United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER ON PETITIONER'S
MOTION FOR ENTRY OF JUDGMENT
Honorable Jill N. Parrish District Court Judge.
above matter came before the court on Petitioner Asphalt
Trader Limited's Petition to Confirm Foreign Arbitration
Award and Enter Judgment, filed on May 20, 2016, (Docket No.
2), and subsequent Motion for Entry of Judgment, filed
October 5, 2016, (Docket No. 13). Respondent Taryn Capital
Energy, L.L.C., has again failed to respond to Asphalt
Trader's motions, and therefore this court enters
judgment without the benefit of adversarial briefing.
See DuCivR 7-1(f) (“Failure to respond timely
to a motion may result in the court's granting the motion
without further notice.”).
considering Asphalt Trader's original Petition, including
the supporting Declaration of Elias Gotsis, attached
exhibits, the relevant legal authorities, and for good cause
appearing, the Court issued a Memorandum Decision and Order
Confirming Foreign Arbitration Award on September 27, 2016.
(Docket No. 12). In the Order, the Court (1) granted Asphalt
Trader's Petition, (2) ordered that the Final Award of
Arbitrators Bruce Harris, Mark Hamsher, and Clive Aston
submitted by Asphalt Trader as Exhibit 1 (Docket No. 2, Ex.
1) be confirmed, and (3) ordered Respondent Taryn Capital to
pay to Asphalt the amounts awarded by the Final Award as
explained therein. Asphalt Trader now requests that the court
enter judgment against Taryn Capital.
proposed order, Asphalt Trader requested that the
arbitrators' award of costs and attorney's fees
provided in British pounds be converted to U.S. dollars.
Thus, before entering judgment the court must consider two
issues relating to the amounts to be awarded to Asphalt
Trader. First, the court must determine whether the
conversion of portions of the award originally rendered in
British pounds into U.S. dollars is proper under the
circumstances. The court believes conversion would be
appropriate here because “[c]onversion of such foreign
currency amounts into dollars at judgment is the norm, rather
than the exception.” Cont'l Transfert Technique
Ltd. v. Fed. Gov't of Nigeria, 932 F.Supp.2d 153,
158 (D.D.C. 2013), ruling aff'd, appeal dismissed in
part on other grounds, 603 F. App'x 1 (D.C. Cir.
2015) (unpublished) (explaining that the conversion of
foreign currency to U.S. dollars for entry of judgment is
“consistent with settled law”); see also
Restatement (Third) of the Foreign Relations Law of the
United States § 823(1) (1987) (“Courts in the
United States ordinarily give judgment on causes of action
arising in another state, or denominated in a foreign
currency, in United States dollars, but they are not
precluded from giving judgment in the currency in which the
obligation is denominated or the loss was incurred.”).
Without any opposition from Taryn Capital, the court sees no
reason not to convert the award into U.S. dollars.
because exchange rates have fluctuated over the life of this
dispute, the court must determine the date at which to fix
the exchange rate that will be used to convert the award from
British pounds to U.S. dollars. There are essentially two
rules for fixing the date of the exchange rate for such
conversions. The first, “breach day” rule,
derives from the Supreme Court's opinion in Hicks v.
Guinness, 269 U.S. 71, 46 S.Ct. 46 (1925), and the
second, “judgment day” rule, derives from the
Court's opinion in Die Deutsche Bank Filiale Nurnberg
v. Humphrey, 272 U.S. 517, 47 S.Ct. 166 (1926).
“Under the ‘breach day' rule, the applicable
exchange rate is the one that was in effect on the date that
the defendant breached its obligations to the
plaintiff” or, where there is no true “breach,
” the date that the plaintiff's entitlement to
judgment against the defendant arose. Cont'l
Transfert, 932 F.Supp.2d at 159 (citing ReliaStar
Life Ins. Co. v. IOA Re, Inc., 303 F.3d 874, 883 (8th
Cir. 2002) and G.E. Transport S.P.A. v. Republic of
Alb., 693 F.Supp.2d 132, 140 (D.D.C. 2010)). By
contrast, “[u]nder the ‘judgment day' rule, .
