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 

DENYING PETITION TO CONFIRM ARBITRATION AWARD; DENYING AS MOOT PETITIONER’S 

MOTION FOR LEAVE TO FILE SUR-REPLY; DENYING AS MOOT RESPONDENT’S CROSSMOTION FOR LEAVE TO FILE RESPONSE

I. INTRODUCTION 

In 1997, Hardy Exploration and Production (India), Inc. (“HEPI”) entered into a contract 

with the Government of India that would allow HEPI to search for and potentially extract 

hydrocarbons from an area off of India’s southeastern coast. The contract provided that if HEPI 

found crude oil, it would have two years to ascertain if that oil was commercially viable, but that 

if it found natural gas, that assessment period would last for five years. HEPI discovered a 

reserve of hydrocarbons in 2006 and claimed that it was natural gas, entitling it to a five-year 

appraisal period. India disagreed, and after two years, it informed 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 discovered, HEPI initiated arbitration 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 three years to continue its assessment of whether the natural gas 
2 

it had discovered was commercially viable. The Tribunal also awarded HEPI interest on its 

original investment in the Block, as well as certain costs. India 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 still not been allowed back onto the Block, 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. public policy, as would confirmation of the interest portion of the 

award, which India claimed is punitive and coercive, rather than compensatory. For the reasons 

set forth below, the Court finds that confirmation and enforcement of the specific performance 

portion of the award would violate U.S. public policy, and therefore, the Court declines to 

confirm that portion of the award. Additionally, the Court finds that granting the award of 

interest, which is predicated on India complying with an order that this Court cannot issued, 

would also violate U.S. public policy, and therefore declines to confirm that portion of the award 

as well. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

This case stems from HEPI’s participation in a Production Sharing Contract (“PSC”) with 

the Government of India for the extraction, development, and production of hydrocarbons in a 

geographic block found off the southeastern coast of India called CY-OS/2 (the “Block”). See

Decl. of Ian MacKenzie (“MacKenzie 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 state-owned oil company, the Oil and Natural Gas Corporation 

Limited (“ONGC”); and “[t]he President of India, acting through the Joint Secretary, Ministry of 
3 

Petroleum and Natural Gas.” PSC at 1. The PSC permitted the three private companies to 

explore the Block and, if they found commercially viable hydrocarbon reserves, to extract those 

resources under a production 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 arts. 14–15. While HEPI was not 

an original participant in the PSC, it acquired a 25% participation share from one of the original 

participants in 1997, and by August 2001, HEPI had acquired a 100% participation share in the 

PSC. See Pet’r’s Mem. at 3; see also MacKenzie Decl. Ex. 1 (“Award”) at 3, ECF No. 1-3; 

MacKenzie Decl. Ex. 4 at 1–2, ECF No. 1-6. HEPI then transferred 25% of its interest in the 

PSC to GAIL (India) Ltd, a state-owned retail gas processing and 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 entered the agreement at their own risk. If a participant 

discovered a reserve of hydrocarbons that was capable of being extracted and produced 

commercially, then it would be entitled to extract and produce the hydrocarbons, and would be 

entitled to keep a percentage of the hydrocarbons for itself, with 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 entitled 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 expense and provide all funds 

necessary for the conduct of Petroleum Operations . . .” unless otherwise provided in the PSC); 

see also Award at 41 (observing that “[t]here is no dispute” that a contractor “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, after the discovery of hydrocarbons, the participants 

would enter into an appraisal period to determine whether the production of the hydrocarbons in 

the newly discovered reserve would be commercially feasible. See Pet’r’s Mem. at 4; PSC arts. 

9.5, 21.4.4. The PSC provided for appraisal periods of different lengths depending on the type of 

hydrocarbons discovered. If the discovery was crude oil, the appraisal period would be two 

years, see PSC art. 9.5; if it was natural gas, the appraisal period would be five years, see PSC 

art. 21.4.4. 

In late 2006, HEPI and GAIL discovered a reserve of hydrocarbons and promptly 

informed the Ministry of Petroleum and Natural Gas of their discovery. Pet’r’s Mem. at 4; 

Award at 7–8. HEPI believed that the hydrocarbons it had discovered was natural gas, and more 

particularly, Non-Associated Natural Gas (“NANG”), and therefore 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 was in fact crude oil, and accordingly that HEPI’s declaration of 

commerciality was due on January 7, 2009. Id. at 9–11. Therefore, the Ministry informed HEPI 

via letters dated February 20 and March 23, 2009, that HEPI’s rights to the Block were 

relinquished due to its failure to submit its declaration of commerciality on time. Id. Despite 

HEPI’s efforts to convince the Ministry over the next year that its discovery was natural gas and 

therefore that it had not missed its deadline to file a declaration of commerciality, India would 

not yield. Id. at 5. Therefore, HEPI initiated arbitration proceedings pursuant to Article 33 of the 

PSC to resolve the question of which 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 that “any unresolved dispute, difference or claim which 

cannot be settled amicably within a reasonable time may . . . be submitted to an arbitral tribunal 

for final decision,” PSC art. 33.3; sets forth the procedures for 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 arbitral tribunal, and, in the case of difference among the arbitrators, 

the decision of the majority, shall be final and binding upon the Parties.” PSC art. 33.8. 

