United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2016 Decided December 27, 2016
No. 15-7121
ENRON NIGERIA POWER HOLDING, LTD.,
APPELLEE
v.
FEDERAL REPUBLIC OF NIGERIA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01106)
David Elesinmogun argued the cause and filed the briefs for
appellant.
Kenneth R. Barrett argued the cause and filed the briefs for
appellee.
Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In 1999, the Republic of Nigeria
entered into a power purchase agreement (“PPA”) with Enron
Nigeria Power Holding, Ltd. (“ENPH”), for construction of
2
electrical facilities. Days later, Nigeria suspended
implementation of the PPA, and after years of attempted
renegotiation over one phase of construction proved fruitless,
ENPH filed under the PPA for arbitration by the International
Chamber of Commerce’s International Court of Arbitration
(“ICC”). The ICC issued an Award in ENPH’s favor. When
collection efforts failed, ENPH filed a petition for confirmation
and enforcement of the Award in the federal district court here.
Nigeria now appeals from the order granting enforcement of the
Award.
Invoking Article V(2)(b) of The Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
(known as the “New York Convention”), 21 U.S.T. 2517,
Nigeria contends that enforcement of the Award violates the
public policy of the United States not to reward a party for
fraudulent and criminal conduct. It maintains that ENPH and
Enron International Corporation (“Enron”) are alter egos, and,
alternatively, that ENPH made false and fraudulent
representations about Enron to induce Nigeria to enter the PPA.
Although the question whether enforcement of the Award
should be denied on public policy grounds is a question for the
courts to answer, the interpretation of the PPA, by its terms, was
for the ICC. The ICC’s findings, to which an enforcing court
owes substantial deference, doom Nigeria’s public policy
defense in the absence of evidence or equities warranting the
piercing of Enron’s corporate veil. Accordingly, for the
following reasons, we affirm the order enforcing the Award.
I.
The New York Convention is a multilateral treaty that, with
exceptions, obligates participating countries to honor
international commercial arbitration agreements and to
recognize and enforce arbitral awards rendered pursuant to such
3
agreements. Comm’ns Import Export S.A. v. Republic of the
Congo, 757 F.3d 321, 324 (D.C. Cir. 2014). The United States
and Nigeria are signatories to the Convention, 21 U.S.T. 2517,
and Chapter 2 of the Federal Arbitration Act implements the
Convention. 9 U.S.C. §§ 201–08. The FAA provides that the
court “shall confirm the award unless it finds one of the grounds
for refusal or deferral of recognition or enforcement of the
award specified in the said Convention.” Id. § 207. Article V
of the Convention sets forth the grounds for refusal or deferral
of enforcement. As relevant, Article V(2)(b) of the New York
Convention provides:
Recognition and enforcement of an arbitral award may
also be refused if the competent authority in the
country where recognition and enforcement is sought
finds that . . . [t]he recognition or enforcement of the
award would be contrary to the public policy of that
country.
The following facts found by the ICC bear on Nigeria’s
appeal. In 1999, Lagos State, a regional government in Nigeria,
was “in desperate need of energy.” ICC Partial Award (“ICC”)
¶ 45 (incorporated by reference in the Final Award). By letter
of June 19, 1999, Enron International expressed interest in
working with Lagos State, stating that “Enron is the highest
ranking power and gas company and is the leading company
worldwide in such industry.” ICC ¶ 246. A month later, Enron
formed ENPH as a special-purpose vehicle to construct and
operate power plants in Lagos State. ICC ¶ 2. The following
month, Lagos State entered into a Memorandum of
Understanding (“MOU”) on the first and second phases of the
construction project with ENPH and YFP (a Nigerian power
company) in which it was agreed that the companies and their
affiliates (including Enron) had the technical and financial
capacity to perform the project, having developed gas pipelines
4
in the United States, Colombia, Bolivia, and Brazil, and electric
power plants worldwide. ICC ¶ 247. On November 17, 1999,
ENPH representatives and an employee of Enron International
met with representatives of Nigeria, including President
Obasanjo of Nigeria and the Governor of Lagos State. At the
meeting, ENPH gave a PowerPoint presentation touting Enron’s
vast financial and technical capabilities and describing Enron as
the company with which ENPH was “affiliated.” ICC ¶¶ 239-
40.
