Oss Nokalva, Inc. v. European Space Agency

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-3601

OSS NOKALVA, INC.

v.

EUROPEAN SPACE AGENCY,
Appellant

No. 09-3640
_______

OSS NOKALVA, INC.,
Appellant
v.

EUROPEAN SPACE AGENCY

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-08-cv-03169)
District Judge: Honorable Mary L. Cooper

Argued June 29, 2010

Before: SLOVITER, BARRY, and HARDIMAN,
Circuit Judges

(Filed: August 16, 2010)
Elliot D. Ostrove (Argued)
Day Pitney
Morristown, N.J. 07962

Attorney for Appellant in No. 09-3601,
Appellee in No. 09-3640

Ronald L. Israel (Argued)
Wolff & Samson
West Orange, N.J. 07052

Attorney for Appellee in No. 09-3601
Appellant in No. 09-3640

____

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This case comes to us under the collateral order doctrine
on appeal from the District Court’s order denying the European
Space Agency’s (“ESA”) motion to dismiss the claims of OSS
Nokalva, Inc. (“OSSN”). ESA had asserted absolute immunity
from suit based on its status as an international organization.
The District Court held that ESA is generally entitled to absolute
immunity, but that here it waived such immunity. ESA appeals
the conclusion that it waived immunity. OSSN cross-appeals the
finding that ESA “is entitled to absolute immunity in the first
place.” OSSN Br. at 2. We agree with the District Court that
ESA is not entitled to immunity in this case, but our conclusion
is based on reasons other than those relied on by the District
Court.

I.

A. The Parties

OSSN is a New Jersey corporation which provides

2
software and services to its customers. ESA, a designated
international organization with headquarters in Germany, is
comprised of eighteen member states and was founded “to
provide for and to promote, for exclusively peaceful purposes,
cooperation among European States in space research and
technology.” ESA Convention, Art. II(a) (quotation and citation
omitted).

A federal statute enacted in 1945, the International
Organizations Immunities Act, 22 U.S.C. § 288, et seq.
(“IOIA”), applies to those international organizations which the
President designates as entitled to the benefits of the Act. See 22
U.S.C. § 288. The IOIA provides that designated international
organizations, to the extent consistent with the instruments
creating them, have the capacity to enter into contracts. Id. §
288a(a)(i). The IOIA also provides that designated
organizations “enjoy the same immunity from suit and every
form of judicial process as is enjoyed by foreign governments,
except to the extent that such organizations may expressly waive
their immunity for the purpose of any proceedings or by the
terms of any contract.” Id. § 288a(b). ESA’s predecessor was
designated as an international organization by President Johnson
in 1966. See Exec. Order No. 11,318, 31 Fed. Reg. 15307 (Dec.
5, 1966), as amended by Exec. Order No. 11,351, 32 Fed. Reg.
7561 (May 22, 1967), superceded by Exec. Order No. 11,760, 39
Fed. Reg. 2343 (Jan. 17, 1974), as amended by Exec. Order No.
12,766, 56 Fed. Reg. 28463 (June 18, 1991).

The ESA Convention (“Convention”) governs ESA’s
policies, procedures, and internal rules. A council of
representatives (“Council”) from ESA’s member states oversees
its governance. The Convention provides that ESA is immune
from “jurisdiction and execution,” except

to the extent that it shall, by decision of the Council, have
expressly waived such immunity in a particular case; the
Council has the duty to waive this immunity in all cases
where reliance upon it would impede the course of justice
and it can be waived without prejudicing the interests of
the Agency[.]

3
Convention, Annex I, Art. IV ¶ 1(a).

B. The Agreements

ESA contracted with OSSN to provide it with, among
other things, software tools and related proprietary software and
information to assist ESA in developing its own software.
Between 1996 and 2004, the parties executed four sets of
License Agreements and corresponding Software Maintenance
Agreements (“Agreements”).1

The first set of Agreements, License No. 5941, dated
February 7, 1996, provided that “[a]ny dispute which cannot be
settled amicably shall be submitted to arbitration. The
arbitration proceedings shall take place in Princeton (New
Jersey) in accordance with the rules of the International Chamber
of Commerce.” App. at 62, 65. A provision consenting to the
jurisdiction of the New Jersey courts was struck out. The
subsequent Agreements, though, contained a different forum
selection clause – language setting forth that each

Agreement shall be governed by the laws of the state of
New Jersey and [that ESA] expressly submits to
jurisdiction therein . . . and agrees that any dispute arising
out of this Agreement shall be subject exclusively to the
jurisdiction of New Jersey courts or the Federal court for
the district of New Jersey.