The Tribunal first turned to preliminary issues, and issued an order on May 28, 2011 

finding that the dispute between the parties was subject to arbitration 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, in Kuala Lampur, Malaysia. 

Award at 5. During the course of these proceedings, HEPI presented the testimony of two expert 

witnesses to support its contention that the discovery was of natural 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, the 

Tribunal decided that HEPI was “denied the time provided for in the contract for appraisal and to 

come to [a] conclusion about the commerciality of the discovery.” Id. at 36. The Tribunal 

concluded that severing HEPI’s interest in the Block was “illegal, being on the erroneous 

impression that the discovery was Oil.” Id. at 43. 

To remedy what it found to be a breach of the PSC, the Tribunal ruled that India’s “order 

of relinquishment is declared to be null and void.” Id. Because India had ordered the 

relinquishment of the Block before HEPI was able to determine the commercial viability of the 
6 

hydrocarbons it had discovered, the full extent of the monetary damage 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 relegated to the position in which they stood prior to the order of the 

relinquishment and the block shall be restored to [HEPI].” Id. at 43. Additionally, it ordered 

India to pay interest on HEPI’s Rs. 500 crores investment in the 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 certain costs to HEPI. Id.

To date, the Government of India has only complied with the latter portion of the Award, 

the payment of Rs. 51 lakhs for India’s share of the arbitration 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 enforce 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 jurisdiction of the Delhi High Court,” but rather that of the Madras 

High Court in Chennai, the high court geographically closest to the Block. Id. ¶ 14. However, 

less than a month later India filed a review petition seeking to reverse the order dismissing its 

action to invalidate the award. Id. ¶ 15. After the Delhi High Court dismissed this review petition 

in January 2016, India filed an appeal of the dismissal of the review petition. Id. ¶ 19–21. 

Following several adjournments at the request of India’s counsel, the matter was heard in May 

2016 and dismissed by the Delhi High Court, again on jurisdictional grounds, in July 2016. Id. ¶ 

22. This time, however, the jurisdictional basis of the dismissal 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 arbitral award pursuant to Section 34 of 

the Arbitration and Conciliation Act, 1996, India’s statute governing arbitration. See 4th 

MacKenzie Decl. Ex. 5 (“Judgment”) at 17–22, ECF No. 29-6. 

In October 2016, India filed for leave 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 does it indicate whether the 

Supreme Court has ruled on the appeal. Id. ¶ 27. In the meantime, HEPI’s petition for execution 

of the Award before the Delhi High Court has been repeatedly adjourned pending the disposition 

of India’s appeal. Id. ¶ 28. 

Due to this delay, HEPI decided to avail itself of the enforcement powers of this Court as 

well, and in January 2016 filed the instant petition for enforcement of the arbitral award. See

Pet’r’s Pet. to Confirm Arbitration Award (“Pet’r’s Pet.”), ECF No. 1. Following briefing and an 

order from this Court regarding 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 while its petition to set aside the arbitral award remains pending in India. Id.

HEPI’s petition, and India’s request that the Court stay these proceedings, are now ripe for 

decision. 
8 

III. LEGAL STANDARD 

“The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 

June 10, 1958, also known as the ‘New York Convention,’ [21 U.S.T. 2517,] is enforced through 

the Federal Arbitration 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 Convention and the Federal Arbitration Act, a recipient of a foreign 

arbitral award may seek confirmation and enforcement of the award in U.S. federal courts. See 9 

U.S.C. §§ 202, 207. 

“Consistent with the ‘emphatic federal policy in favor of arbitral dispute resolution’ 

recognized by the Supreme Court[,] . . . the FAA affords the district 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 York Convention] only on the grounds 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). Because “the New York 

Convention provides only several narrow circumstances when a court may deny confirmation of 

an arbitral award, confirmation proceedings are generally summary 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 establishing the requisite factual predicate to deny confirmation of an 

arbitral award rests with the party resisting confirmation, and the showing required to avoid 
9 

summary confirmation is high.” BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233, 247 

(D.D.C. 2015) (alteration in original) (internal citations and quotation marks omitted). 

