Wrld Wde Mnrl v. Repub Kazakhstan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2001 Decided August 2, 2002

No. 00-7250

World Wide Minerals, Ltd., et al.,

Appellants

v.

Republic of Kazakhstan, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 98cv01199)

Anson M. Keller argued the cause for appellants. With

him on the briefs was Marshall Lee Miller.

Waller T. Dudley argued the cause for appellees Republic

of Kazakhstan and State Committee of the Republic of Kaza-

khstan on the Management of State Property. M. Melissa

Glassman was on the brief. Stephen M. Colangelo entered

an appearance.

Jared A. Goldstein argued the cause for appellee National

Atomic Company Kazatomprom. With him on the brief was

Thomas B. Wilner.

Carolyn B. Lamm argued the cause for appellee Nukem,

Inc. With her on the brief were Francis A. Vasquez Jr. and

Eric Grannon. Judd C. Lawler entered an appearance.

Before: Ginsburg, Chief Judge, Rogers and Garland,

Circuit Judges.

Garland, Circuit Judge: In 1996 and 1997, World Wide

Minerals Ltd., a Canadian corporation, entered into a series

of agreements with the Republic of Kazakhstan. Pursuant to

those agreements, World Wide took over the management of

one of Kazakhstan's major uranium complexes and loaned

Kazakhstan several million dollars to fund the restoration of

the facility. World Wide contends that, in return, Kaza-

khstan agreed (inter alia) to permit World Wide to export

Kazakhstan uranium. World Wide alleges that Kazakhstan

breached its agreements by failing to issue World Wide a

uranium export license and by seizing its assets in Kaza-

khstan. World Wide further alleges fraudulent inducement,

tortious interference, conversion, conspiracy, and violations of

the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. s 1961 et seq.1

The defendants in this case are Kazakhstan and two of its

instrumentalities, as well as Nukem, Inc., a New York corpo-

ration that World Wide contends conspired with Kazakhstan

in committing wrongful acts against World Wide. The dis-

trict court concluded that Kazakhstan and its instrumentali-

ties had waived sovereign immunity against suit, and that the

court therefore had jurisdiction over the claims against these

defendants under the Foreign Sovereign Immunities Act

(FSIA), 28 U.S.C. ss 1330, 1605(a)(1). The court nonetheless

__________

1 Two of World Wide's subsidiaries (World Wide Resource Fi-

nance, Inc. and KazUran Corporation), as well as its sales agent

(Nuclear Fuel Resources Corporation), are also plaintiffs in this

case. For the sake of convenience, we refer to the plaintiffs

collectively as World Wide.

dismissed those claims pursuant to the act of state doctrine.

The court also dismissed World Wide's claims against Nukem,

holding that it did not have personal jurisdiction over that

New York corporation because World Wide's injuries did not

arise out of any act that took place in the District of Colum-

bia.

We affirm the dismissal of World Wide's claims against the

Kazakhstan entities, albeit on somewhat different grounds.

Although we agree that Kazakhstan waived sovereign immu-

nity for some of World Wide's claims, we conclude that it did

not waive immunity for all of the claims. As to those claims

where there was no waiver, we affirm dismissal for lack of

subject matter jurisdiction. As to the remaining claims

against Kazakhstan and one of its instrumentalities, we agree

with the district court that the act of state doctrine is fatal to

World Wide's suit. This conclusion also removes any sub-

stantial federal question with respect to identical claims

against the other instrumentality, a corporation wholly owned

by Kazakhstan. Finally, because the dismissal of the claims

against Nukem was based on a misunderstanding regarding

the date upon which World Wide alleges that officials of

Nukem and Kazakhstan met in the District of Columbia to

conspire against it, we remand those claims to permit the

district court to determine whether the facts are sufficient to

establish personal jurisdiction.

I

In 1995, the Republic of Kazakhstan issued a decree an-

nouncing the privatization of the country's uranium industry

and its intention to contract with foreign investors for the

management of previously state-run facilities. Am. Compl.

p 40.2 Shortly thereafter, World Wide submitted a proposal

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2 The facts set out in this Part are taken from World Wide's

amended complaint and documents incorporated by reference there-

in. Because we are reviewing the district court's decision on a

motion to dismiss, we must assume that the allegations of the

complaint are true, although many are disputed by the defendants.

See Saudi Arabia v. Nelson, 507 U.S. 349, 351 (1993).

to take over the management of Tselinny Gorno-Khimicheskii

Kombinat (TGK), a state holding company that operated a

uranium complex located in the area of Kazakhstan's North-

ern Mines. After a period of negotiation, the parties entered

into the four agreements that are at issue in this case.

The first agreement was the Management Agreement.

That agreement, signed by World Wide and the State Com-

mittee of the Republic of Kazakhstan on the Management of

State Property (Kazakhstan State Committee) on October 7,

1996, granted World Wide the right to manage and control

the assets of TGK. Id. p 56; Management Agreement p 2.11.

In return, World Wide agreed to satisfy TGK's outstanding

debts and to implement a restructuring program for the

uranium complex. Management Agreement pp 2.11(b), 2.22.

The agreement listed a number of additional points "which

have not been concluded in this Agreement" but which were

to be "addressed in good faith negotiations," including the

granting of a license to World Wide to export TGK uranium

for international sale. Id. p 2.17, Sched. 2 p 2.3. World Wide

was entitled to terminate the agreement if Kazakhstan did

not grant it the license by December 16, 1996. Id. p 2.18.

Although World Wide never received the license, it did not

suspend performance under the contract until April 30, 1997.

Am. Compl. p 73.

On November 14, 1996, World Wide, the Kazakhstan State

Committee, and TGK executed a second agreement, the Loan

Agreement. Under that agreement, World Wide agreed to

lend TGK at least $5 million to fund the restoration and

operation of the uranium complex. In the same month,

World Wide took over management of the TGK complex and

began to make loans under the Loan Agreement. Id. pp 58,

59, 61.

