Petition for Writ of Certiorari — Federal Republic of Nigeria, Petitioner v. Zhongshan Fucheng Industrial Investment Co. Ltd.
Supreme Court briefNov 7, 2024
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No.
IN THE
Supreme Court of the United States
FEDERAL REPUBLIC OF NIGERIA
Petitioner,
v.
ZHONGSHAN FUCHENG INDUSTRIAL
INVESTMENT CO. LTD.
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Keith Bradley
Raúl B. Mañón
Counsel of Record
200 S. Biscayne Blvd.,
ScheLeese Goudy
Suite 3400
Kayla Marie Mendez
Miami, FL 33131
717 17th St., Suite 1825
Denver, CO 80202
Samuel B. Ballingrud
(303) 830-1776
2500 M Street NW
keith.bradley@squirepb.com Washington, DC 20037
SQUIRE PATTON BOGGS (US) LLP
Counsel for Petitioner
QUESTIONS PRESENTED
The New York Convention applies to arbitration
awards “arising out of differences between persons,
whether physical or legal.” The word “person” in ordinary English does not encompass a sovereign, and
certainly not a sovereign acting in its sovereign capacity (as opposed to a government entity participating in
markets in a private-law capacity). Meanwhile, at the
time of the Convention’s adoption (in 1958), only some
countries had recently begun exposing foreign government bodies to suit in court, and only for private-law
activities. No country anywhere had even contemplated stripping a sovereign of immunity for cases
arising from its sovereign conduct.
Yet the D.C. Circuit holds that the Convention
mandates judicial enforcement of arbitration awards
against sovereign nations for cases arising solely from
their roles as sovereigns—here, Nigeria’s sovereign
obligations under a treaty with China and under public international law. The D.C. Circuit did so by refusing to adhere to this Court’s precedents on the meaning of “person”—on a theory that they address only domestic law—and ignoring the context in which the
Convention was negotiated.
This case thus presents two related questions.
(1) Whether, for interpreting the intentions of the
treaty parties regarding a word like “person,” extratextual information such as historical context and
contemporary domestic law is a material input in parallel with the textual analysis; and
(2) Whether the New York Convention applies for
arbitration agreements governing a dispute with a
sovereign nation arising out of its role as a sovereign.
ii
RELATED PROCEEDINGS
The following proceedings are directly related to
this petition:
Zhongshan Fucheng Industrial Investment Co.
Ltd. v. Federal Republic of Nigeria, No. 23-7016 (D.C.
Cir. Aug. 9, 2024).
Zhongshan Fucheng Industrial Investment Co.,
Ltd. v. Federal Republic of Nigeria, No. 22-cv-00170BAH (D.D.C. Jan. 26, 2023).
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...................................... I
RELATED PROCEEDINGS ..................................... II
PETITION FOR A WRIT OF CERTIORARI ............ 1
OPINION BELOW ..................................................... 1
JURISDICTION ......................................................... 1
STATUTORY AND TREATY PROVISIONS ............ 1
INTRODUCTION ....................................................... 1
STATEMENT ............................................................. 4
A.
Legal Background ................................. 4
B.
Factual and Procedural
Background ......................................... 10
REASONS FOR GRANTING THE PETITION ...... 15
A.
The Courts of Appeals are
divided on how to interpret
treaties. ............................................... 17
B.
The D.C. Circuit’s interpretation
of the Convention conflicts with
other circuits and with this
Court’s precedents. ............................. 25
C.
The D.C. Circuit’s decision was
wrong. .................................................. 32
D.
The questions presented are
exceptionally important. ..................... 35
CONCLUSION ......................................................... 37
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Air France v. Saks,
470 U.S. 392 (1985) ......................... 17, 24, 29, 31
Alfred Dunhill of London, Inc. v. Republic of
Cuba,
425 U.S. 682 (1976) ......................................... 5, 6
B.V. Bureau Wijsmuller v. United States,
No. 76-2494, 1976 WL 6455361
(S.D.N.Y. Dec. 22, 1976) ............................. 28, 36
Bainbridge Fund Ltd. v. Republic of
Argentina,
37 F.4th 847 (2d Cir. 2022) ............................... 26
Bank of the United States v. Planter’s Bank
of Ga.,
22 U.S. 904 (1824) ............................................... 5
Bolivarian Republic of Venezuela v.
Helmerich & Payne Int’l Drilling Co.,
581 U.S. 170 (2017) ........................... 5, 16, 32, 36
CC/Devas (Mauritius) Ltd. v. Antrix Corp.,
No. 23-1201, 2024 WL 4394121 (U.S.
Oct. 4, 2024) ...................................................... 27
Chan v. Korean Air Lines, Ltd.,
490 U.S. 122 (1989) ............................... 21, 23, 24
v
Cook v. United States,
288 U.S. 102 (1933) ..................................... 30, 31
Eastern Airlines, Inc. v. Floyd,
499 U.S. 530 (1991) ........................................... 24
El-Hadad v. United Arab Emirates,
216 F.3d 29 (D.C. Cir. 2000) ............................. 12
Frolova v. Union of Soviet Socialist
Republics,
761 F.2d 370 (7th Cir. 1985) ............................. 18
GE Energy Power Conversion France SAS,
Corp. v. Outokumpu Stainless USA,
LLC,
590 U.S. 432 (2020) ........................................... 34
Gross v. German Found. Indus. Initiative,
549 F.2d 605 (3d Cir. 2008) .............................. 18
Instituto Mexicano del Seguro Social v.
Zimmer Biomet Holdings, Inc.,
29 F.4th 351 (7th Cir. 2022) ............................. 25
Kreimerman v. Casa Veerkamp, S.A. de
C.V.,
22 F.3d 634 (5th Cir. 1994) ............................... 21
Libyan Am. Oil Co. v. Socialist People’s
Libyan Arab Jamahirya,
482 F. Supp. 1175 (D.D.C. 1980) ...................... 34
Libyan American Oil Co. v. Socialist
People’s Libyan Arab Jamahirya,
684 F.2d 1032 (D.C. Cir. 1981) ......................... 33
vi
MacNamara v. Korean Air Lines,
863 F.3d 1135 (3d Cir. 1988) ................ 18, 19, 22
Martinez v. United States,
828 F.3d 451 (6th Cir. 2016) ........... 19, 21, 23, 25
Medellín v. Texas,
552 U.S. 491 (2008) ......................... 21, 24, 25, 34
Mora v. New York,
524 F.3d 183 (2d Cir. 2008) .............................. 20
New York v. United States,
326 U.S. 572 (1946) ............................................. 5
Peck v. U.S. Dept. of Labor,
996 F.3d 224 (4th Cir. 2021) ............................. 26
Permanent Mission of India to the United
Nations v. City of New York,
551 U.S. 193 (2007) ............................................. 4
Persinger v. Islamic Republic of Iran,
729 F.2d 835 (D.C. Cir. 1984) ........................... 35
Republic of Mexico v. Hoffman,
324 U.S. 30 (1945) ........................................... 3, 4
Return Mail, Inc. v. Postal Service,
587 U.S. 618 (2019) ........................................... 26
Robert v. Tesson,
507 F.3d 981 (6th Cir. 2007) ............................. 35
vii
Société Nationale Industrielle Aerospatiale
v. United States Dist. Court for Southern
Dist. of Iowa,
482 U.S. 522 (1987) ..................................... 17, 30
South Carolina v. Katzenbach,
383 U.S. 301 (1966) ..................................... 26, 27
Tai Ping Ins. Co. v. Northwest Airlines, Inc.,
94 F.3d 29 (2d Cir. 1996) .................................. 20
The Amiable Isabella,
6 Wheat. 1 (1821) .............................................. 17
United States v. Cooper Corp.,
312 U.S. 600 (1941) ............................................. 6
United States v. Fox,
94 U.S. 315 (1876) ................................. 25, 26, 33
United States v. Jeong,
624 F.3d 706 (5th Cir. 2010) ....................... 21, 24
United States v. Li,
206 F.3d 56 (1st Cir. 2000) ............................... 20
United States v. Postal,
589 F.2d 862 (5th Cir. 1979) ................. 20, 21, 22
United States v. United Mine Workers of
America,
330 U.S. 258 (1947) ..................... 6, 26, 27, 31, 32
Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480 (1983) ............................................. 5
viii
Victoria Sales Corp. v. Emery Air Freight,
Inc.,
917 F.2d 705 (2d Cir. 1990). ............................. 23
Volkswagen Aktiengesellshaft v. Schlunk,
486 U.S. 694 (1988) ..................................... 24, 31
Will v. Mich. Dept. of State Police,
491 U.S. 58 (1989) ............................................. 26
Wolgel v. Mexicana Airlines,
821 F.2d 442 (7th Cir. 1987) ............................. 18
Xerox Corp. v. United States,
41 F.3d 647 (Fed. Cir. 1994) ............................. 19
Yusuf Ahmed Alghanim & Sons v. Toys “R”
Us, Inc.,
126 F.3d 15 (2d Cir. 1997) .................................. 6
Statutes
9 U.S.C. § 202 ........................................................... 9
9 U.S.C. § 202 ......................................................... 14
9 U.S.C. § 204 ......................................................... 36
28 U.S.C. § 1254(1) ................................................... 1
28 U.S.C. § 1391(f)(4) ............................................. 36
28 U.S.C. § 1605(a)(2) .............................................. 9
28 U.S.C. § 1605(a)(3) .............................................. 9
28 U.S.C. § 1605(a)(6) ............................................ 10
ix
Foreign Sovereign Immunities Act, Pub. L.
94-1487, 90 Stat. 2891 ........................................ 9
Other Authorities
AG Abia v. AG Federation
(2006) 16 NWLR part 1005, 265
(Nigeria) ............................................................ 11
Agreement Between the Government of the
People’s Republic of China and the
Government of the Federal Republic of
Nigeria for the Reciprocal Promotion
and Protection of Investments, ChinaNigeria, Aug. 27, 2001 ...................................... 10
Convention on the Recognition and
Enforcement of Foreign Arbitral
Awards, June 10, 1958, 21 U.S.T. 2517,
330 U.N.T.S. 3, App. 182a .................................. 2
U.N. Economic & Social Council, Report of
the Committee on the Enforcement of
International Arbitral Awards,
E/AC.42/4/Rev.1 (Mar. 21, 1955) .................... 7, 8
David J. Bederman, Revivalist Canons and
Treaty Interpretation, 41 UCLA L. REV.
953 (1994) .......................................................... 23
Draft Convention, 3d Committee mtg., U.N.
Doc. E/AC.42/SR.3 (March 2, 1955).................... 8
Joshua Weiss, Defining Executive Deference
in Treaty Interpretation Cases, 79 GEO.
WASH. L. REV. 1592 (2011) ................................ 23
x
Message of U.S. President Transmitting
U.N. Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
to the Senate for Consent to Ratification,
reprinted in 7 I.L.M. 1042 (1968) ....................... 9
Report of the U.S. Delegation to the United
Nations Conference on International
Commercial Arbitration (1958),
reprinted in 19 AM. REV. INT'L ARB. 91
(2008) ................................................................... 8
Restatement (Fourth) of Foreign Relations
Law of the United States § 455,
Reporter’s Note 15 (2018) ................................. 10
Restatement (Second) of the Foreign
Relations Law of the U.S. § 3 (1965) ................ 13
U.N. Economic & Social Council, Statement
Submitted by International Chamber of
Commerce, E/C.2/373 (Oct. 28, 1953) ................. 7
U.S. Dept. of State, Office of the Historian,
The Alabama Claims, 1862-1872 ..................... 27
1
PETITION FOR A WRIT OF CERTIORARI
The Federal Republic of Nigeria (“Nigeria”) respectfully seeks a writ of certiorari to review the judgment of the U.S. Court of Appeals for the District of
Columbia Circuit.
OPINION BELOW
The opinion below, with a dissent, is reported at
112 F.4th 1054. App. 1a-65a. The district court’s unpublished decision is available at 2023 WL 417975.
App. 66a. The arbitration award is at App. 92a.
JURISDICTION
The D.C. Circuit entered judgment on August 9,
2024. This Court has jurisdiction under 28 U.S.C.
1254(1).
STATUTORY AND TREATY PROVISIONS
Pertinent provisions are reproduced at Appendix
182a-194a.
INTRODUCTION
This case, arising from efforts by respondent
(“Zhongshan”) to wield the power of U.S. courts
against the sovereign government of Nigeria, raises
key questions about the role of the courts in relations
between sovereign States, and about how courts understand the treaties defining such relations.
Zhongshan seeks to enforce an arbitration award arising purely out of Nigeria’s role as a sovereign. The
sole basis for Zhongshan, a Chinese company, to hale
2
Nigeria into a U.S. court is the asserted application of
the New York Convention. Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3, App.
182a.
That Convention applies to arbitrations arising
from disputes between “persons.” App. 184a, art. I § 1.
When the Convention was adopted, it was well understood the term “person” might encompass a government-owned company, but not the government itself
as a sovereign. In international relations, it was
equally well-settled that courts would not exercise jurisdiction over another sovereign acting in sovereign
capacity. It would have been a bombshell if the Convention’s drafters had extended its enforcement regime to such sovereigns. To the contrary, they repeatedly said the Convention’s purview was “private law”
disputes. The U.S. government, describing its understanding of the treaty shortly afterwards, said the
same.
But the D.C. Circuit held—over a dissent by Judge
Katsas—that the Convention applies to a sovereign
government acting solely in its sovereign capacity.
The D.C. Circuit’s interpretive methodology extends a deep circuit split. Some circuits interpret
treaties like statutes, looking solely to a text’s plain
meaning with resort to extrinsic evidence only if the
text is ambiguous. Other circuits interpret this
Court’s precedents to require consideration of the text
and context in parallel.
That difference was dispositive here. As Judge
Katsas’s dissent demonstrated, the historical context
3
leaves no doubt the Convention’s adopters did not intend to apply the Convention to sovereign governments qua sovereigns. The panel majority ignored
that historical context. The D.C. Circuit believes a
treaty must be interpreted as a freestanding text,
with contextual materials relevant only upon a finding of textual ambiguity. Consequently, the panel majority refused to consider such context because the
Convention did not explicitly exclude sovereigns-assovereigns.
Moreover, the D.C. Circuit expressly refused to
follow this Court’s precedents holding that the common usage of the word “person” does not include sovereigns. Other circuits have recognized that these
precedents are binding about the meaning of that
word, but the D.C. Circuit considers that caselaw
binding only for interpretation of federal statutes.
The D.C. Circuit’s decision is profoundly flawed,
with significant ramifications for the nation’s foreign
relations. This Court has recognized that the “judicial
seizure of the property of a friendly state” has the potential to harm the country’s relations with that state.
Republic of Mexico v. Hoffman, 324 U.S. 30, 35-36
(1945). The D.C. Circuit’s decision expands the circumstances in which a court may do precisely that,
and ultimately places U.S. courts in the position of enforcing an international agreement (the treaty establishing the arbitration) between two other foreign nations.
This Court should grant certiorari and reverse the
D.C. Circuit’s judgment.
4
STATEMENT
A. Legal Background
1. Traditionally, the United States did not subject
other nations to suit in its courts; this foreign sovereign immunity was respected by other nations in their
courts as well. Until the middle of the 20th century,
the United States followed this “‘classical or virtually
absolute theory of sovereign immunity,’ under which
‘a sovereign cannot, without his consent, be made a
respondent in the courts of another sovereign.’” Permanent Mission of India to the United Nations v. City
of New York, 551 U.S. 193, 199 (2007) (quoting Letter
from Jack B. Tate, Acting Legal Adviser, U.S. Dept. of
State, to Acting U.S. Attorney General Phillip B. Perlman (May 19, 1952) (“Tate Letter”)).
2. In the years after the Second World War, the
classical concept of foreign sovereign immunity began
to relax. Republic of Mexico allowed a suit against a
vessel owned by the Mexican Government, because
the Court distinguished mere “ownership” by the sovereign and the sovereign’s actual possession of the
vessel. 324 U.S., at 36-38. Concurring, Justices
Frankfurter and Black praised the relaxation of absolute immunity, because of the “enormous growth” of
sovereigns engaged in “ordinary merchandizing” activity. Id., at 40-41 (Frankfurter, J., concurring).
Soon after, in the Tate Letter, the State Department
announced that the United States would no longer adhere to the absolute theory. Instead, the United
States would use what is called the “restrictive theory,” under which “immunity is confined to suits involving the foreign sovereign’s public acts, and does
not extend to cases arising out of a foreign state’s
5
strictly commercial acts,” Verlinden B.V. v. Cent.
Bank of Nigeria, 461 U.S. 480, 487 (1983) (describing
restrictive immunity). The distinction between a government acting in its sovereign capacity and acting in
its private-law capacity as a marketplace participant
is sometimes expressed with the phrases jure imperii
(the former) and jure gestionis (the latter). See Bolivarian Republic of Venezuela v. Helmerich & Payne
Int’l Drilling Co., 581 U.S. 170, 181-82 (2017) (noting
expropriation is jure imperii).
The State Department’s adoption of the restrictive
theory was consistent with its adoption in foreign jurisdictions. Alfred Dunhill of London, Inc. v. Republic
of Cuba, 425 U.S. 682, 702 n.15 (1976) (surveying foreign decisions from 1951 to 1976).
3. U.S. courts had long recognized such a distinction between a domestic sovereign’s governmental
role and its activities in private markets. Chief Justice Marshall wrote that “when a government becomes
a partner in any trading company, it devests itself, so
far as concerns the transactions of that company, of
its sovereign character, and takes that of a private citizen.” Bank of the United States v. Planter’s Bank of
Ga., 22 U.S. 904, 907 (1824). In 1946, the Court reiterated “there is a Constitutional line between the
State as government and the State as trader”; and it
elaborated that, in the tax sphere, the distinction is
whether the revenue is in a form “uniquely capable of
being earned only by a State” as opposed to being
available “equally [to] private persons upon the same
subject matter.” New York v. United States, 326 U.S.
572, 579, 582, 584 (1946). When a plurality in Alfred
6
Dunhill discussed the distinction between a government’s sovereign activities and those as a market participant, it invoked these domestic cases. Alfred Dunhill, 425 U.S., at 695.
3. This distinction was regularly applied in interpreting the word “person.” “In common usage that
term [person] does not include the sovereign, and statutes employing it will ordinarily not be construed to
do so.” United States v. United Mine Workers of Am.,
330 U.S. 258, 275 (1947). This principle was a general
rule of construction, apart from concepts of sovereign
immunity. But the difference between governments
acting in their sovereign capacity and acting as market participants held sway here too. For example,
United States v. Cooper Corp. held that the United
States, as a sovereign, cannot sue for treble damages
under the Sherman Act authorization for suit by “‘any
person’ injured by [a] violation.” 312 U.S. 600, 606
(1941). “[T]he Act envisaged two classes of actions,—
those made available only to the Government, ... and,
in addition, a right of action for treble damages
granted to redress private injury.” Id., at 608. The
“any person” clause, the Court explained, described
the latter.
4. By the 1950s, the growth in international trade
had generated significant interest in efficient mechanisms for resolving disputes arising in the course of
that trade. Arbitration was well-regarded, but the enforcement of arbitration agreements and awards was
not necessarily reliable. Existing international agreements were widely judged unsatisfactory. Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d
15, 22 (2d Cir. 1997) (discussing deficiencies in the
7
mechanisms for cross-border enforcement of arbitral
awards).
5. Preparation for what would become the New
York Convention began as the United States and
Western European countries were just beginning to
apply the restrictive model of sovereign immunity—in
which jure gestionis activities could be subject to another nation’s courts, but jure imperii activities remained immune.
In an early proposal, Article I described the scope
as “arbitral awards arising out of commercial disputes
between persons subject to the jurisdiction of different
States or involving legal relationship arising, on the
territories of different States.” U.N. Economic & Social Council, Statement Submitted by International
Chamber of Commerce, E/C.2/373, at 12 (Oct. 28,
1953). The United Nations Economic and Social
Council, sitting in New York, established a Committee
on the Enforcement of International Arbitral Awards
to develop the actual treaty.
That Committee
promptly changed the name of the draft, because “international arbitral awards” was thought to refer to
“arbitration between States” which was not what the
new Convention would address. U.N. Economic & Social Council, Report of the Committee on the Enforcement
of
International
Arbitral
Awards,
E/AC.42/4/Rev.1 ¶ 17 (Mar. 21, 1955) (“Committee Report”).
The Committee revised Article I, which would “define[] the scope and limit” of the treaty, id. ¶ 20, to
refer to disputes “between persons, whether physical
or legal.” Id. ¶ 24. Belgium, an early leader on the
shift to restrictive immunity, “had proposed that the
8
article should expressly provide that public enterprises and public utilities should be deemed to be legal
persons for purposes of this article if their activities
were governed by private law.” Id. The United Kingdom, India, and the Soviet Union all wanted clarity
about “whether semi-State agencies would be able to
claim immunity.” Draft Convention, 3d Committee
mtg., at 3-4, U.N. Doc. E/AC.42/SR.3 (March 2, 1955).
“The Committee,” addressing the suggestion from Belgium and the response from others, “was of the opinion that such a provision would be superfluous and
that a reference in the present report would suffice.”
Committee Report, ¶ 24.
6. The Convention was adopted, at a Conference
on International Commercial Arbitration, in June
1958. The chair of the U.S. delegation reported back
to the Secretary of State about his understanding of
the treaty. He explained that the “differences between persons” clause “defines the scope of the convention,” and that it “includes public as well as private
corporations.” W.T.M. Beale, Official Report of the
U.S. Delegation to the United Nations Conference on
International Commercial Arbitration (1958), reprinted in 19 AM. REV. INT’L ARB. 91, 99 (2008) (“Beale
Report”). “The intention of the Conference was in fact
to cover arbitrations to which public corporations had
become parties in their capacity as entities having
rights and duties under private law.” Id.
7. The United States did not join the Convention
at first (for reasons unrelated to its scope). But in
1968, responding to input from “members of the business community concerned with international trade,”
President Johnson submitted the Convention to the
9
Senate for ratification. Message of U.S. President
Transmitting U.N. Convention on the Recognition and
Enforcement of Foreign Arbitral Awards to the Senate
for Consent to Ratification, reprinted in 7 I.L.M. 1042,
1056 (1968) (“Transmittal Letter”). That package included an analysis of the Convention by the State Department. Its analysis reiterated the concept from the
Beale Report that the “differences between persons”
clause “is intended to cover not only corporate bodies
under public law but also state trading corporations.”
Id.
The United States joined with the “commercial
reservation,” permitted by the Convention, applying it
only to “differences arising out of legal relationships … which are considered as commercial” under
domestic law. Convention art. I § 3, App. 183a. Congress implemented the commercial reservation in 9
U.S.C. 202.
8. In 1976, Congress embodied the restrictive theory of sovereign immunity in the Foreign Sovereign
Immunities Act (“FSIA”), Pub. L. 94-1487, 90 Stat.
2891, conferring a general grant of immunity with certain specified exclusions. One exception is when a
sovereign waives its immunity (paragraph (a)(1)); another is for “a commercial activity carried on in the
United States by the foreign state” (paragraph (a)(2)).
