1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:20-cv-23278-COOKE

UNITED STATES OF AMERICA,

Plaintiff,

v. 

REAL PROPERTY LOCATED AT 7505 AND 7171

FOREST LANE, DALLAS, TEXAS 75230, WITH ALL

APPURTENANCES, IMPROVEMENTS, AND

ATTACHMENTS THEREON, AND ANY RIGHT TO

COLLECT AND RECEIVE ANY PROFIT, RENT,

INCOME, AND PROCEEDS THEREFROM, 

Defendant,

____________________________________________/

CLAIMANTS OPTIMA VENTURES, LLC AND OPTIMA 7171, LLC’S 

MOTION TO COMPEL ARBITRATION

Claimants Optima Ventures, LLC (“Optima Ventures”) and Optima 7171, LLC (“Optima 

7171”) (collectively “Claimants”) move pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. 

§§ 1-16, and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 

June 10, 1958, (the “New York Convention”),1incorporated into Chapter 2 of the FAA, 9 U.S.C. 

§§ 201-208, to compel arbitration, pursuant to the Treaty Between the United States of America 

and Ukraine Concerning the Encouragement and Reciprocal Protection of Investment (the “U.S.-

Ukraine BIT” or the “Treaty”), of all claims in this civil forfeiture matter. 

1 Both the United States and Ukraine are parties to the New York Convention. 

See https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards/status2

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The grounds for this motion are that: (1) the strong federal policy favoring arbitration under 

the New York Convention applies to the U.S.-Ukraine BIT; (2) as the Supreme Court recognized 

in Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 527 (2019) and BG Group 

PLC v. Republic of Argentina, 572 U.S. 25, 40-41 (2014), for the BIT Treaty there, the arbitration 

clause of the U.S.-Ukraine BIT, the International Centre for Settlement of Investment Disputes

Convention (the “ICSID Convention”),2and the ICSID Arbitration Rules delegate to the arbitrator 

all questions of arbitrability, so the arbitrator, rather than the Court, must decide whether this case 

is arbitrable; (3) pursuant to Article 26 of the ICSID Convention, “consent of the parties to 

arbitration under th[e] Convention shall, unless otherwise stated, be deemed consent to such 

arbitration to the exclusion of any other remedy”; and (4) even if this Court were to assess 

arbitrability instead of the arbitrator, all of the claims must be arbitrated because the United States 

indisputably entered into a valid international agreement mandating arbitration of any and all of 

the claims covered by the arbitration agreement. Accordingly, the Court should, in its discretion, 

dismiss the case, or, in the alternative, stay the case pending arbitration. 

PRELIMINARY STATEMENT

In a case of egregious overreach, the United States is inexplicably attempting to step into 

the shoes of Ukraine, a sovereign state, in order to assert claims alleging conduct committed in 

Ukraine, by wealthy and powerful Ukrainian nationals, that purportedly harmed a Ukrainian bank, 

violates specific provisions of Ukrainian criminal law. Notwithstanding that no Ukrainian 

prosecutor or government entity has even alleged that the Ukrainian conduct described in the 

Verified Complaint violates Ukrainian criminal law, the United States now seeks, in federal court 

2 Both the United States and Ukraine are parties to the ICSID Convention. See 

https://icsid.worldbank.org/sites/default/files/ICSID-3.pdf.

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in Florida, the forfeiture of property located in Texas, purportedly on the ground that the property 

was acquired with funds unlawfully obtained in Ukraine, under Ukrainian law. Even if the United 

States had the authority to allege and prosecute violations of Ukrainian criminal law (it does not), 

this action – between the United States and property owned indirectly by Ukrainian nationals – is 

subject to arbitration under the bilateral investment treaty between the United States and Ukraine.

In 1996, the United States of America and Ukraine entered into the U.S.-Ukraine BIT that 

sought to enhance foreign investment in the two countries by providing their citizens with certain 

rightsin the event that a foreign investment dispute arose.

3 One of those rights, applicable to United 

States citizens investing in Ukraine as well as to Ukranian citizens investing in the United States, 

is the obligation to afford investments “fair and equitable” treatment, which sets out a minimum 

standard of treatment based on customary international law. Claimants allege that the United 

States’ initation of this civil forfeiture proceeding, and its conduct in this case, violates

international law by exceeding the reasonable bounds of prescriptive comity and intruding into the 

competing rights of Ukraine. See Restatement (Fourth) of Foreign Relations Law § 407 (2018).

The treaty also provides protection from an “expropriation” or “nationalization” of a party’s 

investment, either directly or indirectly through measures tantamount to expropriation or 

nationalization, and thus applies to so-called “creeping expropriations” that result in a substantial 

deprivation of the benefit of an investment without taking of the title to the investment.

In the event that treatment of an investment does not adhere to the required fair and 

equitable standards, or that an expropriation occurs by either the United States or Ukraine, the 

3 The U.S-Ukraine BIT is attached hereto as Exhibit 1, and can be found at: https://2009-

2017.state.gov/e/eb/ifd/43366.htm

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citizen of the aggrieved country may, under the terms of the Treaty, “choose to consent in writing 

to the submission of the dispute for settlement by binding arbitration.” The reason why binding 

arbitration provisions are put into bilateral investment treaties such as the U.S.-Ukraine BIT is

obvious: it would make little sense for a party aggrieved by a state-sponsored mistreatment of an 

investment to have, as its sole remedy, the filing of a lawsuit in the court system of the same nation 

that mistreated the property. A third-party neutral arbitrator is critical to implementing bilateral 

investment treaties, including the U.S.-Ukraine BIT.

