Amicus Curiae Brief — CC/Devas (Mauritius) Limited, et al., Petitioners v. Antrix Corp. Ltd., et al.

Supreme Court briefJan 24, 2025

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Nos. 23-1201 & 24-17

IN THE

Supreme Court of the United States

_____________

CC/DEVAS (MAURITIUS) LIMITED, et al.,

Petitioners,

ANTRIX CORP. LTD., et al.,

Respondents.

_____________

DEVAS MULTIMEDIA PRIVATE LIMITED, et al.,

Petitioners,

ANTRIX CORP. LTD., et al.,

Respondents.

_____________

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________

BRIEF FOR PROFESSOR PAUL B. STEPHAN

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

_____________

JEFFREY T. GREEN

Counsel of Record

GREEN LAUERMAN

CHARTERED P.L.L.C.

1050 30th Street NW

Washington, D.C. 20007

(240) 286-5686

jeff@greenlawchartered.com

Counsel for Amicus Curiae

January 23, 2025

QUESTION PRESENTED

Whether Section 1605(a)(6) of the Foreign Sovereign

Immunities Act requires a civil suit seeking to confirm

a foreign arbitral award to rest, in accordance with

traditional notions of fair play and substantial justice,

on minimum contacts between the United States and

the persons against whom confirmation is sought.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

IDENTITY AND INTEREST OF

AMICUS CURIAE ...........................................

SUMMARY OF THE ARGUMENT ....................

ARGUMENT ........................................................

FSIA IMPOSES NEXUS REQUIREMENTS

IN ALL SUITS AGAINST FOREIGN

STATES FOR WHICH IT PROVIDES

SUBJECT MATTER JURISDICTION ......

A. Structure and History of the FSIA .....

B. The Nexus Test in the ArbitrationAgreement Exception ..........................

1. Section 1605(a)(6)(B) applies only

when a treaty requires recognition

and enforcement of an arbitral award

in the United States ............................

2. The nexus requirement of Section

1605(a)(6)(B) distinguishes between

state-owned legal persons and states

as such .................................................

(iii)

TABLE OF CONTENTS—Continued

Page

3. The legislative history of Section

1605(a)(6)(B) makes clear that

Congress

did

not

intend

discriminate against state-owned

companies ............................................

II. THE DOCTRINE OF CONSTITUTIONAL

AVOIDANCE COUNSELS AGAINST

INTERPRETING FSIA AS IMPOSING

ACROSS-THE-BOARD

PERSONAL

JURISDICTION OVER ALL MAJORITYSTATE-OWNED LEGAL PERSONS .........

III. THIS CASE DOES NOT PRESENT

THE QUESTION OF THE CONSTITUTIONAL ADEQUACY OF FSIA’S NEXUS

REQUIREMENTS FOR TERRORISMRELATED CLAIMS ..................................

IV.

THE NINTH CIRCUIT CORRECTLY

HELD THAT PETITIONERS FAILED

TO SATISFY FSIA’S NEXUS TEST FOR

CONFIRMATION

ARBITRAL

AWARDS ...................................................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

U.S. CASES

Page(s)

Argentine Republic v. Weltover,

504 U.S. 607 (1992) ....................................

Asahi Metal Industry Co., Ltd. v. Superior

Court of California,

480 U.S. 102 (1987) ................................... 12, 22

The Bremen v. Zapata Off-Shore Co.,

407 U.S. 1 (1972) ........................................

Chromalloy Aeroservices v. Egypt,

939 F. Supp. 907 (D.D.C. 1996) .................

Corporación AIC, SA v. Hidroeléctrica

Santa Rita S.A.,

66 F.4th 876 (11th Cir. 2023) ....................

Daimler AG v. Bauman,

571 U.S. 117

(2014) ......................................................... 12, 22

Devas Multimedia Private Limited v.

CC/Devas (Mauritius) Limited,

91 F.4th 1340 (9th Cir. 2024) ....................

7-8

First National City Bank v. Banco Para el

Comercio Exterior de Cuba,

462 U.S. 611 (1983) ....................................

Frontera Resources Azerbaijan Corp. v.

State Oil Co. of Azerbaijan Republic,

582 F.3d 393 (2d Cir. 2009) .......................

Fuld v. Palestine Liberation Organization,

101 F.4th 190 (2d Cir. 2024),

cert. granted, 145 S. Ct. __ (2024)

(No. 24-20) ................................................ 21, 26

TABLE OF AUTHORITIES—Continued

Page(s)

Gater Assets Limited v. AO Moldovagaz,

2 F.4th 42 (2d Cir. 2021)............................

Goodyear Dunlop Tires Operations, S.A. v.

Brown,

564 U.S. 915 (2011) ................................... 12, 22

Helicopteros Nacionales de Colombia, S.A.

v. Hall,

466 U.S. 408 (1984) ................................... 12, 22

Hilton v. Guyot,

159 U.S. 113 (1895) ....................................

International Shoe Co. v. Washington,

326 U.S. 310 (1945) .................................... 9, 11

J. McIntyre Machinery, Ltd. v. Nicastro,

564 U.S. 873 (2011) ................................... 12, 22

Lightfoot v. Cendant Mortg. Corp.,

580 U.S. 82 (2017) ......................................

Mar. Int’l Nominees Establishment v.

Republic of Guinea,

693 F.2d 1094 (D.C. Cir. 1982) ..................

McGee v. International Life Insurance Co.,

355 U.S. 220 (1957) ....................................

Milliken v. Meyer,

311 U.S. 457 (1940) ....................................

Mobil Cerro Negro, Ltd. v. Bolivarian

Republic of Venezuela,

863 F.3d 96 (2d Cir. 2017) .........................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Omni Capital International, Ltd. v. Rudolf

Wolff & Co.,

484 U.S. 97 (1987) ..................................... 12, 22

People’s Mojahedin Organization of Iran v.

U.S. Dept. of State,

613 F.3d 220 (D.C. Cir. 2010) ....................

Petrol Shipping Corp. v. Kingdom of Greece,

Ministry of Com., Purchase Directorate,

360 F.2d 103 (2d Cir. 1966) .......................

Premier S.S. Corp. v. Embassy of Alg.,

336 F. Supp. 507 (S.D.N.Y. 1971)..............

Price v. Socialist People’s Libyan

Arab Jamahiriya,

294 F.3d 82 (D.C. Cir. 2002) ......................

Republic of Ecuador v. Chevron Corp.,

638 F.3d 384 (2d Cir. 2011) .......................

Rovin Sales Co. v. Socialist Republic of

Romania,

403 F. Supp. 1298 (N.D. Ill. 1975).............

Russian Volunteer Fleet v. United States,

282 U.S. 481 (1931) ....................................

The Schooner Exchange v. M‘Faddon,

11 U.S. (7 Cranch) 116 (1812) ...................

Shaffer v. Heitner,

433 U.S. 186 (1977) ................................... 24, 25

Thos. P. Gonzalez Corp. v. Consejo

Nacional de Producion de Costa Rica,

614 F.2d 1247 (9th Cir. 1980)....................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Palestine Liberation

Organization,

No. 24-151, cert. granted,

145 S. Ct. __ (2024) ....................................

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ....................................