28 U.S.C. 1605(a)(2). Paragraph (a)(3) excludes sovereign immunity for “rights in property taken in violation of international law” where the property has
certain specified connections to the United States. 28
U.S.C. 1605(a)(3). This stripping of sovereign immunity for an act jure imperii is unique to U.S. law; no
10
comparable provision “has yet been adopted in the domestic immunity statutes of other countries.” Restatement (Fourth) of Foreign Relations Law of the
United States § 455, Reporter’s Note 15 (2018).
9. In 1988, Congress amended the FSIA to add an
exception for arbitration enforcement. This paragraph (a)(6) exception covers an action “to enforce an
agreement made by the foreign state ... or to confirm
an award made pursuant to such an agreement to arbitrate,” if the arbitration is in the United States or
the agreement or award is “governed by a treaty or
other international agreement in force for the United
States calling for the recognition and enforcement of
arbitral awards.” 28 U.S.C. 1605(a)(6).
B.
Factual and Procedural Background
1. The present dispute arises pursuant to a 2001
treaty between Nigeria and the People’s Republic of
China. Agreement Between the Government of the
People’s Republic of China and the Government of the
Federal Republic of Nigeria for the Reciprocal Promotion and Protection of Investments, China-Nigeria,
Aug. 27, 2001, https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/3366/download (“Nigeria-China Treaty”). That
treaty obligated each nation to protect investments by
investors from the other, and to refrain from “unreasonable or discriminatory measures” against the other
party’s investors. Id. art. 2.
If there are disputes between one of the nations
and an investor from the other country, the investor
is allowed to “submit the dispute to the competent
court” or to submit the dispute “to an ad hoc arbitral
11
tribunal.” Id. art. 9, §§ 2-3. The Nigeria-China Treaty
does not place these arbitrations under the auspices
of the International Convention on the Settlement of
Investment Disputes (“ICSID”). Id. art. 9, §§ 4-5. The
tribunal’s decision is to be “final and binding upon
both parties to the dispute,” and both Nigeria and
China “shall commit themselves to the enforcement of
the award.” Id. art 9, § 6.
2. In line with the provisions of the 1999 Constitution (as amended), Nigeria is a federal republic,
comparable to the United States, with a federal government (petitioner here) and multiple states that are
parties to the federation. The 1999 Constitution contemplates a three-tier federal structure consisting of
federal government, state government and the local
government; each of these governments are to be democratically elected. AG Federation v. AG Abia State &
35 ORS (2024) LPELR-62576 (SC). Each state exists
not as an appendage of another government but as an
autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from
direction by another government. AG Abia v. AG Federation (2006) 16 NWLR part 1005, 265 (Nigeria).
3. One of the autonomous states within the federation, Ogun, established a free-trade zone. App. 95a99a, ¶¶ 6,15. Beginning in 2007, Ogun contracted
with several Chinese companies, including an affiliate
of Zhongshang, to develop the free trade zone. App.
100a, ¶¶ 18-19. Nigeria did not participate in any of
these agreements or activities.
In 2016, Ogun State officials accused a Zhongshan
affiliate of fraud regarding the free trade zone. Ogun
12
then terminated that affiliate’s appointments and
drove Zhongshan out of the country.
4. Zhongshan’s affiliate sued Ogun and several of
its officials in Nigerian courts. App. 110a-111a, ¶ 42.
Zhongshan also filed an arbitration demand against
Nigeria itself under the Nigeria-China Treaty.
In the arbitration (in London), Nigeria objected
that it was not part of the activities regarding the free
trade zone and had no involvement in the relevant
agreements. The arbitration tribunal acknowledged
the point, but it held that under principles of public
international law, Nigeria is responsible for the public-law misconduct of a constituent state. App. 120a,
¶ 72.
The arbitrators awarded Zhongshan approximately $70 million to be paid by Nigeria as compensation for the expropriation by Ogun State. App. 198a,
¶ 198.
5. Zhongshan petitioned the U.S. District Court
for the District of Columbia to enforce the award. Nigeria moved to dismiss on grounds of foreign sovereign immunity. In response, Zhongshan asserted, as
its sole exception, that the award is subject to the Convention thus incurring FSIA’s arbitration exception.
App. 40a. The district court denied Nigeria’s motion
to dismiss, and Nigeria appealed. “[D]enial of a foreign state’s motion to dismiss on the ground of sovereign immunity is subject to interlocutory appeal under the collateral order doctrine.” El-Hadad v. United
Arab Emirates, 216 F.3d 29, 31 (D.C. Cir. 2000).
13
6. Before the D.C. Circuit, Nigeria contended that
the award is not subject to the New York Convention
because the Convention covers only disputes between
“persons” and that phrase encompasses only governmental bodies acting in private-law (jure gestionis) capacity, not sovereigns qua sovereigns (jure imperii).
Zhongshan has not denied, nor did the D.C. Circuit,
that Nigeria’s role in the dispute and the arbitration
was solely jure imperii. Rather, Zhongshan insisted
the Convention covers disputes with sovereign governments regardless of their character.
7. The D.C. Circuit held that “person” in Convention article I section 1 includes sovereign governments, in all their forms, capacities, and guises, even
a sovereign acting solely jure imperii. App. 35a-36a.
The panel majority stated that “interpretation of a
treaty is like the interpretation of a statute.”
App. 20a. It believed the word “persons” ordinarily includes sovereigns, on the basis of a usage in a 1987
Restatement of U.S. foreign relations law. App. 21a.1
The Court rejected this Court’s precedents stating the
opposite as irrelevant because they involved only “domestic statutes.” App. 36a (emphasis omitted). The
panel further noted there is no explicit carveout in the
Convention for sovereigns jure imperii. App. 20a.
“Absent any explicit textual indication, we hesitate to
1 The Restatement that was contemporaneous to the
Convention’s adoption did not use “persons” that way.
Restatement (Second) of the Foreign Relations Law of
the U.S. § 3 (1965) (listing “state, international organization, or person” (emphasis added)).
14
read such a partially-in and occasionally-out definition into the Convention’s single use of the word ‘persons.’” App. 22a.
Regarding the “commercial reservation,” the
panel ruled that the Nigeria-China Treaty imposed on
Nigeria “legally enforceable duties to Chinese investors,” and those duties constituted a “legal relationship” between Nigeria and Zhongshan. App. 5a-13a.
That relationship is “considered as commercial” under
9 U.S.C. 202, the court said, in that it has a connection
to commerce. App. 14a-16a.
8. Judge Katsas dissented because he believed the
Convention “does not extend to states acting in their
sovereign capacity.” App. 39a. Judge Katsas explained that “[w]hen interpreting treaties, ‘we begin
with the text of the treaty and the context in which the
written words are used.’” App. 43a (emphasis added).
Regarding the text, he recalled that “persons” in U.S.
statutes might be interpreted to include governments
when they “act in their private capacity,” App. 46a47a, but “the presumption against including sovereigns is strongest” for “official acts,” id. Indeed, he observed that this Court has “sometimes construe[d]
words like ‘person’ to cover sovereigns acting in a proprietary capacity but not in a sovereign capacity.” Id.
He pointed out that these domestic cases are relevant
for interpreting the Convention because it was drafted
in English in New York City. App. 47a-48a.
The interpretive question, Judge Katsas observed,
required “‘orient[ing] ourselves to the time of ... adoption,’ here 1958.” Id. (omission in original). He noted
that while some countries denied sovereign immunity
when a government “when it acts as a private party,
15
such as when it engages in commercial transactions,”
all of them “still granted immunity for governmental
acts—those only a sovereign may undertake.”
App. 49a.
In this legal and historical context, with
no clear text or contemporaneous mention of fundamentally altering the scope
of foreign sovereign immunity, mere use
of the word ‘persons’ cannot be deemed to
reach the governmental acts of foreign
sovereigns. Just as Congress does not
hide elephants in mouseholes, ... neither
do treaty negotiators. And if the Convention did have the revolutionary effect
that Zhongshan claims, then surely
someone, from among the many nations
and individuals negotiating the treaty,
would have at least mentioned it.
App. 50a.
9. On Nigeria’s motion, the D.C. Circuit stayed its
mandate pending the filing and disposition of this petition.