The CompuCom Campus – which is the Defendant-in-rem in this case – was purchased 

with funds invested by Ukrainian nationals Ihor Kolomoisky and Gennadiy Boholiubov through 

Optima Ventures and Optima 7171, of which Kolomoisky and Boholiubov are 66.67% beneficial 

owners, thereby triggering the terms and conditions of the U.S.-Ukraine BIT.4 Those terms and 

4 See U.S.-Ukraine BIT, Art. VI(8) (“For purposes of [an] arbitration . . . , any company legally 

constituted under the applicable laws and regulations of a Party or a political subdivision thereof 

but that, immediately before the occurrence of the event or events giving rise to the dispute, was 

an investment of nationals or companies of the other Party, shall be treated as a national or 

company of such other Party in accordance with Article 25(2)(b) of the ICSID Convention.”). The 

Letter of Submittal addressed to President Clinton by Secretary of State Christopher recognizes 

that:

The Treaty’s definition of investment is broad, recognizing that investment can take 

a wide variety of forms. It covers investments that are owned or controlled by 

nationals or companies of one of the Treaty partners in the territory of the other. 

Investments can be made either directly or indirectly through one or more 

subsidiaries, including those of third countries. Control is not specifically defined 

in the Treaty. Ownership of over 50 percent of the voting stock of a company would 

normally convey control, but in many cases the requirement could be satisfied by 

less than that proportion.

https://2009-2017.state.gov/e/eb/ifd/43366.htm. See Vacuum Salt v. Ghana, ICSID Case No. 

ARB/92/1, Award, 16 February 1994, at ¶ 43 (“‘The concept of ‘control’ is broad and flexible . . . 

The question is . . . whether the nationality chosen represents an exercise of a reasonable amount 

of control to warrant its choice on the basis of a reasonable criterion.”). 

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conditions, as noted, provide the Claimants with an ability to submit this investment dispute “for 

settlement by binding arbitration.” Optima Ventures and Optima 7171 are exercising their right to 

binding arbitration and invoke the protections of the Treaty binding on Ukranian and American 

authorities.5 

Article 41 of the ICSID Convention delegates questions of the arbitrability of the dispute

to the arbitrators by providing that: 

(1) The Tribunal shall be the judge of its own competence; [and]

(2) Any objection by a party to the dispute that the dispute is not within the 

jurisdiction of the Centre, or for other reasons is not within the competence of the 

Tribunal, shall be considered by the Tribunal which shall determine whether to deal 

with it as a preliminary question or to join it to the merits of the dispute.

The Notice of Arbitration to be filed with ICSID asserts that the United States is, through 

this forfeiture action, improperly attempting to regulate conduct that occurred in the territory of 

Ukraine, and thereby forfeit Ukrainian investors’ property. In doing so, the United States has 

5 Optima Ventures and Optima 7171’s Notice of Arbitration is attached hereto as Exhibit 2. 

Pursuant to the U.S.-Ukraine BIT, Claimants must wait the appropriate amount of time before 

instituting said proceedings as mandated under the U.S.-Ukraine BIT – which requires that six 

months elapse from the date that the dispute arose before such claim can be submitted to 

arbitration. U.S.-Ukraine, Art. VI(3) (requiring “that six months have elapsed from the date on 

which the dispute arose” prior to “consent[ing] in writing to the submission of the dispute for 

settlement by binding arbitration”). The instant litigation was filed on August 6, 2020, and while 

183 days have accrued since the filing of the Verified Complaint, six calendar months from the 

date of filing have not yet elapsed. Based on calendar months, six months accrues on Saturday, 

February 6, 2021. In an abundance of caution, Claimants will be submitting their Notice of 

Arbitration to ICSID after February 6, 2021. At that time, Claimants will seek leave to file as a 

supplemental exhibit the filed copy of the Notice of Arbitration attached as Exhibit 2, for the 

Court’s review. See 5 Fed. Prac. & Proc. Civ. § 1194 (3d ed.) (“Although there is no provision 

therefore in Federal Rule 7(b), a motion is subject to ‘timely’ amendment.”). “The use of judicial 

discretion seems especially appropriate if the adverse parties will not be prejudiced by the 

amendment to the motion, or if the amendment is necessary to insure that the case is adjudicated

fairly and justly or if it will help resolve the litigation at an early date.” Id. “The Court [may] 

exercise its authority to allow the motion to dismiss to be amended.” Vanslambrouck v. Fairfield 

Indus. Inc., 2011 WL 2435947, at *1-2 (M.D. Fla. June 15, 2011).

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exceeded the reasonable limits of prescriptive jurisdiction, violated the requirement of fair and 

equitable treatment, and unlawfully caused harm to Ukrainian investments. 

Further, because the U.S.-Ukraine BIT satisifes the prerequisites of the New York 

convention – meaning (1) the agreement is in writing; (2) ‘the agreement provides for arbitration 

in the territory of a signatory; (3) the agreement arises out of a commercial legal relationship; and, 

(4) a party to the agreement is not an American citizen or the commercial relationship has some 

reasonable relation with one or more foreign states – a motion to compel arbitration pursuant to 

Title 9, United States Code, Section 206 is appropriate. See Suazo v. NCL (Bahamas), Ltd., 822 

F.3d 543, 546 (11th Cir. 2016).

