* This text was reproduced and reformatted from the text available at the United States Court of Appeals for the Second Circuit website (visited March 31, 2014), http://www.ca2.uscourts.gov/decisions/isysquery/5226405d-440d-4f5b-80a0-5ef1d4508445/2/doc/12-4139_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5226405d-440d-4f5b-80a0-5ef1d4508445/2/hilite/.

1 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1270, T.I.A.S. 6090, 575 U.N.T.S. 159 [hereinafter ICSID Convention].

2 Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (codified in scattered sections of 28 U.S.C.).

3 At least where the arbitration was to be held in the United States. See, e.g., Maritime Ventures Int’l, Inc. v. Caribbean Trading and Fidelity, Ltd., 689 F.Supp. 1340 (S.D.N.Y. 1988).

4 28 U.S.C. § 1605(a)(6) (2006).

5 See, e.g., Capital Ventures Int’l v. Republic of Argentina, 552 F.3d 289 (2d Cir.), cert. denied, 558 U.S. 938 (2009).

6 Blue Ridge Inv., L.L.C. v. Republic of Argentina, 735 F.3d 72, 76-77 (2d Cir. 2013).

7 ICSID Convention, supra note 1, art. 54 (codified at 22 U.S.C. § 1650a(a)). In full, Article 54 provides:

1. (1)

   (1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.

2. (2)

   (2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.

3. (3)

   (3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.

8 Blue Ridge Inv., L.L.C. v. Republic of Argentina, 902 F. Supp. 2d 367 (S.D.N.Y. 2012).

9 Blue Ridge Inv., 735 F.3d at 79-83.

10 Id. at 85.

11 See, e.g., Thai-Lao Lignite (Thailand) Co., Ltd. v. Government of the Lao People’s Democratic Republic, 924 F. Supp. 2d 508 (S.D.N.Y. 2013).

12 See EM Ltd. v. Republic of Argentina, 695 F.3d 201 (2d Cir. 2012), cert. granted sub nom. Rep. of Argentina v. NML Capital, Ltd., 134 S. Ct. 895 (Jan. 10, 2014).

1 Judge Guido Calabresi, originally assigned to the panel, recused himself from this case shortly before oral argument. The two remaining members of the panel, who are in agreement, have determined the matter in accordance with Second Circuit Internal Operating Procedure E(b). See 28 U.S.C. § 46(d) & n.1; cf. United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).

2 Title 28 U.S.C. §1605(a)(1) provides that:

3 Title 28 U.S.C. § 1605(a)(6) provides, in relevant part, that:

4 CMS later purchased an additional 4.42% of TGN for a total ownership interest of 29.42%.

5 We have seen much litigation arising from Argentina’s economic crisis in the late 1990s and early 2000s and its corresponding defaults on various sovereign obligations. See, e.g., NML Capital, Ltd. v. Banco Central de la Republica Argentina, 652 F.3d 172, 175 (2d Cir. 2011) (noting “the preeminence of the Republic of Argentina . . . in the sorry history of defaults on sovereign debt”); EM Ltd. v. Republic of Argentina, 473 F.3d 463, 466 n.2 (2d Cir. 2007) (noting, inter alia, “that Argentina has made many contributions to the law of foreign insolvency through its numerous defaults on its sovereign obligations”).

6 This agreement was approved by the Argentine public regulatory agency of the gas industry, ENARGAS.

7 Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides: “Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. . . .”

8 Because an ICSID Convention award is entitled to “the same full faith and credit” as a final judgment of a state court, see 22 U.S.C. § 1650a(a), district courts in this Circuit have, at times, relied on the procedures of the New York Civil Practice Law and Rules to determine whether an ICSID award is enforceable. See Siag v. Arab Republic of Egypt, No. M-82, 2009 WL 1834562, at *2-3 (S.D.N.Y. June 19, 2009); see also N.Y. CPLR § 5401 (providing procedures to enforce “any judgment . . . of a court of the United States or any other court which is entitled to full faith and credit in this state”) (emphasis supplied).

9 In relevant part, Federal Rule of Civil Procedure 41(a)(2) provides:

10 Title 28 U.S.C. § 1292(b) provides:

11 Argentina concedes (and Blue Ridge agrees) that, absent a certificate of appealability from the District Court, we lack jurisdiction to review the District Court’s order of September 30, 2012 insofar as it concerns Argentina’s res judicata and statute of limitations defenses. See Reply Br. 23, 27; see also Blue Ridge Br. 30-31. As the District Court has not issued a certificate of appealability, we do not consider those two issues for lack of appellate jurisdiction.

12 Exercising pendent appellate jurisdiction allows us to “review a non-final order if it is ‘inextricably intertwined’ with or otherwise ‘necessary to ensure meaningful review’ of an appealable order.” Swarna v. Al-Awadi, 622 F.3d 123, 141 (2d Cir. 2010) (quoting Toussie v. Powell, 323 F.3d 178, 184 (2d Cir. 2003)).