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983) ....................................

Zadvydas v. Davis,

533 U.S. 678 (2001) ....................................

Zhongshan Fucheng Ind. Inv. Co. v.

Federal Republic of Nigeria,

112 F.4th 1054 (D.C. Cir. 2024) ................

FOREIGN CASES

Hebei Imp. & Exp. Corp. v. Polytek Eng’g

Co., XXIV Y.B. Comm. Arb. 652

(H.K. Ct. Fin. App. 1999) ...........................

Judgment of 9 October 1984, Pabalk

Ticaret Ltd Sirketi v. Norsolor SA,

XI Y.B. Comm. Arb. 484 (French Cour

de Cassation Civ. 1) (1986) ........................

Yukos Capital Sarl v OJSC Rosneft Oil Co,

[2012] E.W.C.A. Civ. (Ct. App. 2012) ........

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. art. III, § 2, cl. 1 .........................

U.S. Const. amend. V ................................. 3-4, 12,

21-23, 25, 27, 29, 30

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. amend XIV ................................ 12, 25

28 U.S.C. § 1330 ............................................ 6, 28

28 U.S.C. § 1330(a)........................................

7, 9

28 U.S.C. § 1330(b)...................................... 7-8, 21

Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, § 221,

April 24, 1996, 110 Stat. 1241 ...................

Foreign Sovereign Immunities Act of 1976,

Pub. L. 94-583, Oct. 21, 1976, 90 Stat. 2891,

as amended:.. ........... 1-4, 6-11, 17-20, 25, 26, 30

§ 1603(b) ....................................................

§§ 1605–1607 ........................................... 8, 9, 28

§ 1605(a)(6)........................................ 8, 9, 18, 30

§ 1605(a)(6)(B) ........... 2, 9, 10, 11, 17, 20, 21, 30

§ 1605(a)(7).................................................

§ 1605(e)-(g) ................................................

§ 1605A ....................................................... 26-28

§ 1605B .......................................................

§ 1608 .........................................................

§ 1610(a)(6).................................................

§ 1610(a)(7).................................................

Justice Against Sponsors of Terrorism Act,

Pub. L. 114-222, § 3(a), Sept. 28, 2016, 130

Stat. 853 ..................................................... 26,27

TABLE OF AUTHORITIES—Continued

Page(s)

National Defense Authorization Act for

Fiscal Year 2008, Pub. L. 110-181, § 1083,

Jan. 28, 2008, 122 Stat. 341 ......................

S. 2204, Pub. L. 100-669, Nov. 16, 1988, 102

Stat. 3969 ................................. 2, 3, 7, 18-20, 30

Public Law 100-669, § 2, 102 Stat.

3969........................................................8, 17, 18

LEGISLATIVE HISTORY

Cong. Rec. H.R. 10679 (Oct. 20, 1988) .........

H. Rep. No. 54-487, 94th Cong., 2d Sess.

(1976), reprinted in 1976 U.S. Code Cong.

& Admin. News 6604 .................................

Hearing Before the Subcommittee on

Administrative Law and Governmental

Relations of the House Judiciary Committee

on H.R. 1149, H.R. 1689, and H.R. 1888,

100th Cong., 1st Sess. (1987) .................... 18-20

TREATIES AND OTHER INTERNATIONAL

AGREEMENTS

Convention Against Torture and Other

Forms of Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984,

T.I.A.S. No. 94-1120.1, 1465 U.N.T.S.

85...............................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Convention for the Amelioration of the

Condition of the Wounded and Sick in

Armed Forces in the Field, Aug. 12, 1949,

6 U.S.T. 3114, T.I.A.S. No. 3362, 75

U.N.T.S. 3110 .............................................

Convention for the Amelioration of the

Condition of the Wounded, Sick, and

Shipwrecked Members of Armed Forces

at Sea, Aug. 12, 1949, 6 U.S.T. 3217,

T.I.A.S. No. 3363, 75 U.N.T.S. 85 .............

Convention on the Prevention and

Punishment of the Crime of Genocide,

Dec. 9, 1948, 78 U.N.T.S. 277 ....................

Convention on the Recognition and

Enforcement of Foreign Arbitral Award,

Jun. 10, 1958, 21 U. S. T. 2517, T.I.A.S.

No. 6997...........................2, 10-12, 20, 21, 29, 30

Convention Relative to the Protection of

Civilian Persons in Time of War, Aug. 12,

1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75

U.N.T.S. 287 ...............................................

Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T.

3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135..

Convention on the Settlement of Investment Disputes between States and

Nationals of Other States, Mar. 18, 1965,

17 U. S.T. 1270, 575 U.N.T.S. 159 ........... 12, 13

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Inter-American Convention on International Commercial Arbitration, Jan. 30,

1975, O.A.S.T.S. No. 42 .............................

Treaty of Friendship, Commerce and

Navigation, Ger.-U.S., Oct. 29, 1954, 5

U.S.T. 1829, T.I.A.S. No. 3057, 224

U.N.T.S. 279 UN Charter .......................... 13-16

U.N. Charter, June 26, 1945, 59 Stat. 1031,

T.S. No. 993, 3 Bevans 1153 ......................

Vienna Convention on the Law of Treaties,

May 23, 1969, 1155 U.N.T.S. 331..............

OTHER AUTHORITIES

George A. Bermann, The Yukos Annulment:

Answered and Unanswered Questions,

27 AM. REV. INT’L ARB. 1 (2016) ...............

GARY B. BORN, INTERNATIONAL COMMERCIAL

ARBITRATION (3d ed. 2024) ......................... 5, 11

Michael G. Collins, M‘Culloch and the

Turned Comma, 12 GREEN BAG 2D 265

(2009) ..........................................................

Restatement (Fourth) of the Foreign

Relations Law of the United States

(2018) ............................................... 1, 15, 16, 25

U.S. Dept. of State, Treaties in Force – A

List of Treaties and other International

Agreements of the United States in Force

on Jan. 1, 2020 (2020) ................................

IDENTITY AND

INTEREST OF AMICUS CURIAE 1

Pursuant to Supreme Court Rule 37, Professor Paul

B. Stephan respectfully submits this brief amicus

curiae in support of Respondent Antrix Corp. Ltd.

Professor Stephan is the John C. Jeffries, Jr.,

Distinguished Professor of Law at the University of

Virginia. He was Coordinating Reporter for the

American Law Institute’s Restatement (Fourth) of the

Foreign Relations Law of the United States, published

in 2018. This project, which this Court has cited four

times, addresses the interpretation and application of

the Foreign Sovereign Immunities Act (FSIA). He has

worked in the U.S. government as Counselor on

International Law to the Legal Adviser of the

Department of State and as Special Counsel to the

General Counsel of the Department of Defense. In the

course of this public service, he advised the

government on issues involving the interpretation and

application of the FSIA, including in cases before this

Court.

Amicus has an interest in the correct interpretation

of the FSIA, which affects the international legal

obligations of the United States and our nation’s

foreign relations.