In sum, the Court should grant the motion to compel arbitration and direct the United States 

and Claimants to pursue arbitration pursuant to the U.S.-Ukraine BIT. In addition, the Court should 

dismiss the civil asset forfeiture case, or, in the alternative, stay the case pending the outcome of 

that arbitration. 

FACTS

1. The United States Seeks To Forfeit CompuCom Campus

On August 6, 2020, the United States filed a verified complaint for forfeiture in rem seeking 

to forfeit a 19.435-acre tract of land known as the CompuCom Campus, which is located at 7505 

and 7171 Forest Lane, Dallas, Texas 75230 (the “Verified Complaint”). See ECF#1. at ¶¶ 1-3, 38.

The Verified Complaint alleges that Ihor Kolomoisky is “a billionaire Ukrainian oligarch” 

who “controls businesses in many sectors of the Ukrainian economy, including metals, energy, 

and media” and was the co-owner of PrivatBank, “one of the largest banks in Ukraine.” Id. at 

¶¶ 10-11. The Verified Complaint describes Gennadiy Boholiubov as a “Ukrainian oligarch” who 

was “the second major shareholder of PrivatBank along with Kolomoisky” and the owner of “40% 

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of PrivatBank” prior to its nationalization by the Ukrainian government in the year 2016. Id. at 

¶¶ 12, 19. According to the Verified Complaint, Kolomoisky and Boholiubov used “their control 

of PrivatBank to steal billions of dollars of the bank’s funds,” which the two men then invested in 

real estate in the United States. The Verified Complaint also identifies Mordechai Korf, also 

known as “Motti,” as “a Miami-based business associate of Kolomoisky and Boholiubov” who, 

along with his longtime friend Uriel Laber, another “Miami-based business associate of 

Kolomoisky and Boholiubov,” helped manage Kolomoisky and Boholiubov’s investments in the 

United States “under the ‘Optima’ umbrella of companies.” Id. at ¶¶ 13-14, 19-21. The United 

States does not assert any allegations of criminal charges brought by Ukraine against 

Kolomoisky, Boholiubov, Korf, or Laber arising from the purported misconduct concerning 

PrivatBank described in the Verified Complaint.

According to the allegations in the Verified Complaint, one such investment occurred “[i]n 

2010, [when Korf, Laber, Kolomoisky and Boholiubov] purchased the CompuCom Campus” and 

that “[t]he money used to purchase the CompuCom Campus was directly traceable to four loans 

obtained from PrivatBank by Kolomoisky and Boholiubov,” which were “the proceeds of 

embezzlement, misappropriation, and fraud” in violation of “numerous provisions of the Ukrainian 

Criminal Code.” Id. at ¶ 21. The Verified Complaint alleges that Kolomoisky, Boholiubov, Korf,

and Laber acquired the property through a Delaware limited liability company, Optima Ventures 

LLC, which “was the primary vehicle used to acquire property in the United States with 

misappropriated funds from PrivatBank.” Id. at ¶ 86(c). The Verified Complaint further alleges 

that “Korf and Laber established many entities under Optima Ventures, with which they acquired

property using funds misappropriated from PrivatBank, including . . . [Claimant] Optima 7171, 

LLC (‘Optima 7171’), used . . . to acquire the CompuCom Campus.” Id. at ¶ 86(c)(vii). 

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On September 4, 2020, without a hearing or any opportunity to respond, the United States 

obtained an ex parte restraining order, which prohibited the property from being “transferred, sold, 

assigned, pledged, distributed, encumbered, attached or disposed of in any manner . . . unless 

approved in writing by the Government.” ECF#5-1:2. Subsequently, the United States conditioned 

the sale of the property upon the deposit of the net sale proceeds into the account of the United 

States Marshals Service. The market value of the CompuCom Campus is $23,250,000.00. To date, 

there has been no hearing or opportunity to challenge the basis for the Ex Parte Restraining Order. 

On October 5, 2020, multiple verified claims for the CompuCom Campus were filed in the 

instant action. See ECF#10-13. Claimant Optima Ventures LLC stated that it held a 100% 

ownership interest in Optima 7171; Claimant Optima 7171 LLC, in turn, averred that it held a 

100% ownership stake in the CompuCom Campus.” 

2. Claimants File a Notice of Arbitration

Claimants will be filing a Notice of Arbitration on Monday, February 8, 2021, with the 

International Centre for Settlement of Investment Disputes (ICSID) pursuant to Article VI of the 

U.S.-Ukraine BIT. See Ex. 2. The Notice of Arbitration provides that the Ukrainian Prosecutor’s 

Office has not charged Kolomoisky or Boholiubov with any crimes in Ukraine, let alone the 

“embezzlement, misappropriation, and fraud” constituting “violat[ions] [of] numerous provisions 

of the Ukrainian Criminal Code” and causing Ukraine “$5.5 billion” in losses and a potential 

“economic crisis for the whole country, as described by the United States in the Verified 

Complaint. 

As set forth in the Notice of Arbitration, Article 62 of the Ukrainian Constitution provides 

that “a person shall be deemed innocent of committing a crime and shall not be subjected to a 

criminal punishment unless his/her guilt has been proven through a legal procedure and established 

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by a court verdict of guilty.” The Ukrainian Constitution further provides that the Ukrainian 

Prosecutor’s Office is exclusively empowered to initiate criminal charges. Ukrainian civil and 

commercial courts therefore uniformly have held that – in the absence of criminal charges filed by 

the Ukrainian Prosecutor’s Office and a finding of violations of the Criminal Code of Ukraine by 

a Ukrainian criminal court – they lack authority to conclude or find that conduct violates the 

Criminal Code of Ukraine.