IV. ANALYSIS 

India has presented two major arguments for why HEPI should not be granted the 

confirmation it seeks. First, it argues that confirmation of the 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 award does not violate U.S. public policy, 

and therefore that it should be confirmed, the Court should stay the enforcement of the award 

while India’s appeal of the award and HEPI’s parallel litigation 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, and, finding that a stay is not warranted, then addresses India’s 

arguments regarding whether confirmation of the award would violate U.S. public policy. 

A. Request for Stay 

India has moved for a stay of these proceedings pending the resolution 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 setting 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 proper, adjourn the decision on the enforcement of the award.” New 

York Convention, art. VI. A “competent authority” referred to in Article V(1)(e) is one “of the 

country in which, or under the law of which, that award was made.” New York Convention, art. 

V(1)(e). India further argues that this Court should stay the proceedings pursuant to the doctrines 

of forum non conveniens and international comity. See Resp. at 40. HEPI counters that because 

India brought a set-aside suit in India, rather than Malaysia, the requirements of an Article VI 
10 

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 unwarranted, and therefore denies 

India’s request. 

The D.C. Circuit has explained that “the FAA affords the district court little discretion in 

refusing or deferring enforcement of foreign arbitral awards: the Convention is ‘clear’ that a 

court ‘may refuse to enforce the award only on the grounds explicitly 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 retains the inherent authority to issue a stay for the 

purposes of managing its own docket” in FAA cases, the D.C. Circuit 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 court may consider staying a case in broader circumstances than those 

found in Article VI of the Convention, but cautioning that the power to stay should be used 

judiciously). As such, the Court is limited to granting stays only when “an application for setting 

aside or suspension of the award has been made to a competent authority referred to in article 

V(1)(e)”—that is, “a competent authority of the country in which, or under the law of which, that 

award was made.” New York Convention, arts. V, VI. 

India filed suit with the Delhi High Court to set aside the arbitration award in 2013, and 

HEPI filed suit with the Delhi High Court to enforce the arbitration award, also in 2013. Pet’r’s 
11 

Pet. at 5; Resp. at 13. The court dismissed India’s set-aside action in July 2015, finding that it did 

not have jurisdiction and that the action should have been brought in Chennai, which is the 

locality closest to the Block. Resp’t’s Resp. at 13. India’s request for reconsideration was denied 

in January 2016, on the ground that Indian courts do not have the authority to set aside this 

award. Id. India then appealed to the Indian Supreme Court, but the docket in this case does not 

indicate that the Indian Supreme 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 the New York 

Convention to set aside the award, and therefore, whether a petition in India to set aside the 

arbitral award counts as an application with “a competent authority of the country in which, or 

under the law of which, that award was made.” New York Convention, 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 failed to initiate any action before the courts of a competent 

authority, and therefore has no basis to apply for a stay” because Malaysian courts, rather than 

Indian courts, are the only courts of competent authority to set aside the award. Pet’r’s Resp. at 

32.1

 

 1

 Both parties have requested leave to submit additional briefing, along with expert 

affidavits, concerning the question of whether India is the competent authority to set aside the 

arbitration agreement, and therefore, whether the Court has the power to grant a stay of these 

proceedings. See Pet’r’s Mot. for Leave to File 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 a stay should be granted without 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 authority to set aside the award under 

the New York Convention, the Court 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 proceedings impedes the goals of arbitration—the expeditious 

resolution of disputes and the avoidance of protracted and expensive litigation.” Europcar Italia, 

S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310, 317 (2d Cir. 1998). Therefore, the Second Circuit 

in Europcar listed several factors for courts to consider when determining whether to stay 

arbitral enforcement proceedings, which courts in this district have chosen to apply on several 

occasions. 

Europcar instructs courts to look at: 

(1) the general objectives of arbitration—the expeditious resolution 

of disputes and the avoidance of protracted and expensive 

litigation; 

(2) the status of the foreign proceedings and the estimated time for 

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 (which 

would tend to weigh in favor of enforcement); (ii) whether they

were initiated before the underlying enforcement proceeding so 

as to raise concerns of international comity; (iii) whether they 

were initiated by the party now seeking to enforce the award in

federal court; and (iv) whether they were initiated under 

circumstances indicating an intent to hinder or delay resolution 

of the dispute; 

(5) A balance of the possible hardships 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 that 
13 

“[b]ecause the primary goal of the Convention is to facilitate the recognition and enforcement of 

arbitral awards, the first and second factors on the list should weigh more heavily in the district 

court’s determination.” Europcar, 156 F.3d at 318. “A stay of confirmation should not be lightly 

granted lest it encourage abusive tactics by the party that lost 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 and analyze the prudence of a stay of these proceedings according to 

the Europcar factors. 

