UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HARDY EXPLORATION & : PRODUCTION (INDIA), INC., : : Petitioner, : Civil Action No.: 16-140 (RC) : v. : Re Document No.: 1, 36, 37 : GOVERNMENT OF INDIA, MINISTRY : OF PETROLEUM & NATURAL GAS, : : Respondent. : MEMORANDUM OPINION D ENYING P ETITION TO C ONFIRM A RBITRATION A WARD ; D ENYING AS M OOT P ETITIONER ’ S M OTION FOR L EAVE TO F ILE S UR -R EPLY ; D ENYING AS M OOT R ESPONDENT ’ S C ROSS M OTION FOR L EAVE TO F ILE R ESPONSE
I. INTRODUCTION In 1997, Hardy Exploration and Produc tion (India), Inc. (“HEPI” ) entered into a contract with the Government of India th at would allow HEPI to search fo r and potentially extract hydrocarbons from an area off of I ndia’s southeastern coast. Th e contract provided that if HEPI found crude oil, it would have tw o years to ascertain if that o il was commercially viable, but that if it found natural gas, that a ssessment period would last for five years. HEPI discovered a reserve of hydrocarbons in 2006 and c laimed that it was natural gas, entitling it to a five-year appraisal period. India disagree d, and after two years, it info rmed 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 d iscovered, HEPI initiated a rbitration 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 th ree years to continue its ass essment of whether the natural gas2 it had discovered was commerciallyviable. The Tribunal also aw arded HEPI interest on its original investment in the Bloc k, as well as certain costs. Ind ia immediately appealed 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 stil l not been allowed back onto the B lock, 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. pub lic policy, as would confirmation o f the interest portion of the award, which India claimed is pun itive and coercive, rather tha n compensatory. For the reasons set forth below, the Court finds that confirmation and enforcem ent of the specific performance portion of the award would viol ate U.S. public policy, and ther efore, the Court declines to confirm that portion of the award. Additionally, the Court find s that granting the award of interest, which is predicate d on India complying with an order that this Court cannot issued, would also violate U.S. public po licy, and therefore declines t o confirm that portion of the award as well.

II. FACTUAL AND PROCED URAL BACKGROUND This case stems from HEPI’s participation in a Production Shari ng Contract (“PSC”) with the Government of India for the extraction, development, and pr oduction of hydrocarbons in a geographic block found off the southeastern coast of India call ed CY-OS/2 (the “Block”). See Decl. of Ian MacKenzie (“MacKen zie Decl.”) ¶ 3, ECF No. 1-2; see generally MacKenzie Decl. Ex. 2 (“PSC”), ECF No. 1-4. The PSC was originally entered into in November 1996 by three private companies; India’s stat e-owned oil company, the Oil and Natural Gas Corporation Limited (“ONGC”); and “[t]he Pres ident of India, acting throughthe Joint Secreta ry, Ministry of3 Petroleum and Natural Gas.” PSC at 1. The PSC permitted the thr ee private companies to explore the Block and, if they f ound commercially viable hydroc arbon reserves, to extract those resources under a produc tion sharing arrangement. See Pet’r’s Mem. Law Supp. Pet. to Confirm Arbitration Award (“Pet’r’s Mem.”) at 2–3, ECF No. 1-1; PSC art s. 14–15. While HEPI was not an original participant in the PSC, it acquired a 25% participa tion share from one of the original participants in 1997, and by Augus t 2001, HEPI had acquired a 1 00% participation share in the PSC. See Pet’r’s Mem. at 3; see also MacKenzie Decl. Ex. 1 (“Awa rd”) at 3, ECF No. 1-3; MacKenzie Decl. Ex. 4 at 1–2, ECF No. 1-6. HEPI then transferre d 25% of its interest in the PSC to GAIL (India) Ltd, a state-o wned retail gas processing an d distribution company in India. MacKenzie Decl. Ex. 5 at 2, ECF No. 1-7. HEPI maintained a 75% interest in the PSC at all times relevant to this dispute. See Pet’r’s Mem. at 4. Each participant in the PSC ent ered the agreement at their own risk. If a participant discovered a reserve of hydrocar bons that was capable of being extracted and produced commercially, then it would be e ntitled to extract and produce the hydrocarbons, and would be entitled to keep a per centage of the hydro carbons for itself, w ith 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 entitl ed 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 ex pense and provide all funds necessary for the conduct of P etroleum Operations . . .” unless otherwise provided in the PSC); see also Award at 41 (observing that “[t ]here is no dispute” that a con tractor “is not entitled to any compensation if it is unable to get commercial discovery of the product within the period specified in the contract”).4 The PSC outlined the procedures the parties would follow in the event of a hydrocarbon discovery. See PSC art. 9. Under the PSC, aft er the discovery of hydrocarbons , the participants would enter into an app raisal period to determine whether the p roduction of the hydrocarbons in the newly discovered reserve w ould be commercially feasible. See Pet’r’s Mem. at 4; PSC arts. 9.5, 21.4.4. The PSC provided for appr aisal periods of differen t lengths depending on the type of hydrocarbons discovered. If the di scovery was crude oil, the ap praisal period would be two
years, see PSC art. 9.5; if it was natural ga s, the appraisal period would be five years, see PSC art. 21.4.4. In late 2006, HEPI and GAIL di scovered a reserve of hydrocarbon s and promptly informed the Ministry of Petrol eum and Natural Gas of their dis covery. Pet’r’s Mem. at 4; Award at 7–8. HEPI believed that the hydrocarbons it had discov ered was natural gas, and more particularly, Non-Associated Nat ural Gas (“NANG”), and therefor e 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 w as in fact crude oil, and accordin gly that HEPI’s declaration of commerciality was due on January 7, 2009. Id. at 9–11. Therefore, the Ministry informed HEPI via letters dated February20 and March 23, 2009, that HEPI’s r ights to the Block were relinquished due to its failure t o submit its declaration of co mmerciality on time. Id. Despite HEPI’s efforts to convince the Mi nistry over the next year that its discovery was natural gas and therefore that it had not missed its deadline to f ile a declara tion of commerciality, India would not yield. Id. at 5. Therefore, HEPI initiate d arbitration proceedings pursuant to Article 33 of the PSC to resolve the question of whi ch assessment period applied to the discovery of relevant hydrocarbons in the Block. Id. at 4. A tribunal of three former Chief Justices of the Supreme Court of India was empaneled to preside over these proceedings. Id. at 5.5 Article 33 of the PSC provides th