2025 in Review: Arbitration Award Enforcement Actions before U.S. Courts against African States: Guinea and Zimbabwe

Like previous years, award creditors have continued to seek the aid of U.S. district courts to enforce arbitration awards against African states. This year in review post zooms in on this practice and discusses the enforcement actions brought against the Republic of Guinea and the Republic of Zimbabwe, which were dismissed for lack of jurisdiction by the D.C. District Court and the D.C. Circuit, respectively.

The courts in these cases declined to find jurisdiction under the Foreign Sovereign Immunities Act (FSIA), setting important standards along the way. Under the FSIA, foreign sovereigns are immune unless one of the six enumerated exceptions applies. In Global Voice Group SA v. Republic of Guinea, Case No. 22-cv-2100(JMC) (Feb. 18, 2025), in dismissing the plaintiff’s action to enforce an ICC arbitration award against Guinea, the D.C. District Court held that neither the arbitration exception nor the implied waiver exception under the FSIA could be invoked to exercise jurisdiction over a foreign sovereign that was not a party to the underlying arbitration agreement. Amaplat Mauritius Ltd. and Amari Nickel Holdings Zimbabwe Ltd. v. Zimbabwe Mining Development Corporation, et al., Case No. 24-7030 (July 15, 2025), set an important precedent regarding foreign sovereign immunity in actions to enforce a foreign judgment confirming an arbitration award. The D.C. Circuit affirmed the view that although an arbitral award is closely related to a foreign judgment confirming that award, the two are distinct, and the arbitration exception and implied waiver exception do not apply to actions related to the latter.

Below is a brief discussion of these cases.  

Global Voice Group SA v. Republic of Guinea

The underlying dispute stems from an agreement between the Postal and Telecommunications Regulatory Authority of Guinea (PTRA) and Global Voice Group S.A. (GVG), under which the latter agreed to create a system enabling Guinea to view and tax international telecommunications traffic (the Agreement). While Guinea was not a named party, the Guinean Minister of Telecommunications and New Information Technologies signed the Agreement. Following a year-long payment dispute, GVG initiated an ICC arbitration against PTRA and Guinea, citing the arbitration clause under the Agreement (the Arbitration Agreement)

Once constituted, Guinea challenged the tribunal’s jurisdiction. It argued that it is not a party to the Agreement and insisted that the Minister signed the document only as a supervising authority of PTRA. The tribunal rejected Guinea’s argument. Although the Agreement makes no mention of Guinea, the tribunal noted that Guinea actively participated throughout the contractual process and knew that it was a beneficiary of the system set up under the Agreement. These, according to the tribunal, are sufficient evidence that Guinea consented to the Agreement, including the Arbitration Agreement. The tribunal then found Guinea and PTRA liable and awarded GVG about $22 million in damages. Guinea sought to annul the ICC award before the Paris Court of Appeal based on the tribunal’s lack of jurisdiction, but the court of appeal dismissed the argument on similar grounds. 

With an award in its favor, GVG initiated an enforcement action against Guinea before the D.C. District Court. But the district court dismissed the claim, refusing to assume jurisdiction under the arbitration exception or the implied waiver exception.

Arbitration exception

To lose its immunity from suit under the arbitration exception, the foreign state must have “made” the arbitration agreement. On this point, the district court refused to automatically defer to the tribunal’s finding that Guinea is a party to the arbitration agreement. When it comes to actions to enforce awards against foreign states, the district court questioned whether a court may defer to an arbitrator’s determination that the foreign state was a party to the underlying arbitration agreement.” It noted that, even if deference is proper, a court should yield to the tribunal’s finding only if it finds a “clear and unmistakable evidence” that the foreign state delegated the issue of arbitrability to the tribunal. The district court found no such evidence. Citing Guinea’s “insiste[nce] from the jump that it was not a party to the Arbitration Agreement,” the district court concluded that the ICC arbitration and the ICC terms of reference, which allow arbitrators to rule on their own jurisdiction, are “insufficient” to prove that Guinea agreed to arbitrate arbitrability.

The district court also independently determined that Guinea was not a party to the Arbitration Agreement. Taking a different view, the district court concluded that the Minister effected the signature as part of the Ministry’s responsibility to oversee the PTRA and held that the signature, without more, does not establish Guinea’s consent to be a party to the Arbitration Agreement. The court also refused to find consent on the basis that Guinea would benefit from and was involved in the execution of the Agreement. This rationale that the tribunal adopted, the court noted, rests on general principles of French contract law that do not “govern [the] [c]ourt’s analysis under the FSIA.”

