsel against the confirmation of arbitral awards, see Newco Ltd. ,
For all of these reasons, the Court finds that enforcement of the specific performance portion of the arbitral award would violate United States public policy, and therefore, that this case presents one of the limited circumstances under which a district court can decline to confirm and enforce a foreign arbitral award. Given that other recourse is still available to HEPI, through its litigation in the Indian courts, the Court declines to confirm this portion of the award.
2. Interest
India urges the Court to decline confirmation of the monetary portion of the arbitral award-interest on HEPI's Rs. 500 crores ($113 million) investment in the Block, at a rate of 9% per year up to the date of the award, and 18% per year thereafter until the fulfillment of the award-claiming that it is both coercive
As explained above, the New York Convention allows U.S. courts to decline enforcing a foreign arbitral award if the award "would be contrary to the public policy of [the U.S.]." New York Cоnvention, art. V(2)(b). The Court has already established that confirmation of the specific performance portion of the award would violate public policy. Now the Court must also determine whether confirming the contested monetary portion of the award, the magnitude of which depends on whether India complies with the specific performance portion of the award, also violates public policy. In answering this question, the Court is persuaded by the United States' prior contention that the substance of a proposed order awarding money damages, rather than its form, should control how a court considers that order. See Statement of Interest of the United States, Chabad v. Russian Fed'n , No. 05-1548, Aug. 29, 2012, ECF No. 111 at 7. In Chabad , the United States argued that even though the proposed contempt sanctions the court was considering had not been labeled as proposed orders for the attachment or execution on property, for all intents and purposes, the sanctions would have had the same effect as such orders, and therefore would violate the FSIA.
In this case, the practical effect of confirming the Tribunal's award of interest would be to coerce a foreign state into complying with a non-existent order from this Court, a non-existent order which, as explained above, would be a severe affront to India's sovereignty and would violate U.S. public policy. Even if the Tribunal did not intend its award of interest to be punitive, confirmation of this award would leave India in a Catch-22 of either halting the accrual of interest by allowing HEPI back onto the Block-and thereby, effectively, complying with the arbitration award at the behest of this Court-or allowing the sum of money it owes to continue to grow. Indeed, due to the way the
This portion of the award is so inseparable from the specific performance portion of the award, the confirmation of which would violate U.S. public policy, that the confirmation of the interest portion of the award must also be found, necessarily, the violate U.S. public policy. India may ultimately need to pay HEPI the millions of dollars in interest it now owes-but if it does, it will be because a court with the authority to enforce the entire arbitration award, including the specific performance portion, has ordered it to do so. Because this Court does not have such authority, it cannot order this payment.
V. CONCLUSION
For the foregoing reasons, the Court DENIES HEPI's Petition to Confirm Arbitration Award (ECF No. 1); DENIES AS MOOT HEPI's Motion for Leave to File Sur-Reply (ECF No. 36); and DENIES AS MOOT India's Cross-Motion for Leave to File a Response to HEPI's Proposed Sur-Reply (ECF No. 37). An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Notes
Both parties have requested leave to submit additional briefing, along with expert affidavits, concerning the question of whether India is the competent authority to set aside the arbitration agreement, and therefore, whether the Court has the power to grant a stay of these proceedings. See Pet'r's Mot. for Leave to File Sur-reply, ECF No. 36; Resp't's Cross-Mot. for Lеave to File Resp., ECF No. 37. As explained below, the Court ultimately finds that it can resolve the question of whether a stay should be granted without determining whether Indian courts have the authority to set aside the arbitral award, and therefore denies both parties' motions as moot.
The district court ultimately granted Chabad its sanctions, despite the United States' objection, see Chabad v.Russian Fed'n ,
India emphasizes the complexity of the PSC and the involvement of entities not party to this suit to demonstrate "that any attempt to require specific performance of the PSC or to supervise specific performance of the PSC would be a fools-errand." Resp. at 34. However, this contention misconstrues the extent of the arbitral award, and therefore, what this Court would actually be enforcing if it confirmed the award. Confirmation of this award would not require the Court to supervise the remainder of the process provided by the PSC. It would only require that the Court ensure that HEPI is allowed back onto the Block to pick up where it had left off in 2009. If India violates any other portion of the PSC, that violation would not be coverеd by the initial arbitration award, and therefore would not be subject to this Court's jurisdiction. The fact that ONGC and GAIL have expressed their disapproval of HEPI's attempt to confirm the arbitral award in the United States does, however, indicate that the Government of India alone may not be able to grant HEPI the full relief contemplated in the arbitral award. See Bravin Decl., Exs. 5 & 6, ECF No. 28-1.
As explained above, the Court has found that the award's grant of post-judgement interest is impermissibly coercive because the amount of interest owed is predicated on how long it takes India to return access to the Block to HEPI, an action the Court cannot order India to take. While the Court does not make a finding on the coerciveness of the Tribunal's pre-judgment interest award, even if the Court were to find that such interest is not coercive, the Court still would not confirm that portion of the award. In its award decision, the Tribunal left open the question of how to calculate the 9% pre-judgment interest it was awarding. See Award at 41-43. India claims that the interest is compound, Resp. at 5 n.3, while HEPI contends that it is not, Pet'r's Resp. at 5 n.20, 27 n.49. Because the exact amount of money the Tribunal awarded remains undetermined, the Court would not confirm this portion of the award either.