The third agreement was the Strategic Alliance Agreement,

which World Wide entered into with Kazatomprom on Febru-

ary 28, 1997. Kazatomprom is a corporation, wholly owned

by the Republic of Kazakhstan, that is charged with manag-

ing nuclear energy complexes and promoting the development

of uranium production in Kazakhstan. Id. p 60. In the

Strategic Alliance Agreement, the parties agreed to form a

joint venture to explore, develop, and mine several other

uranium sources, including deposits in Kazakhstan's Southern

Mines, and to market uranium from those sources. Id. p 69.

Kazatomprom also agreed to "assist" World Wide in obtaining

a uranium export license from Kazakhstan. Strategic Alli-

ance Agreement p 8.2.

Finally, on March 25, 1997, World Wide, TGK, and the

Kazakhstan State Committee entered into a fourth agree-

ment, the Pledge Agreement. This agreement gave World

Wide a security interest in the assets and shares of TGK as

collateral for its loans. The Pledge Agreement also prohibit-

ed the transfer of any of the pledged assets or shares. Am.

Compl. pp 70, 85; Pledge Agreement p 5.1.3.

On March 27, 1997, following execution of the Pledge

Agreement, World Wide entered into an contract with Con-

sumers Energy Company, a Michigan utility, to deliver ap-

proximately $4.1 million worth of Kazakhstan uranium. In

order to fulfill this contract, World Wide needed to receive an

export license by May 30, 1997. By the end of April, howev-

er, World Wide had not received the necessary license, and,

on April 30, it suspended mining operations at the TGK

complex. Am. Compl. pp 71-73.

In May 1997, in response to its requests for an export

license, a Kazakhstan official told World Wide that Kaza-

khstan had previously given another company, Nukem, exclu-

sive rights to the entire quota of uranium that Kazakhstan

was permitted to export to the United States. That quota

was determined by a Suspension Agreement between the two

countries. Id. pp 77, 78.3 Although World Wide continued to

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3 Kazakhstan had entered into the Suspension Agreement in

return for the United States' agreement to suspend an antidumping

investigation initiated by the Department of Commerce under the

Tariff Act, 19 U.S.C. s 1673a. See Agreement Suspending the

Antidumping Investigation on Uranium from Kazakhstan ("Suspen-

sion Agreement"), reproduced at 57 Fed. Reg. 49,220, 49,222 (Oct.

30, 1992); Am. Compl. p 33. The Suspension Agreement specifical-

ly provided that uranium exported to the United States required

seek an export license from Kazakhstan, and negotiated

several extensions of its contract with Consumers Energy

pending the grant of such a license, its final extension ran out

on July 4, 1997. On July 10, the contract between World

Wide and Consumers Energy was terminated. World Wide

alleges that, during the period in which it was trying to obtain

a license, Nukem approached Consumers Energy with an

offer to sell it uranium in the event that World Wide failed to

obtain the license, and that subsequently Nukem did sell

Kazakhstan uranium to Consumers Energy. Id .pp 82-84.

Thereafter, what was left of World Wide's relationship with

Kazakhstan quickly deteriorated. On August 1, Kazakhstan

terminated the Management Agreement, declaring that

World Wide had failed to fulfill its obligations. It then

allegedly seized $1 million worth of World Wide's uranium

and other property located at the TGK complex, and forced

World Wide's employees to leave the country. Id. pp 86-87.

Finally, on October 2, 1997, Kazakhstan issued a decree

transferring all of the assets and shares of TGK to Kazatom-

prom. Id. p 17; Republic of Kazakhstan, Ministry of Fi-

nance, Resolution No. 317 (Oct. 2, 1997) (J.A. at 431).

In May 1998, World Wide sued Kazakhstan, the Kaza-

khstan State Committee, Kazatomprom, and Nukem in the

United States District Court for the District of Columbia. In

its eleven-count amended complaint, World Wide alleged that

Kazakhstan and the Kazakhstan State Committee (collective-

ly Kazakhstan) breached their agreements with World Wide,

fraudulently induced World Wide to enter into several of the

agreements, wrongfully converted its property, tortiously in-

terfered with its contracts, unlawfully conspired against it,

and committed acts that violated RICO. In addition to

damages for these violations, World Wide sought a declarato-

ry judgment establishing its "right to market Kazakhstan

uranium under the Suspension Agreement or otherwise."

Am. Compl. p 161. World Wide joined Kazatomprom in most

__________

"export licenses and certificates ... issued in a manner determined

by the Government of Kazakhstan, in accordance with laws of

Kazakhstan." Suspension Agreement p V.A, 57 Fed. Reg. at 49,224.

of these counts, and joined Nukem as a defendant in the

counts for tortious interference, conspiracy, and violation of

RICO, and in its request for a declaratory judgment. Al-

though World Wide alleges various wrongful conduct, the

amended complaint identifies Kazakhstan's denial of its appli-

cation for an export license as "the very heart of this matter."

Id. p 157.4

The defendants moved to dismiss World Wide's amended

complaint, arguing that the court lacked personal and subject

matter jurisdiction, and that the act of state doctrine barred

adjudication of World Wide's claims. The district court

granted the motions to dismiss, and denied World Wide's

request to file a second amended complaint as futile. World

Wide Minerals Ltd. v. Republic of Kazakhstan, 116 F. Supp.

2d 98 (D.D.C. 2000). The court began by holding that,

because Kazakhstan had expressly waived its sovereign im-

munity in the Pledge Agreement, the FSIA, 28 U.S.C.

ss 1330(a) & (b), 1605(a)(1), gave the court personal jurisdic-

tion over Kazakhstan and Kazatomprom and subject matter

jurisdiction over all of World Wide's claims against them.