SUMMARY OF THE ARGUMENT

The Ninth Circuit correctly concluded that the FSIA

conditions a district court’s jurisdiction over a civil suit

1 Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amicus Curiae or his counsel made a monetary contribution to its

preparation or submission.

to confirm a foreign arbitral award on satisfaction of a

nexus requirement based on minimum contacts

between the forum and the person sued. The FSIA

bestows jurisdiction over a suit brought against a

foreign corporation owned by a foreign state only when

the claim has a relationship to the United States. In

the case of confirmation of a foreign arbitral award,

the minimum contacts requirement can be found in

the FSIA’s Section 1605(a)(6)(B), which links subject

matter and personal jurisdiction to the treaty on which

confirmation of the award is based.

The language, structure, and purpose of the FSIA

support this conclusion. In all instances where the

FSIA, as originally enacted, authorized an exception

to state immunity, the accompanying statutory nexus

tests addressed potential Fifth Amendment concerns

by requiring minimum contacts. The 1988 amendment

that added an exception to immunity for lawsuits to

confirm an arbitral award took the same course,

although less directly.

The statutory nexus requirement in this case

requires that, to come within the exception to

sovereign immunity, the arbitral award subject to

confirmation be “governed by a treaty . . . calling for

the recognition and enforcement of arbitral awards.”

This test requires more than that treaty address

recognition and enforcement in the abstract. For

subject-matter, and thus personal, jurisdiction to

exist, the treaty must require the U.S. to recognize and

enforce the claim at issue. The New York Convention,

the treaty at the heart of this case, allows the U.S. to

refuse to confirm an award when the putative award

debtor has no relevant contacts with the U.S.

A review of adjacent treaties, in particular the many

bilateral treaties of friendship, commerce and

navigation to which the U.S. is bound, confirms this

conclusion. These treaties impose a general rule of

nondiscrimination in access to justice with respect to

alien companies, whether private or state-owned. In

particular, they guarantee foreign nationals access to

courts of competent jurisdiction to adjudicate claims

against them. Competent jurisdiction includes

personal jurisdiction. Adhering to these international

legal obligations, the 1988 amendment sought to put

state-owned foreign companies on an equal footing

with private foreign firms, not to discriminate against

them.

The doctrine of constitutional avoidance supports

deciding this case on statutory grounds. This Court

has not decided whether the Due Process Clause of the

Fifth Amendment applies to foreign legal persons

owned by a foreign state. However, this Court has

consistently recognized that foreign companies not

majority-owned by a foreign state do enjoy due process

protection, including the conditioning of personal

jurisdiction on the establishment of minimum contacts

between the person sued and the United States. The

Court should not interpret the FSIA as imposing a

different rule. Confronting the Due Process Clause

implications of that choice would bring into play

difficult constitutional issues that should await

resolution in a case that requires it.

This suit does not implicate what rules apply in

instance of state involvement of terrorism, whether

the FSIA’s requirements in such cases must comply

with the Due Process Clause of the Fifth Amendment,

and, if so, what kind of contacts with the United States

does the Constitution require of a suit against a

terrorism-supporting state. The Court need not

grapple with those difficult questions in this case,

especially as they are not at issue here.

ARGUMENT

I. FSIA IMPOSES NEXUS REQUIREMENTS

ON ALL SUITS AGAINST FOREIGN

STATES FOR WHICH IT PROVIDES

SUBJECT MATTER JURISDICTION

For most of our country’s history, the question of

whether foreign states or the companies they own

enjoy constitutional protection under the Fifth

Amendment in the course of litigation in our courts

could not have arisen. Only with the adoption of the

Foreign Sovereign Immunities Act in 1976 did

procedural safeguards become relevant. Congress

then had to consider whether the rights of companies

owned by foreign states stand on a different basis from

those of foreign legal persons generally. It responded

with nexus requirements that conditioned exceptions

to immunity on the existence of substantial contacts

with the United States.

Suits to confirm an arbitral award raise problems of

fairness and justice to the same extent as the claims

covered by the original 1976 exceptions to immunity.

A court’s confirmation of an arbitral award transforms

the winning party from the holder of a contract claim

into a judgment creditor entitled to track down and

seize the loser’s assets wherever they can be found.

Symmetrically, confirmation exposes the loser of the

arbitral proceedings to much greater legal risk. By

design, a confirmation proceeding is far from pro

forma and demands reasonable protection of the

putative debtor’s interests. It is not, as some have

suggested to this Court, a ministerial matter, but

rather a consequential contest over important legal

interests. 2

Public policy favors arbitration as an effective

means of resolving international commercial disputes.

The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-14

(1972). At the same time, lawmakers and practitioners

alike recognize that arbitral proceedings can go off the

rails, whether because of arbiter misconduct, conflicts

of interest, or misfeasance. Victims of a wrongful

arbitration can go to a domestic court with jurisdiction

over the proceeding to annul the award, as respondent

did here. In some circumstances, however, a domestic

court’s annulment decision does not have res judicata

effect internationally. E.g., Chromalloy Aeroservices v.

Egypt, 939 F. Supp. 907 (D.D.C. 1996) (refusing to

follow annulment decision of Egyptian court); Yukos

Capital Sarl v OJSC Rosneft Oil Co, [2012] E.W.C.A.

Civ. (Ct. App. 2012) (Russian annulment decision not

followed by Dutch or British courts); Judgment of 9

October 1984, Pabalk Ticaret Ltd Sirketi v. Norsolor

SA, XI Y.B. Comm. Arb. 484 (French Cour de

Cassation Civ. 1) (1986) (refusing to follow Austrian

court decision annulling arbitral award made under

Austrian law); GARY B. BORN, INTERNATIONAL

COMMERCIAL ARBITRATION § 26.05[C][8][a][ii] (3d ed.

2024).

Brief of Amicus Curiae Professor George A Bermann in

Support of Petitioners at 15 (“role of a court in recognizing or

enforcing a judgment or arbitral award is largely ministerial”).

Rather, in “satisfying itself of the regularity of the foreign

proceedings,” id., the court may face significant questions of fact

and law. E.g., George A. Bermann, The Yukos Annulment:

Answered and Unanswered Questions, 27 AM. REV. INT’L ARB. 1

(2016) (cataloging misconduct in prominent international

arbitration).

As this case illustrates, the prevailing party in an

arbitral proceeding may seek enforcement while

annulment is pending or even after its opponent has

obtained annulment from the court with jurisdiction

over the arbitral proceedings (putting aside whether

the law would uphold such a move in this case). A

party that has succeeded in annulling the award thus

faces legal risk. It must choose between trying to

preemptively set aside the award wherever a

prevailing party might bring a claim or waiting to

contest a domestic confirmation proceeding brought by

the arbitral victor. Petitioners contend they can

pursue confirmation anywhere in the world, even in

places where the persons subject to the award have no

contacts and possess no property to defend. It is

enough, they maintain, that property might turn up at

some later time. If true, the path of preemptive setaside almost certainly will be wasteful. The

alternative of defending against confirmation,

however, works only if the defendant has a fair chance

to make its case. A careful look at the 1988

amendment makes clear that it recognizes and

satisfies the need for a fair confirmation proceeding.