App. at 68, 72, 75, 79, 82, 86. Of significance to the underlying
dispute between the parties is the provision of the License
Agreements that stated “[n]either the Program(s) nor this
Agreement may be assigned, sublicensed or otherwise
transferred by [ESA] without prior written consent from OSS[N]

1
These were: (1) License Number 5941; (2) License Number
7936; (3) License Number 8117; and (4) License Number 9661, all
of which provided that ESA would purchase an “individual, non-
transferable and non-exclusive license to use the licensed software
program(s) . . . .” App. at 61, 67, 74, 81.

4
. . . .” App. at 61; see also App. at 67, 74, 81.

C. The Underlying Dispute

Based on its contention that ESA breached the
agreements, OSSN filed suit against ESA in the Superior Court
of New Jersey, Somerset County. ESA removed OSSN’s action
to the United States District Court for the District of New Jersey
under 28 U.S.C. § 1441(a). The District Court had diversity
jurisdiction under 28 U.S.C. § 1332(a).

In its complaint, OSSN asserts that ESA: (1) breached
the Agreements by distributing OSSN software to third parties;
and (2) failed to compensate OSSN for certain software, as well
as for the distribution of OSSN’s software to third parties. As a
result, OSSN filed contract claims as well as claims for unjust
enrichment, conversion, negligence, collection of debt payable,
and a claim asserting that ESA “tortiously and unlawfully
interfered with [OSSN’s] customer relationships and prospective
economic advantage . . . .” App. at 33-37.

ESA moved to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(1), contending that the District Court
lacked subject matter jurisdiction because the IOIA grants it
absolute immunity. OSSN countered first that ESA’s immunity
is not absolute and does not bar suit in this case, and
alternatively, that even if ESA’s immunity is absolute, it waived
such immunity both by the Convention and by ESA’s execution
of the Agreements with the aforementioned forum selection
clauses.

D. The District Court Decision

The District Court denied ESA’s motion to dismiss. The
Court relied primarily on a decision of the United States Court of
Appeals for the District of Columbia, Atkinson v. Inter-American
Development Bank, which held that the Inter-American
Development Bank, a financial institution designated as an
international organization under the IOIA, was entitled to
“‘virtually absolute’” immunity, “contingent only upon the State

5
Department’s making an immunity request to the court . . . .”
156 F.3d 1335, 1340 (D.C. Cir. 1998) (quoting Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)). Following
that reasoning, the District Court found “that ESA[, like the
Inter-American Development Bank,] is entitled to absolute
immunity” pursuant to the IOIA. App. at 14.

Nevertheless, the District Court continued, “[a]n
international organization’s absolute immunity . . . is subject to .
. . limitation [by] . . . express waiver by the international
organization . . . .” App. at 14 (citing Mendaro v. World Bank,
717 F.2d 610, 613-14 (D.C. Cir. 1983)). Focusing on the
language in the Convention stating that “‘the Council has the
duty to waive . . . immunity in all cases where reliance upon it
would impede the course of justice and it can be waived without
prejudicing the interests of the Agency,’” App. at 15 (quoting
Convention, Annex I, Art. IV ¶ 1(a)), the District Court denied
ESA’s motion to dismiss on the ground that ESA waived its
immunity for “both the contract and tort claims” brought by
OSSN, App. at 22. The District Court reasoned that although
such non-specific waivers are disfavored, a waiver of immunity
here “would provide ESA with [a] corresponding benefit[ ].”
App. at 16. Such benefit, decided the District Court, is “the
ability to participate in the international commercial
marketplace.” App. at 21. ESA appeals that decision. OSSN
cross appeals the finding that ESA is entitled to absolute
immunity.

II.