On December 6, 1999, Nigeria, Lagos State, the National
Electric Power Authority of Nigeria (“NEPAN”), and ENPH
executed the PPA, with ENPH as “Owner” of the energy
facilities, Lagos State as “Purchaser” of the energy, NEPAN as
regulator of the facilities it would connect to Nigeria’s power
grid, and Nigeria as “Guarantor.” PPA Recitals (Dec. 6, 1999);
ICC ¶¶ 25, 28. Enron was not a party to the PPA, nor was its
participation in the construction project mentioned in the PPA.
ICC ¶ 243. The PPA provided for three phases of construction:
Phase I, three offshore, barge-mounted electricity generating
units; Phase II, an on-shore power plant in Lagos; and Phase III,
an additional set of barge-mounted units. PPA Clause 1; ICC
¶ 27. As regards Phase II, ENPH’s obligations were contingent
upon satisfaction of certain conditions by December 31, 2000,
including possession of a plant site, all necessary easements
from Lagos State and Nigeria, and a security letter of credit.
PPA Clause 3.1. ENPH was authorized to seek independent
“financing for at least 70 percent of the full capital costs” of the
onshore power plant, pipeline, and other Phase II facilities. PPA
Clause 3.1(iii). The parties were bound to use all reasonable
efforts to ensure that the conditions were timely satisfied. PPA
Clause 3.2. Additionally, the PPA provided that all disputes not
informally resolved between the parties would be settled by
binding arbitration under the Rules of Arbitration of the ICC.
PPA Clause 23.3.
5
Nine days after the PPA was executed, NEPAN wrote to
ENPH that implementation of the PPA was “stayed until further
notice.” ICC ¶ 50 (quoting NEPAN Ltr. Dec. 15, 1999). Five
days earlier, the World Bank had written to Nigeria, Lagos
State, and NEPAN to express economic criticisms of a draft of
the PPA. ICC ¶ 49. Nigeria’s President informed Lagos State
in January 2000 that the Attorney General of Nigeria had
concluded the PPA was invalid under Nigerian law and
suggested that the PPA be renegotiated. ICC ¶ 52. In June
2000, the parties agreed to an amended PPA regarding Phases I
and III — along with Enron Nigeria Barge Ltd., to which ENPH
had transferred its rights and obligations with respect to those
phases. ICC ¶¶ 51, 60. Thereafter, AES Nigeria Holdings Ltd.
(“AES”) acquired the rights to Phases I and III, along with an
option to purchase Phase II, provided agreement was reached
with Nigeria on amending the PPA. ICC ¶ 61.
In November 2001, Enron’s collapse became public
knowledge, and it filed for Chapter 11 bankruptcy protection on
December 2, 2001. ICC Final Award (“ICC Award”) ¶ 40. The
same day, ENPH wrote to the Nigerian parties that ENPH would
be unaffected by the bankruptcy and remained free to perform
its obligations under Phase II. ICC Award ¶ 41. Nigeria
apparently did not respond. AES contacted ENPH to express
interest in extending its Phase II option; ENPH did not respond
and the option expired. ICC Award ¶ 42; ICC ¶ 66. Three years
later, ENPH wrote to Nigeria seeking to implement Phase II.
ICC Award ¶ 43. In November 2005, after various
communications, Nigeria confirmed that Phase II “was
suspended and remains so.” ICC Award ¶ 43 (quoting NEPAN
Ltr. Nov. 22, 2005).