REASONS FOR GRANTING THE PETITION
This Court should grant certiorari to resolve a
deep and recurring disagreement among the circuits
on fundamental issues of treaty interpretation. Different circuits have read precedent from this Court in
mutually incompatible ways and have adopted differing methods of analysis that are outcome-determinative for questions arising under the nation’s many
treaties. Some circuits have adopted a strict text-
16
based approach while others assess extrinsic evidence
in parallel with the text. The inconsistent approaches
across the circuits speak to the lack of clarity from this
Court.
This case, a perfect example of the confusion, illustrates cleanly how different approaches determine
important interpretive questions—and thereby the
outcome of live disputes. Unquestionably, when the
Convention was adopted, no state would have expected a signatory to impose judicial enforcement
against a foreign sovereign acting purely as a sovereign. Yet that is what the D.C. Circuit’s interpretation permits in this case. The D.C. Circuit misinterpreted the term “person” in the New York Convention
because it failed to account for the historical context
of the Convention’s drafting. Moreover, the D.C. Circuit, departing from other circuits, outright refused to
follow this Court’s precedents about the ordinary
meaning of the word “person.”
Subjecting a foreign nation to the authority of this
country’s courts is an act of great significance for the
United States, and should not be undertaken lightly.
Cf. Bolivarian Republic of Venezuela, 581 U.S. at 181
(conforming to “accepted international standards …
diminish[es] the likelihood that other nations would
go their own way, thereby ‘subjecting’ the United
States ‘abroad’ to more claims ‘than we permit in this
country’” (citation omitted)).
The United States deliberated at length before accepting the New York Convention, cognizant of the
careful balance struck on these issues by the Convention. The D.C. Circuit’s erroneous interpretation of
the Convention, contrary to how the U.S. government
understood the treaty at the time, has all the more
17
significance because the D.C. Circuit is a guaranteed
venue for any action against a foreign state.
The Court should grant certiorari to provide guidance to the lower courts about how to interpret treaties, and to correct the important error in the D.C. Circuit’s understanding of the word “person” and interpretation of the New York Convention.
A.
The Courts of Appeals are divided on how
to interpret treaties.
A treaty is “in the nature of a contract between
nations to which general rules of construction apply.”
Société Nationale Industrielle Aerospatiale v. United
States Dist. Court for Southern Dist. of Iowa, 482 U.S.
522, 533 (1987) (cleaned up). The analysis therefore
begins with “the text of the treaty and the context in
which the written words are used.” Id., at 534 (emphasis added). “The treaty’s history, the negotiations, and
the practical construction adopted by the parties may
also be relevant.” Id. A court’s task is “to find out the
intention of the parties,” The Amiable Isabella, 6
Wheat. 1, 71 (1821) (Story, J.), and its “responsibility”
is “to give the specific words of the treaty a meaning
consistent with the shared expectations of the contracting parties.” Air France v. Saks, 470 U.S. 392,
399 (1985).
How to divine those shared expectations is a question on which the circuits are significantly divided.
The Third, Sixth, Seventh, and Federal Circuits recognize that extra-textual information such
as historical context can be as important as the text of
a treaty itself.
18
The Seventh Circuit holds that “courts consider
several factors in discerning the intent of the parties
to the agreement: (1) the language and purposes of the
agreement as a whole; (2) the circumstances surrounding its execution; (3) the nature of the obligations imposed by the agreement” (as well as additional
factors that were specific to the interpretive question
at issue). Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985). For example,
in Wolgel v. Mexicana Airlines, the Seventh Circuit assessed whether the Warsaw Convention makes an airline liable for delay caused by a discriminatory bumping off a passenger off a flight. Beginning its analysis
with the “history of the Warsaw Convention,” the Circuit went on to note that “treaties are construed more
liberally than private agreements, and to ascertain
their meaning we may look beyond the written words
to the history of the treaty, the negotiations, and the
practical construction adopted by the parties.” 821
F.2d 442, 444 (7th Cir. 1987) (quoting Air France, 470
U.S., at 396).
The Third Circuit agrees with “the general approach set forth in Frolova.” Gross v. German Found.
Indus. Initiative, 549 F.2d 605, 615 (3d Cir. 2008). In
one example, the Third Circuit considered a treaty
that guaranteed Korean companies the right to employ “executive personnel” “of their choice.” MacNamara v. Korean Air Lines, 863 F.3d 1135, 1158 (3d
Cir. 1988). An American citizen charged his Korean
former employer with discrimination. The Third Circuit viewed the treaty’s text as “absolute and ostensibly self-defining,” id., at 1143, but it nonetheless concluded that the treaty did not allow discriminatory
treatment, because “a literal interpretation cannot be
reconciled with the Treaty’s intent and negotiating
19
history.” Id. To assess the intent of the treaty parties,
the court considered the historical context establishing the problem that the treaty was meant to address.
Id. (“[T]he signatories had no reason to bargain for the
right to discriminate within the host country’s labor
pool.”).
The Sixth Circuit uses a similar approach. Sitting en banc in Martinez v. United States, the circuit
interpreted the term “lapse of time” in a United
States-Mexico treaty by extensive discussion of extratextual evidence. 828 F.3d 451, 459 (6th Cir. 2016).
That evidence included “foreign cases, dictionaries,
legislative provisions, treatises and scholarly writing,
and other legal materials,” the “history” of extradition
treaties, and the meaning of the term “in American
law, where it has been used in the context of state
laws.” Id., at 459-461.
The Federal Circuit holds a treaty’s terms are
“given their ordinary meaning in the context of the
treaty and are interpreted, in accordance with that
meaning, in the way that best fulfills the purposes of
the treaty.” Xerox Corp. v. United States, 41 F.3d 647,
652 (Fed. Cir. 1994). “[E]xtrinsic material is often
helpful in understanding the treaty and its purposes,
thus providing an enlightened framework for reviewing its terms.” Id. Xerox reviewed a significant of historical background to inform its understanding of the
relevant treaty.
In none of the foregoing cases did the courts impose a prerequisite that a treaty should be ambiguous
before a court considers the extra-textual materials.
Indeed, in Martinez, Judge Clay, dissenting, objected
that the court had departed from the principle, which
20
he thought should prevail, that a court can only consult such materials if a text is “ambiguous.” Martinez,
828 F.3d, at 475 (Clay, J., dissenting).
By contrast, the First, Second, Fifth, and D.C.
Circuits hold that extra-textual evidence can only be
pertinent if a court has first found a treaty’s text to be
ambiguous.
The Second Circuit has held that the interpretation of a treaty “begins with the literal language,”
and a court can “apply traditional methods of interpretation only when the text of a treaty is unclear.”
Tai Ping Ins. Co. v. Northwest Airlines, Inc., 94 F.3d
29, 31 (2d Cir. 1996). The Second Circuit has specifically noted that “the negotiating and drafting history
of a treaty” has a “usefulness that is conditional and
secondary to the text and context.” Mora v. New York,
524 F.3d 183, 207 (2d Cir. 2008).2 Victoria Sales Corp.
v. Emery Air Freight, Inc., interpreting the treaty
phrase “transportation by air,” said it must “begin[]
with the literal language” and “end[] there if the language is reasonably susceptible to only one interpretation.” 917 F.2d 705, 707 (2d Cir. 1990).
The First Circuit holds a court can consult “nontextual sources such as the treaty’s ratification history and its subsequent operation” only “[t]o the extent that the treaties’ terms are ambiguous with respect to the issue before us.” United States v. Li, 206
F.3d 56, 63 (1st Cir. 2000).
2 In Mora, “context” meant the other content within a
treaty surrounding the phrase to be interpreted; Mora
did not consider extra-textual context such as the historical circumstances of the treaty’s adoption.
21
In the Fifth Circuit, older cases looked to extratextual sources in parallel with the text of a treaty.