Although the parties do not raise it, we must address
whether we have appellate jurisdiction over the District Court’s
denial of ESA’s motion to dismiss. Ordinarily, a denial of a
motion to dismiss would not be a final decision subject to
appeal. See 28 U.S.C. § 1291. However, “final decisions of the
district courts” under § 1291 “also include a small set of
prejudgment orders that are ‘collateral to’ the merits of an action
and ‘too important’ to be denied immediate review.” Mohawk
Indus., Inc. v. Carpenter, 130 S. Ct. 599, 603 (2009) (quoting
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

6
(1949)).

ESA, citing, among other precedents, Mitchell v. Forsyth,
472 U.S. 511 (1985), asserts that “[a] denial of absolute
immunity is immediately appealable under the collateral order
doctrine.” ESA Br. at 2. OSSN does not dispute our appellate
jurisdiction. Rather, it cross-appeals and “adopts the
Jurisdictional Statement proffered by ESA . . . .” OSSN Br. at 1.

In Mitchell, the Supreme Court stated that “the denial of a
substantial claim of absolute immunity is an order appealable
before final judgment, for the essence of absolute immunity is its
possessor’s entitlement not to have to answer for his conduct in a
civil damages action.” 472 U.S. at 525 (citations omitted). The
District Court held that ESA was ordinarily entitled to absolute
immunity under the IOIA, but decided that in this case ESA was
subject to the exception to absolute immunity for its “express
waiver.” App. at 14 (citing 22 U.S.C. § 288). Although this
situation does not fall precisely within the holding of Mitchell,
we hold that we have appellate jurisdiction under the collateral
order doctrine.

“To be appealable [under the collateral order doctrine] a
district court’s order must 1) conclusively determine the disputed
question; 2) resolve an important issue completely separate from
the merits of the action; and 3) be effectively unreviewable on
appeal from a final judgment.” Forsyth v. Kleindienst, 599 F.2d
1203, 1207 (3d Cir. 1979). All three criteria are met here. The
District Court’s dual determinations (1) that ESA was entitled to
absolute immunity under the IOIA, and (2) that it waived such
immunity in this case, are each important, disputed, and separate
from the underlying contract and tort claims. Finally, inasmuch
as absolute immunity is the “right not to be subjected to trial,”
the determination that ESA waived its immunity under the IOIA
resolved a right that is “effectively unreviewable” on direct
appeal because even were ESA to prevail after a trial, it still
would have been subject to the process. See id. at 1209. Having
satisfied ourselves that we have appellate jurisdiction under the
collateral order doctrine and 28 U.S.C. § 1291, we note that our

7
review is plenary2 and turn to discuss the parties’ disputes over
waiver and the scope of immunity under the IOIA.

III.

It is an accepted tenet of appellate jurisdiction that we
“may affirm a judgment on any ground apparent from the record,
even if the district court did not reach it.” See Kabakjian v.
United States, 267 F.3d 208, 213 (3d Cir. 2001) (citing
Resolution Trust Corp. v. Fidelity and Deposit Co. of Maryland,
205 F.3d 615, 635 (3d Cir. 2000)). We cannot accept the
District Court’s decision that ESA is entitled to absolute
immunity and therefore need not address whether ESA waived
its immunity. We believe there is a more generally applicable
basis on which to decide the relevant issue, and proceed
therefore to discuss OSSN’s cross-appeal.3

We begin with an analysis of the IOIA. That Act
provides that international organizations such as ESA “shall
enjoy the same immunity from suit and every form of judicial
process as is enjoyed by foreign governments . . . .” 22 U.S.C. §
288a(b) (emphases added). As the text makes clear, “Congress
was legislating in shorthand, referring to another body of law –
the law governing the immunity of foreign governments – to
define the scope of the new immunity for international

2
See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,
188 (3d Cir. 2006). In an appeal from a grant or denial of a motion
to dismiss for lack of subject matter jurisdiction pursuant to Rule
12(b)(1), this Court reviews only whether the allegations on the
face of the complaint, taken as true, allege sufficient facts to invoke
the jurisdiction of the District Court. Id.
3
OSSN also argues that ESA waived its immunity by
entering into three License Agreements and three Maintenance
Agreements that did not cross out the provision referred to above
and that expressly submitted ESA to the jurisdiction of New Jersey
courts. ESA argues that this was done mistakenly. We need not
decide this issue in view of our decision explained below.