13 Title 28 U.S.C. § 1291 provides, in relevant part: “The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States. . . .”

14 Federal Rule of Civil Procedure 60(b)(4) provides: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding . . . [because] the judgment is void. . . .”

15 The Figueiredo Ferraz Court also considered the other issues decided by the district court—forum selection, comity, and forum non conveniens—because the district court had certified those issues for appeal. 665 F.3d 390-91. As noted above, no such certification has been made in this case.

16 Indeed, Argentina describes this issue in terms of “standing.” See Reply Br. 14 (“The district court erred in not dismissing the petition for lack of standing under the ICSID Convention.” (emphasis and capitalization omitted)).

17 Although the District Court noted Argentina’s argument that “[it] did not make an agreement to arbitrate ‘with’ . . . [or] ‘for the benefit of’ [Blue Ridge],” Blue Ridge Invs., 902 F. Supp. 2d at 373 (first alteration in original), it held that“[n]othing in the plain language of th[e] [FSIA] provision suggests that an action ‘to confirm an award made pursuant to . . . an agreement to arbitrate” must be brought by the party that entered into the arbitration agreement with the foreign state.” Id. at 375 n.7 (emphasis supplied) (omission in original) (quoting 28 U.S.C. § 1605(a)(6)).

18 Indeed, in Rux, Sudan argued that the Fourth Circuit should exercise pendent appellate jurisdiction and consider the DOHSA standing issue because “[i]f Plaintiffs have no standing to bring the claims asserted, the Court’s decision on the FSIA issue will be an advisory opinion.” 461 F.3d at 476 (internal quotation marks omitted). But, as the Fourth Circuit recognized, the same argument could be made with regard to any affirmative defense. See id. (“We have decided the issue of subject matter jurisdiction based on a concrete set of facts in the context of a live controversy between the parties. The fact that Plaintiffs’ case might eventually succumb to a dispositive defect, such as lack of standing, does not alter the concrete nature of the dispute before us today or the propriety of our ruling.”).

19 Because we do not exercise pendent appellate jurisdiction to consider the District Court’s decision that Blue Ridge, as an assignee, can state a claim to confirm the Award, we, of course, express no view as to the merits of that conclusion.

20 We are mindful that courts, including our own, have unintentionally used certain terms of art of public international law interchangeably, but we take this opportunity to recall that, “[u]nder general principles of treaty law, a State’s signing of a treaty serves only to authenticate its text; it does not establish the signatory’s consent to be bound. A State only becomes bound by—that is, becomes a party to—a treaty when it ratifies the treaty.” Flores v. S. Peru Copper Corp., 414 F.3d 233, 256 (2d Cir. 2003) (emphasis in original) (internal quotation marks, citation, and alteration marks omitted). As a general matter, “[t]he United States becomes a ‘party’ to a treaty—that is, becomes contractually bound to obey its terms—only when, upon concurrence of ‘two thirds of the Senators present,’ U.S. Const. art. II, § 2, cl. 2, the President ratifies the treaty.” Id. at 256 n.32 (emphasis supplied). It is only upon ratification that the United States, or any other country, becomes bound by a treaty—that is, becomes a “contracting state.” Argentina has been a party to the ICSID Convention since 1994. The United States has been a party to the ICSID Convention since 1966. See List of Contracting States and Other Signatories to the Convention, Int’l Ctr. for the Settlement of Inv. Disputes, available at https://icsid.worldbank. org/ICSID/FrontServlet?requestType_ICSIDDocRH&actionVal=ContractingStates&ReqFrom=Main.

21 In reaching this conclusion, we note that the only other court in this Circuit to have considered this issue reached the same conclusion. See Liberian E. Timber Corp. v. Gov’t of Republic of Liberia, 650 F. Supp. 73, 76 (S.D.N.Y. 1986), aff’d without opinion, 854 F.2d 1314 (2d Cir. 1987) (“Liberia, as a [party] to the [ICSID] Convention, waived its sovereign immunity in the United States with respect to the enforcement of any arbitration award entered pursuant to the Convention.”).

22 After the United States became a party to ICSID Convention, Congress passed “implementing legislation,” which provided that “[a]n award of an arbitral tribunal rendered pursuant to chapter IV of the [ICSID Convention] shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.” 22 U.S.C. § 1650a(a).

23 Of course, in concluding that awards issued pursuant to the ICSID Convention fall within the arbitral award exception to the FSIA under 28 U.S.C. § 1605(a)(6), we have no reason to consider the distinct question of whether Argentina may assert immunity from the execution of judgment over specific assets. See, e.g, NML Capital, Ltd. v. Republic of Argentina, 680 F.3d 254, 257 (2d Cir. 2012) (“As a general matter, the property of a foreign state present in the United States is immune from execution in satisfaction of a debt. Such property may be attached and executed upon only when one of the FSIA’s exceptions applies.” (citing 28 U.S.C. § 1609)).