Recently, certain of the Ukrainian borrowers accused by the United States of committing 

Ukrainian crimes – in Ukraine, against a Ukrainian bank – have initiated litigations in Ukraine 

against PrivatBank seeking judgments that, contrary to PrivatBank’s allegations in its various 

litigations (and the United States’ allegations here), the purportedly fraudulent loans were in fact 

entirely legitimate and consistent with Ukrainian law. Those cases are proceeding through the 

Ukrainian judicial system, and Ukrainian courts are now issuing decisions directly refuting 

PrivatBank’s allegations – allegations that the United States has parroted in the Complaint.

As a specific example, the United States alleges that application for Loan Number 

4N09129D falsely “stated that the loan would be repaid via funds earned through ferroalloy 

production; instead, it was repaid with funds from two other loans.” Compl. ¶ 47. The United 

States claims that such alleged misrepresentations “constituted a fraud by and on PrivatBank.” Id.

¶ 48. However, in a decision issued by the Economic Court of Kyiv on January 22, 2021, the 

Ukrainian court found that the “the loan repayment and payment of all interest, fees, and other 

payments, which were set forth in the Loan Agreement No. 4N09129D . . . were made at the 

expense of funds received by [NZF] from its business activities, at the expense of the Guarantor 

and not at the expense of other loan funds, which were received by [NZF] under other loan 

agreements.” See Ex. 3 (Decision, Joint Stock Co. Nikopol Ferroalloy Plant v. Joint Stock Co. 

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Comm. Bank PrivatBank, No. 910/14224/20 (Kyiv Econ. Ct. Jan. 22, 2021) at 25). This finding 

by a Ukrainian court concerning issues of Ukrainian law directly contradicts the United States’ 

allegation that Loan No. 4N09129D was a “fraud,” and that the proceeds from that loan 

“constituted embezzlement and conversion.” Compl. ¶¶ 48, 61. Another decision issued by the 

same Ukrainian court on the same day determined that a number of other loans the Complaint 

identifies as examples of allegedly fraudulent loans were in fact properly performed, including 

Loan Nos. 4N10122D, 4N10221D, 4N10224D, 4N10220D, and 4N10263D. See Ex. 4 (Decision, 

Joint Stock Co. Nikopol Ferroalloy Plant v. Joint Stock Co. Comm. Bank PrivatBank, No. 

910/13313/20 (Kyiv Econ. Ct. Jan. 22, 2021), at 5-6); Compl. ¶ 39.

The Notice of Arbitration asserts that the United States is improperly attempting to regulate 

conduct that occurred in the territory of Ukraine. In doing so, the United States has exceeded the 

reasonable limits of prescriptive jurisdiction, violated the requirement of fair and equitable 

treatment, and unlawfully expropriated Ukrainian investments. Claimants are seeking full 

reparations for the United States’ breaches of the U.S.-Ukraine BIT and estimated damages in 

excess of USD $23.25 million for the expropriation of the CompuCom Campus, which amount 

includes the net proceeds of the sale of the CompuCom Campus. 

ARGUMENT

1. The Provisions of the U.S.-Ukraine BIT Allow for Binding Arbitration in the Event 

that There Is an Investment Dispute Governed by the Terms of the Treaty. 

Article VI of the U.S.-Ukraine BIT provides remedies in the event that there is a “dispute 

between a Party and a national or company of the other Party arising out of or relating to . . . (c) 

an alleged breach of any right conferred or created by this Treaty with respect to an investment,”

which would include the expropriation of assets or the failure to provide for fair and equitable 

treatment. According to the Treaty, the “national or company concerned may choose to submit the 

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dispute for resolution” to the “courts or administrative tribunals of the Party that is a Party to a 

dispute” or in “accordance with any applicable, previously agreed dispute settlement procedures.” 

If the “national or company concerned has not submitted the dispute for resolution” as described 

above, and “six months have elapsed from the date on which the dispute arose, the national or 

company concerned may choose to consent in writing to the submission of the dispute for 

settlement by binding arbitration.” And, once the “national or company concerned has so 

consented, either Party to the dispute may initiate arbitration.” The Treaty is clear that this right 

to arbitration applies not only to nationals (or companies) of the other Party (in this case Ukraine), 

but also, as described in Article VI(8) “any company legally constituted under the applicable laws 

and regulations of a Party or a political subdivision thereof,” in this case the United States, as long 

as “immediately before the occurrence of the event or events giving rise to the dispute, was 

an investment of nationals or companies of the other Party . . . .”6 In short, the protections of 

the Treaty are available not only to Ukraine nationals and companies, but also to United States 

companies (such as LLCs) through which Ukrainian investment flowed. 

6

 The Letter of Submittal addressed to President Clinton by Secretary of State Christopher 

recognizes that:

The Treaty’s definition of investment is broad, recognizing that investment can take 

a wide variety of forms. It covers investments that are owned or controlled by 

nationals or companies of one of the Treaty partners in the territory of the other. 

Investments can be made either directly or indirectly through one or more 

subsidiaries, including those of third countries. Control is not specifically defined 

in the Treaty. Ownership of over 50 percent of the voting stock of a company would 

normally convey control, but in many cases the requirement could be satisfied by 

less than that proportion.

https://2009-2017.state.gov/e/eb/ifd/43366.htm. See Vacuum Salt v. Ghana, ICSID Case No. 

