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A legal battle with global ramifications is now in the Supreme Court spotlight as two Mauritian mining companies challenge whether countries that submit to arbitration waive their sovereign immunity when foreign judgments seek enforcement.

Amaplat Mauritius Ltd. and Amari Nickel Holdings Zimbabwe Ltd. filed a certiorari petition on Dec. 12, asking the high court to review the D.C. Circuit’s decision that blocked their lawsuit to enforce an 11-year-old, $50 million arbitral award against Zimbabwe. The case has sparked a split among federal appellate courts.

Sovereign Immunity vs. Arbitration

The petition argues that the Second Circuit has long held that countries signing the New York Convention — the treaty governing recognition and enforcement of arbitral awards — implicitly waive immunity in actions enforcing foreign judgments that confirm awards.

Amaplat and Amari contend that the D.C. Circuit ignored this principle, rejecting the notion that Zimbabwe’s participation in arbitration triggers the implied waiver exception under the Foreign Sovereign Immunities Act (FSIA). They called the matter “of critical international importance.”

“Lower courts, other than the panel below, have uniformly reasoned that, by joining the New York Convention and submitting to arbitration in another New York Convention state, a member state impliedly waives its sovereign immunity under the FSIA in an action to enforce a foreign arbitral award,” the petition states.

Conflicting Precedent

The companies cite the Second Circuit’s 1993 Seetransport decision, which extended implied waiver to include enforcement of foreign judgments confirming arbitration awards. They argue the D.C. Circuit “unnecessarily transformed this issue into one requiring explicit waiver.”

The D.C. Circuit panel ruled that the Zambian court judgment registering the award was too removed from the original arbitration to invoke FSIA’s arbitration exception. The court concluded neither the arbitration exception nor the implied waiver applied, leaving the suit without federal jurisdiction.

Background of the Dispute

The dispute traces back to joint ventures in the late 2000s between Zimbabwe’s state-owned ZMDC and the Mauritian firms to develop nickel and platinum mines. Zimbabwe attempted to terminate the deals in 2010, prompting arbitration before the International Chamber of Commerce in Zambia.

A 2014 tribunal ruled ZMDC liable for $42.9 million to Amaplat and $3.9 million to Amari, plus interest and costs. The companies later obtained a Zambian court judgment recognizing the award under the New York Convention, empowering them to enforce it as a local court order.

In 2022, Amaplat and Amari filed suit in the U.S., naming ZMDC, the Chief Mining Commissioner, and Zimbabwe itself as defendants.