at “any unresolved dispute, di fference or claim which cannot be settled amicably with in a reasonable time may . . . b e submitted to an arbitral tribunal for final decision,” PSC art. 33.3 ; sets forth the procedures f or 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 arb itral tribunal, and, in the case of difference among the arbitrators, the decision of the majority, shall be final and binding upon t he Parties.” PSC art. 33.8. The Tribunal first turned to pr eliminary issues, and issued an order on May 28, 2011 finding that the dispute between the parties was subject to arb itration 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, inKuala Lampur, Malaysia. Award at 5. During the course of t hese proceedings, HEPI presen ted the testimony of two expert witnesses to support its conten tion that the discovery was of n atural 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, th e Tribunal decided that HEPI was “ denied the time provided for inthe contract for appraisal and to come to [a] conclusion about the co mmerciality of the discovery .” Id. at 36. The Tribunal concluded that severing HEPI’s i nterest in the Block was “illeg al, being on the erroneous impression that the discovery was Oil.” Id. at 43. To remedy what it found to be a br each of the PSC, the Tribunal ruled that India’s “order of relinquishment is decl ared to be null and void.” Id. Because India had ordered the relinquishment of the Block before HEPI was able to determine t he commercial viability of the6 hydrocarbons it had discovered, the full extent of the monetarydamage 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 relegate d to the position in which they st ood prior to the order of the relinquishment and the block sha ll be restored to [HEPI].” Id. at 43. Additionally, it ordered India to pay interest on HEPI’s Rs. 500 crores investment in th e 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 c ertain costs to HEPI. Id. To date, the Government of India has only complied with the lat ter portion of the Award, the payment of Rs. 51 lakhs for I ndia’s share of the arbitratio n costs. See 4th MacKenzie Decl. ¶ 8, ECF No. 29-1. However, in order to challenge the other two portions of the award, India filed a petition with the Delhi High Court to invalidate the award in July 2013. Id. ¶ 9. In November 2013, HEPI filed a petition to enfor ce the award with the same court. Id. ¶ 10. After two years of delays, “counsel for GOI ultimately withdrew the [invalidation] petition on the grounds that it was not properly under the jurisd iction of the Delhi High Court ,” but rather that of the Madras High Court in Chennai, the high cour t geographically closest to the Block. Id. ¶ 14. However, less than a month later India fi led a review petition seeking t o reverse the order dismissing its action to invalidate the award. Id. ¶ 15. After the Delhi High Cour t dismissed this review petitio n in January 2016, India filed an app eal of the dismissal of the review petition. Id. ¶ 19–21. Following several adjournments at the request of India’s counse l, the matter was heard in May 2016 and dismissed by the Delhi Hig h Court, again on jurisdicti onal grounds, in July 2016. Id. ¶ 22. This time, however, the jurisd ictional basis of the dismiss al was not the fact that the high court in Chennai was the proper court to hear the case. Rather, it was because the Delhi High Court had found that the seat of arbitration had been Malaysia, rather than India, and therefore,7 that Indian courts did not have the power to set aside the arbi tral award pursuant to Section 34 of the Arbitration and Conciliati on Act, 1996, India’s statute gov erning arbitration. See 4th MacKenzie Decl. Ex. 5 (“Judgment”) at 17–22, ECF No. 29-6. In October 2016, India filed for l eave 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 d oes it indicate whether the Supreme Court has ruled on the appeal. Id. ¶ 27. In the meantime, HEP I’s petition for execution of the Award before the Delhi Hi gh Court has been repeatedly ad journed pending the disposition of India’s appeal. Id. ¶ 28. Due to this delay, HEPI decided to avail itself of the enforcem ent powers of this Court as well, and in January 2016 filed the i nstant petition for enforc ement of the arbitral award. See Pet’r’s Pet. to Confirm Arbitrat ion Award (“Pet’r’s Pet.”), ECF No. 1. Following briefing and an order from this Court regardi ng 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 Resp. Pet’r’s Pet. ( “Resp.”), ECF No. 28. It further moved for the Court to stay these proceedings wh ile its petition to set a side the arbitral award remains pending in India. Id. HEPI’s petition, and India’s requestthat the Court stay these proceedings, are now ripe for decision.8 III. LEGAL STANDARD “The Convention on the Recognition and Enforcement of Foreign A rbitral Awards of June 10, 1958, also known as the ‘New Y ork Convention,’ [21 U.S .T. 2517,] is enforced through the Federal Arbitrati on Act, 9 U.S.C. § 201 (2012).” Matter of Arbitration of Certain Controversies Between Getma Int’l & Republic of Guinea , 142 F. Supp. 3d 110, 112–13 (D.D.C. 2015). Under the New York Convent ion and the Federal Arbitratio n Act, a recipient of a foreign arbitral award may seek confir mation and enforcement of the awa rd in U.S. federal courts. See 9 U.S.C. §§ 202, 207. “Consistent with the ‘emphatic f ederal policy in favor of arbitral dispute resolution’ recognized by the Supreme Court[ ,] . . . the FAA affords the di strict court little discretion in refusing or deferring enforcement of foreign arbitral awards.” Belize Social Development Ltd. v. Government of Belize , 668 F.3d 724, 727 (D.C. Cir. 2012) (quoting Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc. , 473 U.S. 614, 631 (1985)). Courts “may refuse to enforce the award [brought under the New Yo rk Convention] only on the groun ds explicitly set forth in Article V of the Convention.” TermoRio S.A. E.S.P. v. Electranta S.P. , 487 F.3d 928, 935 (D.C. Cir. 2007) (citation omitted); see also Int’l Trading & Indus. Inv. Co. v. DynCorp Aerospace Tech. , 763 F. Supp. 2d 12, 19 (D.D.C. 2011) (collecting cases). Beca use “the New York Convention provides only several narrow circumstances when a co urt may deny confirmation of an arbitral award, confirmation pr oceedings are generally summa ry in nature.” DynCorp Aerospace Tech. , 763 F. Supp. 2d at 20 (citing Zeiler v. Deitsch , 500 F.3d 157, 169 (2d Cir. 2007)). “[T]he burden of establishi ng the requisite factual pre dicate to deny confirmation of an arbitral award rests with the party resisting confirmation, and the showing required to avoid9 summary confirmation is high.” BCB Holdings Ltd. v. Gov’t of Belize , 110 F. Supp. 3d 233, 247 (D.D.C. 2015) (alteration in orig inal) (internal citations and quotation marks omitted).

