The Republic of Nicaragua v. The Lopez-Goyne Family

Background

Nicaragua petitioned to enforce pecuniary obligations imposed by a March 1, 2023 arbitral award issued under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, known as the ICSID Convention. The arbitration claimants included all respondents in this federal case. The arbitral tribunal rejected the claimants’ claims against Nicaragua and ordered: “Claimants shall pay US$ 1,500,000 to [Nicaragua] in respect of Nicaragua’s costs and expenses.”

Nicaragua alleged that each respondent owed the amount jointly and severally. In their answers, the appearing respondents disputed that characterization and argued that, if the award was enforceable, each respondent owed only a several share. The opinion identifies the appearing respondents as James John Bochnowski, Janet Bochnowski, David A. Barish, Gale Ruth Feuer Barish, Elsbeth Irene Foster, and Walter John Bilger, in the capacities listed in the opinion. The remaining respondents had either not been served or had not appeared.

Motion and Arguments

Nicaragua moved for partial summary judgment on whether the award imposed joint and several liability. The motion did not ask the court to enter an order enforcing the award itself.

The appearing respondents argued that the award was ambiguous about whether the $1.5 million obligation was joint and several. They contended that the court lacked authority to resolve that ambiguity and that Nicaragua instead had to request an interpretation from the arbitral tribunal under Article 50 of the ICSID Convention.

The court explained that the ICSID Convention and 22 U.S.C. § 1650a require participating countries to recognize and enforce qualifying awards as if they were final judgments. It stated that a court’s role in enforcing an ICSID award is exceptionally limited, including ensuring that an enforcement order is consistent with the award. The court treated that consistency question as the issue presented by Nicaragua’s motion.

Court’s Analysis

The court rejected the respondents’ ambiguity argument. It found that the tribunal’s reference to a single group—“Claimants”—having an obligation to pay one amount was consistent with joint and several liability. The court also found that the award was not consistent with an intent for each claimant to owe only a portion, because the award did not state how any portions would be calculated.

The court concluded that no clarification from the arbitral tribunal was required and that an enforcement order stating that the claimants were jointly and severally liable for the $1.5 million would be consistent with the award.

Disposition

Judge Maxine M. Chesney granted Nicaragua’s motion for partial summary judgment on whether the award provided that the claimants were jointly and severally liable for the amount awarded. The opinion states that the motion was granted; it does not state that the court entered the enforcement order itself in this ruling.