116 F. Supp. 2d at 103.5 The court concluded, however, that

__________

4 The eleven counts, and the defendants to which they apply, are

as follows: Count I, against Kazakhstan and Kazatomprom, for

breach of the Management Agreement; Count II, against Kaza-

khstan, for breach of the Loan Agreement; Count III, against

Kazakhstan, for breach of the Pledge Agreement; Count IV,

against Kazatomprom, for breach of the Strategic Alliance Agree-

ment; Count V, against Kazakhstan and Kazatomprom, for fraud in

the inducement to enter into the Management and Loan agree-

ments; Count VI, against Kazakhstan and Kazatomprom, for fraud

in the inducement to enter into the Strategic Alliance Agreement;

Count VII, against Kazakhstan and Kazatomprom, for conversion;

Count VIII, against all defendants, for tortious interference with

World Wide's contracts with its sales agent and Consumers Energy;

Count IX, against all defendants, for civil conspiracy; Count X,

against all defendants, for violation of RICO; and Count XI, against

all defendants, for a declaratory judgment.

5 The FSIA grants United States courts both subject matter and

personal jurisdiction (where service of process has been made) over

"granting World Wide relief would require a judgment on the

acts of a sovereign state," including Kazakhstan's failure to

grant World Wide an export license and its decision to

expropriate World Wide's property. Accordingly, the court

held the claims against the Kazakhstan defendants barred by

the act of state doctrine. Id. at 104.

The district court also dismissed World Wide's claims

against Nukem, holding that it lacked personal jurisdiction

over the corporation. The court rejected all of the jurisdic-

tional theories asserted by World Wide, including the "trans-

acting business" clause of the District of Columbia's long-arm

statute, D.C. Code s 13-423(a)(1), and "conspiracy jurisdic-

tion." The court rejected the latter two theories on the

ground that the only act sufficient to satisfy their prerequi-

sites took place after World Wide's injuries had already been

incurred. 116 F. Supp. 2d at 108. World Wide now appeals.

II

We review the district court's dismissal of World Wide's

complaint de novo, and must accept the complaint's allega-

tions as true for purposes of this appeal. See El Hadad v.

United Arab Emirates, 216 F.3d 29, 31, 32 n.5 (D.C. Cir.

2000). In doing so, we consider only the allegations of the

(first) amended complaint. Although World Wide indicated in

its notice of appeal that it planned to challenge the district

__________

any claim against a foreign state as to which the state is not entitled

to immunity. 28 U.S.C. s 1330(a), (b). The district court held that,

where one of the FSIA's exceptions to sovereign immunity (e.g.,

waiver) applies, a foreign government and its instrumentalities are

subject to suit without the need to apply the "minimum contacts"

test traditionally used in determining whether the assertion of

personal jurisdiction satisfies due process. 116 F. Supp. 2d. at 102-

03. Subsequently, this circuit reached the same conclusion with

respect to "an actual foreign government," but expressed no view as

to whether that conclusion also applied to "other entities that fall

within the FSIA's definition of 'foreign state'--including corpora-

tions in which a foreign state owns a majority interest." See Price

v. Socialist People's Libyan Arab Jamahiriya, No. 00-7244, slip op.

at 26 (D.C. Cir. June 28, 2002).

court's refusal to permit it to file a second amended com-

plaint, see Fed. R. Civ. P. 15(a), it failed to do so until its reply

brief. As we have said many times before, a party waives its

right to challenge a ruling of the district court if it fails to

make that challenge in its opening brief. See, e.g., Students

Against Genocide v. Department of State, 257 F.3d 828, 834-

35 (D.C. Cir. 2001); Board of Regents v. EPA, 86 F.3d 1214,

1221 (D.C. Cir. 1996); see also Terry v. Reno, 101 F.3d 1412,

1415 (D.C. Cir. 1996) (holding that where the appellants listed

challenges in the "Statement of Issues," but failed to brief

them, the challenges were waived).

World Wide contends that none of the defendants' motions

to dismiss should have been granted. In response, Kaza-

khstan, Kazatomprom, and Nukem assert that the district

court was correct in ruling that a variety of threshold obsta-

cles, including sovereign immunity, the act of state doctrine,

and lack of personal jurisdiction, barred World Wide's claims.

In the following three Parts, we address the issues relating to

each defendant separately.

III

World Wide's amended complaint levels ten of its eleven

charges against Kazakhstan (including the Kazakhstan State

Committee). They are: Count I (breach of the Management

Agreement), Count II (breach of the Loan Agreement), Count

III (breach of the Pledge Agreement), Count V (fraud in the

inducement to enter into the Management and Loan agree-

ments),6 Count VI (fraud in the inducement to enter into the

Strategic Alliance Agreement), Count VII (conversion), Count

VIII (tortious interference), Count IX (civil conspiracy),

Count X (violation of RICO), and Count XI (declaratory

judgment). In Part III.A, we conclude that the district court

lacked subject matter jurisdiction over seven of these counts,

because Kazakhstan has sovereign immunity against their

__________

6 Although the title of this count also alleges fraud in the induce-

ment to enter into the "Preliminary Agreement," neither the count

nor World Wide's briefs allege any damages or make any argument

relating to that agreement, and we therefore give it no independent

consideration.

adjudication in United States courts. In Part III.B, we

conclude that the remaining three counts were properly dis-

missed pursuant to the act of state doctrine.