The Court begins by considering the first and second Europcar factors, which “should 

weigh more heavily in the district court’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 staying these proceedings would satisfy the first Europcar factor 

because a stay would further “the general objectives of arbitration – expeditious resolution of 

disputes and the avoidance of protracted and expensive litigations.” Resp. at 42 (quoting 

Europcar, 156 F.3d at 317). India supports this claim by arguing that “[h]ere, the pending court 

proceedings in India could effectively and expeditiously resolve the issues of both confirmation 

and enforcement of the Award.” Resp. at 42. India also claims that the second Europcar factor, 

“the status of the foreign proceedings and the estimated time for those proceedings to be 

resolved,” Europcar, 156 F.3d at 317, also counsels in favor of a stay of these proceedings. Resp. 
14 

at 42–43. HEPI argues that these factors in fact counsel against a stay, because “[f]ar from 

offering speedy resolution, the Indian proceedings have been characterized by inordinate delay.” 

Pet’r’s Resp. at 36. 

The Court agrees with HEPI’s assessment of the timeliness of the Indian proceedings and 

the likelihood of their resolution in the near future. India filed its suit to set aside the arbitral 

award nearly five years ago, in July 2013. 4th MacKenzie Decl. ¶ 9. After several years of delay 

by both the Government of India and the courts, India’s set-aside action was dismissed for lack 

of jurisdiction in July 2016. Id. ¶ 22. India appealed to the Supreme Court of India in October 

2016. Id. ¶ 23. There is no indication on the docket that the Supreme Court has ruled on this 

appeal, which has been delayed over and over again due to the actions 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 reach a final resolution in this case 

once the Supreme Court of India has determined whether the Delhi 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 Court to reach the merits of HEPI’s enforcement action, given that 

the courts have been inclined to postpone deciding that case until India’s set-aside action has 

been resolved. Id. ¶ 28. 

As HEPI has pointed out, courts in this district have readily found stays inappropriate 

when foreign set-aside proceedings have remained pending for half a decade. Pet’r’s Resp. at 

35–38. In Chevron, the court took into account the fact that the underlying arbitration had 

occurred over six years prior and the protractedness of set-aside litigation pending in The Hague 

when it decided not to stay its confirmation 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 consideration the fact 

that the arbitration process had commenced four years prior and the fact that appeal proceedings 

in Italy would likely not be completed for another four when it decided to confirm the arbitral 

award. 693 F. Supp. 2d 132, 138-139 (D.D.C. 2010). Here, the fact that the underlying arbitral 

award was rendered five years ago 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 “whether the award sought 

to be enforced will receive greater scrutiny in the foreign proceedings under a less deferential 

standard of review.” 156 F.3d at 317. India claims, without citation, that the award will be 

subject to more exacting scrutiny when an Indian High Court rules on HEPI’s Indian 

enforcement action, because “Indian law permits courts to refuse 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 confirmed and enforced in India and not be 

considered a violation of Indian public policy, it must meet four criteria: (1) compliance with 

Indian statutes and judicial precedents; (2) adherence to a ‘judicial approach’; (3) compliance 

with ‘Natural Justice’; and (4) reasonableness.” Id. Conversely, this Court is only empowered to 

decline enforcement of this award if “[t]he recognition or enforcement of the award would be 

contrary to the public policy of th[is] country,” because no other 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 here, “since India is not a competent 

authority to set aside the Award.” 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 toward 
16 

sources indicating that Indian courts have broader discretion when deciding whether to enforce 

arbitral awards, the Court will take India’s word that Indian courts evaluate whether arbitral 

awards comport with Indian law when considering whether to enforce 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 in an arbitration award 

that is contrary to the substantive law governing the arbitration is not a defense under the 

Convention, and therefore a district court generally may not review an arbitration award on the 

merits.”) (citing China Nat’l Metal Prods. Import/Export Co. v. Apex Digital, Inc., 379 F.3d 796, 

799 (9th Cir. 2004)). Therefore, the third Europcar factor counsels in favor of a stay. 

The fourth factor instructs the court to examine the characteristics 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 (which 

would tend to weigh in favor of enforcement); (ii) whether they

were initiated before the underlying enforcement proceeding so 

as to raise concerns of international comity; (iii) whether they 

were initiated by the party now seeking to enforce the award in

federal court; and (iv) whether they were initiated under 

circumstances indicating an intent to hinder or delay resolution 

of the dispute. 

