Internet v. Telecommunication and Informatics Financing Provider and Management…

Background

PT Rahajasa Media Internet sought confirmation and enforcement in the United States of an arbitration award issued in Indonesia. The award arose from five agreements under which the petitioner provided internet access for government-sponsored projects. On July 27, 2017, an Indonesian arbitration tribunal found the respondent in default and awarded the petitioner the equivalent of $16,948,937.28. The award became final and binding in September 2017, and the respondent had not paid it.

The petitioner registered the award with the South Jakarta District Court in August 2017 and applied there for an execution order in March 2018. That court had not ruled on the application. The petitioner later experienced involuntary bankruptcy proceedings, and some assets were sold at auction. The petitioner contested the auction, and that litigation was ongoing.

Procedural history

On December 30, 2020, the petitioner filed this action under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly called the New York Convention. The court referred the case to Magistrate Judge Ona T. Wang for general pretrial supervision. Judge Wang directed the petitioner’s counsel to explain why the case should not be dismissed as time-barred because the award was issued more than three years before the action was filed.

The petitioner conceded that the three-year deadline under 9 U.S.C. § 207 had expired by July 27, 2020. It argued that the deadline should be extended through equitable tolling, a doctrine that can extend a filing deadline when a party diligently pursues its rights but an extraordinary obstacle prevents a timely filing.

Court’s analysis

The court treated Section 207 as imposing a mandatory three-year limitation period beginning on the date of the arbitration award. It assumed, without deciding that issue definitively, that equitable tolling could apply to a petition under Section 207.

The court held that the petitioner had not shown reasonable diligence. Although the petitioner applied for an execution order in Indonesia in March 2018, it did not explain why six months passed before making that application. Its descriptions of later efforts to follow up with the Indonesian court were vague and did not identify when those efforts occurred or what happened. The precise court visits described by the petitioner took place in 2021, after the July 27, 2020 deadline. The petitioner also did not explain why it waited until December 30, 2020, more than five months after the deadline, to file in the United States.

The court also held that the petitioner had not shown an extraordinary circumstance that prevented timely filing. It described the allegations of cooperation among Indonesian government entities as conclusory and speculative, finding no facts showing that the respondent caused the delay in the Indonesian court or initiated the involuntary bankruptcy proceeding. The court found that the petitioner had not explained how the COVID-19 pandemic or the July 2020 detention of its director prevented timely filing. It also concluded that the burdens of bankruptcy litigation, limited resources, and the logistical difficulty of retaining United States counsel did not establish the required extraordinary circumstance on this record.

Finally, the court found no causal connection between the alleged obstacles and the late filing. The petitioner had not explained what changed between 2017 and December 2020 that allowed it to file the action in December 2020. The court therefore concluded that equitable tolling did not apply.

Disposition

The court dismissed the action as time-barred. It directed the clerk to terminate the pending motions at docket numbers 7 and 25 and to close the case.