On June 12, 2006, ENPH filed a Request for Arbitration
with the ICC regarding Phase II. The ICC found that Nigeria’s
6
December 1999 suspension of the PPA was an anticipatory
breach, but of no legal effect. ICC ¶¶ 395, 398. Nigeria had
argued that because ENPH did not accept the anticipatory
breach, the other parties were entitled to void Phase II of the
PPA as a result of Enron’s 2001 collapse. The ICC disagreed,
finding that Nigeria and NEPAN had breached the PPA almost
a year prior to Enron’s collapse, when the December 31, 2000
deadline for satisfying Phase II conditions passed without any
effort to meet those conditions. ICC ¶ 404. The ICC also found
that the breach was “mainly for commercial reasons,” ICC
¶ 416, and that but for concerns over price, “it would appear that
the Nigerian Government would have been happy to proceed
with the Original PPA,” ICC Award ¶ 122. Nigeria’s earlier
view that the PPA was void because it violated Nigerian law was
not advanced in arbitration, leading the ICC to conclude that the
legal objection was not well-founded. ICC ¶ 411. Due to the
breach by Nigeria and NEPAN, the ICC found, ENPH and
Lagos State could not be held responsible for failing to use all
reasonable efforts to perform their obligations given the
deadlock caused by Nigeria and NEPAN. ICC ¶¶ 421, 454.
The ICC rejected several affirmative defenses that bear on
Nigeria’s current public-policy defense to enforcement of the
Award. The ICC found that Enron was not a party to the PPA,
nor was its participation in the project an express or implied
contract term. ICC ¶¶ 203, 206. The PPA included an
integration clause whereby the PPA constituted the entire
agreement between the parties, which, the ICC reasoned, was a
term Nigeria would never have agreed to if there had been a
separate understanding that Enron would participate in Phase II.
ICC ¶ 202. The ICC also found that there was no reason to infer
that Enron’s participation was necessary to ENPH’s
performance of Phase II because the PPA contemplated that
ENPH would “cause” the design and construction of the facility
and “cause” the financing of the project by subcontracting with
7
third parties (not necessarily Enron). ICC ¶¶ 188-194. For the
same reasons, the ICC declined to find a collateral contract
between Enron and Nigeria. ICC ¶ 210.
The ICC further rejected Nigeria’s arguments that it had
been induced to enter into the PPA because of fraud or
misrepresentation. Allegedly false statements regarding the
financial attributes of Enron made at the November 1999
PowerPoint presentation to President Obasanjo were not
relevant, the ICC found, because of the legal framework of the
PPA. ICC ¶ 242. Enron was not a party to the PPA and there
was “no clear evidence” that these statements induced Nigeria
to enter the PPA. ICC ¶ 242. Not only was there was no reason
to think the parties confused Enron with ENPH, ICC ¶ 240, the
PPA contained no express or implied guarantee from Enron as
the parent company, ICC ¶ 242, and there was no evidence that
the statements regarding Enron’s technical capabilities were
false. ICC ¶¶ 239–241. Further, the ICC noted, as to financial
capability, the PPA provided ENPH had “recourse to
independent financing of at least 70% of the full capital costs in
the absence of any pre-identification of the entity or entities
which might have financed the project.” ICC ¶ 242 (quoting
PPA Clause 3.1(iii) (emphasis added)). No misrepresentations
were shown to be contained in Enron International’s June 1999
letter to Lagos State and, in any event, the letter related to Enron
and not ENPH. ICC ¶ 246. Similarly, the prior MOU regarding
the financial and technical capabilities of ENPH, YFP, and their
affiliates referred to Enron, not the recently incorporated ENPH.
ICC ¶ 247. If the financial and technical capabilities of Enron
and its affiliates were so important as to induce Nigeria to enter
the agreement, the ICC reasoned, then Nigeria could have
sought inclusion of a statement to that effect in the PPA. ICC
¶ 248. The ICC also rejected arguments that ENPH implicitly
misrepresented its own capabilities by entering into a contract
that it was incapable of performing inasmuch as the PPA
8
contemplated ENPH obtaining assistance from third parties.
ICC ¶ 249-51. So too, the ICC found that Enron’s accounting
fraud had no connection to ENPH or to Phase II of the PPA.
ICC ¶ 256-57. Evidence showed only that Enron and Merrill
Lynch, Pierce, Fenner & Smith engaged in a sham transaction,
allowing Enron to “book” an imaginary $12 million profit,
relating to Enron’s Nigerian barges constructed under Phases I
and III of the PPA. Id.; see also United States v. Brown, 459
F.3d 509, 514–16 (5th Cir. 2006).
