15-3109-cv

Micula, et al. v. Gov't of Romania

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE 

OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 23rd day of October, two thousand seventeen.

PRESENT: RALPH K. WINTER,

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges.

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IOAN MICULA, EUROPEAN FOOD S.A., S.C. 

STARMILL S.R.L., MULTIPACK S.R.L, AND 

VIOREL MICULA, 

Petitioners/Intervenor-Appellees,

v.

15-3109-cv

GOVERNMENT OF ROMANIA,

Respondent-Appellant.

*

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 * The Clerk of Court is respectfully directed to amend the official caption to 

conform to the above.
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FOR INTERVENOR-APPELLEE 

VIOREL MICULA:

DANFORTH NEWCOMB (Paula H. Anderson, 

on the brief), Shearman & Sterling LLP, 

New York, New York.

FOR PETITIONERS-APPELLEES 

IOAN MICULA, EUROPEAN FOOD 

S.A., S.C. STARMILL S.R.L., S.C. 

MULTIPACK S.R.L.:

FRANCIS A. VASQUEZ, JR., White & Case 

LLP, Washington, DC.

FOR RESPONDENT-APPELLANT: IOANA SALAJANU, Rock Fusco & Connelly 

LLC, Chicago, Illinois.

FOR AMICUS CURIAE: Lee F. Berger, Joseph R. Profaizer, Igor V. 

Timofeyev, Paul Hastings LLP, Washington, 

DC.

Appeal from orders of the United States District Court for the Southern District 

of New York (Schofield, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the orders of the district court are REVERSED, the amended 

judgment is VACATED, and the case is REMANDED as set forth below.

Respondent-Appellant Government of Romania ("Romania") appeals from two 

opinions and orders of the district court (Schofield, J.) denying its challenges to the 

recognition of an arbitral award (the "Award") issued by the International Centre for 

Settlement of Investment Disputes ("ICSID") in favor of certain Swedish nationals and 

affiliated companies, Petitioners/Intervenor-Appellees herein ("Petitioners").1 We

 1 By order, entered December 22, 2015, this Court granted the Petitioners' motion 

to dismiss Romania's appeal of the underlying amended judgment as untimely, but permitted 

Romania to proceed with its appeal from the district court's orders entered August 5, 2015 and 

September 9, 2015 declining to vacate or modify the amended judgment.
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assume the parties' familiarity with the underlying facts, the procedural history of the 

case, and the issues on appeal.

On April 11, 2014, following the issuance of the Award, Viorel Micula, one of the 

Petitioners, filed an ex parte petition in the District of Columbia to "confirm" the Award. 

A year later, the district court denied the petition without prejudice concluding -- as 

Romania asks this Court to do on appeal -- that ICSID awards may not be converted 

into judgments by summary ex parte proceedings. See Micula v. Gov't of Romania, 104 F. 

Supp. 3d 42, 52 (D.D.C. 2015).

Again on an ex parte basis, on April 21, 2015, the Petitioners other than Viorel 

Micula filed a petition to recognize the Award in the Southern District of New York

using summary procedures set forth in Article 54 of the New York Civil Practice Law 

and Rules (the "CPLR"). This time, the district court (Buchwald, J.) granted the petition 

and entered judgment the same day. Viorel Micula then filed a motion to intervene and 

amend the judgment to include him as a party entitled to payment, which motion was 

granted on April 28, 2015.

On May 19, 2015, Romania filed a motion under Rules 59(e), 60(b), and 62(b) to 

amend, vacate, or stay the amended judgment.2 It principally argued, as it does on 

appeal now, that the amended judgment is void because (1) the Foreign Sovereign 

 2 Romania also moved for relief with respect to the original judgment, but the 

district court denied that motion as moot as the amended judgment became the operative 

judgment.
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Immunities Act (the "FSIA") provides the sole basis for jurisdiction over a foreign 

sovereign award-debtor, and the FSIA is the exclusive mechanism by which an ICSID 

award against a foreign sovereign may be recognized, and (2) under the FSIA, venue is

improper in the Southern District of New York. The district court (Schofield, J.) denied

the motion on August 5, 2015, concluding that the FSIA is inapplicable to the 

enforcement of an ICSID award and that personal jurisdiction over Romania under the 

FSIA was not required to enter judgment against it. Romania then filed a motion to 

reconsider, raising the same FSIA and venue challenges. The district court (Schofield, 

J.) denied that motion on September 9, 2015. This appeal timely followed.