For example, United States v. Postal considered
whether the Convention on the High Seas is self-executing. The plain text, the court held, “[o]n its face ...
would bear a self-executing construction,” but a court
should “look beyond the written words to the history
of the treaty” and other inputs. 589 F.2d 862, 877 (5th
Cir. 1979). Postal noted that a self-executing interpretation would have significantly changed traditional practice, and thought “considerably more attention” would have been paid, in the negotiations, before
making such a change. Id., at 878.
Since then, the Fifth Circuit has regarded Chan
v. Korean Air Lines, Ltd., 490 U.S. 122 (1989), and Medellín v. Texas, 552 U.S. 491 (2008), as mandating a
different approach. In Kreimerman v. Casa Veerkamp, S.A. de C.V., the Fifth Circuit said a court
“look[s] beyond the written words to the history of the
treaty, the negotiations, and the practical construction adopted by the parties,” but “[o]nly when the language of a treaty ... is ambiguous.” 22 F.3d 634, 639
(5th Cir. 1994) (citing Chan). United States v. Jeong
drew a similar conclusion from Medellín. 624 F.3d
706, 710 (5th Cir. 2010) (citing Medellín, Chan, and
Kreimerman).3
The D.C. Circuit, in the judgment below, stated
“the interpretation of a treaty is like the interpretation of a statute.” App. 20a. In response to Nigeria’s
appeal to the negotiating history of the treaty, the
3 Per Martinez, discussed above, the Sixth Circuit has
continued its full use of extra-textual materials for
treaty interpretation after Chan and Medellín.
22
court said such history could not be relevant because
“nothing in the text of the Convention even hints at
the private-act prerequisite that Nigeria proposes.”
App. 30a. The court declined entirely to consider the
historical context, reviewed by Judge Katsas in his
dissent, that showed the treaty drafters would not
have expected “person” to encompass sovereigns qua
sovereigns. The D.C. Circuit refused to countenance
the nuanced interpretation of “person” that all these
extra-textual sources call for, because it demanded
some “explicit textual indication” supporting the imperii / gestionis distinction. App. 22a.
A short review of Judge Katsas’s dissent reveals
the contrast between the interpretive approaches.
Postal, the older case from the Fifth Circuit, noted
that in the context in which the Convention on the
High Seas was developed, self-executing status for a
provision like that treaty’s Article 6 would have
changed traditional practice, so that “considerably
more attention” would have been paid in the negotiations had the drafters intended that. 589 F.2d, at 878.
That is the same analysis that Judge Katsas recommended in this case, and that the panel rejected. MacNamara, from the Third Circuit, reasoned that the
drafters of the Korea-U.S. treaty at issue would not
have been negotiating for an exclusion from anti-discrimination laws, and the court relied on that insight
despite the literal text of the treaty. Similarly, here,
Judge Katsas pointed out that the New York Convention was intended for disputes in “private commercial
trade,” App. 51a; yet the panel insisted on its reading
of the literal text without regard for that contextual
clue. Had this case been in the courts that decided
those other cases, the historical context discussed by
23
Judge Katsas’s dissent would have led to an interpretation opposite from the D.C. Circuit’s.
Commentators have long noted the confusion and
lack of consensus over basic elements of treaty interpretation. Joshua Weiss, Defining Executive Deference in Treaty Interpretation Cases, 79 GEO. WASH. L.
REV. 1592, 1606 (2011) (treaty interpretation is
“plagued by incoherence and confusion”); David J.
Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, 963 (1994) (discussing “the
confusion over essential principles in treaty interpretation”). The circuits all purport to base their contrasting approaches on this Court’s decisions, yet they
derive different lessons from this Court’s teachings.
For example, in Chan, the question arose whether
the Warsaw Convention strips an airline of liability
protections if the passenger’s ticket is formally deficient (by omitted certain statements that the treaty
requires to be present). 490 U.S., at 127. The Court
refused to allow “the labyrinth of the Convention’s
drafting history” to overcome the text of the agreement. Id., at 133. Some lower courts, such as Victoria
from the Second Circuit, have concluded from Chan
that a court can only consult historical context once it
has found a treaty ambiguous. 917 F.2d, at 707. But
in Chan, the treaty was not just unambiguous. It contained a clear statement, 490 U.S., at 133 (“irregularity ... of the passenger ticket shall not affect the existence or the validity of the contract of transportation”),
which the petitioner sought to contravene by means of
negotiating history. Other courts do not regard Chan
as excluding contextual materials for interpreting
more open-ended provisions. For instance, the Sixth
Circuit’s en banc decision in Martinez interpreted the
24
phrase “lapse of time,” which is obviously not a clear
and direct statement as in Chan. Martinez did not
identify that phrase as ambiguous in its usage in the
treaty but considered historical context in parallel
with the text anyway, over a dissent that insisted
Chan barred that approach.
Here, “persons, whether physical or legal” is not
the sort of clear statement that was determinative in
Chan. The D.C. Circuit refused to countenance historical context absent an “explicit textual indication”
favoring Nigeria’s interpretation, whereas Chan excluded historical context only when it would contradict clear statements in the text.
As another example, this Court has repeatedly
said that, while interpretation starts with a treaty’s
text, “to ascertain their meaning we may look beyond
the written words to the history of the treaty, the negotiations, and the practical construction adopted by
the parties.” Air France, 470 U.S., at 396; Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535 (1991) (quoting
Air France).
Volkswagen Aktiengesellshaft v.
Schlunk, as an illustration, consulted U.S. domestic
law for the meaning of a term, as well as the negotiating history of the treaty involved. 486 U.S. 694, 704706 (1988). Later, Medellín restated the formula
slightly to say that treaty interpretation, “like the interpretation of a statute, begins with its text.” 552
U.S., at 507. Medellín then followed that statement
by reiterating that “we have also considered as ‘aids
to its interpretation’ the negotiation and drafting history of the treaty.” Id. Some lower courts, such as the
Fifth Circuit and the D.C. Circuit here, take Medellín
to mean that a treaty must be interpreted in all ways
like a statute, meaning a resort to extratextual
25
sources only if a provision is found ambiguous. Jeong,
624 F.3d, at 711. Other courts, such as the Sixth and
Seventh Circuits, recognize the importance of the second sentence, as well as the full analysis that Medellín
undertook that included a consideration of extra-textual materials. E.g., Instituto Mexicano del Seguro
Social v. Zimmer Biomet Holdings, Inc., 29 F.4th 351,
362 (7th Cir. 2022) (quoting Medellín’s statement
about extra-textual sources); cf. Martinez, 828 F.3d, at
475 (Clay, J., dissenting) (asserting that Medellín
mandates a focus solely on the text and criticizing the
majority for violating that principle).
B.
The D.C. Circuit’s interpretation of the
Convention conflicts with other circuits
and with this Court’s precedents.
The D.C. Circuit now holds that where the New
York Convention describes its scope as covering disputes between “persons, physical and legal,” that
phrase encompasses sovereign nations—not just governments as parties to commercial contracts, but sovereigns in every guise. This interpretation is highly
significant in the development of the New York Convention, and would have been startling to any negotiator or any nation involved in developing the Convention. The D.C. Circuit reached it only by explicitly refusing to follow this Court’s precedents about the
meaning of the word “person,” and further by ignoring
this Court’s guidance about treaty interpretation.
For decades, the term person was held to apply “to
natural persons, and also to artificial persons,—bodies politic, deriving their existence and powers from
legislation,—but cannot be so extended as to include
within its meaning the Federal government.” United
States v. Fox, 94 U.S. 315, 321 (1876). Just a few years
26
before the Convention, this Court held that “[i]n common usage that term does not include the sovereign.”
United Mine Workers, 330 U.S., at 275. The Court has
relied on that premise repeatedly since United Mine
Workers. E.g., Return Mail, Inc. v. Postal Service, 587
U.S. 618, 626-627 (2019) (invoking “common usage”
that “‘person’ does not include the sovereign”); Will v.