8
organizations.” Atkinson, 156 F.3d at 1340. The effect of
“legislating in shorthand” was to link the immunity of
international organizations to that of foreign governments. As a
“reference statute,” it raised whether the IOIA should be
understood to codify for international organizations the extent of
immunity that foreign governments enjoyed in 1945 when the
IOIA was enacted, or whether it should be understood to require
incorporation of subsequent changes in the law of foreign
sovereign immunity. See id. The D.C. Circuit in Atkinson, and
the District Court in reliance thereon, took the former view,
determining that the IOIA provided that international
organizations were to have indefinitely the same level of
“virtually absolute” immunity as foreign sovereigns enjoyed in
1945 – later changes to foreign sovereign immunity
notwithstanding. Id. at 1340 (quoting Verlinden, 461 U.S. at
486).

Even if the Atkinson court were correct that foreign
sovereigns always enjoyed absolute immunity in 1945, and we
recognize that there may be some question about that
proposition,4 it does not follow that subsequent changes to the
extent of immunity accorded to foreign sovereigns should not be
reflected in the immunity to which international organizations
are entitled under the IOIA. The language of the IOIA suggests
the contrary.

4
As OSSN points out, the notion that foreign governments
necessarily enjoyed absolute immunity in 1945 is contravened by
considerable evidence. See Verlinden, 461 U.S. at 486 (explaining
that by 1943 the Supreme Court “deferred to the decisions of the .
. . Executive Branch . . . on whether to take jurisdiction over
actions against foreign sovereigns . . . .”). We need not speak to
this issue because, for the reasons set forth, the immunity foreign
sovereigns enjoyed in 1945 is irrelevant to the appropriate level of
immunity due international organizations today. However, the fact
that immunity for foreign sovereigns was determined on a case-by-
case basis in 1945 bolsters our conclusion that Congress intended
the IOIA’s “same immunity” language to reflect changes to foreign
sovereign immunity as they occurred.

9
 The most important change to the immunity of foreign
sovereigns occurring since 1945 was the enactment of the
Foreign Sovereign Immunity Act of 1976 (“FSIA”). See 28
U.S.C. §§ 1330, 1602, et seq. That Act affords foreign
governments immunity from the jurisdiction of United States
courts, see id. § 1604, except in specific circumstances,
including those:

(1) in which the foreign state has waived its immunity
either explicitly or by implication . . . ; [and] (2) in which
the action is based upon a commercial activity carried on
in the United States by the foreign state; or upon an act
performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or
upon an act outside the territory of the United States in
connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United
States[.]

Id. § 1605(a)(1)-(2) (emphasis added).

In its cross appeal, OSSN asserts that “the IOIA confers
the same immunity . . . on international organizations as foreign
governments receive under U.S. law, which is the restrictive
immunity now codified in the FSIA.” OSSN Br. at 41. Well-
established rules of statutory interpretation demonstrate why we
are persuaded that this is so.

As a general rule, courts look to the language of the text
to determine statutory meaning. Assuming without deciding that
the meaning of § 288a of the IOIA is unclear, we look to
“certain interpretative rules” that “function as helpful guides in
construing ambiguous statutory provisions.” Ali v. Fed. Bureau
of Prisons, 552 U.S. 214, 228-29 (2008) (Kennedy, J.,
dissenting).

Acknowledging that the IOIA is a “reference statute,” the
Atkinson court noted the potential relevance of the well-
established canon of statutory interpretation that “[a] statute
which refers to a subject generally adopts the law on the subject

10
as of the time the law is enacted. This will include all the
amendments and modifications of the law subsequent to the time
the reference statute was enacted.” 156 F.3d at 1340 (quoting
2B Sutherland Statutory Construction § 51.08, at 192 (Norman J.
Singer, 5th ed. 1992)) (inserted text omitted). We refer to this as
the Reference Canon.