ARB/92/1, Award, 16 February 1994, at ¶ 43 (“The concept of ‘control’ is broad and flexible . . . 

. The question is . . . whether the nationality chosen represents an exercise of a reasonable amount 

of control to warrant its choice on the basis of a reasonable criterion.”).

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A. The New York Convention, As Incorporated into United States Law under Title 8, 

United States Code, Sections 201-208, Mandates the Granting of This Motion to Compel 

Arbitration. 

The New York Convention is an international treaty incorporated into Chapter 2 of the 

Federal Arbitration Act (“FAA”). The FAA requires courts of contracting states to give effect to 

agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting 

states.7 See 9 U.S.C. §§ 201-208. The Supreme Court and the Eleventh Circuit both have 

recognized “the reciprocal nature of the [New York] Convention and the need for uniformity in 

the enforcement of arbitration agreements.” Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1285 

(11th Cir. 2011). The “principal purpose” of the adoption of the New York Convention “was to 

encourage the recognition and enforcement of commercial arbitration agreements in international 

contracts. . . .” Suazo v. NCL (Bahamas), Ltd., 822 F.3d 543, 545 (11th Cir. 2016) (quoting Scherk 

v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974)). “A court having jurisdiction under [the 

New York Convention] may direct that arbitration be held in accordance with the agreement at 

any place therein provided for, whether that place is within or without the United States.” 9 U.S.C. 

§ 206. In short, the FAA creates “two causes of action in federal court for a party seeking to enforce 

an arbitration agreement that falls under the New York Convention: a motion to compel arbitration 

7

 In determining whether to compel arbitration, courts must apply the standards set forth in the 

FAA. Generally, the FAA evidences a strong federal policy favoring arbitration. See Circuit City 

Stores, Inc. v. Adams, 532 U.S. 105, 111 (2001) (“[T]he FAA compels judicial enforcement of a 

wide range of written arbitration agreements.”). See also Linea Navira De Cabotaje, C.A. v. Mar 

Caribe De Navegacion, C.A., 69 F. Supp. 2d 1341, 1345-48 (M.D. Fla. 2001) (noting the strong 

federal policy to liberally apply arbitration agreements). In interpreting the FAA, the Supreme 

Court has repeatedly held that arbitration agreements should be enforced liberally. See Moses H. 

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). See also Dean Witter 

Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (“By its terms, the Act leaves no place for the 

exercise of discretion by a district court, but instead mandates that district courts shall direct the 

parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.”).

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“in accordance with the agreement,” 9 U.S.C. § 206; and a motion to “confirm” an arbitral 

award, id. § 207.” See Suazo, 822 F.3d 545-56; see also Lindo, 652 F.3d 1285 (recognizing “the 

reciprocal nature of the [FAA] Convention and the need for uniformity in the enforcement of 

arbitration agreements”). 

An arbitration agreement, such as the one contained in the U.S.-Ukraine BIT, falls within 

the jurisdiction of the New York Convention if: “(1) the agreement is ‘in writing within the 

meaning of the [New York] Convention’; (2) ‘the agreement provides for arbitration in the territory 

of a signatory of the [New York] Convention’; (3) ‘the agreement arises out of a legal relationship, 

whether contractual or not, which is considered commercial’; and (4) a party to the agreement is 

not an American citizen or the commercial relationship has some reasonable relation with one or 

more foreign states.” Suazo, 822 F.3d at 546 (quoting Bautista v. Star Cruises, 396 F.3d 1289, 

1294 n.7) (bracketed text in original). “If these prerequisites are met, then the court should compel 

arbitration pursuant to the agreement unless the agreement is ‘null and void, inoperative or 

incapable of being performed,’ pursuant to Article II of the Convention.” Clair v. NCL (Bahamas), 

Ltd., 2013 WL 12128723, at *1 (S.D. Fla. June 5, 2013) (citing Convention, art. II (3)); see 

Bautista, 396 F.3d at 1294 (“In deciding whether “to compel arbitration under the Convention Act, 

a court conducts ‘a very limited inquiry.’”); Escobar v. Celebration Cruise Operator, Inc., 805 

F.3d 1279, 1287 (11th Cir. 2015) (the only affirmative defense to arbitration at the initial 

arbitration-enforcement stage is that the contract is null and void) (citing New York Convention, 

Art. II(3)). 

B. First - The Agreement to Arbitrate Pursuant to the U.S.-Ukraine BIT Is in Writing 

Within the Meaning of the New York Convention

The U.S.-Ukraine BIT constitutes an “agreement in writing” within the meaning of the 

New York Convention, and therefore satisfies the first prerequisite for compelling arbitration. See 

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Suazo, 822 F.3d at 546. The U.S.-Ukraine BIT was signed by the United States on March 4, 1994, 

entered into force on November 16, 1996 and remains in force today. See U.S.-Ukraine BIT; 

Senate Executive Report 104-13. By its own terms, it is an “agreement in writing” under the New 

York Convention. See U.S.-Ukraine BIT, Art VI(4)(b) (stating that the U.S.-Ukraine BIT is “an 

‘agreement in writing,’ for purposes of Article II of the United Nations Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958 

(‘New York Convention’).”); see also Chevron Corp. v. Republic of Ecuador, 949 F. Supp. 2d 57, 

66 (D.D.C.), judgment entered, 987 F. Supp. 2d 82 (D.D.C. 2013) (for purposes of the New York 

Convention, an “agreement in writing is created a foreign company gives notice in writing to a 

BIT signatory and submits an investment dispute between the parties to binding arbitration”), and 

aff’d sub nom. Chevron Corp. v. Ecuador, 795 F.3d 200 (D.C. Cir. 2015); accord Republic of 

Ecuador v. Chevron Corp., 638 F.3d 384, 392-93 (2d Cir. 2011). Accordingly, this prerequisite 

for implementation of the FAA is satisfied. 