IV. ANALYSIS India has presented two major arguments for why HEPI should notbe granted the confirmation it seeks. First, i t argues that confirmation of th e 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 awar d does not violate U. S. public policy, and therefore that it should be confirmed, the Court should sta y the enforcement of the award while India’s appeal of the awar d and HEPI’s parallel litigatio n 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, a nd, finding that a stay is not wa rranted, then addresses India’s arguments regarding whether conf irmation of the award would vio late U.S. public policy. A. Request for Stay India has moved for a stay of these proceedings pending the res olution of its appeal of the arbitral award in India pursuant to Article VI of the New York Convention, which provides that “[i]f an application for the s etting 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 pr oper, adjourn the decision on th e enforcement of the award.” New York Convention, art. VI. A “comp etent authority” referred to i n Article V(1)(e) is one “of the country in which, or under the lawof which, that award was mad e.” New York Convention, art. V(1)(e). India further argues that this Court should stay the p roceedings pursuant to the doctrines offorum non conveniens and international comity. See Resp. at 40. HEPI counters that because India brought a set-aside suit i n India, rather than Malaysia, the requirements of an Article VI10 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 are not available as defenses to enforcement actions in this Circuit. See id. at 23, 31–32. For the reasons set forth below, the Court finds a stay of these proceedings un warranted, and therefore denies India’s request. The D.C. Circuit has explained that “the FAA affords the distri ct court little discretion in refusing or deferring enforcement of foreign arbit ral awards: the Convention is ‘clear’ that a court ‘may refuse to enfor ce the award only on the grounds expl icitly 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 , 668 F.3d 724, 727 (D.C. Cir. 2012) (quoting TermoRio S.A. E.S.P , 487 F.3d at 935). While other circuits have found that “a district court nevertheless re tains the inherent authority t o issue a stay for the purposes of managing its own docket” in FAA cases, the D.C. Cir cuit has eschewed such flexibility. Cf. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A. , 377 F.3d 1164, 1172 n.7 (11th Cir. 2004); see also Hewlett–Packard Co. v. Berg , 61 F.3d 101, 106 (1st Cir. 1995) (concluding that a district cour t may consider staying a case i n broader circumstances than those found in Article VI of the Conve ntion, but cautioning that the power to stay should be used judiciously). As such, the Cour t is limited to granting stays o nly when “an application for setting aside or suspension of the awar d has been made to a competent authority referre d to in article V(1)(e)”—that is, “a competent authority of the country in whic h, or under the law of which, that award was made.” New York Convention, arts. V, VI. India filed suit with the Delhi H igh Court to set aside the arb itration award in 2013, and HEPI filed suit with the Delhi H igh Court to enforce the arbitr ation award, also in 2013. Pet’r’s11 Pet. at 5; Resp. at 13. The court dismissed India’s set-aside a ction in July 2015, finding that it did not have jurisdiction and that the action should have been brou ght in Chennai, which is the locality closest to the Block. R esp’t’s Resp. at 13. India’s re quest for reconsideration was denied in January 2016, on the ground tha t Indian courts do not have t he authority to s et aside this award. Id. India then appealed to the Indi an Supreme Court, but the docke t in this case does not indicate that the Indian Suprem e Court has ruled on the appeal in the set-aside case. Id. The docket likewise does not indicate that the Delhi High Court has ruled on HEPI’s petition to enforce the arbitration award. HEPI and India contest whether Indian courts have power under t he New York Convention to set aside the awar d, and therefore, whether a pet ition in India to set aside the arbitral award counts as an appli cation with “a competent autho rity of the country in which, or under the law of which, that award was made.” New York Conventi on, 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 fa iled to initiate any action befor e the courts of a competent authority, and therefore has no ba sis to apply for a stay” beca use Malaysian courts, rather than Indian courts, are the only courts of competent authority to se t aside the award. Pet’r’s Resp. at 32. 1

1 Both parties have requested lea ve to submit additional briefin g, along with expert affidavits, concerning the questi on of whether India is the competent authority to set aside the arbitration agreement, and therefo re, whether the Court has the power to grant a stay of these proceedings. See Pet’r’s Mot. for Leave to Fil e Sur-reply, ECF No. 36; Resp’t’s Cross-Mot. for Leave to File Resp., ECF No. 37. As explained below, the Court ultimately finds that it can resolve the question of whether astay should be granted withou t determining whether Indian courts have the authority to set aside the arbitral award, and therefore denies both parties’ motions as moot.12 If the Court were to find that Indian courts have the authorityto set aside the award under the New York Convention, the C ourt would next turn to deciding whether a stay under these circumstances is proper. “A stay of confirmation should not be lightly granted,” because “the adjournment of enforcement proc eedings impedes the goals of arb itration—the expeditious resolution of disputes and the a voidance of protracted and expe nsive litigation.” Europcar Italia, S.p.A. v. Maiellano Tours, Inc. , 156 F.3d 310, 317 (2d Cir. 1998). There fore, the Second Circu it in Europcar listed several factors for courts to consider when determining whether to stay arbitral enforcement proceedings , which courts in this districthave chosen to apply on several occasions. Europcar instructs courts to look at: (1) the general objectives of arbitration—the expeditious resolutio n of disputes and the avoidance of protracted and expensive litigation; (2) the status of the foreign proceedings and the estimated time fo r 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 (wh ich would tend to weigh in favor of en forcement); (ii) whether they were initiated before the underlying enforcement proceeding so as to raise concerns of international comity; (iii) whether the y were initiated by the party now seeking to enforce the award in federal court; and (iv) whether they were initiated under circumstances indicating an inte nt to hinder or delay resolutio n of the dispute; (5) A balance of the possible hardsh ips 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 , 146 F. Supp. 3d 112, 134–35 (D.D.C. 2015) (quoting Europcar , 156 F.3d at 317–18). Additionally, the court in Europcar specified that13 “[b]ecause the primary goal of the Convention is to facilitate the recognition and enforcement of arbitral awards, the first a nd second factors on the list shoul d weigh more heavily in the district court’s determination.” Europcar , 156 F.3d at 318. “A stay of confirmation should not be lightl y granted lest it encourage abus ive tactics by the party that los t in arbitration.” Id. at 317 (citing Hewlett–Packard Co. , 61 F.3d at 106). 