We review the denial of Romania's motion to alter or amend the judgment under 

Rule 59(e) for abuse of discretion. Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d 

Cir. 2004). The denial of Romania's motion to vacate the judgment under Rule 60(b), 

however, is reviewed de novo. See Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 

2005). A party is entitled to relief from a final judgment under Rule 60(b) when the 

judgment is "void," that is, if the court entering judgment lacked subject matter or 

personal jurisdiction over the judgment debtor. See City of New York v. Mickalis Pawn 

Shop, LLC, 645 F.3d 114, 138 (2d Cir. 2011). 

The issues presented in this appeal are virtually identical to those that this Court

recently addressed in Mobil Cerro Negro, Ltd. v. Venezuela, 863 F.3d 96 (2d Cir. 2017). 

There, the district court had also entered judgment against a foreign sovereign 
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enforcing an ICSID arbitral award based on a creditor's petition in the Southern District 

of New York, and filed in ex parte proceedings under the CPLR. See id. at 99. As 

relevant to this appeal, in Mobil Cerro, we held the following: (1) The district court erred 

in finding that the FSIA did not govern the enforcement of ICSID awards against 

foreign sovereigns and that its procedural mandates were inapplicable, see id. at 99-100; 

(2) the FSIA provides the exclusive mechanism for enforcement of ICSID awards 

against foreign sovereigns in federal court, and summary ex parte proceedings (such as 

those under the CPLR) are incompatible with the FSIA, since they are, by nature,

conducted without required service on the foreign state, id. at 99; (3) because the award 

creditor failed to satisfy the FSIA's requirement for service, the district court lacked 

jurisdiction over the foreign sovereign under the FSIA and its judgment was void, id. at 

124-25; and (4) venue was improper in the Southern District of New York because the 

FSIA requires a plenary action to be brought in the District of Columbia unless "a 

substantial part of the events or omissions giving rise to the claim occurred, or a 

substantial part of property that is the subject of the action is situated," in another 

district. 28 U.S.C. § 1391(f); see also Mobil Cerro, 863 F.3d at 125.

Accordingly, as to Romania's first argument, we agree that the district court 

erred in holding that the FSIA does not apply to the enforcement of ICSID awards 

against foreign sovereigns. To the contrary, the FSIA provides the sole basis for 

jurisdiction over Romania and sets forth the exclusive procedures for the recognition of 
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the ICSID Award. See Mobil Cerro, 863 F.3d at 115. The Petitioners' use of a summary ex 

parte proceeding borrowed from the CPLR was neither permitted under the FSIA nor 

adequate to satisfy its procedural mandates. See id. at 99. Instead, the Petitioners were 

required to file a plenary action, subject to the requirements of process, to convert the 

Award into an enforceable judgment against Romania. See 28 U.S.C. § 1330(b). The 

district court thus lacked jurisdiction over Romania under the FSIA, and erred in 

declining to vacate its judgment as void.

As to Romania's second argument, we also agree that the Southern District of 

New York is an improper venue under the FSIA, at least on this record. The Petitioners'

ex parte petition is devoid of any assertion that New York is the appropriate venue

under the FSIA. It is also unclear from the face of the petition that there is any conduct 

connecting this action to New York. The parties are foreign, the arbitration hearings 

were conducted in Paris, and the property at issue was located in Romania.

Because the FSIA governs all aspects of this action, and its procedural

requirements have not been satisfied, the district court lacked subject matter and 

personal jurisdiction over Romania. Accordingly, the judgment below is void and the 

district court's orders must be reversed and its judgment vacated without prejudice to 

the Petitioners' filing an action to enforce the ICSID award in compliance with the FSIA 

and in a court in which venue is proper. 

We have considered the Petitioners' remaining arguments and conclude they are 
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without merit. Accordingly, we REVERSE the orders of the district court, VACATE the 

amended judgment, and REMAND the case to the district court with instructions to 

dismiss the petition without prejudice.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk