IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MOHAMED ABDEL RAOUF BAHGAT
Aleksis Kiven Katu 11 Ab36 Helsinki, 00519
Finland,
Plaintiff, v.
THE ARAB REPUBLIC OF EGYPT Egyptian State Lawsuits Authority 42 Gameat El Dowal El Arabiya St.
Mohandeseen, Giza, Egypt,
Defendant.
Civil Action No. 20-cv-02169-TNM
DECLARATION OF DAN TAN
IN SUPPORT OF REQUEST FOR CLERK TO ENTER DEFAULT I, DAN TAN, do hereby declare as follows:
1. I am an attorney of record for Plaintiff and Arbitration Award Creditor Mohamed Abdel Raouf Bahgat (“Plaintiff” or “Petitioner”) in this case. I make this Declaration based on my personal knowledge in support of Plaintiff’s request for the Clerk to enter default against the Arab Republic of Egypt (“Defendant”, “Respondent” or
“Egypt”).
2. On 3 November 2011, Plaintiff commenced an arbitration against Egypt for breach of the investor protections contained in the Agreement Between the Government of the Republic of Finland and the Government of the Arab Republic of Egypt on the Mutual Protection of Investments, dated 5 May 1980 and entered into force on 22 January 1982 (“1980 BIT”) and the Agreement Between the Government of the Republic of Finland and the Government of the Arab Republic of Egypt on the
on 5 February 2005 (“2004 BIT”), through a Notice of Arbitration pursuant to Article 9(2)(d) of the 2004 BIT. See ECF # 1-5, ECF # 1-6 and ECF # 1-8. In addition, and/or in the alternative, Plaintiff brought claims against Egypt for (i) violations of the 1980 BIT, under Article 7(2) of that treaty, and (ii) violations of Egyptian Investment law.
3. On November 30, an arbitral tribunal duly constituted under the auspices of the Permanent Court of Arbitration, and in accordance with the UNCITRAL Rules, rendered a Jurisdiction Decision. In its Jurisdiction Decision, the arbitral tribunal decided unanimously that it had jurisdiction over the dispute, and reserved all questions concerning the merits, costs, fees, and expenses for subsequent determination. ECF # 1-9.
4. On December 23, 2019, the arbitral tribunal issued the Final Award in Plaintiff’s favor, in which it found that Egypt had expropriated Plaintiff’s investment and failed to accord fair and equitable treatment, as required by the 1980 and 2004 BITs, and awarded him the following:
• USD 43.77 million as compensation for the losses caused by Egypt’s breaches of the 1980 BIT and 2004 BIT;
• Interest on the amount of USD 43.77 million at the rate of USD 12 month LIBOR + 2% compounded annually from the date of expropriation (19 February 2000) until the date upon which payment is made;
• EUR 650,584.85, GBP 6,169,320.48 and USD 900,000 representing 90% of the reasonable costs fixed by the Tribunal; and
• Interest on the costs amounts at the rate of USD 12 month LIBOR + 4%
ECF # 1-1, ¶ 618.
5. On Aug 7, 2020, Plaintiff filed this action to enforce the pecuniary obligations of and give full faith and credit to the Final Award. See ECF # 1. The Petition set fourth four claims for relief under 9 U.S.C. § 207. Id. ¶¶ 30-43.
6. Egypt has started set aside proceedings before a District Court in the Hague, which are pending. In the meantime, the Final Award is still enforceable in the Netherlands because Egypt has not applied to stay enforcement. Plaintiff has initiated
enforcement actions in various jurisdictions. He has begun to enforce the Final Award in the Netherlands and obtained an exequatur order from the District Court in The Hague on 26 February 2020. He has also recently obtained an exequatur order in France, with the result that the Final Award is immediately enforceable in that jurisdiction as well.