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 , 211 F. Supp. 3d 269 (D.D.C. 2016); Stati v. Republic of Kazakhstan , 199 F. Supp. 3d 179 (D.D.C. 2016); Chevron Corp. v. Republic of Ecuador , 949 F. Supp. 2d 57 (D.D.C. 2013). While the D.C. Circuit has yet to explicitly adopt the Europcar factors, the Court will follow the lead of other courts in this District a nd analyze the prudence of a stay of these proceedings according to the Europcar factors. The Court begins by consi dering the first and second Europcar factors, which “should weigh more heavily in the districtcourt’s determination,” “[b] ecause the primary goal of the Convention is to facilitate the recognition and enforcement of arbitral awards.” Europcar , 156 F.3d at 318. India claims that stay ing these proceedings would satisfy the first Europcar factor because a stay would further “the general objectives of arbitra tion – expeditious resolution of disputes and the avoidance of pr otracted and expensive litigati ons.” Resp. at 42 (quoting Europcar , 156 F.3d at 317). India supports thi s claim by arguing that “ [h]ere, the pending court proceedings in India could effectively and expeditiously resolv e the issues of both confirmation and enforcement of the Award.” Resp. at 42. India also claims t hat the second Europcar factor, “the status of the foreign pro ceedings and the estimated time f or those proceedings to be resolved,” Europcar , 156 F.3d at 317, also counsels in f avor of a stay of these pr oceedings. Resp.14 at 42–43. HEPI argues that these fac tors in fact counsel agains t a stay, because “[f]ar from offering speedy resolution, the Indian proceedings have been ch aracterized by inordinate delay.” Pet’r’s Resp. at 36. The Court agrees with HEPI’s asse ssment of the timeliness of th e Indian proceedings and the likelihood of their resoluti on in the near future. India fi led its suit to set a side the arbitral award nearly five years ago, i n July 2013. 4th MacKenzie Decl. ¶ 9. After several years of delay by both the Government of India and the courts, India’s set-asi de action was dismissed for lack of jurisdiction in July 2016. Id. ¶ 22. India appealed to the Supr eme Court of India in October 2016. Id. ¶ 23. There is no indication on the docket that the Supreme Co urt has ruled on this appeal, which has been delaye d over and over again due to the a ctions 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 re ach a final resolution in this case once the Supreme Court of India ha s determined whether the Delh i 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 C ourt to reach the merits of HEPI’ s enforcement action, given that the courts have been inclined t o postpone deciding that case un til India’s set-aside action has been resolved. Id. ¶ 28. As HEPI has pointed out, courts i n this district have readily f ound stays inappropriate when foreign set-aside proceedings have remained pending for ha lf a decade. Pet’r’s Resp. at 35–38. In Chevron , the court took into account the fact that the underlying arbi tration had occurred over six years prior a nd the protractedness of set-asi de litigation pending in The Hague when it decided not to stay its c onfirmation of Chevron’s arbitral award. 949 F. Supp. 2d at 72.15 Likewise, in G.E. Transp. S.p.A. v. Republic of Albania , the court took into cons ideration the fact that the arbitration process had c ommenced four years prior and the fact that appeal proceedings in Italy would likely not be comp leted for another four when it decided to confirm the arbitral award. 693 F. Supp. 2d 132, 138-139 (D.D.C. 2010). Here, the f act that the underlying arbitral award was rendered five years a go and the fact that there is no clear end to the Indian set-aside proceedings in sight counsels against granting India a stay. Next the Court considers the third Europcar factor, which is “wheth er the award sought to be enforced will receive greater scrutiny in the foreign pro ceedings under a less deferential standard of review.” 156 F.3d a t 317. India claims, without cit ation, that the award will be subject to more exacting scru tiny when an Indian High Court rul es on HEPI’s Indian enforcement action, because “Indi an law permits courts to refus e confirmation and enforcement on public policy grounds that are broader than those permitted in the United States.” Resp. at 43. It continues that “in order for an arbitral award to be confirm ed and enforced in India and not be considered a violation of India n public policy, it must meet fo ur criteria: (1) compliance with Indian statutes and judicial pre cedents; (2) adherence to a ‘ju dicial approach’; (3) compliance with ‘Natural Justice’; and (4) reasonableness.” Id . Conversely, this Court is only empowered to decline enforcement of this aw ard if “[t]he recognition or enfo rcement of the award would be contrary to the public policy of th[is] country,” because no ot her grounds for declining enforcement are applicable in this case. See New York Convention, art. V(2)(b). HEPI argues that India’s standard for arbitral enforcement is irrelevant he re, “since India is not a competent authority to set aside the Awa rd.” Pet’r’s Resp. at 37. However , this argument misses India’s point regarding how Indian courts will review the award in enforcement proceedings, rather than set-aside proceedings. While it would have been preferable for India to direct the Court toward16 sources indicating that Indian c ourts have broader discretion w hen deciding whether to enforce arbitral awards, the Court will take India’s word that Indian c ourts evaluate whether arbitral awards comport with Indian law w hen considering whether to enfo rce that award, a power that American courts do not have, until the award has actually been set aside by a competent authority. See Four Seasons Hotels , 613 F. Supp. 2d at 1369 (“A holding i n an arbitration award that is contrary to the substant ive law governing the arbitrati on is not a defense under the Convention, and therefore a dist rict court generally may not re view an arbitration award on the merits.”) (citing China Nat’l Metal Prods. Import/Ex port Co. v. Apex Digital, Inc. , 379 F.3d 796, 799 (9th Cir. 2004)). Therefore, the third Europcar factor counsels i n favor of a stay. The fourth factor instructs the c ourt to examine the characteri stics 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 (wh ich would tend to weigh in favor of en forcement); (ii) whether they were initiated before the underlying enforcement proceeding so as to raise concerns of international comity; (iii) whether the y were initiated by the party now seeking to enforce the award in federal court; and (iv) whether they were initiated under circumstances indicating an inte nt to hinder or delay resolutio n of the dispute. Europcar , 156 F.3d at 318. In this case, analy sis of the first and thir d subfactors tug in both directions, as there are two cas es regarding the arbitral award pending in India: one initiated by India to set aside the award ( counseling against a stay) and on e initiated by HEPI to enforce the award (counseling in favor of a s tay). Both suits were filed pr ior to the filing of this case, counseling in favor of a stay. The fourth subfactor asks the Co urt to consider the motivations underlying the foreign proceedings, and consider whether they w ere commenced in good faith. India has provided no explanati on for why, throughout its appea l, hearings repeatedly needed to17 be continued because India’s atto rney was