Structure and History of the FSIA

The FSIA as first enacted limited legal process

against foreign sovereigns and their agencies and

instrumentalities to instances where a substantial

connection existed between the civil suit and the

defendant’s activity in the United States. The statute

is complex but coherent. It begins with the FSIA’s

jurisdictional provision, 28 U.S.C. § 1330, which

addresses both subject matter and personal

jurisdiction.

Section 1330(a) extends subject matter jurisdiction

“to any claim for relief in personam with respect to

which the foreign state is not entitled to immunity

either under sections 1605–1607 of this title” As this

Court held in Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 489-97 (1983), this provision

has the collateral effect of qualifying suits covered by

the FSIA’s exceptions to immunity as “arising under”

federal law for purposes of Article III, § 2, cl. 1. Its

main purpose, however, is to limit subject matter

jurisdiction to cases falling within these exceptions.

Section 1330(b) symmetrically addresses the

question of personal jurisdiction, an independent

element of the law of federal court jurisdiction. It

states that personal jurisdiction over a foreign state

“shall exist as to every claim for relief over which the

district courts have jurisdiction under subsection (a).”

Thus, personal jurisdiction exists under the FSIA only

if the claim satisfies one of the subject-matter

exceptions to immunity. Each exception in turn

contains a nexus requirement. 3

The 1976 version of the FSIA created five exceptions

to immunity. Each was accompanied by restrictions

that satisfy a minimum contacts test, whether the

Fifth Amendment applies of its own force or not. They

require a plaintiff either to prove a waiver of objections

to jurisdiction or demonstrate a nexus between the

claim and the United States.

Section 1330(b) further requires that, for personal

jurisdiction to exist, the lawsuit must comply with the service-ofprocess rules of Section 1608. It does not appear that any question

exists about petitioners’ satisfaction of the latter requirement in

this case. Devas Multimedia Private Limited v. CC/Devas

(Mauritius) Limited, 91 F.4th 1340, 1345 (9th Cir. 2024)

(Bumatay, J., dissenting).

The legislative history of Section 1330(b), on which

the lower court relied, emphasized the FSIA’s linking

of its nexus requirements to extant constitutional

doctrines. H. Rep. No. 54-487, 94th Cong., 2d Sess. 1314 (1976), reprinted in 1976 U.S. Code Cong. & Admin.

News at pp. 6604, ·6612, cited by Devas Multimedia

Private Limited v. CC/Devas (Mauritius) Limited, at

App. 4a (quoting Thos. P. Gonzalez Corp. v. Consejo

Nacional de Producion de Costa Rica, 614 F.2d 1247,

1355 n. 5 (9th Cir. 1980)). This statement from the

House Report was not, as suggested by the dissenting

opinion in the Ninth Circuit’s denial of the petition for

rehearing en banc, Devas Multimedia Private Limited

v. CC/Devas (Mauritius) Limited, 91 F.4th 1340, 1342

(9th Cir. 2024) (Bumatay, J., dissenting), an attempt

to engraft a new meaning onto the language of Section

1330(b). Rather, it provides an accurate description of

how that provision worked in tandem with other

provisions of the FSIA, in the version in effect at the

time of Thos. P. Gonzalez Corp. That legislative

history, to be sure, could not and did not address the

relationship between Section 1330(b) and lateradopted exceptions to immunity. 4 It does, however,

indicate that Congress was aware of the issue and did

not intend to discriminate against state-owned

companies with respect to personal jurisdiction.

The 1988 enactment of Public Law 100-669, § 2, 102

Stat. 3969, which added Sections 1605(a)(6) and

1610(a)(6) to the FSIA, opened the door to the

minimum-contacts question at issue in this case.

4 See Brief for the United States as Amicus Curiae Supporting

Petitioners at 17 (“The report simply reflects the view that the

exceptions to immunity enacted in 1976 applied, as a practical

matter, only in contexts in which the committee believed

‘minimum jurisdictional contacts’ would exist.”).

Section 1605(a)(6)’s nexus requirement limits subject

matter jurisdiction over arbitration-based claims to

instances where:

the arbitration takes place or is intended to take

place in the United States, (B) the agreement or

award is or may be governed by a treaty or other

international agreement in force for the United

States calling for the recognition and enforcement

of arbitral awards, (C) the underlying claim, save

for the agreement to arbitrate, could have been

brought in a United States court under this

section or section 1607 [related to counterclaims],

or (D) paragraph (1) of this subsection [relating to

waiver] is otherwise applicable. (Emphasis

added). 5

Items (A), (C), and (D) continue the pattern

established in 1976 of expressly requiring links that

avoid constitutional minimum-contacts issues. Subsubsection (B), the only provision applicable to this

case, does not in so many words require a nexus

between the person sought to be held to an arbitration

agreement and its connections to the United States. A

careful analysis of the amendment, however, indicates

that Congress did not intend to abandon a partyfocused principle of minimum contacts.

B. The Nexus Test in

Agreement Exception

the

Arbitration-

Properly understood, Section 1605(a)(6)(B)’s

reference to treaties means only those “calling for the

recognition and enforcement of arbitral awards” in the

Amicus concurs with respondents’ argument that Section

1605(a)(6)’s reference to “a subject matter capable of settlement

by arbitration under the laws of the United States” adds an

additional nexus requirement.

United States. For a treaty to meet this nexus

requirement, it must be both in force for the United

States and require the United States to recognize and

enforce the award at issue. An international

commercial arbitration treaty that simply opened up

the prospect of recognition and enforcement

somewhere in the world would not suffice.

1. Section 1605(a)(6)(B) applies only when

a treaty requires recognition and

enforcement of an arbitral award in the

United States

At the time of the enactment of Section

1605(a)(6)(B), the principal U.S. treaty addressing the

legal status of foreign arbitral awards in the United

States was the Convention on the Recognition and

Enforcement of Foreign Arbitral Award, Jun. 10, 1958,

21 U. S. T. 2517, T.I.A.S. No. 6997 (New York

Convention) (U.S. accession as of Sep. 30, 1970). 6 This

is the only treaty on which petitioners’ rely to satisfy

the FSIA’s jurisdictional requirements.

The New York Convention does create a

presumptive obligation for states that have joined it to

recognize and enforce arbitral awards made pursuant

to its terms. This obligation, however, is subject to a

significant restriction that preserves the capacity of

The lower courts have used the New York Convention to

implement the recognition and enforcement of arbitral awards

made pursuant to bilateral investment treaties, including those

to which the United States is not a party. E.g., Zhongshan

Fucheng Ind. Inv. Co. v. Federal Republic of Nigeria, 112 F.4th

1054 (D.C. Cir. 2024); Republic of Ecuador v. Chevron Corp., 638

F.3d 384 (2d Cir. 2011). But cf. Corporación AIC, SA v.

Hidroeléctrica Santa Rita S.A., 66 F.4th 876 (11th Cir. 2023)

(domestic arbitration law, and not New York Convention, applies

to arbitrations where United States is primary jurisdiction).

states to honor their fundamental principles. It allows

a state to reject recognition or enforcement if doing so

“would be contrary to the public policy of that country.”

New York Convention Art. V(2)(b); GARY B. BORN,

supra, at § 26.05[C][9] (public policy refers to “the

fundamental conceptions of morality and justice of the

forum” (quoting Hebei Imp. & Exp. Corp. v. Polytek

Eng’g Co., XXIV Y.B. Comm. Arb. 652, 667 (H.K. Ct.