7. On October 16, 2020, in compliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial matters (the
“Hague Service Convention”), Plaintiff couriered (i) a duly-executed and notarized USM-94 “Request for Service Abroad of Judicial or Extrajudicial Documents” in duplicate English and Arabic versions, together with duplicate English and Arabic copies of: (ii) the Summons, (iii) Petition to Confirm Arbitration, (iv) Petition to Confirm Documents, (v) Memo of Law in Support, Fietta Decl., (vi) Civil Cover Sheet, and (vii) six supporting exhibits to the Central Authority designated by Egypt for international service of process pursuant to the Hague Service Convention. A true and correct copy of the duly executed and notarized USM-94 form is attached as Exhibit 1.
8. Delivery to the Central Authority was made on October 20, 2020 and signed for on that date by “MOHAMED”, an employee of the Central Authority. A true and correct copy of the proof of delivery is attached as Exhibit 2.
9. Egypt’s “Central Authority” is the Ministry of Justice, Egypt, Magles El Shaab St., Lazoughly Sq., Lazoughly. A true and correct copy of “practical information” on service under the Hague Convention on Private International Law provided by Egypt, and designating Egypt’s Central Authority is attached as Exhibit 3.
10. Although Plaintiff never received a service certificate from Egypt’s Central Authority as required by the Hague Service Contention, Article 15 of the Hague Service
Convention provides two exceptions to the certificate requirement—one general exception and one specific to cases involving a defaulting party.
11. Plaintiff meets the requirements for the general exception, which provides that service without a return certificate may be proper if “the document was actually delivered to the defendant… in sufficient time to enable the defendant to defend.” Hague Service Convention, Art. 15, ¶ 1(b). Service is deemed effective “as of the date of receipt indicated in the… signed and returned postal receipt.” 28 U.S.C. § 1608(c)(2) (emphasis added).
12. Plaintiff sent the completed USM-94 Form to Egypt’s Ministry of Justice as the Central Authority and the party to be served. When MOHAMED signed for the service documents, he accepted the document both as representative of Egypt’s Central Authority and as employee of Egypt itself, as service was on Egypt’s Ministry of Justice as representative of Egypt. Service on Egypt was thus complete as of
October 20, 2020 because Egypt was itself the party to be served and no further action
13. Egypt has failed to respond within 60 days of service of Plaintiff’s Petition as required under 28 U.S.C. § 1608(d). Egypt has filed no pleadings and served none upon
Plaintiff or his counsel. Likewise, Egypt has received no extension of its time to seek an extension and its time to do so has expired. Egypt is neither an infant nor an incompetent person.
14. Plaintiff also satisfies the requirements for the specific exception which provides that a court may enter judgement against a defaulting party “even if no certificate of service or delivery has been received.” Hague Service Convention, Art. 15, ¶ 2. This exception has three conditions: (i) the documents were “transmitted” via a method provided for in the Hague Service Convention, (ii) a period of time—not less than six months—considered “adequate” by the judge has passed since document
transmission, and (iii) “no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.” Id.
15. Here, Plaintiff “transmitted” his service documents via DHL courier to the Egypt’s Central Authority. The Hague Service Convention provides for this method of
service. Koch Minerals Sàrl v. Bolivarian Republic of Venezuela Civil Action No. 17- cv-2559-ZMF *16 (D.D.C. Dec. 23, 2020); Marschhauser v. Travelers Indemnity Co., 145 F.R.D. 605, 607, 609 (S.D. Fla. 1992) (finding the use of FedEx to send
documents to a foreign state’s Central Authority proper) (both addressing service by FedEx). An “adequate” period of over six months has passed since the time Plaintiff first delivered the documents. Plaintiff has also not received any certificate from Egypt. Since all three requirements are met here, Plaintiff does not need a certificate to proceed with this litigation.
16. The Clerk is respectfully requested to enter a default against Egypt.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on 14 May 2021.
________________________
Dan Tan
(Bar ID: 999803) DAN TAN LAW 305 Broadway Suite 750
New York, NY 10007 Email: dan@dantanlaw.com Phone: 646-680-0080
Attorney for Plaintiff Mohamed Abdel Raouf Bahgat