Finally, regarding the amount of damages to be awarded to
ENPH, the ICC acknowledged that Phase II had attractive
prospects on paper but found that it never got off the ground and
that if it had, the collapse of Enron “would almost certainly have
stopped [it] in its tracks.” ICC Award ¶¶ 97-98, 105. That is,
because the project was conceived under the assumption that
Enron and its subsidiaries would construct and finance the Phase
II facilities, Enron’s collapse would have forced ENPH to find
new contracting partners and financing. ICC Award ¶¶ 101-103,
105-06. The ICC accordingly found that ENPH’s claim of $494
million in expected profits was too speculative and that instead
“loss of chance” damages were appropriate. ICC Award ¶¶ 109-
111. AES’s unexercised option to purchase Phase II could have
earned ENPH as much as $34 million, depending on the terms
of an amended PPA. ICC Award ¶ 120. Finding a one-third
chance the contingencies would have been met to allow AES to
exercise the option, the ICC awarded ENPH $11.22 million in
damages, plus 2% interest, legal costs and expenses. ICC
Award ¶¶ 127, 175 (Nov. 19, 2012).
On July 19, 2013, after efforts to collect proved
unsuccessful, ENPH filed a petition for confirmation of the
Award in the United States District Court for the District of
Columbia, pursuant to 9 U.S.C. § 207. Nigeria moved to quash
service and dismiss the petition, arguing that ENPH failed to
9
properly effect service, that the district court lacked jurisdiction
due to Nigeria’s sovereign immunity, and that enforcement of
the Award would violate United States public policy. Upon
allowing ENPH to accomplish service through alternative means
under the Foreign Sovereign Immunities Act, the district court
granted ENPH’s motion to confirm the Award, having ruled that
Nigeria had waived its sovereign immunity in the PPA and had
failed to show why enforcement should be denied on public
policy grounds simply because an Enron-related entity is
involved.
II.
On appeal, Nigeria contends that enforcement of the ICC’s
Award to ENPH should have been denied pursuant to Article
V(2)(b) of the New York Convention because its enforcement
would violate the longstanding public policy that “no one shall
be permitted to profit by his own fraud, or to take of his own
wrong, or to found any claim upon his own iniquity or to acquire
property by his own crime.” Appellant’s Br. 17 (quoting Riggs
v. Palmer, 115 N.Y. 506, 511 (1889), and citing Stone v.
Freeman, 298 N.Y. 268, 271 (1948)). ENPH presents several
threshold objections to Nigeria’s appeal.
A.
In ENPH’s view, Nigeria has failed to identify a well-
defined public policy. See, e.g., United Paperworks Int’l Union
v. Misco, Inc., 484 U.S. 29, 43 (1987). Nigeria’s position is that
the district court erred by enforcing an award based on a
contract that was tainted by fraud. ENPH acknowledges that
enforcing a contract with an illegal purpose would violate public
policy. See Appellee’s Br. 31. Hence, it is difficult to
understand how enforcing a contract induced by fraud would
not.
10
In Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Board, 502 U.S. 105 (1991), the Supreme Court
observed that “most if not all States . . . ha[ve] long recognized
the fundamental equitable principle that ‘no one shall be
permitted to profit by his own fraud,’” noting state statutes to
that effect. Id. at 119 (quoting Riggs, 115 N.Y. at 511-12)
(internal quotation marks and citation omitted). In Riggs, the
New York Court of Appeals held that it would violate
“universal” public policy to allow a grandson to inherit his
grandfather’s estate after he murdered the grandfather to prevent
his being cut out of the will. 115 N.Y. at 508-09, 511-12.
Likewise, in Stone, 298 N.Y. 268, the New York Court of
Appeals recognized that “[i]t is the settled law of this State (and
probably of every other State) that a party to an illegal contract
cannot ask a court of law to help him carry out his illegal
object.” Id. at 271. It thus dismissed a suit by one conspirator
seeking reimbursement for a bonus it paid illegally to a co-
conspirator. Id. at 270.
ENPH attempts to limit Riggs and Stone to their facts, but
the New York Court of Appeals recognized — and the Supreme
Court affirmed in Simon and Schuster — that each of those
cases rests on the “fundamental equitable principle” preventing
courts from being made parties to fraud or other criminal acts.