Fin. App. 1999))).

Among the principles of “fundamental conceptions of

morality and justice” that define the U.S. legal system

is that a forum’s jurisdiction must rest on “traditional

notions of fair play and substantial justice.”

International Shoe Co. v. Washington, 326 U.S. 310,

316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,

463 (1940)). Whether or not the Fifth Amendment

expresses these notions in all circumstances, a

commitment to fair play and substantial justice

pervades U.S. law. This commitment requires

applying Article V(2)(b) of the New York Convention,

and therefore Section 1605(a)(6)(B), so as to bar a

confirmation suit where a person against whom a

claim is brought has no connection to the forum.

2. The nexus requirements of Section

1605(a)(6)(B)

distinguishes

between

state-owned legal persons and states as

such

Employing a “minimum contacts” test under the

New York Convention and Section 1605(a)(6)(B) does

not require treating foreign states and their majorityowned companies as if they were identical. Legal

persons established under the laws of a foreign state

enjoy a wide range of rights and privileges under U.S.

law. These include the protection of the Fourteenth

Amendment’s due process clause and its limits on the

assertion of personal jurisdiction, Daimler AG v.

Bauman, 571 U.S. 117 (2014); Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915 (2011); J.

McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873

(2011); Asahi Metal Industry Co., Ltd. v. Superior

Court of California, 480 U.S. 102 (1987); Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408

(1984), and protection under the Fifth Amendment

with respect to assertions of personal jurisdiction,

Omni Capital International, Ltd. v. Rudolf Wolff &

Co., 484 U.S. 97 (1987), and from uncompensated

takings, Russian Volunteer Fleet v. United States, 282

U.S. 481 (1931).

Treaties to which the United States is a party do

grant foreign legal persons access to U.S. courts and

protection from lawsuits on the same general terms as

U.S. legal persons. Of particular relevance to this case

is the standard U.S. bilateral treaty of friendship,

commerce and navigation (FCN). 7 The terms of these

instruments vary somewhat, but by the end of World

War II they had become standardized to the point of

virtual identity.

The German FCN treaty is illustrative. It remains

in force, it involves a state with which the United

7 Although U.S. treaty practice in recent years has moved in

the direction of substitutes for traditional bilateral FCN treaties,

earlier-generation instruments remain in force with respect to

Argentina, Austria, Belgium, Bolivia, Brazil, Brunei, Costa Rica,

Denmark, Estonia, Finland, Germany, Greece, Honduras,

Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Netherlands,

Norway, Paraguay, Suriname, Switzerland, and Taiwan. U.S.

Dept. of State, Treaties in Force – A List of Treaties and other

International Agreements of the United States in Force on Jan.

1, 2020, at 13, 22, 36, 42, 48, 50, 99, 114, 135, 147, 170, 178, 194,

217, 228, 241, 258, 264, 270, 322, 340, 357, 424, 430, 498.

States maintains extensive commercial relations, and

its terms represent standard U.S. treaty practice. The

German Treaty’s Article V provides:

3. Neither Party shall take unreasonable or

discriminatory measures that would impair the

legally acquired rights or interests within its

territories of nationals and companies of the

other Party in the enterprises which they have

established, in their capital, or in the skills, arts

or technology which they have supplied.

4. Property of nationals and companies of either

Party shall not be taken within the territories

of the other Party, except for the public benefit

and in accordance with due process of law, . . .

Treaty of Friendship, Commerce and Navigation, Ger.U.S., Oct. 29, 1954, 5 U.S.T. 1829, T.I.A.S. No. 3057,

224 U.N.T.S. 279 (emphasis added).

With respect to judicial process, including

recognition and enforcement of arbitral awards,

Article VI of the German Treaty states:

1. Nationals and companies of either Party shall

be accorded national treatment with respect to

access to the courts of justice . . . .

2. Contracts entered into between nationals or

companies of either Party and nationals or

companies of the other Party, that provide for

the settlement by arbitration of controversies,

shall not be deemed unenforceable within the

territories of such other Party merely on the

grounds that the place designated for the

arbitration proceedings is outside such

territories or that the nationality of one or more

of the arbitrators is not that of such other Party.

Awards duly rendered pursuant to any such

contracts, which are final and enforceable under

the laws of the place where rendered, shall be

deemed conclusive in enforcement proceedings

brought before the courts of competent

jurisdiction of either Party, and shall be

entitled to be declared enforceable by such

courts, except where found contrary to public

policy. When so declared, such awards shall be

entitled to privileges and measures of

enforcement appertaining to awards rendered

locally. It is understood, however, that awards

rendered outside the United States of America

shall be entitled in any court in any State

thereof only to the same measure of recognition

as awards rendered in other States thereof.

Id. (emphasis added).

Virtually all of the FCN treaties currently in force

for the United States contain the above or equivalent

language. Through them the United States commits:

(1) not to discriminate against the interests of treatyparty nationals, whether legal or natural persons;

(2) to apply the principles of due process to all

governmental interactions with the property of treatypartner nationals; and (3) to limit the enforcement of

arbitral awards involving the national of a treaty

party to courts of competent jurisdiction, and then

only as consistent with the public policy of the United

States.

Article VI(2) contains the key commitment relevant

to this case. It guarantees a person subject to an

arbitral award under the jurisdiction of one treaty

party access to the other party’s courts of competent

jurisdiction for the award’s enforcement. The term

“competent jurisdiction” encompasses, as a matter

of U.S. law, personal jurisdiction. E.g., Lightfoot v.

Cendant Mortg. Corp., 580 U.S. 82, 95 (2017); Hilton

v. Guyot, 159 U.S. 113, 202 (1895); Restatement

(Fourth) of the Foreign Relations Law of the United

States § 483 reporters’ note 2. The Article thus bars

imposing a court lacking personal jurisdiction over the

parties on a dispute over enforcement of an arbitral

award.

All the FCN commitments granting access to justice

in U.S. courts apply to “nationals and companies” of

the treaty party, without distinguishing between

private and state-owned companies. As a matter of

plain language, legal persons that count as an “agency

or instrumentality” of a foreign state under Section

1603(b) enjoy the rights protected by the FCN. Were

there any doubt, however, Article XVIII settles the

matter. It provides:

2. No enterprise of either Party, including

corporations, associations, and government

agencies and instrumentalities, which is publicly

owned or controlled shall, if it engages in

commercial, industrial, shipping or other

business activities within the territories of the

other Party, claim or enjoy, either for itself or for

its property, immunity therein from taxation,

suit, execution of judgment or other liability to

which privately owned and controlled enterprises

are subject therein.

Id. (emphasis added). Concededly, this provision

expressly requires only that foreign publicly owned

companies will not claim greater rights in the host

country’s legal system than those accorded to foreign

private companies. A sound inference from the

provision, however, is that publicly owned companies,

at least with respect to recognition and enforcement of

arbitral awards, will not receive worse treatment than

their private counterparts.

