Opinion
CIVIL ACTION NO. H-01-0634
March 6, 2002
MEMORANDUM AND ORDER
This action in which the Court has confirmed an international arbitral award is before the Court on Petitioner Karaha Bodas Company, L.L.C.'s ("KBC's") "Application for Writ of Execution" ("Application") [Doc. # 58]. Respondent Perusahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina") has filed its "Opposition to KBC's Application for Writ of Execution" ("Opposition") [Doc. # 70]. Having considered the parties' briefs, all matters of record, and applicable legal authorities, the Court concludes that KBC's Application should be denied without prejudice.
KBC has applied for a writ of execution pursuant to Federal Rule of Civil Procedure 69 and the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1610 (c), authorizing the initiation of enforcement in Texas of a Judgment entered in this case on December 4, 2001 confirming an arbitral award entered in favor of KBC against Pertamina. Pertamina contends that KBC's Application is insufficient under the FSIA because it seeks authorization to execute upon any property of Pertamina within Texas, without describing any specific property upon which KBC intends to execute.
The FSIA prescribes that no "attachment or execution (of assets) . . . shall be permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice." 28 U.S.C. § 1610 (c). By Order dated January 24, 2002, this Court granted KBC's "Motion for Declaration of `Reasonable Period of Time'" [Doc. # 47] under § 1610(c). KBC now seeks to take another step towards obtaining satisfaction of the Judgment. KBC seeks an order allowing it to execute on unspecified assets of Pertamina in Texas. The Court agrees with Pertamina that KBC's Application is too general. KBC must identify with specificity the assets it seeks to execute upon so that the Court may determine whether an asset is immune from attachment under the FSIA. Olympic Chartering S.A. v. Ministry of Industry Trade of Jordan, 134 F. Supp.2d 528, 536 (S.D.N.Y. 2001) (listing "any" of the debtor's assets was not specific enough to allow the court's inquiry as to whether such assets may be immune); Lloyd's Underwriters v. AO Gazsnabtranszit, No. 1:00-MI-0242-CAP, at 3 (N.D. Ga. Sept. 28, 2000); Trans Commodities, Inc. v. Kazakstan Trading House, S.A., 1997 WL 811474, at 3 (S.D.N.Y. May 28 1997).
KBC argues that specificity is unnecessary because Pertamina has waived its immunity. However, Pertamina has expressed the valid concern that assets within its possession and targeted by KBC actually may be the property of the government of Indonesia, and thus immune from attachment. Pertamina's waiver of immunity does not waive the procedural safeguards of § 1610(c). See LNC Invest., Inc. v. The Republic of Nicaragua, No. 96 Civ. 6360, 2000 WL 745550, *4 (S.D.N.Y. June 8, 2000) (finding that a waiver of immunity permits attachment or execution of property that satisfies the requirements set forth in § 1610(a)); see also Ferrostaal Metals Corp. v. S.S. Lash Pacifico, 658 F. Supp. 420, 423 (S.D.N.Y. 1987) (when foreign state has waived immunity from post-judgment attachment, the FSIA requires that attachment can occur only by court order).
KBC implicitly recognized this by seeking a ruling from the Court that a reasonable time had passed since entry of judgment.
KBC purports to recognize the need to identify specific assets prior to attachment. KBC states that it will seek court orders for individualized writs of attachment and garnishment upon particular Pertamina assets in the jurisdictions where the assets are located. See Application, at 2. In Texas, the effect of a general writ of execution on a judgment for money in Texas is to authorize any sheriff or constable within the State of Texas to seize sufficient property of the property of the judgment debtor subject to execution by law to satisfy the judgment and costs. See TEX. R. Civ. PRO. 630. Only after seizure may the judgment debtor post a bond to replevy the property. TEX. R. Civ. PRO. 644. Thus, the effect of the writ of execution KBC seeks is to grant it greater rights than the FSIA provides. Finally, the current Application is simply unnecessary since KBC must, and claims it intends to, submit a more detailed application for attachment or garnishment prior to actual execution. It is therefore
ORDERED that KBC's Application for Writ of Execution [Doc. # 58] is DENIED WITHOUT PREJUDICE.