In Getma Int'l v. Republic of Guinea, the US District Court for the District of Columbia has refused recognition and enforcement under the New York Convention of a foreign award against the Republic of Guinea ( (D.D.C. June 9, 2016)). The CCJA (the court created by the OHADA Treaty) previously set aside the award on the grounds that the arbitrators had improperly entered into a separate fee agreement with the parties (see Legal Update, OHADA CCJA court annuls €38 million arbitral award against Guinea).

The CCJA operates as a traditional arbitral administrator and as a multi-national court that is the authority competent to annul arbitral awards rendered under the CCJA rules. The CCJA sets arbitrator fees according to a fee schedule. The CCJA affirmed in 1999 that arbitrators' fees and expenses are set exclusively by the CCJA court, in accordance with the CCJA rules of arbitration, and that any separate arrangement between the parties and the arbitrators concerning their fees is null and void.

A dispute stems arose under a 2008 contract between Guinea and Getma International, a French cargo company, to develop and operate Guinea's main port in Conakry. Getma alleged that Guinea improperly terminated the contract without any compensation. The tribunal agreed with Getma and awarded it €38.5 million (US$42.4 million). Guinea convinced the CCJA court that the arbitral tribunal improperly sought enhanced fees for themselves. The CCJA had previously ordered the arbitral tribunal on multiple occasions to abandon its efforts to solicit increased arbitrators' fees from the parties. The tribunal ultimately issued an award in favor of Getma that did not include an increase in the fees. However, it continued to complain about the CCJA's practices concerning the fee issue and eventually collected €225,000 in fees from Getma in September 2014.

The CCJA court annulled the award. Its decision explained that the tribunal's demand for enhanced fees was in direct contravention of CCJA rules and rulings.

Getma sought enforcement in Washington, DC. Under US law, a court may deny confirmation, recognition, or enforcement of a New York Convention award if the award has been set aside by a competent authority of the country in which or under the arbitration law of which the award was made. Even if a New York Convention award has been set aside by a competent authority, a US court may grant recognition and enforcement of the award if either:

(See Article, Awards set aside at the seat of the arbitration: is enforcement still possible?)

The US court noted that the parties agreed to be bound by the CCJA arbitration rules and the CCJA court found that the tribunal violated those arbitration rules. Furthermore, while acknowledging that the arbitration process "was not without some unusual events," the US court's view was that those events were the result of the parties' negotiation of the dispute resolution clause in their contract. According to the US court, "[t]he parties must bear the consequences of those events, unless the events violate the "most basic notions of morality and justice." That standard was not met in this case. Noting that an arbitral award "does not exist to be enforced" if it has been lawfully set aside by a competent authority in the state in which the award was made, the US court therefore held that it could not confirm the award.

The US court's decision has given rise to a good deal of discussion among commentators, although much of it has focused on the underlying award and arbitration process, especially the disagreement between the arbitrators and the CCJA regarding the arbitrators' fees. Some commentators regard the annulment of the award as entirely appropriate (given the arbitrators ignored the CCJA rules) and others suggest that the CCJA could have taken a more rigorous approach during the arbitration. Either way, the decision illustrates the high threshold to be overcome to persuade a US court to enforce a New York Convention award that has been set aside at the seat of arbitration.