Significantly, the FCN treaties, when addressing

access to justice, do not equate state-owned companies

with foreign states. Article XVIII(2) applies only to

enterprises, not states themselves. The purpose of

FCN treaties is to put the subjects of foreign states on

an equal basis, as far as feasible, with those of the host

state. This principle applies whatever the ownership

of a particular company.

States stand on a different ground from their

subjects and cannot be treated as equivalent to

subjects of the host state. The distinction is selfevident. Foreign legal persons, whatever the nature of

their ownership, undertake a limited range of

activities, as defined by their incorporating documents

and applicable corporate law. States by their nature

have the plenary rights and duties of a sovereign

under international law and participate directly in the

international legal system, including negotiating and

joining international treaties. Both legal persons and

states can enter into contracts, but only the latter can

make a treaty under international law. 8

“‘Treaty’ means an international agreement concluded

between States in written form and governed by international

law, . . .” Vienna Convention on the Law of Treaties art. 2(1)(a),

May 23, 1969, 1155 U.N.T.S. 331; Restatement (Fourth) of the

Foreign Relations Law of the United States, pt. III, introductory

note. Although the United States is not a party to the Vienna

Convention, it accepts many of its provisions, including this one,

as accurate statements of customary international law.

International law also recognizes that international

organizations created by treaties among states also can take part

in the making of treaties.

When Congress enacted the FSIA in 1976 and then

amended it in 1988, it gave no sign that it wished to

put the United States in breach of these treaty

obligations or have the meaning of the statute change

on a case-by-case basis depending on whether an FCN

treaty applied in a particular case. 9 Rather, it must

have understood that the rules for confirming foreign

arbitral awards would raise no risk of discrimination

against foreign companies in violation of its FCN

commitments.

3. The legislative history of Section

1605(a)(6)(B) makes clear that Congress

did not intend to discriminate against

state-owned companies

It is useful to take note of statements that provide

a context for the interpretation of open-ended

statutory language. The legislative history of Public

Law No. 100-669 makes clear that Congress meant the

provision to strip state-owned companies of defenses

that would give them greater protection from U.S.

litigation than that accorded U.S. or foreign private

companies. Congress at no time indicated a purpose of

subjecting state-owned companies to greater legal

burdens than those imposed on their private

counterparts.

The bill that became Public Law No. 100-669 was

introduced in the Hundredth Congress as H.R. 1869

by Congressman Hamilton Fish of New York. The

9 India, of course, has no FCN treaty with the United States,

so respondents do not have particular treaty rights to assert in

this case. Congress wrote Section 1605(a)(6)(B), however, with

the goal of not violating existing FCN obligations. Respondents

are beneficiaries of that purpose whether they enjoy specific

treaty rights or not.

bill’s goal, Fish explained, was to bar “the use of the

act of state doctrine or the sovereign immunity defense

to avoid compliance with an otherwise valid

arbitration award.” Hearing Before the Subcommittee

on Administrative Law and Governmental Relations

of the House Judiciary Committee on H.R. 1149, H.R.

1689, and H.R. 1888, 100th Cong., 1st Sess. 11 (1987).

The bill sought to amend the Federal Arbitration Act

to eliminate use of the act-of-state defense in claims to

recognize and enforce an arbitral award and to revise

the FSIA by introducing what eventually became

Section 1605(a)(6). It “would place private parties on a

near equal footing with governmental entities in

commercial disputes.” Id. at 12.

The following year, Congress adopted, and the

President signed, S. 2204. At the time that the House

Representatives

approved

the

measure,

Congressman Moorhead explained:

S. 2204 would amend title 9 and title 28 of the

United States Code so as to insure that neither

act of state doctrine, nor the doctrine of sovereign

immunity, may be used to frustrate the effect on

an agreement to arbitrate or to interfere with the

enforcement of an arbitral award entered against

a foreign state. The “Fish bill” – introduced as

H.R. 1689 – has the support of the State

Department and the Department of Justice. It

was the subject of a hearing before the

Subcommittee on Administrative Law and

Governmental Relations in May. 1987. No

testimony was heard in opposition to the

measure: there simply is no opposition.

Cong. Rec. H.R. 10679 (Oct. 20, 1988).

This evidence confirms that the FSIA amendments

sought to limit the sovereign immunity defense so as

to make states as well state-owned entities stand on

the same footing as private persons with respect to

U.S. legal proceedings based on arbitral agreements.

One amicus before this Court, who contributed to

this legislative history, argues that an objective of the

1988 amendments was to create an irrebuttable

presumption of waiver of personal jurisdiction based

on a state’s entry into a treaty providing for

recognition and enforcement of an arbitral award in

another treaty party’s courts, including those of the

United States. Brief for Mark B. Feldman as Amicus

Curiae Supporting Petitioners at 15-17. The focus of

Mr. Feldman’s statement in the 1987 Subcommittee

Hearings, however, was on waiver of sovereign

immunity, not of jurisdiction. Hearing Before the

Subcommittee

Administrative

Law

and

Governmental Relations of the House Judiciary

Committee, supra, at 74, 89-92 (statement of Mark B.

Feldman).

Mr. Feldman’s submission did note that, consistent

with traditional conceptions of due process, a party

could waive objections to jurisdiction. As delivered,

however, these remarks conflated waiver of immunity

with waiver of objections to jurisdiction, two distinct

legal questions. Id. at 93-94. They also addressed

proposals advocated by Mr. Feldman to extend

arbitral-award jurisdiction beyond what the Fish bill

sought. The statement of Deputy Assistant General

Schiffer at the same hearing emphasized the

distinction between immunity and jurisdiction. He

observed that hypothetically legislation might impose

an irrebuttable presumption of personal jurisdiction in

arbitration recognition cases (as the Feldman proposal

contemplated), but that the bill under consideration

did not. Id. at 47 (statement of Deputy Assistant

General Schiffer).

***

Taking into account the language of the FSIA’s

arbitral award exception, the relevant international

treaties, and the legislative history of the 1988

amendment that added that exception, it is clear that

Congress did not intend to dispense with the

minimum-contacts requirement with respect to

jurisdiction over a suit to confirm an international

arbitral award against a state-owned company. The

plain language of Section 1605(a)(6)(B) incorporates

the limits provided by the New York Convention to the

obligation of the United States to recognize and

enforce this award. These limits include a minimumcontacts test.

II. THE DOCTRINE OF CONSTITUTIONAL

AVOIDANCE COUNSELS AGAINST INTERPRETING FSIA AS IMPOSING ACROSSTHE-BOARD PERSONAL JURSIDICTION

OVER ALL MAJORITY-STATE-OWNED

LEGAL PERSONS

Until Argentine Republic v. Weltover, 504 U.S. 607

(1992), this Court had no occasion to consider whether

foreign states enjoy constitutional protection with

respect to the personal jurisdiction of a U.S. court. In

that case, which involved a foreign state rather than a

state-owned company, this Court noted but did not

resolve the issue, as Argentina satisfied the

“purposeful availment” test applied in Fifth

Amendment cases. Id. at 619-20. Since then, several

lower courts have ruled that no such protection exists.

E.g., Frontera Resources Azerbaijan Corp. v. State Oil

Co. of Azerbaijan Republic, 582 F.3d 393 (2d Cir.