not prepared for the hearings. See 4th MacKenzie Decl. ¶¶ 9–27. While the Court ackno wledges the right of the In dian government to challenge an arbitral award that it believes was unlawful, India’s contribut ions to the protractedness of the litigation in the Indian courts cannot be denied. As such, the Court finds that overall, the fourth Europcar factor counsels against a stay. The fifth factor likewise counsel s against a stay. India’s init ial breach of its contract with HEPI occurred nine years ago, a nd the arbitral award in questio n was handed down five years ago. While the interest that H EPI was awarded through arbitrati on would continue to accrue in the event of a stay, there is no doubt that, given the length o f 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. , 949 F. Supp. 2d at 72. Last, pursuant to the sixth Europcar factor (“[a]ny other circumstan ce that could tend to shift the balance in favor of or against adjournment”), 156 F .3d at 317, the Court notes in part icular the fact that the Supreme Court of India has already declin ed to stay the arbitration awa rd pending India’s appeal regarding the Delhi High Court’s jurisdiction over the set-aside suit. See 4th MacKenzie Decl. ¶ 23; see also G.E. Transp. S.p.A. , 693 F. Supp. 2d at 139 (“Furthermore, the court notes that th e Court of Appeals in Rome declined to set aside the Arbitral Award on an interim basis.”). This Court is disinclined to questi on that assessment. Overall, examination of the six Europcar factors demonstrates that a stay is not warranted in this case. Because the Court determines that the applicationof the six Europcar factors counsels against staying this e nforcement action, the Court nee d not determine whether Indian courts, under Indian law, have the power to set aside the arbit ral award. Because the Court need not determine the “seat” of the arbitration for the purposes of considering whether it will grant a18 stay in this case, the Court nee d not consider the arguments ra ised in HEPI’s proposed sur-reply and India’s proposed sur-sur-reply. Because this is not a situa tion in which the “proposed surrepl[ies] would be helpful t o the resolution of the pending motion,” Glass v. Lahood , 786 F. Supp. 2d 189, 231 (D.D.C. 2011), the Court denies HEPI’s motionfor leave to file its sur-reply (ECF No. 36), and India’s cross-mo tion for leave to a file a re sponse to the sur-reply (ECF No. 37). 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 al ready received the costs portion of the arbitral award, see 4th MacKenzie Decl. ¶ 8, HEPI ur ges this Court to affirm and e nforce the two remaining portions of the a ward: return of the Block to HEPI for a period of three years and interest on its original inve stment in the Block. India res ponds that the Court should decline to enforce these two component s of the award on public policy g rounds, as permitted by the New York Convention. See New York Convention, art. V(2)(b ). First, it argues that becau se confirmation of the award “woul d not lead to the usual result this Court is used to seeing—a monetary judgment that the peti tioner can then enforce against the sovereign nation’s commercial assets located withi n the U.S.,” but rather “would d ivest [India] of possession and control of its own territorial w aters and natural resources,” t he confirmation “would be contrary to the public policy of [the Unite d States].” Resp. at 19. It f urther argues against confirmation of the monetary portion of the awar d because “[t]he United States has clear public policy prohibiting punitive measures against foreign nations,” and the refore it cautions against confirmation of an arbitral awar d meant to “punish[] India for its ‘illegal acts’ and any future19 disobedience of its injunctive decree by ordering India to pay interest on a base amount unless and until it restores t he Block to Hardy.” Id. at 37–38. 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 publicpolicy defense “begins with the strong public policy favoring c onfirmation of foreign arbitration awards,” Ministry of Def. & Support for the Armed Fo rces of the Islamic Republic of Iran v. Cubic Def. Sys., Inc. , 665 F.3d 1091, 1098 (9th Cir. 2011), because “[t]he goal of t he [New York] Convention, and the princi pal purpose underlying Americanadoption and implementation of it, was to encourage the r ecognition and enforcement of comm ercial arbitration agreements in international contracts and t o unify the standards by which agr eements to arbitrate are observed and arbitral awards are enforce d in the signatory countries.” Scherk v. Alberto–Culver Co. , 417 U.S. 506, 520 n.15 (1974). Due to the “ ‘emphatic federal policyin favor of arbitral dispute resolution’ . . . the FAA affords [a] district court little dis cretion in refusing or deferring enforcement of forei gn arbitral awards.” Belize Soc. Dev. Ltd. , 668 F.3d at 727 (quoting Mitsubishi Motor Corp. , 473 U.S. at 631). Courts in this ci rcuit have repeatedly held that “courts should rely on the public policy ex ception only ‘in clear-cut c ases’ where ‘enforcement would violate the forum state’s most basic notions of morality and ju stice.’” Newco Ltd. v. Gov’t of Belize , 650 F. App’x 14, 16 (D.C. Cir. 2016) (emphasis added) (citing TermoRio S.A. E.S.P. , 487 F.3d at 938); see also Chevron Corp ., 949 F. Supp. 2d at 69 (D.D.C. 2013) (citing Parsons v. Whittemore Overseas Co. v. Societe Gene rale De L’Industrie Du Papier (RAKTA) , 508 F.2d 969, 974 (2d Cir. 1974)). The public po licy defense under Article V( 2)(b) of the New York Convention is to be construed narrowly and is available only wh ere an arbitration award “tends clearly to undermine the public i nterest, the public confidence in the administration of the law, or20 security for individual rights of personal liberty or of privat e property.” Enron Nigeria Power Holding, Ltd. v. Fed. Republic of Nigeria , 844 F.3d 281, 289 (D.C. Cir. 2016). Such a public policy must be “explicit” and “well defined and dominant, and i s to be ascertained by reference to the laws and legal precedents.” United Paperworkers Int’l Union v. Misco, Inc. , 484 U.S. 29, 43 (1987). The “provision was not meant to enshrine the vagarie s of international politics under the rubric of ‘public policy,’ ” and it does not provide that a wards that might contravene U.S. interests may be resisted on such grounds. Parsons , 508 F.2d at 974. The public policy exception cannot be used to simply question the merits of the underlying award. See Chevron Corp. , 949 F. Supp. 2d at 69. 