Simon and Schuster, 502 U.S. at 119 (quoting Children of
Bedford, Inc. v. Petromelis, 77 N.Y.2d 713, 727 (1991)); Stone,
298 N.Y. at 271; Riggs, 115 N.Y. at 511-12. Indeed, this
principle is so well-established that it underlies numerous
federal statutes, such as a requirement that any person convicted
of engaging in a continuing criminal enterprise “shall
forfeit . . . claims against, and property or contractual rights
affording a source of control over, the continuing criminal
enterprise.” 21 U.S.C. § 853(a)(3).
Consequently, Nigeria has adequately identified a well-
11
defined public policy for purposes of determining whether
enforcing the Award would be repugnant to that policy.
B.
ENPH also maintains Nigeria has contractually waived any
right to challenge the Award. The PPA provides that “any
determination or award [by the ICC] shall be final and binding
on all parties,” and that the parties “expressly waive, to the
fullest extent permitted by applicable law, any right to challenge
an award by the arbitrators anywhere outside the place of
arbitration agreed herein.” PPA Clause 23.3.5. ENPH
concludes that Nigeria’s failure to challenge the award in
London, Great Britain, where the arbitration took place, means
that U.S. courts were divested of jurisdiction to address
Nigeria’s enforcement challenge.
ENPH has confused Article V(1) of the New York
Convention, which addresses procedural grounds for refusing to
enforce “at the request of the [liable] party,” with Article
V(2)(b) of the Convention, which addresses public-policy
grounds on which a court may refuse to enforce “if the [court]
finds” on its own initiative that such grounds exist. N.Y.
Convention, art. V; RESTATEMENT (THIRD) OF THE U.S. LAW OF
INT’L COMMERCIAL ARBITRATION § 2-16(a) (2015). As Nigeria
responds, parties cannot waive their rights under Article V(2)(b)
because public policy violations implicate the integrity of the
enforcing court. See Hurd v. Hodge, 334 U.S. 24, 34-35 (1948);
RESTATEMENT (THIRD) OF THE U.S. LAW OF INT’L COMMERCIAL
ARBITRATION § 2-16(b) (2015). Under the PPA, the parties only
waived their rights “to the fullest extent permitted by applicable
law.” PPA Clause 23.3.5.
The implementing statute authorizes federal courts to
enforce arbitral awards under the New York Convention, 9
U.S.C. §§ 201, 207, which in turn, authorizes the enforcing court
12
to deny enforcement where doing so would be contrary to the
public policy of the jurisdiction in which enforcement is sought,
N.Y. Convention, art. V(2)(b). This is distinct from Article
V(1)’s procedural defenses, which the parties do not dispute can
be waived. See Employers Ins. of Wausau v. Banco De Seguros
Del Estado, 199 F.3d 937, 942 (7th Cir. 1999). Although the
agreement by Nigeria and ENPH to arbitrate disputes arising
under the PPA meant the interpretation of their agreement was
delegated to the ICC, see Oxford Health Plans LLC v. Sutter,
133 S. Ct. 2064, 2070-71 (2013), “as with any contract,
however, a court may not enforce . . . an agreement that is
contrary to public policy.” W.R. Grace & Co. v. Local Union
759, Int’l Union of United Rubber Workers of Am., 461 U.S.
757, 766 (1983). The Supreme Court reemphasized in W.R.
Grace that “the question of public policy is ultimately one for
resolution by the courts,” and thus, if enforcement of the Award
based on the ICC’s interpretation of the PPA violates a public
policy of the United States, as Nigeria contends, then the district
court was “obligated to refrain from enforcing it.” Id.; see Hurd,
334 U.S. at 34–35; cf. Noonan v. Gilbert, 68 F.2d 775, 776 (D.C.
Cir. 1934). The Court’s analysis of the public policy issue
extended not only to the arbitral award but also to the underlying
contract. W.R. Grace, 461 U.S. at 768-69 & n.13.
