Case of the Day: Preble-Rish Haiti S.A. v. Republic of Haiti

The case of the day is Preble-Rish Haiti S.A. v. Republic of Haiti (5th Cir. 2022). Preble-Rish had a contract for delivery of fuel with the Haitian government. When a dispute arose, it demanded arbitration in New York. Haiti refused to participate, and the parties cross-moved to compel and to stay the arbitration in the New York courts. In the meanwhile, the aribitral panel issued an award granting security to PReble-Rish, and Preble-Rish brought a proceeding under Rule B of the Supplemental Rules for Admiralty or Maritime Claims in order to attach prepaid funds in the hands of BB Energy USA, LLC, which everyone agreed were property of Haiti.

The question was whether the property was exempt from attachment. The court held that it was exempt, because Haiti had not expressly waived its immunity from execution. So far so good. But I am puzzled by the lack of any reference to Section 1610(a)(6), which provides that property is not immune from attachment or execution if

the judgment is based on an order confirming an arbitral award rendered against the foreign state, provided that attachment in aid of execution, or execution, would not be inconsistent with any provision in the arbitral agreement.

The tribunal’s award was, well, an award. Was it confirmed, or was there an effort to confirm it? The decision doesn’t say. If it was confirmed, did Preble-Rish argue that Section 1610(a)(6) applies? It just is curious to me that the section of the statute that is most plainly applicable on the face of things doesn’t appear at all in the decision.

This Post Has 4 Comments

  1. Alexander Moskovits

    And that kind of observation is what shows that you know your area of the law.

  2. Steven Skulnik

    Ted,

    The Southern District of New York confirmed the award (Preble-Rish Haiti, S.A. v. Republic of Haiti, 2022 WL 229701 (S.D.N.Y. Jan. 26, 2022)). That decision is on appeal. The SDNY judgment was registered in federal court in the Southern District of Texas (Case No. 4:22-mc-304). I imagine that because this occurred after the judgment appealed from to the Fifth Circuit, the court may not have considered the effect of the award confirmation to be properly before the court.

    Steve

    1. Ted Folkman

      Thanks, Steve, interesting! It’s unclear to me why the award creditor would have sought the attachment in Texas without also seeking to confirm the award, as there wasn’t a strong argument for waiver. Perhaps this was a purely strategic decision driven by a need for quick action while the “location” of the funds to be attached was known.

      1. Steven Skulnik

        It’s not clear but the confirmation proceeding may have been underway when the claimant discovered assets in Texas and sought a maritime attachment there.

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