The Atkinson court declined to apply the Reference
Canon, believing that the IOIA’s “subject matter and the terms
of the enactment in its total environment” took precedence. 156
F.3d at 1341 (quoting United States v. United Mine Workers of
Am., 330 U.S. 258, 314 (1947) (Frankfurter, J., concurring)).
Specifically, the Atkinson court put great weight on one
provision in the IOIA granting the President authority to
“modify, condition, limit, and even revoke the . . . immunity of a
designated organization,” calling it the “explicit mechanism for
monitoring the immunities of designated international
organizations . . . .” Id. (citing 22 U.S.C. § 288).

That court reasoned that because the President is
empowered by the IOIA to amend the immunity of international
organizations, Congress intended that to be the sole manner by
which a designated international organization’s immunity could
be altered after 1945. Id. It was thus unpersuaded that Congress
intended the IOIA to incorporate subsequent changes to the
immunity enjoyed by foreign governments. See id. (finding
support for its conclusion in a Senate Report describing
President’s authority as “permitting the adjustment or limitation
of the privileges in the event that any international organization
should engage, for example, in activities of a commercial
nature.” S. Rep. No. 861, at 2 (1945) (internal alterations
omitted)).

ESA points to nothing in the statutory language or
legislative history that suggests that the IOIA provision
delegating authority to the President to alter the immunity of
international organizations precludes incorporation of any

11
subsequent change to the immunity of foreign sovereigns.5
Indeed, ESA acknowledged at oral argument that the State
Department has expressed support for OSSN’s contention that
the same restrictive immunity conferred on foreign governments
in the FSIA should be applied to ESA. The State Department’s
view was reflected in a 1980 letter, where a State Department
Legal Adviser wrote “The [FSIA] amended [U.S.] law by
codifying a more restrictive theory of immunity subjecting
foreign states to suit in U.S. courts . . . . By virtue of the FSIA, .
. . international organizations are now subject to the jurisdiction
of our courts in respect of their commercial activities . . . .”
Letter from Roberts B. Owen, Legal Adviser, State Department,
to Leroy D. Clark, General Counsel, Equal Employment
Opportunity Commission (June 24, 1980) (emphasis added),
reprinted in Marian L. Nash, Contemporary Practice of the
United States Relating to International Law, 74 Am. J. Int’l L.
917, 917-18 (1980). The State Department’s direct
pronouncement of IOIA immunity is persuasive, particularly
because the State Department played an important role in
drafting the IOIA. See OSSN Br. at 47 n.6 (citing Letter from
Harold D. Smith, Director, Bureau of the Budget, to James
Francis Byrnes, Secretary of State, (Nov. 6, 1945), H.R. Rep.
No. 1203 at 7).6

5
The Senate Report cited by the Atkinson court merely
purports to provide an example of the kind of change the President
could make to the privileges enjoyed by an international
organization. It is silent as to whether that immunity is “frozen” in
time.
6
We note in passing that a House Report explaining an
amendment to the Foreign Corrupt Practices Act stated that
“international organizations . . . generally have the same immunity
as foreign governments, and the Foreign Sovereign Immunities Act
(FSIA) . . . provides that foreign governments are not immune for
actions taken in connection with their commercial activities.” H.R.
Rep. 105-802 (1998). This statement (not discussed in the
Atkinson opinion) coincides with our view of the FSIA’s effect on
the immunity due international organizations.

12
 The position of the United States is certainly worth
careful consideration, if not deference. It is of significance that
nearly half of the international organizations designated by the
President as receiving protection under the IOIA came into
existence after the FSIA was enacted in 1976. See 22 U.S.C. §
288 (West 2010) (Executive Orders) (listing the eighty
organizations “entitled to enjoy the privileges, exemptions, and
immunities conferred by the [IOIA]” and demonstrating that
thirty-nine of these organizations were designated as such by
executive order after 1976). In light of the “same immunity”
language in the IOIA, it is unreasonable to assume that those
international organizations that were established under the IOIA
after foreign sovereign immunity had been altered by the FSIA
would still be subject to that level of immunity enjoyed by
foreign governments and international organizations in 1945.

If Congress wanted to tether international organization
immunity to the law of foreign sovereign immunity as it existed
at the time the IOIA was passed, it could have used language to
expressly convey this intent. For example, Congress could have
simply stated that international organizations would be entitled
to the “same immunity as of the date of this Act.” Or, it could
have just specified the substantive scope of the immunity it was
conferring. Because it did neither, we interpret the IOIA in light
of the Reference Canon to mean that Congress intended that the
immunity conferred by the IOIA would adapt with the law of
foreign sovereign immunity.