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 balan ce two important U.S. public policy values: respect for the sovereignty of other nati ons and respect for foreign arbitral agreements. India urges the Court to decline confirmation of th e portion of the award ordering it to allow HEPI back onto the Bloc k to continue its determination of whether the reserve of natural gas it discovered in 2006 is comm ercially viable, claiming that such a confirmation would be in violation of U.S public policy for s everal reasons. First, it c laims that enforcement of the award would violate the U.S.’s clear publ ic policy preference of resp ecting the sovereignty of foreign nations, including their right t o control their own lands and n ational resources. Resp. at 19. Second, it claims that the specific performance portion of the award was granted in contravention of Indian law, which prohibits the granting of specific perform ance other than in limited21 circumstances. Id. at 31. Third, it claims that a n order confirming the arbitral award would be too difficult to enforce and supervise. Id. at 35. Fourth, it argues that enforcement of the award would violate the doctrines of comity and act of state. Id. at 26. In response, HEPI argues that I ndia overstates the affront conf irmation of the award would be to India’s sovereignt y, 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 vio lates Indian statute is an attempt to reargue the merits of the arbit ration award, something this Court is not allowed to consider. Id. at 25. It further argues that comp liance 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. Despite HEPI’s examples to the c ontrary, the Court finds that I ndia does not overstate the United States’ public policy interes t in respecting the right o f other nations to control the extraction and processing of natura l resources within their ownsovereign territories. The Court therefore finds that India has met its burden of demonstrating that confirmation of the specific performance portion of the awa rd would be contrary to U.S. publ ic policy, and therefore the Court declines to confirm this portion of the award. Because th e Court declines confirmation of the award on this ground, it does not reach India’s other argum ents 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 rel ations of the United States” and other nations. Verlinden B.V. v. Cent. Bank of Nigeria , 461 U.S. 480, 493 (1983). That is why “[o]ur courts have unde rstood, as international law itself unders tands, foreign nation states to be ‘independent sovereign’ entities.22 To grant those sovereign entitie s an immunity from suit in our courts both recognizes the ‘absolute independence of ever y sovereign authority’ and helps to ‘induc[e]’ each nation state, as a matter of ‘international com ity,’ to ‘respect the independenc e and dignity of every other,’ including our own.” Bolivarian Republic of Venezuela v. Helmerich & Payne Intern. Drilling Co. , 137 S. Ct. 1312, 1319 (2017). This resp ect for the independen ce and dignity of other nations includes respect for their t erritorial integrity. The United States’ recognition and respect of other nations’ so vereignty is expressed through the Foreign Sovereign Immunities Act, which provides th at “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 Act. 28 U.S.C. § 1604. One such exception enumerated in the Act is when aparty seeks to enforce a foreig n arbitration agreement or have a foreign arbitral award confi rmed, as HEPI has done here. See 28 U.S.C. § 1605(a)(6). Neither this exception nor any of the othe rs listed in the FSIA specifi es whether U.S. courts’ jurisdiction extends to awards of specific pe rformance to be completed outsi de the territorial jurisdiction of the United States, or indeed, eve n within the territorial juris diction of the United States. Therefore, the crucial question f or this Court to consider is w hether the enforcement of an arbitral award granting specific performance against a foreign sovereign, and extraterritorial specific performance at that , would undercut American public po licy, as expressed through the FSIA and other treaties regardi ng the liability of foreign nati ons to which the United States is a party. To counter India’s contenti on regarding U.S. public policy, HEP I first points out that courts have in the past enforced a rbitral awards for specific p erformance in other countries, and that therefore, confirmation of a rbitral awards that grant extr aterritorial specific performance do23 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, 2010 WL 4159459, at *3 (S.D.N.Y. Oct. 12, 2010) (enforcing award requiring foreign party to stock purchase agreement to perform its purcha se obligations ); Four Seasons Hotels , 613 F. Supp. 2d at 1369 (confirming a ward providing injunctiv e relief and specific performance of management agr eement relating to a hotel in Vene zuela)). However, as India indicates, both of these confirma tions of awards ordering extra territorial specific performance were against private corporati ons, rather than foreign nations. As such, these district court cases do not convince the Court that c onfirmation of this award would not violate U.S. public policy’s respect for national sovereignty. HEPI also highlights two instan ces in which American courts granted specific performance against defendant s overeign nations outside of the international arbitration context.
In Chabad v. Russian Federation , a court in this district orde red Russia to “surrender to the United States Embassy in Moscow or to the duly appointed repres entatives of . . . Chabad . . . the complete collection” of certain e xpropriated religious texts an d artifacts in Russia’s possession. 915 F. Supp. 2d 148, 150–52 (D.D.C. 2013). HEPI argues that thi s case demonstrates that “U.S. courts have not hesitated to orde r extraterritorial specific pe rformance or injunctive relief against foreign states.” Pet’r’s Resp. at 21. However, after Russia had refused to comply with the order, and after the plainti ff had moved for the imposition of civil c ontempt sanctions against Russia, the United States filed a Stateme nt of Interest, explaining that while the government was actively working through diplomatic channe ls to recover the artifacts inquestion, it believed that the FSIA “does not permit a court to c ompel compliance with a speci fic performance order regarding property held by a foreign soverei gn within the sovereign’s ownterritory,” and also that “the provision of such relief would be contrary to the foreign polic y interests of the United States.”24 Statement of Interest of the United States, Chabad v. Russian Fed’n , No. 05-1548, Aug. 29, 2012, ECF No. 111 at 2. The United States Government highlighte d that “FSIA’s exceptions from execution immunity apply only to a foreign state’s ‘property in the United States,’ and even that property is subject to ex ecution only in carefully circums cribed and extremely limited circumstances.” Id. at 6 (quoting 28 U.S.C. § 1610(a)). It further highlighted tha t many circuit courts have found the language of 28 U.S.C. § 1610(a) referring only to the execution against property “in the United Sta tes” to be significant. Id. at 5 (citing, for example, Autotech Tech. LP v. Integral Research & Dev. Corp. , 499 F.3d 737, 750 (7th Cir. 2007) (“The FSIA did not purport to authorize execution aga inst a foreign sovereign’s pr operty, or that of its instrumentality, wherever thatproperty is located around the w orld. We would need some hint from Congress before we felt ju stified in adopting such a breathtaking assertion of e xtraterritorial jurisdiction.”)). The United States theref ore concluded that, w ithout this limitation, judicial seizure of the property of a fore ign state may well “be regarde d as an affront to its dignity and may affect [the U.S.’s] relations with it.” Id. at 6–7 (quoting Republic of Philippines v. Pimentel , 553 U.S. 851, 866 (2008) (internal quot ation and ellipses omitt ed)). 2 While the injunction in Chabad stemmed from a suit seeking the return of expropriated property, the limited languag e of 28 U.S.C. § 1610(a) also appl ies when “the judgment is based on an order confirming an arbitra l award rendered against the f oreign state, provided that attachment in aid of executi on, or execution, would not be inco nsistent with any provision in the arbitral agreement.” 28 U.S.C. § 16 10(a)(6). As such, the Courtfinds that the policy interests expressed by the United States in Chabad are also relevant in this case, which concerns an order

