By: Louis M.
Republic v. National Grid PLC, No.
10-7093 (D.C. Cir. Mar. 2011), [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] is a per curiam decision of the D.C. Circuit addressing an
important issue that affects international practice particularly: can a
federal court extend time deadlines imposed by statute when dealing with the
exercise of a right under international convention or treaty, here the New York
The underlying dispute related to an
arbitration under a Bilateral Investment Treaty between Argentina and the
United Kingdom. The panel determined that Argentina had violated the
treaty by implementing several emergency measures in response to the Argentine
financial crisis. National Grid was awarded $53 million plus costs and
Argentina attempted to move to
vacate the award within the statutory three month deadline but had to move the
District Court under Fed. R. Civ. P. 6(b)(1) since it could not complete
service within the statutory time frame because National Grid was headquartered
in the U.K., and service would have to effected under the Hague
The D.C. Circuit ruled that National
Grid had not waived its right to object to the untimeliness and then ruled that,
as a matter of law, Rule 6(b) could not be used to extend periods of time
dictated by statute. In so holding the Court of Appeals stated that it
was joining every other court to have addressed the issue. The Court of
Appeals so held even though the text of Rule 6(b) was amended in 2007 to
eliminate the limiting references to "time periods set out in the Federal
Rules or by court order". That change arguably suggested that the
district courts had the authority to extend even statutory deadlines. The
Court of Appeals stated that the modification of the Rule was stylistic only
and had no substantive effect.
The Court of Appeals did not discuss
how a person or entity trying to comply with the three-month rule can do so if,
by reason of procedures not under its control, it simply could not do so.
In this case the Court of Appeals found that Argentina had ample opportunity to
present its substantive grounds for vacating the arbitral award but had not
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