A

We turn first to whether the district court was correct in

concluding that it had subject matter jurisdiction over all of

World Wide's claims against Kazakhstan. See In re Papan-

dreou, 139 F.3d 247, 254-56 (D.C. Cir. 1998) (holding that

jurisdiction must be resolved before applying the act of state

doctrine, because that doctrine is "a substantive rule of law").7

The FSIA is "the sole basis for obtaining jurisdiction over a

foreign state in our courts." Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 434 (1989). Under the

FSIA, a district court has jurisdiction over a civil action

against a foreign state for any claim "with respect to which

the foreign state is not entitled to immunity." 28 U.S.C.

s 1330(a). The Act provides that a foreign state is generally

immune from the court's jurisdiction unless one of the excep-

tions listed in the statute applies. Id. ss 1604, 1605; Verlin-

den B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89

(1983).8

In the district court, World Wide argued that the court had

subject matter jurisdiction under two FSIA exceptions: the

waiver exception, 28 U.S.C. s 1605(a)(1), and the commercial

activity exception, id. s 1605(a)(2). In its briefs on appeal,

__________

7 In its reply brief, World Wide argues that we cannot review the

district court's finding of subject matter jurisdiction because the

appellees "failed to cross-appeal on this issue." World Wide Reply

Br. at 11. To the contrary, we have an independent responsibility

to consider that question. See Steel Co. v. Citizens for a Better

Env't, 523 U.S. 83, 95 (1998).

8 World Wide does not dispute that the Kazakhstan State Com-

mittee is an "agency or instrumentality of a foreign state" within

the meaning of the FSIA. 28 U.S.C. s 1603(a), (b); see World

Wide Br. at xiii. As such, like Kazakhstan, the State Committee is

entitled to immunity unless one of the statute's enumerated excep-

tions applies. Id. s 1604.

however, World Wide did not argue that the commercial

activity exception was applicable, relying instead on the waiv-

er exception.9 And at oral argument, World Wide eschewed

any reliance on the FSIA's commercial activity exception.

Accordingly, we limit our inquiry to whether the district court

had jurisdiction by virtue of Kazakhstan's waiver of immuni-

ty.10 Under the FSIA's waiver exception, a state is not

immune from suit in any case "in which the foreign state has

waived its immunity either explicitly or by implication." Id.

s 1605(a)(1). World Wide does not rely on a theory of

implied waiver, but rather on the explicit waivers of sovereign

immunity contained in the Pledge and Management agree-

ments.11

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9 This was so despite the fact that Kazatomprom devoted a

substantial portion of its brief to arguing against the applicability of

the commercial activity exception. See Kazatomprom Br. at 14-24.

10 The defense of sovereign immunity may be raised at any time

because, if valid, it means that the court lacks power to hear the

case. See Steel Co., 523 U.S. at 94-95. A challenge to sovereign

immunity, by contrast, is an argument that can be waived. See

Watters v. Washington Metro. Area Transit Auth., No. 01-7092,

slip. op. at 7 n.13 (D.C. Cir. July 17, 2002) (holding that a claim that

sovereign immunity has been waived is itself waived if not argued

on appeal).

11 As we have previously noted, the "FSIA does not define an

implied waiver." Creighton Ltd. v. Government of the State of

Qatar, 181 F.3d 118, 122 (D.C. Cir. 1999). This circuit, however,

has "followed the 'virtually unanimous' precedents construing the

implied waiver provision narrowly." Id. (quoting Shapiro v. Repub-

lic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991)). Courts have

found implied waiver where a foreign state has filed a responsive

pleading without raising the defense of sovereign immunity. Id. at

123. They have also found implied waiver where the state has

agreed to arbitrate or to adopt a particular choice of law, under

circumstances not present in this case. Id.; see id. at 122 (" '[M]ost

courts have refused to find an implicit waiver of immunity to suit in

American courts from a contract clause providing for arbitration in

a country other than the United States.' " (quoting Frolova v.

Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir.

In general, explicit waivers of sovereign immunity are

narrowly construed "in favor of the sovereign" and are not

enlarged "beyond what the language requires." Library of

Cong. v. Shaw, 478 U.S. 310, 318 (1986) (internal quotation

marks omitted); see Watters v. Washington Metro. Area

Transit Auth., No. 01-7092, slip. op. at 5 (D.C. Cir. July 17,

2002) (requiring "clear and unequivocal" waiver); Forman v.

Small, 271 F.3d 285, 296 (D.C. Cir. 2001). A foreign sover-

eign will not be found to have waived its immunity unless it

has clearly and unambiguously done so. See Aquamar S.A.

v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1292

(11th Cir. 1999) ("An express waiver under section 1605(a)(1)

must give a clear, complete, unambiguous, and unmistakable

manifestation of the sovereign's intent to waive its immunity."

(internal quotation marks omitted)); see also Maritime Int'l

Nominees Establishment v. Republic of Guinea, 693 F.2d

1094, 1100 n.10 (D.C. Cir. 1982) (holding that under the FSIA,

Congress contemplated waivers of a "specific and explicit

nature").12

There is no question that Kazakhstan clearly indicated its

intent to waive its immunity for the claims contained in Count

I (breach of the Management Agreement) and Count III

(breach of the Pledge Agreement), as both the Management

and Pledge agreements contain express waivers of sovereign

immunity--the latter referring specifically to the FSIA.13

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1985))); id. at 126 (holding "that Qatar did not, by agreeing to

arbitrate in France, waive its sovereign immunity under

s 1605(a)(1)"). As we have also noted, " 'courts have been reluctant

to stray beyond these examples when considering claims that a

nation has implicitly waived its defense of sovereign immunity.' "

Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C.

Cir. 1994) (quoting Frolova, 761 F.2d at 377).

12 Cf. C & L Enters., Inc. v. Citizen Band Potawatomi Indian

Tribe, 532 U.S. 411, 418, 421 n.3, 423 (2002) (holding that "to

relinquish its immunity, a tribe's waiver must be clear" and "not

ambiguous," and finding instructive "the law governing waivers of

immunity by foreign sovereigns" (internal quotation marks omit-

ted)).