Europcar, 156 F.3d at 318. In this case, analysis of the first and third subfactors tug in both 

directions, as there are two cases regarding the arbitral award pending in India: one initiated by 

India to set aside the award (counseling against a stay) and one initiated by HEPI to enforce the 

award (counseling in favor of a stay). Both suits were filed prior to the filing of this case, 

counseling in favor of a stay. The fourth subfactor asks the Court to consider the motivations 

underlying the foreign proceedings, and consider whether they were commenced in good faith. 

India has provided no explanation for why, throughout its appeal, hearings repeatedly needed to 
17 

be continued because India’s attorney was not prepared for the hearings. See 4th MacKenzie 

Decl. ¶¶ 9–27. While the Court acknowledges the right of the Indian government to challenge an 

arbitral award that it believes was unlawful, India’s contributions 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 counsels against a stay. India’s initial breach of its contract with 

HEPI occurred nine years ago, and the arbitral award in question was handed down five years 

ago. While the interest that HEPI was awarded through arbitration would continue to accrue in 

the event of a stay, there is no doubt that, given the length of 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 circumstance that could tend to shift the balance in favor of or 

against adjournment”), 156 F.3d at 317, the Court notes in particular the fact that the Supreme 

Court of India has already declined to stay the arbitration award 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 the Court of 

Appeals in Rome declined to set aside the Arbitral Award on an interim basis.”). This Court is 

disinclined to question 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 application of the six Europcar factors 

counsels against staying this enforcement action, the Court need not determine whether Indian 

courts, under Indian law, have the power to set aside the arbitral award. Because the Court need 

not determine the “seat” of the arbitration for the purposes of considering whether it will grant a 
18 

stay in this case, the Court need not consider the arguments raised in HEPI’s proposed sur-reply 

and India’s proposed sur-sur-reply. Because this is not a situation in which the “proposed 

surrepl[ies] would be helpful to the resolution of the pending motion,” Glass v. Lahood, 786 F. 

Supp. 2d 189, 231 (D.D.C. 2011), the Court denies HEPI’s motion for leave to file its sur-reply 

(ECF No. 36), and India’s cross-motion for leave to a file a response 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 already received the costs portion 

of the arbitral award, see 4th MacKenzie Decl. ¶ 8, HEPI urges this Court to affirm and enforce 

the two remaining portions of the award: return of the Block to HEPI for a period of three years 

and interest on its original investment in the Block. India responds that the Court should decline 

to enforce these two components of the award on public policy grounds, as permitted by the New 

York Convention. See New York Convention, art. V(2)(b). First, it argues that because 

confirmation of the award “would not lead to the usual result this Court is used to seeing—a 

monetary judgment that the petitioner can then enforce against the sovereign nation’s 

commercial assets located within the U.S.,” but rather “would divest [India] of possession and 

control of its own territorial waters and natural resources,” the confirmation “would be contrary 

to the public policy of [the United States].” Resp. at 19. It further argues against confirmation of 

the monetary portion of the award because “[t]he United States has clear public policy 

prohibiting punitive measures against foreign nations,” and therefore it cautions against 

confirmation of an arbitral award meant to “punish[] India for its ‘illegal acts’ and any future 
19 

disobedience of its injunctive decree by ordering India to pay interest on a base amount unless 

and until it restores the 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 confirmation of foreign arbitration 

awards,” Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. 

Cubic Def. Sys., Inc., 665 F.3d 1091, 1098 (9th Cir. 2011), because “[t]he goal of the [New 

York] Convention, and the principal purpose underlying American adoption and implementation 

of it, was to encourage the recognition and enforcement of commercial arbitration agreements in 

international contracts and to unify the standards by which agreements to arbitrate are observed 

and arbitral awards are enforced in the signatory countries.” Scherk v. Alberto–Culver Co., 417 

U.S. 506, 520 n.15 (1974). Due to the “‘emphatic federal policy in favor of arbitral dispute 

resolution’ . . . the FAA affords [a] district court little discretion in refusing or deferring 

enforcement of foreign arbitral awards.” Belize Soc. Dev. Ltd., 668 F.3d at 727 (quoting 

Mitsubishi Motor Corp., 473 U.S. at 631). Courts in this circuit have repeatedly held that “courts 

should rely on the public policy exception only ‘in clear-cut cases’ where ‘enforcement would 

violate the forum state’s most basic notions of morality and justice.’” 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 Generale De L’Industrie Du Papier (RAKTA), 508 F.2d 969, 

974 (2d Cir. 1974)). The public policy defense under Article V(2)(b) of the New York 