. . the exchange rate to be applied is the one prevailing on
the date that the [U.S.] court enters judgment for the
plaintiff.” Id. (citing ReliaStar,
303 F.3d at 883). Courts must “look to the
jurisdiction in which the plaintiff's cause of action
arose to determine which rule is applicable.” In re
Good Hope Chem. Corp., 747 F.2d 806, 811 (1st Cir.
1984). The “breach day” rule applies where the
plaintiff's cause of action arises “in this country
under American law.” Id. By contrast, the
“judgment day” rule applies if the cause of
action “arises entirely under foreign law.”
essence, Asphalt Trader requests that the court employ the
“breach day” rule and use the exchange rate
present on the date the amounts were awarded, i.e., February
12, 2016. The court agrees that this application of the
“breach day” rule yields the best point at which
to fix the exchange rate. Because Asphalt Trader's claim
for confirmation and enforcement of a foreign award arises
under the Foreign Arbitration Act and its codification of the
New York Convention, it is “deemed to arise under the
laws and treaties of the United States[, ]”
see 9 U.S.C. § 203, regardless of the nature of
the underlying adjudication. See Cont'l
Transfert, 932 F.Supp.2d at 161. Taryn Capital's
obligation to pay the fees and costs awarded in British
pounds arose on the very day the award was issued and Asphalt
Trader was entitled by statute to confirm and enforce the
award in U.S. courts the same day. See 9 U.S.C.
§ 207; Cont'l Transfert, 932 F.Supp.2d at
161. Accordingly, the “breach day” rule applies,
and the court will calculate the conversion using the
exchange rate as it stood on the day Taryn Capital's
obligation to pay costs and fees to Asphalt Trader
arose-February 12, 2016.
U.S. Federal Reserve reports that on February 12, 2016, the
exchange rate was 1.4460 U.S. dollars to each British pound.
Country Data: Historical Rates for the U.K. Pound,
Applying that rate to the amounts awarded here, the court
finds that Asphalt Trader is entitled to $299, 213.55 for the
award of £206, 925 and $57, 080.85 for the award of
closing, the court also notes that Asphalt Trader has
requested reasonable attorney's fees related to obtaining
this judgment and collecting the amounts awarded. But beyond
a bare request, Asphalt Trader has failed to provide any
contractual or statutory basis for the award of
attorney's fees. See Baker Botts L.L.P. v. ASARCO,
L.L.C., ___U.S.___, 135 S.Ct. 2158, 2164 (2015) (quoting
Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
242, 252-53, 130 S.Ct. 2149 (2010)) (“Our basic point
of reference when considering the award of attorney's
fees is the bedrock principle known as the American Rule:
Each litigant pays his own attorney's fees, win or lose,
unless a statute or contract provides otherwise.”
(internal quotations omitted)). Without any demonstrated
legal basis for such an award, the court must reject the
claim for attorney's fees beyond those awarded in the
original arbitration decision.
Petitioner's Motion for Entry of Judgment is GRANTED.
Based on the foregoing discussion, the clerk of court is
ORDERED to enter judgment as follows:
Consistent with the Final Award previously confirmed by this
court, judgment in favor of Asphalt Trader Limited and
against Taryn Capital Energy, L.L.C., is hereby entered as
a. Taryn Capital Energy, L.L.C. shall forthwith pay to
Asphalt Trader Limited the sum of $1, 669, 221.64 (One
million, six hundred and sixty-nine thousand two hundred and
twenty-one dollars and sixty-four cents) together with
interest thereon at the rate of 5% (five per cent) per annum
compounded every three months from August 1, 2012 until the
date of payment hereunder;
b. Taryn Capital Energy, L.L.C. shall bear and pay Asphalt
Trader Limited's net recoverable costs in the sum of