Nigeria could not waive an Article V(2)(b) public-policy
defense to enforcement of the Award simply as a result of
agreeing to challenge the Award only in London, where the
arbitration occurred. That would effectively negate the court’s
authority to deny enforcement under both Article V(2)(b) of the
Convention and Section 207 of the FAA, elevating the parties’
contractual choices above the fundamental need of the federal
courts to protect their own integrity.
13
C.
ENPH also invokes the doctrine of forfeiture, maintaining
that Nigeria failed to argue in the district court that ENPH itself
had made false representations to induce Nigeria to enter the
PPA, and that ENPH should be held responsible for Enron’s
fraud as its alter ego. Even if Nigeria did not adequately raise
these arguments in the district court, but see Def’s Mot. to
Dismiss Petition at 8-13, forfeiture cannot divest the court of its
duty to resolve the public policy question any more than waiver
can. As this court held in Noonan, 68 F.2d 775, where a party
had failed to make a public policy objection at trial, that
objection “may not be waived by any system of pleading,” and
“the court itself was bound to raise [it] in the interest of the due
administration of justice.” Id. at 776 (internal quotation marks
omitted). Even were a party’s failure to recognize the public
policy issue until appeal to imply that the alleged violation is
hardly “repugnant to fundamental notions of what is decent and
just,” Tahan v. Hodgson, 662 F.2d 862, 864 (D.C. Cir. 1981),
the court must nevertheless decide the issue.
III.
The public policy defense under Article V(2)(b) of the New
York Convention is to be construed narrowly and is available
only where an arbitration award “tends clearly to undermine the
public interest, the public confidence in the administration of the
law, or security for individual rights of personal liberty or of
private property.” TermoRio S.A. v. Electranta S.P., 487 F.3d
928, 938 (D.C. Cir. 2007) (quoting Ackermann v. Levine, 788
F.2d 830, 841 (2d Cir. 1986)) (internal quotation marks
omitted). That heavy burden is due to the countervailing and
“emphatic federal policy in favor of arbitral dispute resolution
. . . . [which] applies with special force in the field of
international commerce.” Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985); TermoRio,
14
S.A., 487 F.3d at 933; see also Chevron Corp. v. Ecuador, 795
F.3d 200, 209 (D.C. Cir. 2015).
Furthermore, “considerable deference” is to be afforded by
the enforcing court to the arbitrator’s interpretation and
application of the parties’ contract. B.G. Grp. PLC v. Republic
of Argentina, 134 S. Ct. 1198, 1210 (2014); see W.R. Grace, 461
U.S. at 768. In addressing the public policy question at the
enforcement stage, the Supreme Court has given significant
weight to the arbitrator’s findings of fact. See United
Paperworkers Int’l Union, 484 U.S. at 44-45. More generally
in arbitration, because the parties bargained for the ICC’s
construction of the PPA, the ICC’s “construction holds, however
good, bad, or ugly.” Oxford Health Plans LLC, 133 S. Ct. at
2070-71. “It is not enough . . . to show that the [arbitrator]
committed an error — or even a serious error.” Stolt-Nielsen
S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671 (2010). As
long as the arbitrator was “even arguably construing or applying
the contract and acting within the scope of his authority, that a
court is convinced [the arbitrator] committed serious error does
not suffice to overturn his decision.” United Paperworkers Int’l
Union, 484 U.S. at 38.
The district court found that Nigeria “fail[ed] to establish
why the [c]ourt should refrain from enforcing this international
arbitral award simply because it involves an entity that was
related to the Enron Corporation.” Mem. Op. at 4 (Aug. 6,
2015). Nigeria had identified no basis to impute Enron’s
accounting fraud to ENPH merely because it was an Enron
special purpose vehicle. And the ICC had determined that
Nigeria failed to provide “any evidence of [accounting] fraud in
connection to Phase II of the Original PPA.” ICC ¶ 257.
On appeal, Nigeria’s contentions have a similar flavor,
maintaining that ENPH is the “offshore shell affiliate” of a
15
corporation that committed “one of the great financial frauds of
recent years,” Appellant’s Br. 17, again without attempting to
connect that fraud to Nigeria or Phase II of the PPA. To the
extent Nigeria’s contentions amount to urging that the district
court’s conclusion, as well as that of the ICC, about Enron’s
non-relationship to the PPA misses the forest for the trees,
because as a special purpose vehicle ENPH was necessarily a
mechanism through which Enron carried out its fraud, it still
shows no error by the district court. The ICC declined to pierce
the corporate veil despite Nigeria’s argument that Enron and
ENPH should be treated as a single enterprise under the PPA.