Convention is to be construed narrowly and is available only where an arbitration award “tends 

clearly to undermine the public interest, the public confidence in the administration of the law, or 
20 

security for individual rights of personal liberty or of private 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 is 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 vagaries of international politics under 

the rubric of ‘public policy,’ ” and it does not provide that awards 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 balance two important U.S. 

public policy values: respect for the sovereignty of other nations and respect for foreign arbitral 

agreements. India urges the Court to decline confirmation of the portion of the award ordering it 

to allow HEPI back onto the Block to continue its determination of whether the reserve of natural 

gas it discovered in 2006 is commercially viable, claiming that such a confirmation would be in 

violation of U.S public policy for several reasons. First, it claims that enforcement of the award 

would violate the U.S.’s clear public policy preference of respecting the sovereignty of foreign 

nations, including their right to control their own lands and national 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 performance other than in limited 
21 

circumstances. Id. at 31. Third, it claims that an 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 India overstates the affront confirmation of the award 

would be to India’s sovereignty, 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 violates Indian statute is an attempt to 

reargue the merits of the arbitration award, something this Court is not allowed to consider. Id. at 

25. It further argues that compliance 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 contrary, the Court finds that India does not overstate the 

United States’ public policy interest in respecting the right of other nations to control the 

extraction and processing of natural resources within their own sovereign territories. The Court 

therefore finds that India has met its burden of demonstrating that confirmation of the specific 

performance portion of the award would be contrary to U.S. public policy, and therefore the 

Court declines to confirm this portion of the award. Because the Court declines confirmation of 

the award on this ground, it does not reach India’s other arguments 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 relations 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 understood, as 

international law itself understands, foreign nation states to be ‘independent sovereign’ entities. 
22 

To grant those sovereign entities an immunity from suit in our courts both recognizes the 

‘absolute independence of every sovereign authority’ and helps to ‘induc[e]’ each nation state, as 

a matter of ‘international comity,’ to ‘respect the independence 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 respect for the independence and dignity of other nations 

includes respect for their territorial integrity. 

The United States’ recognition and respect of other nations’ sovereignty is expressed 

through the Foreign Sovereign Immunities Act, which provides that “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 a party seeks to enforce a foreign arbitration agreement or have a 

foreign arbitral award confirmed, as HEPI has done here. See 28 U.S.C. § 1605(a)(6). Neither 

this exception nor any of the others listed in the FSIA specifies whether U.S. courts’ jurisdiction 

extends to awards of specific performance to be completed outside the territorial jurisdiction of 

the United States, or indeed, even within the territorial jurisdiction of the United States. 

Therefore, the crucial question for this Court to consider is whether the enforcement of an 

arbitral award granting specific performance against a foreign sovereign, and extraterritorial 

specific performance at that, would undercut American public policy, as expressed through the 

FSIA and other treaties regarding the liability of foreign nations to which the United States is a 

party. 

To counter India’s contention regarding U.S. public policy, HEPI first points out that 

courts have in the past enforced arbitral awards for specific performance in other countries, and 

that therefore, confirmation of arbitral awards that grant extraterritorial specific performance do 
23 

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 purchase obligations); Four Seasons 

Hotels, 613 F. Supp. 2d at 1369 (confirming award providing injunctive relief and specific 

performance of management agreement relating to a hotel in Venezuela)). However, as India 

indicates, both of these confirmations of awards ordering extraterritorial specific performance 

were against private corporations, rather than foreign nations. As such, these district court cases 

do not convince the Court that confirmation of this award would not violate U.S. public policy’s 

respect for national sovereignty. 

HEPI also highlights two instances in which American courts granted specific 

performance against defendant sovereign nations outside of the international arbitration context. 

In Chabad v. Russian Federation, a court in this district ordered Russia to “surrender to the 

United States Embassy in Moscow or to the duly appointed representatives of . . . Chabad . . . the 

complete collection” of certain expropriated religious texts and artifacts in Russia’s possession. 

915 F. Supp. 2d 148, 150–52 (D.D.C. 2013). HEPI argues that this case demonstrates that “U.S. 

courts have not hesitated to order extraterritorial specific performance 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 plaintiff had moved for the imposition of civil contempt sanctions against Russia, 

the United States filed a Statement of Interest, explaining that while the government was actively 

working through diplomatic channels to recover the artifacts in question, it believed that the 

FSIA “does not permit a court to compel compliance with a specific performance order regarding 

property held by a foreign sovereign within the sovereign’s own territory,” and also that “the 

provision of such relief would be contrary to the foreign policy 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 highlighted 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 execution only in carefully circumscribed and extremely limited 

circumstances.” Id. at 6 (quoting 28 U.S.C. § 1610(a)). It further highlighted that many circuit 

courts have found the language of 28 U.S.C. § 1610(a) referring only to the execution against 

property “in the United States” 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 against a foreign sovereign’s property, or that of its 

instrumentality, wherever that property is located around the world. We would need some hint 

from Congress before we felt justified in adopting such a breathtaking assertion of extraterritorial 

jurisdiction.”)). The United States therefore concluded that, without this limitation, judicial 

seizure of the property of a foreign state may well “be regarded 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 quotation and ellipses omitted)).2