2 The district court ultimately granted Chabad its sanctions, de spite the United States’ objection, see Chabad v. Russian Fed’n , 915 F. Supp. 2d 148 (D.D.C. 2013), and because Russia was in default, it never appealed.25 that would deprive a foreign nati on of the ability to decide wh o will be able to extract and utilize its natural resources. The second case HEPI cites is also relevant, but ultimately doe s 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 orde rs permanently enjoining Argent ina from making payments on bonds issued pursuant to its debt r estructurings without making comparable payments on defaulted bonds. 699 F.3d 246, 261–65 (2d Cir. 2012). In that c ase, the court awarded specific performance because it had found that money damages would be an insufficient remedy for the plaintiffs. In justifying this r emedy, the court further reason ed that even though the court was prohibiting Argentina from tr ansferring money to some bondholde rs before it had paid others, the injunctions were permissible because they could “be complie d with without the court[] ever exercising dominion over sovereign property.” Id. at 262–65. Additionally, “[t ]he [i]njunctions d[id] not require Argentinato pay any bondholder any amount of money; nor d[id] they limit the other uses to which Argentina may put its fiscal reserves.” Id. at 263. Nevertheless, the injunctions against Argentina we re extraordinary to the extent that they prevented a sovereign nation from spending its money in t he way that it saw fit, and indeed demonstrated that in some particular instances, U.S. courts have chosen to exercise their authority in a manner that contravenes usual notions of nati ons’ rights to control what oc curs within their borders. India argues that a confirma tion of the award would go even farther than the injunction in NML Capital , because it would require “India to give possession of its ter ritorial waters to Hardy and permit Hardy to commercially d evelop India’s natural resour ces.” Resp. at 19. While the Court questions this assertion—af ter all, the PSC specifies tha t “India’s natural resources remain vested in India . . . and subject to its control . . . , while HEPI bears the status of a ‘Contractor’26 with limited rights and obligations enumera ted in the PSC,” Pet ’r’s Resp. at 20—the Court nevertheless finds that this inf ringement on India’s national s overeignty would contravene the United States’ public policy interes t in respecti ng the territo rial integrity of other nations for several reasons. First, the Court agrees with Ind ia that confirmation of the awa rd would lead to a U.S. court attempting to enforce an e ven more invasive order than th e one in NML Capital . While the Court does not agree with India’ s contention that enforcement o f the arbitral award would be too complicated for the Court to oversee, 3 nor does the Court agree that allowing HEPI back onto the Block to continue its commercia lity assessment would give HEPI full “possession” of the Block, it does find that forced interfere nce with India’s complete control over its terr itory violates public policy to the extent necessary t o overcome the United States’ p olicy preference for the speedy confirmation of arbitral awards . After all, the issuance of “ex traterritorial injunc tions often raise serious concerns for sovereignt y and enforceability which compe l denial.” Nguyen Thang Loi v. Dow Chem. Co. (In re Agent Orange Prod. Liab. Litig.) , 373 F. Supp. 2d 7, 45 (E.D.N.Y. 2005). The power to grant extraterrito rial injunctions “should be exer cised with great reluctance when it [would] be difficult to secur e compliance . . . or when the exe rcise of such power is fraught with

3 India emphasizes the complexity of the PSC and the involvementof entities not party to this suit to demonstrate “that a ny 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 exte nt of the arbitral award, and therefore, what this Court would actually be enforcing if it conf irmed the award. Confirmation o f this award would not require the Court to supervise the remainde r of the process provided by the PSC. It would only require that the Court ensure that HEPI is allowed back onto the Block to pi ck up where it had left off in 2009. If India violates any othe r portion of the PSC, that viol ation would not be covered by the initial arbitration award, and therefore would not be subject t o this Court’s juri sdiction. The fact that ONGC and GAIL have expresse d their disapproval of HEPI’s a ttempt to confirm the arbitral award in the United States does, ho wever, indicate that the Gov ernment of India alone may not be able to grant HEPI the full relief contemplated in the arbit ral award. See Bravin Decl., Exs. 5 & 6, ECF No. 28-1.27 possibilities of disc ord and conflict with the authorities of another country.” Id. (quoting Vanity Fair Mills, Inc. v. T. Eaton Co. , 234 F.2d 633, 647 (2d Cir.1956)). Second, the Court is persuaded tha t the FSIA’s contemplation of jurisdiction over foreign countries in suits seeking compensatory (but not punitive) dama ges, and allowing for specific, domestic methods of ensuring tha t plaintiffs receive those dama ges, demonstrates the United States’ public policy commitment t o respecting the sovereignty of foreign nations by only holding them liable for certain forms of relief. See, e.g. , 28 U.S.C. § 1606 (providing that a “foreign state shall be liable in the same manner and to the sa me extent as a private individual under like circumstances; but aforeign state . . . shall not b e liable for punitive damages”); 28 U.S.C. § 1610(a)(6) (provi ding that “[t]he property in the United States of a foreign state

. . . used for a commercial activity i n the United States, shall not be immune from attachment in aid of execution, or from executi on, upon a judgment entered by a c ourt of the United States . . . , if . . . the judgment is based on an orde r confirming an arbitral aw ard rendered against the foreign state, provided that attachment in aid of execution, or executi on, would not be inconsistent with any provision in the arbitral agreem ent”) (emphasis added). Whi le the FSIA grants federal courts jurisdiction over arbitral award confirmation proceedings, 28 U .S.C. § 1605(a)(6), and therefore the Court has clear jurisdicti on over this case, the spirit of the United States’ policy preference against specific performance is c lear from the exclusion from the statutory text of any mention of specific performance or extraterr itorial enforcement, apart fro m the terrorism and expropriation exceptions. See Resp. at 21–22 n.9 (citing to 28 U.S.C. § 1605(a)(3) and 28 U. S.C. § 1605A). Third, while the doctrine of int ernational comity does not gene rally counsel against the confirmation of arbitral awards, see Newco Ltd. , 650 Fed. Appx. at 16 (citing Belize Soc. Dev. , 668 F.3d at 727), as India has indicated, confirmation of this award would “raise the specter of28 the opposite situation coming t o pass; namely, a foreign court confirming (or the court going further and granting injunctive re lief directly) against the Un ited States for acts it has taken within its own borders or respec ting its own ter ritory.” Resp. at 27. Given that th e United States has not waived its sovereign imm unity in its own