Implied waiver

The district court also declined to exercise jurisdiction under the implied waiver exception.  GVG argued that Guinea waived its immunity by implication because it was a contracting party to the New York Convention and because it agreed to arbitrate in France—a contracting party to the Convention. The district court rejected the argument, putting it simply as “no arbitration agreement, no waiver.”

Amaplat Mauritus Ltd and Amari Nickel Holdings Zimbabwe Ltd., v. Zimbabwe Mining Development Corporation et al

Much is written about the application of the arbitration exception and the implied waiver exception to actions to enforce arbitration awards against foreign states, but little is said about whether these exceptions also extend to actions to enforce a foreign judgment confirming an arbitration award.

The D.C. Circuit answered this question in the negative in Amaplat Mauritus. This action arose from a contractual dispute between Mauritian companies—Amaplat Mauritius Ltd. (Amaplat) and Amari Nickel Holdings Zimbabwe Ltd. (Amari)—and Zimbabwe Mining Development Corporation (ZMDC). In 2007 and 2008, Plaintiffs entered into memorandum of understandings (MOUs) with ZMDC to form joint ventures and develop nickel and platinum mines. A few years later, ZMDC purported to terminate the MOUs, and Plaintiffs, relying on the arbitration agreements in the MOUs, initiated an ICC arbitration against ZMDC and the Chief Mining Commissioner of Zimbabwe’s Ministry of Mines. The ICC tribunal found ZMDC liable for breaching the MOUs and ordered it to pay approximately $46 million in damages. It also ordered ZMDC and the Chief Mining Commissioner to pay Plaintiffs’ legal costs and arbitration expenses.

About five years after they obtained the award, Plaintiffs sought and obtained a judgment confirming the arbitration award from the High Court of Zambia. Plaintiffs then brought an action to enforce the Zambia judgment against ZMDC, the Chief Mining Commissioner, and Zimbabwe before the D.C. District Court. Defendants challenged the district court’s jurisdiction. They argued that neither the arbitration exception nor the implied waiver exception allows the district court to exercise jurisdiction over the matter. While the district court agreed that the arbitration exception is inapplicable, it held that Plaintiffs properly invoked the implied waiver exception. Upon appeal by Defendants, the D.C. Circuit court concluded that neither exception applies.

Arbitration exception

For the D.C. District Court and D.C. Circuit, this was a clear-cut case in which the arbitration exception does not apply. Plaintiffs’ reliance on this exception, the district court noted, “runs into a textual roadblock.” The D.C. District Court held, and the D.C. Circuit affirmed, that the arbitration exception only applies to actions “brought[] either to enforce an agreement . . . to submit to arbitration . . . or to confirm an award made pursuant to such an agreement to arbitrate.” Section 1605(a)(6) makes no mention of a foreign judgment, not even a foreign judgment confirming an arbitration award.  The D.C. Circuit concluded that to extend Section 1605(a)(6) to foreign court judgments would be to collapse two related but distinct concepts.

Implied waiver

On this point, the D.C. Circuit and the D.C. District Court reached different conclusions. The district court held that the waiver exception applies to actions to enforce a foreign judgment confirming an arbitration award. In reaching its conclusion, the district court relied on a Second Circuit case—Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572 (2d Cir.1993). In Seetransport, the Second Circuit extended the implied waiver exception to an action to enforce a foreign judgment enforcing the award. The Second Circuit recognized that an action to enforce a foreign arbitration award and an action to enforce a foreign judgment are governed by different laws. Yet it determined that the latter cause of action falls “within the scope of Navimpex’s implicit waiver of sovereign immunity” because “the cause of action is so closely related to the claim for enforcement of the arbitral award.”

The D.C. Circuit declined to follow the path taken by Seetransport and endorsed by the District Court. It noted that, unlike other international conventions (e.g., Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, July 2, 2019, No. 58036), the New York Convention, which Plaintiffs present as evidence of waiver, “governs only the recognition and enforcement of arbitral awards. Similarly, the implementing legislation of the New York Convention—Chapter 2 of the Federal Arbitration Act—makes no mention of enforcement of foreign court judgment. Citing the New York Convention’s limited scope, the D.C. Circuit concluded that “asking whether foreign court judgments are closely related” to arbitral awards is too insubstantial a connection to establish strong evidence of a sovereign’s intent to waive its immunity.”

Conclusion

Guinea and Zimbabwe are not yet out of the woods. GVG has appealed the D.C. District Court’s decision to the D.C. Circuit, and Amaplat and Amari have petitioned the U.S. Supreme Court for a writ certiorari. Whether these decisions will withstand scrutiny remains to be seen.