LBKM’s Alexander Bedrosyan represented Guinea in confirmation proceedings.
On February 18, 2025 the U.S. District Court for the District of Columbia dismissed a suit by Seychelles company Global Voice Group SA (“GVG”) to confirm an arbitration award against the Republic of Guinea. The Court found that it lacked subject matter jurisdiction because Guinea retained sovereign immunity. It noted that the cases introduced by Guinea were “quite helpful in resolving the subject matter jurisdiction issue.”
The decision, written by Judge Jia M. Cobb, clarified a key nuance in the U.S. law on confirming arbitration awards against foreign sovereigns: Where there is a legitimate dispute over whether the foreign sovereign is party to the document containing the arbitration agreement, that arbitration agreement and an award pursuant thereto against the foreign sovereign are not sufficient evidence that the “arbitration exception” in the Foreign Sovereign Immunities Act (“FSIA”) applies.
Ordinarily, an arbitration agreement and an arbitration award (along with a treaty governing confirmation of the award), are prima facie evidence that the FSIA’s “arbitration exception” is met. Any disputes about whether the private plaintiff was party to the arbitration agreement, the agreement was valid, or that it covered the particular claim, are not jurisdictional arguments bearing on sovereign immunity, but rather defenses to the merits of confirmation. Similarly, under the Federal Arbitration Act (“FAA”), where an arbitration agreement delegates to an arbitrator the right to interpret the arbitration agreement, a U.S. court must defer to the arbitrator’s conclusion on the agreement.
However, Judge Cobb found that these ordinary consequences don’t apply where there is a credible dispute that the sovereign was not party to the document containing the arbitration agreement. The FSIA’s arbitration exception requires there to be an arbitration agreement “made by” the foreign sovereign. Thus, the document that a plaintiff offers as prima facie evidence of the arbitration agreement must on its face show that it was “made by” the foreign sovereign. That was not the case here, as the contract submitted with the arbitration clause defined as the “Parties” thereto only GVG and the Postal and Telecommunications Regulatory Authority of Guinea (“PTRA”), not the Republic of Guinea itself.
Nor did it matter that the arbitration tribunal found that Guinea was a party to the contract (and arbitration clause therein). Judge Cobb explained that courts must defer to the arbitrator’s interpretations of the arbitration agreement only where there was “clear and unmistakable evidence” that the foreign state agreed to delegate this interpretive power to the arbitrator. Here, the alleged evidence came from the arbitration agreement itself, namely, a clause agreeing to apply arbitration rules that allowed arbitrators to rule on their own jurisdiction. However, since it was disputed that Guinea was party to this arbitration agreement, the agreement itself could not supply the “clear and unmistakable evidence” that Guinea intended to delegate the power to the arbitrator.
“GVG cites no case in which a court deferred, over a foreign state’s challenge, to an arbitrator’s determination that the foreign state respondent (as opposed to the private petitioner) was a party to the arbitration agreement and thus subject to FSIA jurisdiction.”
Thus, Judge Cobb had to resolve de novo the question of whether Guinea was party to the arbitration agreement. In doing so, she observed that GVG’s evidence was that a Guinean minister signed a page of the contract between GVG and PTRA, and under the French law governing the arbitration Guinea was a “direct beneficiary” of the contract and was involved in its negotiation. However, neither piece of evidence sufficed to show that Guinea consented to arbitrate under the contract, particularly given the contract’s limited definition of the “Parties.” “[U]nder both the FSIA and FAA, consent, not a signature, is the key into court,” and the FSIA required the foreign sovereign to have “made” the arbitration agreement, not merely benefit from it.
Alexander Bedrosyan represented Guinea in the confirmation proceeding through the completion of substantive briefing on the immunity question in February 2023, before joining Lewis Baach Kaufmann Middlemiss PLLC in May 2023. The briefs co-drafted by Mr. Bedrosyan, as well as Judge Cobb’s decision, can be read below.
About LBKM
Lewis Baach Kaufmann Middlemiss PLLC is a boutique law firm focusing on international financial disputes, financial compliance, white collar defense and investigations, insurance and reinsurance, and cross-border commercial litigation and arbitration. The firm has offices in Washington, New York, London, and the Middle East.