While the injunction in Chabad stemmed from a suit seeking the return of expropriated 

property, the limited language of 28 U.S.C. § 1610(a) also applies when “the judgment is based 

on an order confirming an arbitral award rendered against the foreign state, provided that 

attachment in aid of execution, or execution, would not be inconsistent with any provision in the 

arbitral agreement.” 28 U.S.C. § 1610(a)(6). As such, the Court finds 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, despite 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 nation of the ability to decide who will be able to extract and utilize 

its natural resources. 

The second case HEPI cites is also relevant, but ultimately does 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 orders permanently enjoining Argentina from making payments on 

bonds issued pursuant to its debt restructurings without making comparable payments on 

defaulted bonds. 699 F.3d 246, 261–65 (2d Cir. 2012). In that case, the court awarded specific 

performance because it had found that money damages would be an insufficient remedy for the 

plaintiffs. In justifying this remedy, the court further reasoned that even though the court was 

prohibiting Argentina from transferring money to some bondholders before it had paid others, 

the injunctions were permissible because they could “be complied with without the court[] ever 

exercising dominion over sovereign property.” Id. at 262–65. Additionally, “[t]he [i]njunctions 

d[id] not require Argentina to 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 were extraordinary to the extent that they prevented a sovereign 

nation from spending its money in the 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 nations’ rights to control what occurs within their borders. 

India argues that a confirmation of the award would go even farther than the injunction in 

NML Capital, because it would require “India to give possession of its territorial waters to Hardy 

and permit Hardy to commercially develop India’s natural resources.” Resp. at 19. While the 

Court questions this assertion—after all, the PSC specifies that “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 enumerated in the PSC,” Pet’r’s Resp. at 20—the Court 

nevertheless finds that this infringement on India’s national sovereignty would contravene the 

United States’ public policy interest in respecting the territorial integrity of other nations for 

several reasons. 

First, the Court agrees with India that confirmation of the award would lead to a U.S. 

court attempting to enforce an even more invasive order than the one in NML Capital. While the 

Court does not agree with India’s contention that enforcement of 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 commerciality assessment would give HEPI full “possession” of the Block, 

it does find that forced interference with India’s complete control over its territory violates public 

policy to the extent necessary to overcome the United States’ policy preference for the speedy 

confirmation of arbitral awards. After all, the issuance of “extraterritorial injunctions often raise 

serious concerns for sovereignty and enforceability which compel 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 extraterritorial injunctions “should be exercised with great reluctance when it 

[would] be difficult to secure compliance . . . or when the exercise of such power is fraught with 

 3

 India emphasizes the complexity of the PSC and the involvement of entities not party to 

this suit to demonstrate “that any 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 extent of the arbitral award, and therefore, what this Court would 

actually be enforcing if it confirmed the award. Confirmation of this award would not require the 

Court to supervise the remainder of the process provided by the PSC. It would only require that 

the Court ensure that HEPI is allowed back onto the Block to pick up where it had left off in 

2009. If India violates any other portion of the PSC, that violation would not be covered by the 

initial arbitration award, and therefore would not be subject to this Court’s jurisdiction. The fact 

that ONGC and GAIL have expressed their disapproval of HEPI’s attempt to confirm the arbitral 

award in the United States does, however, indicate that the Government of India alone may not 

be able to grant HEPI the full relief contemplated in the arbitral award. See Bravin Decl., Exs. 5 

& 6, ECF No. 28-1. 
27 

possibilities of discord 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 that the FSIA’s contemplation of jurisdiction over foreign 

countries in suits seeking compensatory (but not punitive) damages, and allowing for specific, 

domestic methods of ensuring that plaintiffs receive those damages, demonstrates the United 

States’ public policy commitment to 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 same extent as a private individual 

under like circumstances; but a foreign state . . . shall not be liable for punitive damages”); 28 

U.S.C. § 1610(a)(6) (providing that “[t]he property in the United States of a foreign state . . . 

used for a commercial activity in the United States, shall not be immune from attachment in aid 

of execution, or from execution, upon a judgment entered by a court of the United States . . . , if . 

