Supreme Court’s Decision on Petition for Certiorari Could Resonate Through Sovereign Award Enforcement Community

The Deal That Unraveled—and the $46.8 Million Award That Followed

Should it matter what type of paper a debt is recorded on?  Could a foreign sovereign waive its immunity in U.S. courts for a specific debt, but then assert immunity because that debt came to U.S. courts on a document with a particular heading?  That is the question raised by a pending petition for certiorari in Amaplat Mauritius et al. v. Zimbabwe Mining Development Corp. et al.¹  which seeks review of a decision issued by the D.C. Circuit on July 15, 2025.²  The decision in Amaplat appears to create a Circuit split while elevating form over substance in a manner that, if left unreviewed, could bar the courthouse doors for creditors holding arbitration awards against recalcitrant foreign sovereigns.

In Amaplat, the case came to the U.S. courts in a posture that was somewhat unorthodox but far from unprecedented.  The matter arose out of a dispute between the plaintiffs Amaplat and Amari and the Zimbabwe Mining Development Corporation (“ZMDC”) relating to the operation of nickel and platinum mines in Zimbabwe.  Memoranda of Understanding were executed between the parties in the late 2000s and then, after a brief period of development, ZMDC terminated the agreements.  Pursuant to arbitration clauses in the agreements, Amaplat and Amari pressed their claims to a panel of International Chamber of Commerce arbitrators, eventually receiving an award of $46.8 million in 2014. 

A Familiar Enforcement Path: From Arbitral Award to Foreign Judgment

Amaplat and Amari did not seek to have that award recognized in the U.S. within the three-year time limit set for the recognition of awards under the chapter of the Federal Arbitration Act implementing the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).³  Instead, Amaplat and Amari timely sought and obtained recognition of the award in the courts of Zambia, resulting in the award being reduced to a Zambian money judgment.  Then, in 2022—more than seven years after the award was rendered—Amaplat and Amari sought to have the Zambian judgment recognized in the U.S. District Court for the District of Columbia under D.C.’s foreign money judgments recognition act, having waited too long to recognize the underlying arbitration award itself.  This scenario is not uncommon in protracted award enforcement proceedings, where creditors often first seek recognition of awards where the debtor’s known assets are located—and those assets may only be discovered in, or moved to, the U.S. after the comparatively short three-year award recognition period has elapsed.

Awards and Judgments:  A Distinction Without a Substantive Difference?

This dynamic is why the scenario presented in Amaplat is far from unique.  Indeed, the D.C. Circuit has long recognized the distinction between recognizing an international arbitration award (which is a matter of federal law implementing the New York Convention) and recognizing a non-U.S. judgment which confirms an international arbitration award (which is a matter of each state’s law).⁴ This distinction may seem like a fine one.  But, as the D.C. Circuit has explained, the procedure for recognition of awards under the New York Convention sets a floor, not a ceiling, for award creditors’ rights, and there is no evidence in the legislative history surrounding the U.S. implementation of the New York Convention that would permit pre-emption of state law claims for recognition of foreign judgments confirming awards. ⁵ 

Sovereign Immunity Enters the Picture

The wrinkle in Amaplat arose from the fact that the award debtor in the case was a foreign state-owned company, and thus entitled to sovereign immunity, subject to certain exceptions set out in the Foreign Sovereign Immunities Act (“FSIA”). ⁶  In Amaplat, the award creditors invoked two immunity exceptions in the FSIA:  waiver (set forth in Section 1605(a)(1)), and the so-called arbitration exception (set forth in Section 1605(a)(6)). 

The District Court rejected the award creditor’s argument that the arbitration exception applied, reasoning that the exception only applied to proceedings in which awards themselves were sought to be recognized.  However, it accepted the creditors’ argument that, by agreeing to arbitrate in Zambia (which is a member of the New York Convention), ZMDC had impliedly waived immunity to enforcement proceedings arising out of the award in other New York Convention countries, including the U.S. 

The D.C. Circuit Draws a Hard Line

The D.C. Circuit rejected both of the award creditors’ proffered exceptions to sovereign immunity.  As to the arbitration exception, the panel emphasized—as explained above—that recognition of arbitration awards and recognition of judgments are analytically distinct.  As a result, and in the absence of any reference to foreign judgments in the arbitration exemption of the FSIA, the Court found itself unable to shoehorn recognition of the U.K. judgment into an immunity waiver for recognition of awards.