13 The Management Agreement states: "In respect of any arbi-

tration or legal action or proceedings arising out of or in connection

But the district court further held that the waiver in the

Pledge Agreement indicated Kazakhstan's intention to waive

immunity for World Wide's entire lawsuit. As to this we

cannot agree. Neither the waiver in the Pledge Agreement,

nor that in the Management Agreement, describes the kind of

claims for which Kazakhstan waived immunity. And there is

nothing "clear and unambiguous" about either waiver other

than that each extends to claims for breach of the agreement

in which it is contained.14 We see nothing in these waivers to

indicate that they extend to breaches of the two other agree-

ments at issue in this case (the Loan and Strategic Alliance

agreements), neither of which contains a waiver of its own.

Indeed, the fact that only two of the four agreements

contain waivers is particularly significant in creating ambigui-

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with this Agreement, ... [the Kazakhstan State Committee] hereby

irrevocably agrees not to claim and hereby irrevocably waives ...

immunity for itself and the assets of the Republic of Kazakstan to

the full extent permitted by the laws of such jurisdiction." Manage-

ment Agreement p 6.4. The Pledge Agreement states: "[T]he

Grantor [defined as Kazakhstan and TGK] hereby irrevocably

agrees not to claim and hereby irrevocably waives ... immunity for

themselves and their Assets to the full extent permitted by the laws

of such jurisdiction with the intent inter alia that the foregoing

waiver of immunity shall have irrevocable effect for the purposes of

the [FSIA] in any legal action or proceedings to which such Act

applies." Pledge Agreement p 19.5.

14 Supporting the conclusion that the waivers do not apply to all

of World Wide's claims is the fact that each of these agreements

contains a provision limiting the agreement's scope. The Manage-

ment Agreement states that "[t]he subject of this Agreement shall

be the transfer to World Wide of the right to manage, control, use

and own the State-owned or controlled block of shares in [TGK]."

Management Agreement p 1. And the Pledge Agreement includes

an integration clause stating that "[t]his Pledge Agreement consti-

tutes and contains the entire agreement of the parties." Pledge

Agreement p 21.1. Although the Pledge Agreement grants World

Wide a security interest in TGK shares and assets, id. p 2.1, it does

not itself include an agreement to repay World Wide's loans to

TGK.

ty. Although it could be argued that the parties saw no need

for repetition once a waiver was made in the Management

Agreement, which was the first of the four, that does not

explain why they thought it necessary to include a waiver in

the Pledge Agreement, which was the last. Moreover, re-

gardless of what could be argued, the fact is that the pres-

ence of waivers in only two of four agreements creates real

ambiguity as to Kazakhstan's intent. Cf. Marra v. Papan-

dreou, 216 F.3d 1119, 1123 (D.C. Cir. 2000) ("If the Greek

government were sued by Marra for breach of two different

contracts, it certainly would have the prerogative to waive a

sovereign immunity defense with respect to one of the con-

tracts and invoke that defense for the other."). So, too, do

provisions in both the Loan and Strategic Alliance agree-

ments that suggest Kazakhstan did not contemplate that

disputes over those agreements would be resolved in United

States courts, but rather by arbitration in Kazakhstan and

Sweden.15

Nor do we see evidence that, by waiving immunity for

claims for breach of the Management and Pledge agreements,

Kazakhstan unambiguously intended to expose itself to the

miscellany of tort and tort-like claims with which World Wide

has charged it. Unlike the claims for breach of those two

contracts, which arise out of consensual agreements contain-

ing waivers of immunity, the tort claims arise out of exoge-

nous law. Indeed, in this case that law is truly "exogenous."

__________

15 See Strategic Alliance Agreement p 9.3 ("If any dispute or

difference arises out of or in connection with any matter in relation

to this Strategic Alliance Agreement ..., the same shall be arbi-

trated between the Parties and the arbitration shall be conducted

... in Almaty, Kazakhstan."); Loan Agreement p 4.2 ("If any

default or dispute or difference ... arises out of or in connection

with any matter or thing in relation to the provisions of this

Agreement, ... any party may submit the Dispute to be settled by

arbitration ... conducted in Stockholm, Sweden...."). Although

an agreement to arbitrate may in some circumstances constitute an

implied waiver of sovereign immunity, this is not such a circum-

stance and World Wide does not contend that it is. See supra note

11 and accompanying text.

World Wide seeks application of the law of the United States

(including RICO), see World Wide Opp'n to Mot. to Dismiss,

notwithstanding that no American national was a party to any

of the four agreements, and notwithstanding that each agree-

ment declares that it "shall be governed by and construed in

accordance with the laws of Kazakhstan." Management

Agreement p 6.1; Pledge Agreement p 18.1; Loan Agreement

p 4.1; Strategic Alliance Agreement p 9.2.16 Plaintiff makes

no argument and cites no cases that support extending the

waivers to these kinds of claims, and analogous cases are to

the contrary.17

In sum, we find that Kazakhstan clearly and unambiguous-

ly waived its sovereign immunity only for claims of breach of

the Management and Pledge agreements, and we therefore

hold that the district court only had jurisdiction to hear

counts that make such claims. Those counts are Count I

(breach of the Management Agreement) and Count III

(breach of the Pledge Agreement), as well as Count XI

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16 Kazakhstan's contention that as a civil law jurisdiction it does

not recognize common law torts, may be still further evidence that

Kazakhstan did not intend to waive immunity for tort claims like

those asserted here. See Kazakhstan Mot. to Dismiss for Failure to

State a Claim, at 9-10. In light of the significant ambiguities

concerning waiver noted in the text, we need not rely on this point

to decide this case, and hence need not consider Kazakhstan's

representation regarding its legal system. We note, however, that

World Wide did not dispute that representation. See World Wide

Opp'n to Mot. to Dismiss.