. . the judgment is based on an order confirming an arbitral award rendered against the foreign 

state, provided that attachment in aid of execution, or execution, would not be inconsistent with 

any provision in the arbitral agreement”) (emphasis added). While the FSIA grants federal courts 

jurisdiction over arbitral award confirmation proceedings, 28 U.S.C. § 1605(a)(6), and therefore 

the Court has clear jurisdiction over this case, the spirit of the United States’ policy preference 

against specific performance is clear from the exclusion from the statutory text of any mention of 

specific performance or extraterritorial enforcement, apart from 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 international comity does not generally 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 of 
28 

the opposite situation coming to pass; namely, a foreign court confirming (or the court going 

further and granting injunctive relief directly) against the United States for acts it has taken 

within its own borders or respecting its own territory.” Resp. at 27. Given that the United States 

has not waived its sovereign immunity in its own courts against specific performance in contract 

cases, it would defy comprehension that it would be in compliance with U.S. public policy to 

create a situation in which a foreign court could order the U.S. to specifically 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 Little 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 ‘impliedly 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 that a plaintiff cannot maintain a contract action in either the district 

court or the Court of Claims seeking 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 interpreted by these other courts to preclude under the APA contract 

claims of any kind, either for damages or specific performance. This court has acknowledged the 

issue but not squarely addressed it.”) 

For all of these reasons, the Court finds that enforcement of the specific performance 

portion of the arbitral award would violate United States public policy, and therefore, that this 
29 

case presents one of the limited circumstances under which a district court can decline to confirm 

and enforce a foreign arbitral award. Given that other recourse is still available to HEPI, through 

its litigation in the Indian courts, the Court declines to confirm this portion of the award. 

2. Interest 

India urges the Court to decline confirmation of the monetary portion of the arbitral 

award—interest on HEPI’s Rs. 500 crores ($113 million) investment in the 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—claiming that it is both coercive and punitive and therefore 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. HEPI disagrees with India’s characterization of the awarding of 

interest as punitive, explaining that the interest was meant “to compensate HEPI for the 

deprivation of the marooned capital it had already sunk into the Block.” Pet’r’s Resp. at 27. 

HEPI does not directly address India’s argument that the post-judgment interest portion of the 

award is coercive. The Court finds that even if the interest awarded 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 Block to HEPI), and because the two components of the award are 

inextricably intertwined, the Court also cannot award interest predicated on compliance with that 

component of the award. To order otherwise would be to impermissibly coerce India into 

complying with an order that this Court has determined it cannot issue. The Court cannot coerce 

through an interest award an action that it cannot order directly. 

As explained above, the New York Convention allows U.S. courts to decline enforcing a 

foreign arbitral award if the award “would be contrary to the public policy of [the U.S.].” New 

York Convention, art. V(2)(b). The Court has already established that confirmation of the 
30 

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 complies with the specific performance portion of the award, 

also violates public policy. In answering this question, the Court is persuaded by the United 

States’ prior contention that the substance of a proposed order awarding money damages, rather 

than its form, should control how a 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 contempt sanctions the court 

was considering had not been labeled as proposed orders for the attachment or execution on 

property, for all intents and purposes, the sanctions would have 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) (explaining that “courts ‘may not grant, by 

injunction, relief which they may not provide by attachment,’ for 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 authority to issue contempt sanctions, 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, rather than just its form. 

In this case, the practical effect of confirming the Tribunal’s award of interest would be 

to coerce a foreign state into complying with a non-existent order from this Court, a non-existent 

order which, as explained above, would be a severe affront to India’s sovereignty and would 

violate U.S. public policy. Even if the Tribunal did not intend its award of interest to be punitive, 
31 

confirmation of this award would leave India in a Catch-22 of either halting the accrual of 

interest by allowing HEPI back onto the Block—and thereby, effectively, complying with the 

arbitration award at the behest of this Court—or allowing the sum of money it owes to continue 

to grow. Indeed, due to the way the arbitration award was composed, there is no way for India to 

halt the accrual of interest against it, or indeed to even satisfy the award definitively, until it 

allows HEPI back onto the Block. 

This portion of the award is so inseparable from the specific performance portion of the 

award, the confirmation of which would violate U.S. public policy, that the confirmation of the 

interest portion of the award must also be found, necessarily, the violate U.S. public policy. 

India may ultimately need to pay HEPI the millions of dollars in 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 performance portion, has ordered it to do 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 has found that the award’s grant of post-judgement 

interest is impermissibly coercive because the amount of interest 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 coerciveness of the Tribunal’s prejudgment interest award, even if the Court were to find that such 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 interest 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 amount 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). An order consistent with this Memorandum Opinion is 

separately and contemporaneously issued. 

Dated: June 7, 2018 RUDOLPH CONTRERAS 

 United States District Judge