C. Second - The U.S.-Ukraine BIT Provides for Arbitration in the Territory of a 

Signatory of the New York Convention

The second prerequisite for compelling arbitration under the New York Convention 

requires that the agreement provide for arbitration in the territory of a signatory of the New York 

Convention. See Suazo, 822 F.3d at 546. The U.S.-Ukraine BIT plainly satisfies the requirement, 

expressly providing that “any arbitration under [the U.S-Ukraine BIT] shall be held in a state that 

is a party to the New York Convention.” U.S.-Ukraine BIT, Art. VI(5). Thus, there can therefore 

be no dispute that the second prerequisite for compelling arbitration under the New York 

Convention is satisfied. 

D. Third - The U.S.-Ukraine BIT Arises Out of a Commercial Legal Relationship

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The third prerequisite for compelling arbitration under the New York Convention requires 

that the agreement to arbitrate at issue arise out of a commercial legal relationship. See Suazo, 822 

F.3d at 546. Here, the entire premise of the U.S.-Ukraine BIT is to promote commercial ties 

between the United States and Ukraine. As the U.S.-Ukraine BIT itself states, it “concern[s] the 

encouragement and reciprocal protection of investment,” and its purpose is to “to promote greater 

economic cooperation between [the United States and Ukraine], with respect to investment by 

nationals and companies of one Party in the territory of the other Party.” See U.S.-Ukraine BIT, 

Preamble. 

The U.S.-Ukraine BIT “[r]ecogniz[es] that agreement upon the treatment to be accorded 

such investment will stimulate the flow of private capital and the economic development of the 

Parties.” Id. To that end, the U.S.-Ukraine BIT provides substantive protections for investments 

by nationals and companies of one party in the territory of the other party, including requiring the 

fair and equitable treatment of the investments and the requirement to provide prompt, adequate 

and effective compensation for any expropriation of the respective investments. See U.S. UkraineBIT, Arts. II-III. Thus, the U.S.-Ukraine BIT plainly arises out of a commercial legal relationship 

between the United States and Ukraine, as well as commercial legal relationships between the 

United States and Ukraine and investors who make investments from one of those countries into 

the territory of the other. See generally BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 32 

(2014) (recognizing that a bilateral investment treaty regulates international commerce).

E. Fourth - Ukraine Is a Party to the U.S.-Ukraine BIT and the Commercial 

Relationship Has Some Reasonable Relation with One or More Foreign States

The fourth prerequisite for compelling arbitration under the New York Convention requires 

that a party to the agreement is not an American citizen or that the commercial relationship has 

some reasonable relation with one or more foreign states. See Suazo, 822 F.3d at 546. Here, the 

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U.S.-Ukraine BIT – a bilateral investment treaty – plainly satisfies the requirement. Ukraine is a 

party to the U.S.-Ukraine BIT. The entire purpose of the U.S.-Ukraine BIT is to facilitate relations 

between two foreign states, i.e., Ukraine and the United States, by protecting the investments of 

one another’s citizens in the other’s country. Therefore, the fourth prerequisite for compelling 

arbitration under the New York Convention is met, and this Court should order that this matter be 

referred for binding arbitration.

2. The Arbitrator – Rather Than the Court – Must Decide Whether This Case Is 

Arbitrable Because the Agreement Delegates that Process to the Arbitrator 

It is true that courts can refuse to compel arbitration if the arbitration agreement is “null 

and void, inoperative or incapable of being performed, pursuant to Article II of the Convention,” 

but that is a defense that has been interpreted narrowly “as encompassing only those standard 

breach-of-contract defenses, namely fraud, mistake, duress, and waiver.” Clair, 2013 WL 

12128723, at *2 (citations and quotations omitted). It is axiomatic that the United States 

government was not defrauded into entering into an international treaty, and there is no good faith 

basis to allege that the agreement to arbitrate pursuant to Article VI of the U.S.-Ukraine BIT is 

somehow “null and void, inoperative or incapable of being performed.” But even if such an 

argument could made (and it cannot), those threshold questions, i.e., the validity of standard 

breach-of-contract defenses, namely fraud, mistake, duress, and waiver, are delegated to the 

arbitrator. The Court must enforce that delegation and allow the arbitrator to decide threshold 

questions of arbitrability, i.e., whether this dispute is capable of submission to arbitration and 

whether the arbitrator has jurisdiction. 

In interpreting a bilateral investment treaty, the Court should treat the treaty “as if it were 

an ordinary contract between private parties.” BG Grp., PLC v. Republic of Argentina, 572 U.S. 