Mich. Dept. of State Police, 491 U.S. 58, 64 (1989)
(same). In South Carolina v. Katzenbach, the Court
relied on the ordinary meaning of the word to conclude
that “person,” in the Fifth Amendment, does not include States within the Union. 383 U.S. 301, 323-324
(1966).
The D.C. Circuit rejected United Mine Workers on
grounds that it addressed a federal statute and therefore cannot inform the interpretation of a treaty. App.
36a. But United Mine Workers said that the “common
usage” of the English word “person” does not include
the sovereign. Fox, from 150 years ago, had said the
same. “This is no sapling of an interpretive rule—rather, it is a storied redwood of nineteenth-century
origin.” Peck v. U.S. Dept. of Labor, 996 F.3d 224, 231
(4th Cir. 2021). These cases are binding precedent not
just about how to interpret a federal statute; they are
binding on federal courts about the ordinary meaning
of this word.
The Second Circuit has recognized as much, applying the Mine Workers understanding to that court’s
interpretation of a New York state law. Bainbridge
Fund Ltd. v. Republic of Argentina, 37 F.4th 847, 850
(2d Cir. 2022). The Fourth Circuit, while interpreting a federal statute, understood that Mine Workers
and Fox establish the “common usage” of the word
27
“person,” not just a rule about interpreting statutes.
Peck, 996 F.3d, at 231. Katzenbach, from this Court,
took the ordinary meaning of the word for granted for
understanding the U.S. Constitution. 383 U.S., at
323-324.4
The D.C. Circuit’s refusal to follow Mine Workers
is contrary to these other circuits, and contrary to the
repeated holdings of this Court about the ordinary
meaning of “person.”
A historical hypothesis illustrates the import of
the D.C. Circuit’s decision. During the Civil War, the
United Kingdom allowed shipyards to build vessels
for the Confederate navy (the ensuing controversy
was later named after the most famous of these vessels, the Alabama). These vessels destroyed substantial volumes of U.S. commerce, and the United States
demanded compensation for the United Kingdom’s departure from neutrality. Eventually, the two nations
agreed to arbitrate their dispute (as well as other disputes that had arisen about fishing rights). The resulting award “rejected American claims for indirect
damages” but did award $15.5 million in direct damages against the United Kingdom. U.S. Dept. of State,
Office of the Historian, The Alabama Claims, 18621872,
https://history.state.gov/milestones/18611865/alabama (accessed Nov. 6, 2024). Though this
predated the New York Convention by nearly a century, imagine the Convention had been in force. It
CC/Devas (Mauritius) Ltd. v. Antrix Corp., currently
before the Court, asks whether a foreign sovereign is
a “person” under the Fifth Amendment. No. 23-1201,
2024 WL 4394121 (U.S. Oct. 4, 2024).
4
28
would have been startling for either side of this dispute to contemplate that by resolving their sovereign
dispute through arbitration, they were submitting to
enforcement of the award by a court—not just in this
country or the United Kingdom, but in any country
that is party to the Convention. But that is the unavoidable result of the D.C. Circuit’s decision. The
United States and the United Kingdom are “persons”
according to the D.C. Circuit, regardless that they
were navigating a purely sovereign dispute.
As another example, in 1974—four years after the
United States joined the New York Convention—a
U.S. warship grounded off the Netherlands. B.V. Bureau Wijsmuller v. United States, No. 76-2494, 1976
WL 6455361, at *1 (S.D.N.Y. Dec. 22, 1976). To obtain
salvage services, the captain, an officer of the U.S.
Navy, signed a standard agreement that included an
arbitration clause. The salvor then asked a U.S. district court to compel the United States to arbitrate the
salvor’s compensation claims, in London, pursuant to
the agreement. The United States resisted, and the
court refused to enforce the agreement. Against the
invocation of the New York Convention, the court observed that the Convention is about “international
commercial disputes”; the United States did not intend to abrogate its sovereign immunity by joining the
Convention; and “relations arising out of the activities
of warships have never been regarded as ‘commercial’
within the context of sovereign immunity.” Id. But
under the D.C. Circuit’s interpretation of the Convention, the salvor would have been entitled to have a
29
United Kingdom court compel the United States to arbitration in London;5 and had the United States declined to participate, and suffered an award against it
by default, the salvor would have been entitled to have
a U.K. court enforce the award, perhaps by seizing
U.S. assets in that country.
Such hypothetical outcomes would have been
shocking when the Convention was drafted and
agreed in the 1950s. As Judge Katsas observed,
“there was an ongoing worldwide debate” at that time
“about whether countries should always be immune
from the domestic courts of other countries or whether
they should be immune only for their sovereign acts.
Nobody suggested that states should have no immunity.” App. 50a. Moreover, “some countries that still
embraced the traditional, absolute theory of immunity also signed the Convention,” id., so that their joining would have contravened their own bedrock foreign-relations principles had the Convention subjected sovereigns to enforcement as the D.C. Circuit
thinks.
This Court has long held “it is our responsibility
to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting
parties.” Air France, 470 U.S., at 399. Those expectations, as explained by Judge Katsas, cannot have included subjecting a sovereign to judicial enforcement
as a private-law party simply because it agreed to ar-
5 The Convention mandates enforcement of an arbi-
tration agreement within its scope, by compelling arbitration, as well as enforcement of an arbitration
award. App. 183a-184a.
30
bitrate a sovereign dispute. To interpret the Convention to have that effect, the D.C. Circuit ignored key
sources demonstrating the expectations of the parties
at the time of adoption—sources of types that this
Court has repeatedly held are relevant. In this way,
too, the D.C. Circuit contravened this Court’s precedents.
First, the historical context, as discussed above
and in Judge Katsas’s dissent, “make[s] it especially
implausible that the Convention's use of ‘persons’
sweeps in foreign states acting in their sovereign capacity.” App. 48a. Giving the Convention that meaning and effect would have been—and would be today—
a radical change from the immunity that nations
around the world respected for their fellow nations.6
That sort of historical information has been significant in the Court’s interpretation of other treaties.
For example, Société Nationale Industrielle Aerospatiale, interpreting the Hague Evidence Convention,
described how common-law courts historically exercised “broad discovery powers ... over foreign litigants
subject to their jurisdiction”; given that history, “we
are unable to accept the hypothesis that the commonlaw contracting states abjured recourse to all pre-existing discovery procedures.” 482 U.S., at 536. Cook v.
United States, interpreting a bilateral treaty with the
United Kingdom about the limits of territorial waters,
explained that “[i]n construing the Treaty its history
should be consulted.” 288 U.S. 102, 112 (1933). The
6 See supra, at 10 (noting the FSIA’s expropriation ex-
ception is possibly unique in subjecting a foreign sovereign to suit for jure imperii activities).
31
Court’s description of not just the negotiating statements, but the full historical context of the international dispute that led to that treaty, was nearly dispositive of the interpretation. Id., at 112-16.
The majority opinion below, by contrast, betrays
no awareness of the historical context of the 1958 Convention.
Second, even considering cases like United Mine
Workers solely as domestic law, this Court has repeatedly consulted domestic-law sources in treaty interpretation. Air France said that “[t]o determine the
meaning of the term ‘accident’ in [Warsaw Convention] Article 17 we must consider its French legal
meaning.” 470 U.S., at 399. “We look to the French
legal meaning for guidance as to these expectations
because the Warsaw Convention was drafted in
French by continental jurists.” Id. Volkswagenwerk,
similarly, consulted U.S. domestic law sources, including the Wright & Miller treatise, to interpret a term
in the Hague Convention on Service, a treaty in English. 486 U.S., at 700. The New York Convention was
drafted in New York, in English, with significant participation from the United States, the host country.
So the meaning of the English word “person” in U.S.
law at the time is highly informative about what the
parties to the Convention intended and expected
when they used that word. To reject this Court’s cases
on the word “person” outright, holding them fully irrelevant simply because they were interpreting domestic statutes, is contrary to this Court’s precedents
on treaty interpretation.
32
C.
The D.C. Circuit’s decision was wrong.