17 Cf. Hercules, Inc. v. United States, 516 U.S. 417, 423 (1995)

(holding that the Tucker Act's waiver of sovereign immunity for

contract claims does not extend to claims for contracts implied in

law); Watters, slip op. at 5-7 (concluding that the WMATA Com-

pact's waiver of immunity for contracts and torts does not extend to

attorney's liens); Doe v. Civiletti, 635 F.2d 88, 94-95 (2d Cir. 1980)

(holding that the Tucker Act's waiver does not extend to statutory

claims); Rodenbur v. Kaufmann, 320 F.2d 679, 683-84 (D.C. Cir.

1963) (holding that a lease's waiver of trial by jury for "any matters

whatsoever arising out of or in any way connected with this lease"

did not extend to a tort claim).

(declaratory judgment) to the extent that it seeks a declara-

tion that Kazakhstan breached the Management Agreement.18

As for all of the other claims against Kazakhstan, there has

been no waiver, and we therefore affirm their dismissal for

lack of subject matter jurisdiction.

B

Having concluded that the district court had subject matter

jurisdiction over the claims in Counts I, III, and XI, we now

turn to Kazakhstan's contention that another threshold objec-

tion--the act of state doctrine--bars adjudication of those

counts. Although ordinarily we would first examine the

validity of the district court's decision that it had personal

jurisdiction over Kazakhstan, see Papandreou, 139 F.3d at

254-56, Kazakhstan does not dispute that decision on appeal.

Unlike subject matter jurisdiction, a party waives the right to

dispute personal jurisdiction by failing to contest it on appeal.

See Spann v. Colonial Village, Inc., 899 F.2d 24, 32-33 (D.C.

Cir. 1990).

The act of state doctrine "precludes the courts of this

country from inquiring into the validity of the public acts a

recognized foreign sovereign power committed within its own

territory." Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398, 401 (1964). It is applicable when "the relief sought or

the defense interposed would [require] a court in the United

States to declare invalid the official act of a foreign sovereign

performed within" its boundaries. W.S. Kirkpatrick & Co.,

Inc. v. Environmental Tectonics Corp., 493 U.S. 400, 405

(1990). When it does apply, the doctrine serves as " 'a rule of

__________

18 In Count XI, World Wide asks the court to declare that it "had

the right to market Kazakhstan uranium under the Suspension

Agreement." Am. Compl. p 161. Since World Wide obtained this

right, if at all, under the Management Agreement, we construe

Count XI as a request for a declaration that Kazakhstan breached

that agreement by not granting World Wide an export license. To

the extent that this relatively opaque count asserts other claims,

Kazakhstan has not waived its immunity and the district court was

without jurisdiction to entertain them.

decision for the courts of this country,' " id. at 405 (quoting

Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918)),

which requires that, "in the process of deciding [a case], the

acts of foreign sovereigns taken within their own jurisdictions

shall be deemed valid," id. at 409. Although the Supreme

Court's description of the jurisprudential rationale for the

doctrine has evolved over the years, the Court has most

recently described it "as a consequence of domestic separa-

tion of powers, reflecting 'the strong sense of the Judicial

Branch that its engagement in the task of passing on the

validity of foreign acts of state may hinder' the conduct of

foreign affairs." Id. at 404 (quoting Sabbatino, 376 U.S. at

423). The policies underlying the doctrine include "interna-

tional comity, respect for the sovereignty of foreign nations

on their own territory, and the avoidance of embarrassment

to the Executive Branch in its conduct of foreign relations."

Id. at 408; see id. at 409.

The gravamen of Count I is a claim that Kazakhstan

breached the Management Agreement by "failing to issue an

export license" to World Wide. Am. Compl. p 93. Count XI

seeks a declaratory judgment for breach of that agreement,

and declares that "the denial of Plaintiff[']s export license" is

"the very heart of this matter." Id. at p 157. We have no

doubt that issuance of a license permitting the removal of

uranium from Kazakhstan is a sovereign act. As we have

previously held in the context of the FSIA, the "right to

regulate imports and exports is a sovereign prerogative."

Millen Indus., Inc. v. Coordination Council for North Am.

Affairs, 855 F.2d 879, 885 (D.C. Cir. 1988) (internal quotation

marks and alteration omitted); see Int'l Ass'n of Machinists

v. OPEC, 649 F.2d 1354, 1361 (9th Cir. 1981) (affirming "the

principle of supreme state sovereignty over natural re-

sources" in applying the act of state doctrine); cf. Rush-

Presbyterian-St. Luke's Med. Ctr. v. Hellenic Republic, 877

F.2d 574, 578 (7th Cir. 1989) (holding that "a contract where-

by a foreign state grants a private party a license to exploit

the state's natural resources is not a commercial activity

[under the FSIA], since natural resources, to the extent they

are 'affected with the public interest,' are goods in which only

the sovereign may deal"); MOL, Inc. v. Peoples Republic of

Bangladesh, 736 F.2d 1326, 1328 (9th Cir. 1984) (holding that

"licensing the exploitation of natural resources is a sovereign

activity" under the FSIA).

Because the relief sought here would require us to question

the "legality" of Kazakhstan's denial of the export license by

ruling that denial a breach of contract,19 the act of state

doctrine applies. Kirkpatrick, 493 U.S. at 405. Moreover,

this is plainly a case in which the policies underlying the

doctrine "justify its application," id. at 409, since questioning

the export control policies of a foreign state would both

disrupt international comity and interfere with the conduct of

foreign relations by the Executive Branch. Cf. Clayco Petro-

leum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 408

(9th Cir. 1983) ("[I]t is clear that judicial scrutiny of sovereign

decisions allocating the benefits of oil development would

embarrass the political branches of our government in the

conduct of foreign policy."). Indeed, as the amended com-

plaint reveals, both the export of Kazakhstan uranium to the

United States and the use of licenses to control the quantity

of such exports are the subjects of diplomatic efforts by the

Executive. See supra note 3 and accompanying text. Ac-

cordingly, we conclude that the claims asserted in Counts I

and XI must fail as a consequence of the act of state doctrine,

and we therefore affirm the dismissal of those counts.