2009); Price v. Socialist People's Libyan Arab

Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002). But see

Gater Assets Limited v. AO Moldovagaz, 2 F.4th 42 (2d

Cir. 2021) (Fifth Amendment protects foreign stateowned company that does not count as “alter ego” of

foreign state).

Were this Court to interpret Sections 1330(b) and

1605(a)(6)(B) as deeming the existence of personal

jurisdiction across the board in suits seeking to enforce

a New York Convention arbitral award against foreign

state-owned firms, it would have to address several

difficult constitutional questions. First, it would have

to decide whether foreign states count as persons for

purposes of the Fifth Amendment. This would include

grappling with the status of foreign state-owned firms

under the Fifth Amendment, as well as whether the

Fifth Amendment prescribes rules, such the alter-ego

test used by the lower courts, for distinguishing stateowned firms from states as such. Second, if it were to

determine that state-owned firms enjoy due process

protection, it would have to decide what process

suffices to meet constitutional requirements. This last

issue implicates an important and fraught collateral

question, whether Congress may supply those

requirements in derogation of judicially crafted

standards. See Fuld v. Palestine Liberation

Organization, 101 F.4th 190, 219-23 (2d Cir. 2024)

(Menashi, J., dissenting from the denial of rehearing

en banc), cert. granted, 145 S. Ct. __ (2024).

Each of these questions presents challenging

problems with significant, not necessarily self-evident

ramifications. It is settled that “aliens receive

constitutional protections when they have come within

the territory of the United States and developed

substantial connections with this country.” United

States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990),

and that “once an alien enters the country, the legal

circumstance changes, for the Due Process Clause

applies to all ‘persons’ within the United States,

including aliens, whether their presence here is

lawful, unlawful, temporary, or permanent.”

Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An

assertion of personal jurisdiction brings a person

within the territory of the United States for

constitutional purposes, which is why suits against

alien legal persons must satisfy due process

standards. Daimler AG v. Bauman, 571 U.S. 117

(2014); Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915 (2011); J. McIntyre Machinery,

Ltd. v. Nicastro, 564 U.S. 873 (2011); Omni Capital

International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97

(1987); Asahi Metal Industry Co., Ltd. v. Superior

Court of California, 480 U.S. 102 (1987); Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408

(1984). If the Fifth Amendment treats aliens, natural

and legal, as “persons” when bringing them into the

United States, should it treat legal persons owned by

foreign states differently?

As subjects of the international legal system, states

engage directly with other states, including the United

States, across many fields and in many ways.

Virtually all states belong to the United Nations and

thus take part in its various New-York-based

activities. Virtually every state belongs to multilateral

treaties governing matters as diverse as international

telecommunications, the law of armed conflict, and

human rights. All these treaties create ongoing rights

and duties with respect to the United States. Even

states with which the United States has suspended

diplomatic relations negotiate with our government

over specific matters of mutual concern, including

security threats and hostages, and remain in treaty

relations. The level of contacts between foreign states

and the United States thus is both qualitatively and

quantitatively different from those involving foreign

state-owned legal persons.

The lower courts have assumed that foreign

companies, including the state-owned, do qualify as

“persons” under the Fifth Amendment. They have

reconciled this outcome with their conclusion that

foreign states do not by devising a means of

distinguishing such persons from the state that owns

them. They rely particularly on the alter-ego concept

developed by First National City Bank v. Banco Para

el Comercio Exterior de Cuba, 462 U.S. 611 (1983)

(Bancec). This seemingly tidy solution, however, falls

apart upon closer examination.

Applying Bancec to minimum contacts issues lacks

a clear conceptual basis. Bancec developed federal

common law to address a creditor-rights problem,

namely when a state’s creditor may treat a separate

legal person’s assets as belonging to the state. The

factors employed in a Bancec analysis are not

necessarily relevant to the question whether a foreign

state’s connections the United States suffice to bring a

legally distinct foreign entity into contact with our

country for purposes of fundamental fairness and

natural justice. Protecting creditors’ rights from

abusive creditors and ensuring fundamental fairness

to a legal entity are completely different tasks.

Were this Court to accept that foreign states as well

as the companies they own count as “persons” with

respect to our legal system’s engagement with them, it

then would have to consider how the Fifth Amendment

applies to these engagements. It might conclude, for

example, that a state’s joining of a treaty that accepts

the jurisdiction of U.S. courts with respect to matters

governed by that treaty suffices to meet the standards

of due process. It would not follow, however, that this

consent can be imputed to that sovereign’s subjects.

A sovereign may waive rights bestowed on it by

international law, but not the rights of its subjects

bestowed on them by our constitution. A sovereign

generally has the right to waive the immunity from

legal process of its employees, agents and

representatives, including diplomats, because the

immunity inheres in the nature of sovereignty.

Whether a sovereign can waive constitutional

protection our country accords generally to persons

drawn into the legal process is a completely different

issue. If foreign persons, including state-owned firms,

are entitled as a matter of constitutional law to insist

that the personal jurisdiction of a U.S. court over them

must rest on minimum contacts between them and the

United States, a treaty to the contrary made by the

foreign person’s sovereign should not suffice to cancel

a U.S. constitutional entitlement.

Another issue that this Court has not yet addressed

is whether and how footnote 36 of Shaffer v. Heitner,

433 U.S. 186, 210 (1977), applies to a suit to confirm

an arbitral award. 10 A fair reading of that footnote’s

reference to a determination “by a court of competent

jurisdiction” (emphasis supplied) is that it applies only

to a judicial judgment, and not an arbitral award. If

10 The footnote states: “Once it has been determined by a court

of competent jurisdiction that the defendant is a debtor of the

plaintiff, there would seem to be no unfairness in allowing an

action to realize on that debt in a State where the defendant has

property, whether or not that State would have jurisdiction to

determine the existence of the debt as an original matter.”

so, the footnote would sustain personal jurisdiction in

a proceeding to levy against any available property a

prior judicial judgment recognizing the award,

because a competent court (and not just an arbitral

tribunal) had determined the defendant’s status as a

debtor. The footnote would not, however, recognize

personal jurisdiction with respect to the initial

proceeding to confirm the award, because of the

absence of prior involvement by a competent court. See

generally Restatement (Fourth) of the Foreign

Relations Law of the United States § 482 reporters’

note 3. Again, the Court should be reluctant to resolve

this issue in a case that it can dispose of on other

grounds, and in which the issue has not been fully

briefed. 11

One possible response to these questions over the

scope of due process is that the Fifth Amendment,

unlike the Fourteenth, does not have individual

liberty or fairness at its core. Members of one lower

court have argued that the Fifth Amendment instead

leaves it to the political branches to decide what

constitutes due process with respect to aliens whom

civil litigants seek to bring within our legal system.

11 Professor Bermann proposes in his amicus brief to treat all

suits for recognition and enforcement of an arbitral award as

within the limited scope of the in rem jurisdiction preserved by

footnote 36 of Shaffer. Brief of Amicus Curiae Professor George A

Bermann in Support of Petitioners at 16-21. The lower courts are

split on this question, as Professor Bermann acknowledges, and

the issue is too significant to dispose of in a case where the parties

have not fully briefed it. Among other issues, resolution of this

argument would require a court to address the language of FSIA

Section 1330, which limits FSIA’s exceptions to sovereign

immunity to “any claim for relief in personam” covered by

Sections 1605-07. Whether Professor Bermann’s proposal would

transgress this limitation is a matter best left for another day.

