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.