The D.C. Circuit’s interpretation of the Convention also cannot be squared with the history, the text,
the previously-expressed views of the Executive, or
common sense.
First, until just a decade or two before the Convention the near-universal understanding was that a
sovereign government is never subject to suit in another country’s courts. When the Convention was being prepared and adopted, the live issue, with a developing—but not universally adopted—consensus, was
that government instrumentalities could be sued for
their private-law, jure gestionis activities. When the
Convention drafters discussed whether the Convention would (or should) reach arbitrations involving
government bodies, they can only have been referring
to that developing issue. They could not have contemplated or intended to overturn the still-universal doctrine that sovereigns acting jure imperii are immune.
As Judge Katsas observed, “it is highly unlikely that
treaty drafters would have effected such sweeping
changes through an unadorned reference to ‘persons,’
in a Convention focused mainly on private commercial
trade.” App. 51a.
Bolivarian Republic interpreted the FSIA to avoid
“a radical departure from … basic principles.” 581
U.S., at 181. The D.C. Circuit refused to employ that
same caution for interpreting the Convention.
Second, the only basis for conceivably reaching
sovereigns qua sovereigns is that sole word “persons.”
“In common usage that term does not include the sovereign.” United Mine Workers, 330 U.S., at 275.
33
Third, the U.S. delegation to the Conference
adopting the Convention explained the scope in a
manner fully consistent with this context and ordinary meaning. “The intention of the Conference was
in fact to cover arbitrations to which public corporations had become parties in their capacity as entities
having rights and duties under private law.” Beale
Report, at 11. Public corporations are, per Fox, bodies
“deriving their existence and powers from legislation,”
94 U.S., at 321, as opposed to the ultimate sovereign
itself.
Similarly, when President Johnson transmitted
the Convention for Senate ratification, he informed
the Senate that “[t]he expression "legal persons" in
paragraph 1 is intended to cover not only corporate
bodies under public law but also state trading corporations.” Transmittal Letter, at 18. The notion that
the Convention would eviscerate the sovereign immunity of the Government in some matters, as well as
other national sovereigns, would surely have been important to mention had the Executive conceived that
possibility. Then just a few years later, the Government itself resisted enforcement of the Convention
against it, on grounds that the Convention did not deprive the Government of sovereign immunity.7
7 The D.C. Circuit claimed that the United Sates “en-
dorsed” applying the Convention to sovereign conduct
based on a footnote in an amicus brief the Government
filed in a 1981 case, Libyan American Oil Co. v. Socialist People’s Libyan Arab Jamahirya, 684 F.2d
1032 (D.C. Cir. 1981) (Table) (the court case reached
no decision due to a settlement). App. 25a-26a. But
34
Fourth, two sovereigns (here, Nigeria and China)
should be able to exercise their prerogatives as sovereigns to make treaty commitments to each other, and
have those treaty commitments include peaceful resolution of disputes by means of arbitration, without
thereby automatically submitting themselves to the
courts of every country in the world for enforcement.
The Nigeria-China Treaty, unlike some, does not allow arbitrations under the ICSID Convention, nor
does it use any language evoking the New York Convention. It bears no sign that Nigeria or China considered the treaty obligations to be anything other
than sovereign obligations owed to each other. To be
sure, the arbitrations to be undertaken with investors
were to be binding. But “submitting to jurisdiction
and agreeing to be bound are two different things.”
Medellín, 552 U.S., at 507. Public international law
is full of binding obligations that nobody would expect
that case had nothing to do with the question presented here; the claims against Libya stemmed from
a private-law contract the government had entered,
Libyan Am. Oil Co. v. Socialist People’s Libyan Arab
Jamahirya, 482 F. Supp. 1175, 1176 (D.D.C. 1980),
unlike Nigeria’s purely sovereign conduct. The Government’s brief did not address the question posed by
this case or indicate the Government considered or
took a position on it. It is also dubious whether an
expression in an amicus brief decades after the Convention should prevail over the views of the Executive
from the time of the drafting (and the time of accession). Cf. GE Energy Power Conversion France SAS,
Corp. v. Outokumpu Stainless USA, LLC, 590 U.S.
432, 444 (2020) (reserving that question).
35
to be enforced, against the sovereigns thus bound, in
domestic courts. Cf. App. 50a-52a.
D.
The questions presented are exceptionally important.
How to interpret a treaty—purely textually, with
resort to context only after identifying a specific ambiguity, or with a view to historical and legal context
in parallel with the text to understand the intentions
of the parties—is a recurring and important question.
The State Department’s 2020 Treaties in Force publication, with the 2021-2023 supplement, runs over 650
pages, covering hundreds of treaties and other international agreements to which the United States is a
party. Courts regularly interpret treaty terms, and
for some treaties in some courts, it is a matter of
course to consider extra-textual materials. For example, some courts routinely rely on the Pérez–Vera Report when interpreting the Hague Convention on the
Civil Aspects of International Child Abduction. See,
e.g., Robert v. Tesson, 507 F.3d 981, 988 n.3 (6th Cir.
2007) (noting that “[m]any circuits hold Professor
Elisa Perez-Vera’s report to be an authoritative source
for interpreting the Convention’s provisions”).
The scope of the New York Convention, in particular, is a highly significant issue. The Department of
Justice’s Office of Foreign Litigation regularly defends
litigation abroad, approximately 1,800 cases at a
given time, Dept. of Justice, Office of Foreign Litig.,
https://www.justice.gov/civil/office-foreign-litigation
(March 22, 2023). Many foreign jurisdictions recognize sovereign immunity on a reciprocal basis, Persinger v. Islamic Republic of Iran, 729 F.2d 835, 841
(D.C. Cir. 1984), so any expansion of domestic liability
36
for foreign sovereigns threatens the same for the
United States in other courts. Brief of the United
States as Amicus Curiae, at 21-22, Bolivarian Republic, 581 U.S. 170. In particular, the United States
would be, as far as Nigeria has found, the first country
to decide that the Convention covers not just government instrumentalities under private law, but sovereigns jure imperii. That precedent will surely be influential in other countries when this question arises
elsewhere, including potentially in cases involving the
United States. Cf. Bolivarian Republic, 581 U.S. at
181 (noting the importance of consistency with established international law to “diminish the likelihood
that other nations would each go their own way” and
potentially expand the U.S. vulnerability to suit). The
Wijsmuller case above is a stark illustration. A U.S.
naval vessel stranded at sea in Europe obtained salvation only by agreeing to arbitration—which, under
the D.C. Circuit’s interpretation, means the United
States could be compelled to arbitrate in London and
subjected to enforcement of the award in a London
court.
The D.C. Circuit’s interpretation is also significant for future Convention litigation in U.S. courts. A
party wanting to use U.S. courts to enforce an arbitration award against a sovereign qua sovereign will always be able to enjoy the D.C. Circuit’s new precedent,
because venue is always appropriate in the District of
Columbia district court for any suit against a foreign
government body. 9 U.S.C. 204; 28 U.S.C. 1391(f)(4).
That district is already the primary venue for actions
against foreign government instrumentalities, Bolivarian Republic, 581 U.S., at 186, and parties with
Zhongshan-type awards would, sensibly, only bring
37
their claims in that district. Competing views in other
circuits will not develop. The D.C. Circuit has committed itself to a program of exercising judicial authority against foreign sovereign nations, under a
deeply flawed interpretation of the Convention. Only
this Court’s intervention can prevent it.
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted.
Keith Bradley
Raúl B. Mañón
Counsel of Record
200 S. Biscayne Blvd.,
ScheLeese Goudy
Suite 3400
Kayla Marie Mendez
Miami, Fl 33131
717 17th Street,
Suite 1825
Samuel B. Ballingrud
Denver, CO 80202
2500 M Street NW
(303) 830-1776
Washington, DC 20037
keith.bradley@squirepb.com
SQUIRE PATTON BOGGS (US) LLP
Counsel for Petitioner
November 7, 2024
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.