The Court may find itself called to address that issue

in Fuld v. PLO, Case No. 24-20, certiorari granted and

consolidated with United States v. PLO, Case No. 24151. As those cases illustrate, the ramifications of that

question go well beyond the rights and interests under

U.S. law of foreign states and the companies they own.

It would be imprudent to grapple with the issue here,

given the availability of a narrow statutory ground to

resolve this case.

III. THIS CASE DOES NOT PRESENT THE

QUESTION OF THE CONSTITUTIONAL

ADEQUACY OF FSIA’S NEXUS REQUIREMENTS

FOR

TERRORISM-RELATED

CLAIMS

In 1996, Congress again amended the FSIA to

permit victims of international terrorism to bring suit

for personal injuries against states that the President

had designated as sponsors of terrorist acts.

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132 § 221, 110 Stat. 1241,

adding Sections 1605(a)(7), (e)-(g) and 1610(a)(7). In

2008, it superseded these amendments by enacting

Section 1605A. National Defense Authorization Act for

Fiscal Year 2008, Pub. L. 110-181 § 1083, 122 Stat.

341. Both the earlier version of the provision and

current law strip immunities from a state when an

“official, employee, or agent” of that state provides

material support to specified terrorist acts, defined in

reference to international law, that causes personal

injury or death to a U.S. national, a member of the

U.S. armed forces, or a U.S. government employee or

contractor acting within the scope of employment.

In 2016, Congress further amended the FSIA by

adding Section 1605B. Justice Against Sponsors of

Terrorism Act, Pub. L. 114-222, § 3(a), Sept. 28, 2016,

130 Stat. 853. This provision excludes from immunity

suits for death or personal injury in the United States

caused by “a tortious act or acts of the foreign state, or

of any official, employee, or agent of that foreign state

while acting within the scope of his or her office,

employment, or agency, regardless where the tortious

act or acts of the foreign state occurred.” The nexus

provision here is stronger than that in Section 1605A,

as it requires U.S.-based harm. Moreover, the

elements of the immunity exception, which excludes

“an omission or a tortious act or acts that constitute

mere negligence,” indicates that the covered conduct

will satisfy a purposeful availment standard, thereby

eliding whatever constitutional issues might

otherwise arise.

The present case has nothing to do with the

terrorism exceptions and deciding it on statutory

grounds will properly leave open the question of how

the Fifth Amendment might apply to such claims.

Those exceptions present profoundly different issues

that would frame any Fifth Amendment analysis that

might apply.

Foreign states themselves have distinctive and

ongoing contacts with the United States that are

categorically different from those of an entity with a

separate legal personality. By their very nature, states

maintain a range of connections with the United

States that should suffice to satisfy whatever

minimum-contacts rule might apply to lawsuits based

on sponsorship of terrorism. Membership and

participation in the United Nations, for example,

entail substantial activity on U.S. territory.

UN involvement aside, participation in multilateral

treaties bring most states in the world into direct

contact with the United States. In particular, all of the

states that the United States has designated as state

sponsors of terrorism have joined treaties that outlaw

support for terrorism. These include the UN Charter,

the Convention on the Prevention and Punishment of

the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277,

the Geneva Conventions (Convention Relative to the

Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T.

3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention

for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field, Aug. 12, 1949,

6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 3110;

Convention for the Amelioration of the Condition of

the Wounded, Sick, and Shipwrecked Members of

Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217,

T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative

to the Protection of Civilian Persons in Time of War,

Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75

U.N.T.S. 287), and the Convention Against Torture

and Other Forms of Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984, T.I.A.S. No.

94-1120.1, 1465 U.N.T.S. 85. Each of these treaties,

directly or by implication, forbids the activity covered

by Section 1605A. Every country that the United

States has designated as a state sponsor of terrorism

has joined all or most of them. 12 It would not require a

great conceptual leap to regard the purposeful breach

of a treaty commitment that a state has made to the

United States as sufficient to satisfy any minimum

12 The countries currently designated as sponsors of terrorism

are Iran, North Korea, and Syria. Past designees include Cuba,

Iraq, Libya, and Sudan. Iran and North Korea have not joined the

Convention Against Torture, but belong to the remaining treaties

regulating the lawful use of armed force. Syria belongs to all of

them.

contacts test that the Fifth Amendment hypothetically

might apply.

Each of these issues entails distinct legal questions

with profound policy implications. The answers may

be in view but should not be presumed self-evident. It

suffices to observe that none of the issues before the

Court in this case requires an answer.

IV. THE NINTH CIRCUIT CORRECTLY HELD

THAT PETITIONERS FAILED TO SATISFY

FSIA’S NEXUS TEST FOR CONFIRMATION

OF ARBITRAL AWARDS

The Ninth Circuit determined that the contract that

served as the basis for the arbitration at the center of

this case “was negotiated outside of the United States,

executed in India in 2005, and did not require Antrix

to conduct any activities or create ongoing obligations

in the United States.” App. At 7a. In the lower courts,

petitioners argued that people associated with Antrix

twice came to the United State for meetings, but the

Ninth Circuit ruled that none of these “random,

isolated, or fortuitous” meetings was related to the

contract. Petitioners do not challenge these factual

determinations but rather argue that the court

applied the wrong legal standard in assessing their

significance. The point remains that respondents had

no connection with the United States other than

entering into a contract in India with an Indian

corporation that provided for arbitration of disputes in

conformity with the New York Convention, a treaty

that opens the door to recognition and enforcement of

arbitral awards in the United States but does not

mandate that outcome in all circumstances.

The decision of the court below did not focus on the

particular nexus requirements imposed by the FSIA’s

Section 1605(a)(6). It also did not consider the

possibility that its earlier cases, all dealing with the

FSIA’s original exceptions to immunity, might not

necessarily extend to this later provision. Although its

analysis might have been incomplete, however, the

court nevertheless reached the right conclusion.

The language, structure, and relevant international

commitments of the United States, as well as the 1988

amendment’s legislative history, all point in the same

direction: Section 1605(a)(6)(B), the FSIA’s nexus

requirement for claims that depend on the New York

Convention, demands that a suit for recognition of an

arbitral award rest on minimum contacts between a

legal person subject to the award and the United

States. Were this provision to be read otherwise, the

Court would have to consider difficult and potentially

far-reaching questions under the Due Process Clause

of the Fifth Amendment as well as opening the door to

possible violations of U.S. international legal

obligations. The Ninth Circuit correctly assessed what

the FSIA requires, making it unnecessary to address

challenging issues of constitutional and international

law. Its judgment should be affirmed.

CONCLUSION

The judgment of the Ninth Circuit should be

affirmed.

Respectfully submitted,

JEFFREY T. GREEN

Counsel of Record

GREEN LAUERMAN

CHARTERED P.L.L.C.

1050 30th Street NW

Washington, D.C. 20007

(240) 286-5686

jeff@greenlawchartered.com

Counsel for Amicus Curiae

January 23, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.