Our analysis of Count III is the same. In that count,

World Wide alleges that Kazakhstan breached the Pledge

Agreement by "transferring the shares of TGK to Kazatom-

prom and by converting all pledged property, assets and

interests for [its] own use." Am. Compl. p 103. The amend-

ed complaint makes clear that this transfer and alleged

conversion were accomplished pursuant to an official decree

of the Republic of Kazakhstan. Id. p 17; see Republic of

__________

19 If anything, the specific relief sought in Count XI challenges

the validity of Kazakhstan's actions even more directly, as it asks

the court to declare that, despite the absence of a license, World

Wide had "the right to market Kazakhstan uranium." Am. Compl.

p 161.

Kazakhstan, Ministry of Finance, Resolution No. 317 (Oct. 2,

1997) (J.A. at 431). That kind of expropriation of property is

the classic act of state addressed in the case law. And as the

Supreme Court declared in Sabbatino, "the Judicial Branch

will not examine the validity of a taking of property within its

own territory by a foreign sovereign government." 376 U.S.

at 428; see id. at 430, 439; Riggs Nat'l Corp. v. Comm'r of

Internal Revenue Serv., 163 F.3d 1363, 1367 (D.C. Cir. 1999)

(citing Sabbatino, 376 U.S. at 403-04); Dayton v. Czecho-

slovak Socialist Republic, 834 F.2d 203, 206 (D.C. Cir. 1987);

Empressa Cubana Exportadora, Inc. v. Lamborn & Co., 652

F.2d 231, 237-38 (2d Cir. 1981); Hunt v. Mobil Oil, 550 F.2d

68, 73 (2d Cir. 1977). Because Count III would require the

court to undertake just such an examination, we affirm its

dismissal.

At oral argument, World Wide acknowledged that both the

denial of export licenses and the expropriation of property are

sovereign acts under the act of state doctrine. It nonetheless

contended that this case comes within an exception to that

doctrine for "commercial activity." The existence of such an

exception is an unsettled question that this court has never

addressed.20 Nor need we do so today.

In claiming the benefit of the exception here, World Wide

contends that its claims are not based on Kazakhstan's expro-

priation of its assets or on its denial of an export license, but

rather on the following "purely" commercial conduct: 1)

Kazakhstan's failure to repay loans and interest; 2) its refusal

to enter into a joint venture with World Wide; and 3) its

failure to pay management fees. World Wide Br. at 24, 26.

However, the first of these claims is made only in Count II

(breach of the Loan Agreement)--a count that we have

already held must be dismissed for lack of subject matter

__________

20 See Kirkpatrick, 493 U.S. at 404-05 (noting that "some Justices

have suggested" a possible exception for commercial activity, but

finding it unnecessary to consider the question to resolve the case);

Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 695 (1976)

(plurality opinion of White, J., adopting commercial activity excep-

tion).

jurisdiction. The second is made only in Count IV (breach of

the Strategic Alliance Agreement), which does not name

Kazakhstan as a defendant (and for which there was also no

waiver of sovereign immunity). And the third is not made

anywhere in the complaint--not even in what would seem the

most likely place, Count I (breach of the Management Agree-

ment). We, therefore, have no cause to address World

Wide's contention that its claims fall within a commercial

activity exception to the act of state doctrine.

In sum, we conclude that, although the district court had

subject matter jurisdiction over three claims against Kaza-

khstan (Counts I, III, and XI), all three must nonetheless be

dismissed under the act of state doctrine.

IV

In addition to naming Kazakhstan as a defendant, most of

the counts of the amended complaint also name Kazatom-

prom, a corporation wholly owned by Kazakhstan.21 World

Wide does not dispute that Kazatomprom is an instrumentali-

ty of Kazakhstan. World Wide Br. at xiii; see 28 U.S.C.

s 1603(b) (providing that an "instrumentality of a foreign

state" includes any corporation, "a majority of whose shares

or other ownership interest is owned by a foreign state"). As

a consequence, Kazatomprom is entitled to the immunity of

the sovereign. See 28 U.S.C. ss 1603(a), 1604; NYSA-ILA

Pension Trust Fund v. Garuda Indonesia, 7 F.3d 35, 38 (2d

Cir. 1993) ("A defendant corporation that is owned entirely by

a foreign state also is considered to be a distinct foreign state

and immune from the jurisdiction of the federal courts.").

Thus, for the same reasons discussed in Part III.A, the

district court lacked jurisdiction to consider against Kazatom-

prom any of the counts of the amended complaint other than

those alleging breaches of the only two agreements contain-

ing waivers of immunity: the Management and Pledge agree-

__________

21 See supra note 4 for a list of the counts. Kazatomprom is not

named in Count II (breach of the Loan Agreement) or Count III

(breach of the Pledge Agreement). It is the sole defendant in

Count IV (breach of the Strategic Alliance Agreement).

ments. And because Kazatomprom is not a defendant in

Count III (breach of the Pledge Agreement), that leaves only

Count I (breach of the Management Agreement) and Count

XI (declaratory judgment, limited to breach of the Manage-

ment Agreement).22

Our decision in Part III.B also effectively disposes of those

two remaining counts. In that part, we held that because the

gravamen of both Counts I and XI is an attack on the legality

of Kazakhstan's refusal to grant World Wide an export

license, those counts are barred--as against Kazakhstan--by

the act of state doctrine. And since World Wide offers no

reason to distinguish between Kazakhstan and Kazatomprom

for purposes of the application of that doctrine,23 our holding

in Part III.B dispositively resolves the identical claims

against Kazatomprom. This means that there is no substan-

tial federal question as to World Wide's claims against Kaza-

tomprom. And because in the absence of a substantial

federal question the district court lacks jurisdiction, we may

affirm the dismissal of these counts as well for lack of

jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523

U.S. 83, 98-99 (1998) (noting that the Court has regarded a

judgment against a plaintiff, entered because the same issue

had been "dispositively resolved" in a companion case, as

"equivalent to a jurisdictional dismissal for failure to present

a substantial federal question" (citing Norton v. Mathews, 427

U.S. 524, 530-31 (1976))).