25, 33 (2014). “As a general matter, a treaty is a contract, though between nations.” Id. at 37. “Its 

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interpretation normally is, like a contract’s interpretation, a matter of determining the parties’ 

intent.” Id. (citing Air France v. Saks, 470 U.S. 392, 399 (1985) (courts must give “the specific 

words of the treaty a meaning consistent with the shared expectations of the contracting parties”);

Sullivan v. Kidd, 254 U.S. 433, 439 (1921) (“[T]reaties are to be interpreted upon the principles 

which govern the interpretation of contracts in writing between individuals, and are to be executed 

in the utmost good faith, with a view to making effective the purposes of the high contracting 

parties”); Wright v. Henkel, 190 U.S. 40, 57 (1903) (“Treaties must receive a fair interpretation, 

according to the intention of the contracting parties”).). When asked to interpret the contracting 

States to a treaty’s intent, the Court should “normally apply the presumptions supplied by 

American law.” Id. 

The Supreme Court has held that it is appropriate to defer to a treaty’s “authorizat[ion] [of]

the use of international arbitration associations, the rules of which provide that arbitrators shall 

have the authority to interpret provisions of this kind [relating to arbitrability].” Id. (citing ICSID 

Convention, Regulations and Rules, Art. 41(1) (2006 ed.) (“Tribunal shall be the judge of its own 

competence”)).

Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator

rather than a court will resolve disputes arising out of the contract. When a dispute

arises, the parties sometimes may disagree not only about the merits of the dispute

but also about the threshold arbitrability question – that is, whether their arbitration

agreement applies to the particular dispute. Who decides that threshold arbitrability

question? Under the Act and this Court’s cases, the question of who decides

arbitrability is itself a question of contract. The Act allows parties to agree by

contract that an arbitrator, rather than a court, will resolve threshold arbitrability

questions as well as underlying merits disputes.

Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 527 (2019). “Just as a court may 

not decide a merits question that the parties have delegated to an arbitrator, a court may not decide 

an arbitrability question that the parties have delegated to an arbitrator.” Id. at 530. “[I]f a valid 

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agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator, a court may 

not decide the arbitrability issue.” Id. 

The Supreme Court has repeatedly held that where an agreement delegates to an arbitrator 

threshold questions of arbitrability, validity, or existence, such agreements must be enforced and 

decided by the arbitrator in the first instance. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 72 

(2010). In fact, where “the parties’ contract delegates the arbitrability question to an arbitrator, a 

court may not override the contract. In those circumstances, a court possesses no power to decide 

the arbitrability issue.” Schein, 139 S. Ct. at 530. If the arbitration agreement incorporates 

arbitration rules which delegate to an arbitrator questions of arbitrability, courts must enforce that 

delegation and allow the arbitrator to decide threshold questions of arbitrability. See Preston v. 

Ferrer, 552 U.S. 346, 361-62 (2008) (where contract incorporated AAA rules, which rules 

delegated to arbitrator questions of validity, enforceability, and arbitrability, parties were bound 

by agreement to have arbitrator rather than court decide threshold arbitrability questions). 

Here, Article 41 of the ICSID Convention delegates questions of the arbitrability of the 

dispute to the arbitrators by providing that: 

(1) The Tribunal shall be the judge of its own competence; [and]

(2) Any objection by a party to the dispute that the dispute is not within the 

jurisdiction of the Centre, or for other reasons is not within the competence of the 

Tribunal, shall be considered by the Tribunal which shall determine whether to deal 

with it as a preliminary question or to join it to the merits of the dispute.

The parties have agreed that the arbitrator must decide any questions regarding the arbitrability of

Claimants’ claims relating to the U.S.-Ukraine BIT. Because all of Claimants’ (and the United 

States’) claims in this lawsuit are now the subject of arbitration pursuant to Art. VI of the U.S.-

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Ukraine BIT, all of the claims must be compelled to arbitration pursuant to the U.S.-Ukraine BIT.

See 9 U.S.C. § 206.

As a matter of law, the delegation clause in the ICSID Convention require this dispute to 

be referred to arbitration and the case dismissed pending the arbitration. See 9 U.S.C. §§ 202, 206.

3. Pending the Issuance of an Award under the U.S.-Ukraine BIT, the Court Should 

Dismiss the Verified Complaint, or, in the Alternative, Stay the Proceedings. 

In compelling arbitration under the New York Convention pursuant to Title 9, U.S.C., § 

206, the Court has the discretion to dismiss the matter. See Martinez v. Carnival Corp., 744 F.3d 

1240, 1244 (11th Cir. 2014) (recognizing that, in compelling arbitration, court may dismiss case, 

noting that “[w]hen the district court compels arbitration . . . it effectively and functionally has 

issued a decision that ‘ends the litigation on the merits’.”); Lindo, 652 F.3d at 1286 (affirming the 

district court’s order compelling arbitration under the Convention and dismissing the plaintiff’s 

complaint); Bendlis v. NCL (Bahamas), Ltd., 112 F. Supp. 3d 1339, 1348 (S.D. Fla. 2015) 

(compelling arbitration and dismissing case without prejudice); Pysarenko v. Carnival Corp., 2014 

WL 1745048, at *8 (S.D. Fla. Apr. 30, 2014), aff’d, 581 F. App’x 844 (11th Cir. 2014) (dismissing 

case while retaining jurisdiction to enforce arbitration award); Escobar v. Celebration Cruise 

Operator, Inc., 2014 WL 11380939, at *9 (S.D. Fla. Mar. 26, 2014), aff’d, 805 F.3d 1279 (11th 

Cir. 2015) (compelling arbitration and dismissing case); Trifonov v. MSC Mediterranean Shipping 

Co. SA, 2014 WL 11776940, at *8 (S.D. Fla. Mar. 17, 2014), aff’d, 590 F. App’x 842 (11th Cir. 