ICC ¶ 163. Repeatedly emphasizing that Nigeria had contracted
only with ENPH, see, e.g., ICC ¶¶ 191-92, 201-03, the ICC
noted the absence of any mention of Enron in the PPA. It also
interpreted PPA Clause 31 — stating “this Agreement shall be
binding upon . . . the Parties and their successors and permitted
assigns, and is not intended to and shall not confer any rights or
benefits on any third party not a signatory thereto” — to
preclude an implied, alter-ego relationship between ENPH and
non-signatory Enron. ICC ¶¶ 212-14. Nigeria baldly asserts as
an “undisputable fact” that ENPH lacked staff, an office, a bank
account, assets, earnings, and sufficient capital. Appellant’s Br.
27. Even if true, Nigeria conveniently ignores its own
concession that it had repudiated the PPA nearly two years
before Enron’s collapse was publically known. ICC ¶¶ 400,
404(a). Moreover, Nigeria ignores the ICC’s determination that
it was willing to cooperate in the completion of Phases I and III
of the project. ICC ¶¶ 256-57.
This does not mean that either the district court or the ICC
viewed Enron’s collapse as irrelevant to Phase II of the PPA.
The ICC credited the argument that ENPH was a “shell
company that could not implement Phase II by itself,” ICC
¶ 189, and considered Enron’s bankruptcy as a mitigating factor
in calculating the amount of damages, when the renegotiation
16
and completion of Phase II became too uncertain in Enron’s
absence to allow ENPH to recover expectation damages. ICC
Award ¶¶ 105-09. That, however, is a separate question from
whether Nigeria was fraudulently induced to execute the PPA,
which the ICC found it was not, and from whether Enron’s fraud
and collapse had anything to do with Nigeria’s anticipatory
repudiation and subsequent breach of the PPA, which the ICC
found it did not.
No more persuasive is Nigeria’s contention that ENPH
itself made false representations regarding Enron’s financial
strength that induced Nigeria to enter the PPA. Appellant’s Br.
32-34. For instance, misrepresentations were made during the
November 1999 presentation to President Obasanjo, ICC ¶¶ 239,
242, but the ICC found that these statements were irrelevant.
ICC ¶ 243. Even if knowledge of the statements’ falsity should
be imputed to ENPH because its staff was employed by Enron,
the ICC found the allegations failed for lack of materiality to
Nigeria’s execution of the PPA, for such statements “could have
only induced [Nigeria] to enter into an agreement with Enron,”
not ENPH. ICC ¶ 243. As it does here, Nigeria asserted that
absent these representations it never would have agreed to
contract with ENPH. Appellant’s Br. 33; ICC ¶ 228. The ICC
was unpersuaded, finding that nine days after executing the PPA
Nigeria simply had a “change of mind about the convenience of
[its] bargain,” ICC ¶ 408, and noting that the PPA omitted a
financial guarantee by Enron or any mention of Enron’s
financial strength. ICC ¶ 242. Instead, the PPA provided that
ENPH was free to subcontract with third-party companies to
finance, design, and construct the power plant. PPA Clauses
3.1(iii), 4.2, 4.3; ICC ¶¶ 191-92.
Although the PPA was negotiated in Enron’s shadow, and
Nigeria seems to have believed Enron would lend its resources
and backing to the electric facilities project, see Appellant’s Br.
17
33-34, the question before the enforcing court is limited. See
Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 727 (D.C.
Cir. 2012). Here, the district court had no choice other than to
conclude that enforcement of the Award on Phase II is not so
manifestly unjust that its confirmation would “undermine . . .
the public confidence in the administration of the law.”
TermoRio S.A., 487 F.3d at 938 (quoting Ackermann, 788 F.2d
at 841). Accordingly, we affirm the order confirming the
Award.