courts against specific performance in contract cases, it would defy comprehensi on that it would be in complian ce with U.S. public policy to create a situati on in which a foreign court could order the U.S. to s pecifically perform its portion of a contract. See e.g. , Gonzalez & Gonzalez Bonds & Ins. Agency, Inc. v. Dep’t Homeland Security , 490 F.3d 940, 943 (Fed. Cir. 2007) (“In order for a [contract ] claim to be brought under either the Tucker Act or the Litt le Tucker Act, the claim must be for monetary relief; it cannot be for equitable relief, except in very limited circumstances . . .”); Robbins v. U.S. Bureau of Land Mgt. , 438 F.3d 1074, 1082 (10th Cir. 2006) (“We now join our fellow circuits in holding that the Tucker and Little Tucker Acts ‘im pliedly forbid’ federal courts from ordering declaratory or injunctive relief, at least in the form of specific performance , for contract claims against the government”); Megapulse, Inc. v. Lewis , 672 F.2d 959, 971 (D.C. Cir. 1982) (acknowledging the “generally recognized rule thata plaintiff cannot maintain a c ontract action in eit her the district court or the Court of Claims seek ing specific performance of a contract” with the federal government); cf. Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Housing & Urban Dev. , 480 F.3d 1116, 1128 (Fed. Cir. 2007) (“Since the Tucker Act grants consent for suits based on contract, this has been interpr eted by these other courts to pr eclude under the APA contract claims of any kind, either for dama ges or specific performance. This court has acknowledged the issue but not squarely addressed it.”) For all of these reasons, the C ourt finds that enforcement of the specific performance portion of the arbitral award woul d violate United States publi c policy, and therefore, that this29 case presents one of the limited circumstances under which a di strict court can decline to confirm and enforce a foreign arbitral awa rd. Given that other recourse is still available to HEPI, through its litigation in the Indian courts, the Court declines to conf irm this portion of the award. 2. Interest India urges the Court to declin e confirmation of the monetary p ortion of the arbitral award—interest on HEPI’s Rs. 500 crores ($113 million) investme nt in the Block, at a rate of 9% per year up to the date of the a ward, and 18% per year thereaft er until the fulfillment of the award—claiming that it is both c oercive and punitive and theref ore that its enforcement “would be contrary to the public policy of [the U.S.].” See Resp. at 37 (quoting New York Convention, art. V(2)(b)); Rejoinder at 9–10. H EPI disagrees with India’s c haracterization of the awarding of interest as punitive, explaining that the interest was meant “t o compensate HEPI for the deprivation of the marooned capital it had already sunk into th e Block.” Pet’r’s Resp. at 27. HEPI does not directly address In dia’s argument that the post-j udgment interest portion of the award is coercive. The Court finds that even if the interest aw arded by the Tribunal was meant to be compensatory rather than punitive, because this Court cannot enforce the primary component of the award (return of the B lock to HEPI), and because the two components of the award are inextricably intertwined, the C ourt also cannot award interest predicated on compliance with that component of the award. To order otherwise would be to impermis sibly coerce India into complying with an order that this Court has determined it canno t issue. The Court cannot coerce through an interest award an act ion that it cannot order direct ly. As explained above, the New York C onvention allows U.S. courts to decline enforcing a foreign arbitral award if the award “would be contrary to the p ublic policy of [the U.S.].” New York Convention, art. V(2)(b). The Court has already establishe d that confirmation of the30 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 comp lies with the specific perfo rmance portion of the award, also violates public policy. In ans wering this question, the Co urt is persuaded by the United States’ prior contention that th e substance of a proposed order awarding money damages, rather than its form, should control howa 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 contem pt sanctions the court was considering had not been lab eled as proposed orders for the attachment or execution on property, for all intents and pur poses, the sanctions would hav e had the same effect as such orders, and therefore would violate the FSIA. Id. (citing S&S Machinery Co. v. Masinexportimport , 706 F.2d 411, 418 (2d Cir. 1983) (expl aining that “courts ‘ma y not grant, by injunction, relief which they m ay not provide by attachment,’ f or the obvious reason that ‘[t]he FSIA would become meaningless’ if the denomination of an order controlled over its substance”)). While the district court ultimately rejected the United States’ argument, finding that, under FG Hemisphere Assocs., LLC v. Democratic Republic of Congo , 637 F.3d 373 (D.C. Cir. 2011), it did have the author ity to issue contempt sanctio ns , Chabad , 915 F. Supp. 2d at 148, the Court will still heed the United States’ urging in Chabad to look at the functional effect of the proposed order before it, r ather than just its form. In this case, the practical eff ect of confirming the Tribunal’s award of interest would be to coerce a foreign state into c omplying with a non-existent or der from this Court, a non-existent order which, as explained above , would be a severe affront to I ndia’s sovereignty and would violate U.S. public policy. Even i f the Tribunal did not intend its award of interest to be punitive,31 confirmation of this award would l eave India in a Catch-22 of e ither halting the accrual of interest by allowing HEPI back ont o the Block—and thereby, effe ctively, complying with the arbitration award at the behest of this C ourt—or allowing the s um of money it owes to continue to grow. Indeed, due to the way the arbitration award was compo sed, there is no way for India to halt the accrual of interest agai nst it, or indeed to even sati sfy the award definitively, until it allows HEPI back onto the Block. This portion of the award is so i nseparable from the specific p erformance portion of the award, the confirmation of whic h would violate U.S. public poli cy, that the confirmation of the interest portion of the awar d must also be found, necessarily, the violate U.S. public policy. India may ultimately need to pay HEPI the millions of dollars i n 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 performa nce portion, has ordered it to d o so. Because this Court does not have such authority, it cannot order this payment. 4

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

4 As explained above, the Court ha s found that the award’s grantof post-judgement interest is impermissibly coerciv e because the amount of intere st 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 coercivene ss of the Tribunal’s prejudgment interest award, even i f the Court were to find that su ch 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 inter est 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 amo unt of money the Tribunal awarded remains undetermined, the Court would not confirm this portion of the award either.32 Proposed Sur-Reply (ECF No. 37). A n order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: June 7, 2018 RUDOLPH CONTRERAS United States District Judge