As to the waiver exception, the Court similarly found the immunity exception unsatisfied.  In reaching that conclusion, the Court emphasized that it interprets the implied waiver exception to sovereign immunity narrowly, and will rarely find an implied waiver “without strong evidence that this is what the foreign state intended.”⁷  Applying that lens, the Court concluded that even if ZMDC had impliedly waived its immunity from award recognition suits in the U.S. by agreeing to arbitrate in a New York Convention country, ZMDC had not manifested an intent to waive its immunity from proceedings in the U.S. to enforce that same debt in the garb of a foreign money judgment. As summarized by the D.C. Circuit: “The possibility of actions beyond the [New York] Convention’s scope does not provide clear evidence of what the sovereign intended by signing the Convention.”⁸ 

In so ruling, the D.C. Circuit declined to follow a decision by the Second Circuit in Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, which found that a foreign sovereign had impliedly waived immunity in analogous circumstances.  There, the Second Circuit had reasoned that “the cause of action [to enforce a foreign judgment based on an award] is so closely related to the claim for enforcement of the arbitral award” that a waiver of immunity as to one is broad enough to cover the other.⁹  The D.C. Circuit’s rejection of Seetransport sets up a Circuit split, making this issue ripe for Supreme Court review.  And that review is what Amaplat has now sought by petitioning for certiorari. 

In its petition, Amaplat emphasizes that the D.C. Circuit’s decision, if left undisturbed, will have negative unintended consequences by essentially inviting sovereign award debtors to transfer their assets into the United States after the three-year period for award recognition has passed.¹⁰  This would have the practical effect of making those assets unreachable if the D.C. Circuit’s reasoning becomes the law of the land.  Amaplat further notes that some arbitration awards against sovereigns do not even become final within the U.S.’s three-year recognition window, instead becoming bogged down in annulment or set-aside proceedings overseas.  Here too, if the D.C. Circuit’s decision stands, it would compel award creditors to seek recognition of awards in U.S. court that may ultimately be annulled or set aside, which wastes the time and resources of award creditors, debtors, and courts alike. 

Interestingly, ZMDC’s opposition to Amaplat’s petition for certiorari focuses largely on prudential arguments for rejecting Supreme Court review:  arguing that the question presented is unimportant, playing down the circuit split, and arguing that the case is a poor vehicle for review.  Meanwhile, ZMDC’s substantive defense of the D.C. Circuit’s decision is consigned to the fourth and final argument in its submission, prominently featuring the observation that Amaplat could have sought to recognize the underlying award in the United States within the FAA’s three-year limitations period—a point that is uncontested and sheds more heat than light on the legal question before the Court.

The Broader Implications of Leaving the D.C. Circuit’s Decision Unreviewed

To this observer, Amaplat and the Second Circuit have the better of the argument.  After all—and as emphasized in Amaplat’s petition to the Supreme Court—both the recognition of an arbitration award and the recognition of a foreign money judgment end up at the same place:  a domestic money judgment in the U.S.  And while it is understandable that the FSIA’s immunity exceptions are construed narrowly, it is a vanishingly thin distinction to suggest that a foreign sovereign has submitted to a U.S. money judgment against it based on a recognition of an award debt, but has not submitted to that exact same result based on the exact same debt if the U.S. judgment is obtained via recognition of a foreign judgment confirming an award.  Moreover, by requiring award creditors to seek recognition of awards within three years to preserve their rights if assets move to the U.S. at a future date, the D.C. Circuit’s decision would likely increase the number of precautionary proceedings filed against foreign sovereigns in U.S. courts—even if the sovereign debtor does not have apparent assets in the U.S. at that time.  This could hardly have been the D.C. Circuit’s intent in narrowly construing the FSIA’s immunity exceptions.

In effect, if the D.C. Circuit’s ruling in Amaplat stands, it would make the enforceability of an award creditor’s debt under U.S. law dependent on what type of paper it is recorded on – an arbitral award, or a foreign money judgment.  Indeed, by requiring such concrete, affirmative evidence of a foreign sovereign’s intent to waive immunity for the specific procedure a creditor may pursue to collect on an award debt, the decision in Amaplat comes close to reading the doctrine of implied waiver out of the law entirely in this class of cases. 

Briefing on the petition for certiorari closed with the filing of Amaplat’s reply submission on April 3rd.  The outcome may resonate through the sovereign award enforcement community for years to come.