V

Finally, we turn to the district court's decision to dismiss

World Wide's claims against Nukem. The amended com-

__________

22 Although we did not directly address Count IV (breach of the

Strategic Alliance Agreement) in Part III.A since Kazakhstan was

not named as a defendant in that count, the analysis of that Part

applies because the Strategic Alliance Agreement does not contain a

waiver of sovereign immunity. The district court therefore lacked

subject matter jurisdiction over that count.

23 Nor does the amended complaint distinguish between the two

in these counts.

plaint names Nukem as a defendant in four counts: Count

VIII (tortious interference), Count IX (civil conspiracy),

Count X (violation of RICO), and Count XI (declaratory

judgment). Because Nukem is neither a state nor the instru-

mentality of a state, it cannot assert sovereign immunity as a

defense. Nor can we say, as we did regarding Kazatomprom,

that our resolution of the act of state issues with respect to

Kazakhstan removes any substantial federal question regard-

ing the claims against Nukem, since we never reached the act

of state question with respect to Counts VIII-XI, dismissing

them instead for lack of subject matter jurisdiction.24 We

must therefore turn to the jurisdictional ground upon which

the district court dismissed the counts against Nukem: per-

sonal jurisdiction.

Nukem is a New York corporation with its principal place

of business in Connecticut. In the district court, World Wide

asserted four alternative grounds for personal jurisdiction, all

of which the court rejected: the transacting business clause

of the District of Columbia's long-arm statute, D.C. Code

s 13-423(a)(1); conspiracy jurisdiction; the nationwide ser-

vice of process provision of RICO, 18 U.S.C. s 1965(d); and

the nationwide service of process provision of the Clayton

Act, 15 U.S.C. s 22. On appeal, World Wide argued only the

first two grounds in its opening brief and has therefore

waived reliance on the latter two. See Students Against

Genocide, 257 F.3d at 834-35.

Under the District's long-arm statute, local courts may

exercise personal jurisdiction over any person "as to a claim

for relief arising from the person's ... transacting any busi-

ness in the District of Columbia." D.C. Code s 13-423(a)(1).

The statute makes clear that, where jurisdiction is predicated

__________

24 In Part III.B, we did conclude that Count XI is barred by the

act of state doctrine to the extent that it reasserts Count I's claim

of breach of the Management Agreement. But Nukem is not a

defendant in Count I, and our act of state analysis did not address

the allegation of Count XI that concerns Nukem--that it does not

have an exclusive right to market Kazakhstan uranium in the

United States. Am. Compl. pp 157-60.

solely upon the long-arm statute, "only a claim for relief

arising from acts enumerated in this section may be assert-

ed." Id. s 13-423(b). Thus, personal jurisdiction under this

theory "is limited to claims arising from the particular trans-

action of business" in the District. AMAF Int'l Corp. v.

Ralston Purina Co., 428 A.2d 849, 850 (D.C. 1981); see

Naartex Consulting Corp. v. Watt, 722 F.2d 779, 785-86 (D.C.

Cir. 1983). Similarly, to establish jurisdiction under a theory

of civil conspiracy, the plaintiff must plead with particularity

"overt acts within the forum taken in furtherance of the

conspiracy." Jungquist v. Sheikh Sultan Bin Khalifa Al

Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997) (internal quota-

tions marks omitted).

The district court held, and World Wide does not dispute,

that the only act that might satisfy these jurisdictional re-

quirements was a meeting between Nukem officials and Kaza-

khstan's Ambassador, which World Wide alleges took place at

Kazakhstan's embassy in Washington, D.C. 116

F. Supp. 2d at 106-07; World Wide Br. at 45. World Wide

alleges that these individuals met at the embassy "for the

purpose of obtaining and/or confirming [Kazakhstan's] agree-

ment to unlawfully breach its contract with Plaintiffs by

denying their pending petition for a license to export" Kaza-

khstan uranium to the United States. Am. Compl. p 6. As a

result of some confusion in the parties' pleadings, the district

court understood World Wide to allege that this meeting took

place in December 1997. Since the court also understood

from World Wide's allegations that all of its injuries occurred

prior to that date, the court concluded that World Wide's

claims could not have arisen from that meeting and that the

meeting could not have furthered the conspiracy. The court

therefore concluded that it had neither long-arm nor conspir-

acy jurisdiction over Nukem. 116 F. Supp. 2d at 106, 108.

On appeal, the parties agree that there was a misunder-

standing in the district court regarding the date upon which

the embassy meeting allegedly occurred. Both World Wide

and Nukem now agree that the relevant allegation--which we

must take as true for purposes of this appeal--is that Nukem

and Kazakhstan conspired together at a meeting that took

place in the District of Columbia in late May 1997. See Am.

Compl. p 6; Nukem Br. at 11. The basis for the district

court's dismissal therefore no longer suffices. Although Nuk-

em contends that May 1997 was also too late to have contrib-

uted to the injuries claimed by World Wide, World Wide

disputes that contention. Accordingly, we must remand the

case to the district court to resolve the dispute over its

jurisdiction.

VI

For the foregoing reasons, we affirm, although in part for

different reasons, the district court's dismissal of World

Wide's complaint against Kazakhstan and Kazatomprom.

The dismissal with respect to Nukem is remanded for further

proceedings consistent with this opinion.

Affirmed in part and remanded in part.