2014) (compelling arbitration and dismissing case without prejudice); Plugchiev v. Royal 

Caribbean Cruises, Ltd., 2012 WL 12906162, at *2 (S.D. Fla. Sept. 5, 2012) (finding dismissal 

without prejudice appropriate after compelling arbitration under the Convention); Hiotakis v. 

Celebrity Cruises, Inc., 2011 WL 2148978, at *9 (S.D. Fla. May 31, 2011) (compelling arbitration 

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under the Convention and granting the defendant’s motion to dismiss the plaintiff’s complaint);

Tancu v. Celebrity Cruises, Inc., 2010 WL 271432, at *2 (S.D. Fla. Jan. 15, 2010) (compelling 

arbitration under the Convention and dismissing the plaintiff’s complaint without prejudice). The 

Court should dismiss this matter without prejudice because the Claimants have already filed a 

Notice of Arbitration with the ICSID. Thus, the Claimants are not seeking to evade forfeiture 

proceedings, but are rather seeking to adjudicate the forfeiture proceedings as quickly as possible 

in the binding arbitration called for under the Treaty. 

In the event that the Court determines that dismissal is inappropriate at this stage, the Court 

should stay the action pending resolution of the arbitration. Section 3 of the FAA provides that 

when a plaintiff brings a lawsuit “upon any issue referable to arbitration under an agreement in 

writing for such arbitration,” the court “shall on application of one of the parties” stay the action 

until arbitration is completed in accordance with the terms of the parties’ agreement. 9 U.S.C. § 3

(emphasis added); See, e.g., Alcalde v. Carnival Cruise Lines, 798 F. Supp. 2d 1314, 1321 (S.D. 

Fla. 2011) (Court “may properly compel arbitration and stay this case”). Although the Court may 

properly exercise its discretion to dismiss the case, it must alternatively stay the case pending 

resolution of the arbitration. The Eleventh Circuit has explained that, “when a dispute is arbitrable, 

entry of a § 3 stay is mandatory.” Advanced Bodycare Sols., LLC v. Thione Int’l, Inc., 524 F.3d 

1235, 1238 (11th Cir. 2008) (citation omitted); see also United Steel, Paper & Forestry, Rubber, 

Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC, USW Local 200 v. Wise 

Alloys, LLC, 807 F.3d 1258, 1268 (11th Cir. 2015) (“[S]ection 3 qualifies the mandatory nature of 

any stay it authorizes by requiring a party to apply for the stay: ‘the court . . . shall on application 

of one of the parties stay the trial.’” (quoting 9 U.S.C § 3)); Klay v. All Defendants, 389 F.3d 1191, 

1203-04 (11th Cir. 2004) (“For arbitrable issues, the language of Section 3 indicates that the stay 

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is mandatory.”); see also Babcock v. Neutron Holdings, Inc., 454 F. Supp. 3d 1222, 1228 (S.D. 

Fla. 2020) (“A motion to compel arbitration is treated as a Rule 12(b)(1) motion to dismiss for lack 

of subject-matter jurisdiction.”). 

Accordingly, even if the Court does not exercise its discretion to dismiss the case pending 

arbitration pursuant to 9 U.S.C. § 206, it must nevertheless stay the case pending arbitration 

pursuant to 9 U.S.C § 3.

CONCLUSION

Based on the foregoing, the Court should, pursuant to the New York Convention, compel 

arbitration under the U.S.-Ukraine BIT, and dismiss all claims with prejudice, or, alternatively, 

stay this action.

Dated: February 5, 2021

Respectfully submitted,

Black, Srebnick, Kornspan & Stumpf, P.A.

201 South Biscayne Blvd., Suite 1300

Miami, FL 33131

Tel: (305) 371-6421

Fax: (305) 371-6322

By: /s/ Howard M. Srebnick

Howard M. Srebnick

Florida Bar No. 919063

Robert T. Dunlap

Florida Bar No. 11950

HSrebnick@RoyBlack.com

RDunlap@RoyBlack.com 

Attorneys for Claimants Korf and the 

Corporate Entities

Kasowitz Benson Torres LLP

1633 Broadway

New York, New York 10019

(212) 506-1700 

Case 1:20-cv-23278-MGC Document 36 Entered on FLSD Docket 02/05/2021 Page 21 of 23
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Marc E. Kasowitz 

Mark P. Ressler

Ronald R. Rossi

Sarmad M. Khojasteh

Joshua Paul

Pro Hac Vice Anticipated

MKasowitz@kasowitz.com

MRessler@kasowitz.com

RRossi@kasowitz.com 

SKhojasteh@kasowitz.com 

JPaul@kasowitz.com 

Attorneys for Claimants Korf and the 

Corporate Entities

/s/ Scott A. Srebnick

Scott A. Srebnick, P.A.

201 South Biscayne Boulevard

Suite 1210

Miami, FL 33131

Telephone: (305) 285-9019

Facsimile: (305) 377-9937

Scott@srebnicklaw.com 

Attorney for Claimant Laber

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CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2021, I electronically filed the foregoing document 

with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being 

served this day on all counsel of record in the manner specified, either via transmission of Notices 

of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties 

who are not authorized to receive Notices of Filing electronically.

/s/ Howard M. Srebnick

Howard M. Srebnick

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