ESA’s contrary position leads to an anomalous result. If a
foreign government, such as Germany, had contracted with
OSSN, it would not be immune from suit because the FSIA
provides that a foreign government involved in a commercial
arrangement such as that in this case may be sued, as ESA
acknowledged at oral argument. We find no compelling reason
why a group of states acting through an international
organization is entitled to broader immunity than its member
states enjoy when acting alone. Indeed, such a policy may create
an incentive for foreign governments to evade legal obligations
by acting through international organizations. See Steven Herz,
International Organizations in U.S. Courts: Reconsidering the

13
Anachronism of Absolute Immunity, 31 Suffolk Transnat’l L.
Rev. 471, 521-22 (2008). For these reasons, we conclude that
ESA is not entitled to immunity as it stood for foreign sovereigns
in 1945.

As noted, the FSIA grants foreign governments immunity
from the jurisdiction of United States courts, except when, inter
alia, “the action is based upon a commercial activity carried on
in the United States . . . .” 28 U.S.C. § 1605(a)(2). It is
undisputed that the Agreements at issue here constituted such
“commercial activity” and, because we construe the IOIA to
incorporate the exceptions to immunity set forth in the FSIA, we
will affirm the District Court’s order denying ESA’s motion to
dismiss.

The District Court devoted only scant attention to the
FSIA, following instead the rejection of that approach by the
Atkinson court and by a district judge in the Eastern District of
Pennsylvania, Bro Tech Corp. v. European Bank for
Reconstruction and Development, No. 00-CV-02160-CG, 2000
WL 1751094, at *3 (E.D. Pa. Nov. 29, 2000). Instead, the
District Court found for OSSN on the ground that it had waived
the immunity the Court believed ESA was granted by the IOIA.

In so holding, the District Court relied on the
“corresponding benefit” theory articulated by the court in
Mendaro v. World Bank, 717 F.2d 610, 617 (D.C. Cir. 1983).
The District Court reasoned that “[b]y providing proprietary
software, tools, and information to ESA, OSS[N] provides
commercial services to enable ESA to build and advance its
organization. ESA must provide protection from unreasonable
and arbitrary actions against outside parties in order to attract the
outside parties to provide the materials and supplies needed to
conduct business.” App. at 21. The District Court then made
explicit the “corresponding benefit,” when it continued,
“[o]utside parties would be hesitant to do business with ESA if
there were no expectations of fair play.” App. at 21.

The District Court tied its corresponding benefits theory
directly to ESA’s Convention which provides that “the Council

14
has the duty to waive this immunity in all cases where reliance
upon it would impede the course of justice and it can be waived
without prejudicing the interests of the Agency[.]” Convention,
Annex I, Art. IV ¶ 1(a). The District Court, overlooking that the
Convention places on the Council the responsibility for waiver
on that ground, connected the substance of the waiver provision
to the benefit ESA would derive. In holding that ESA had
waived its immunity from OSSN’s tort claims, the Court stated,
“[t]he tort claims thus arise out of ESA’s commercial
transactions with the outside world. The Court therefore finds
that ESA will benefit by waiving its immunity for both the
contract and tort claims as it will enhance ESA’s ability to
participate in commercial transactions by promoting fair play in
the market.” App. at 22 (citation omitted).

The same is true of all commercial transactions. There is
no inconsistency between the reasoning adopted by the District
Court and the policy underlying the FSIA’s withholding of
immunity for commercial transactions engaged in by sovereign
governments. It is worth noting that the decision in Atkinson did
not concern a commercial transaction. In Atkinson, the claim
was that of a divorced spouse who sought to satisfy outstanding
state court judgments by garnishing the wages of her former
husband, an employee of the Inter-American Development Bank.
See Atkinson, 156 F.3d at 1336-37. In Mendaro, the claims
against the World Bank were from a former employee alleging
sexual harassment and discrimination. See Mendaro, 717 F.2d at
612. As the D.C. Circuit recognized in a later case, “[b]oth
Mendaro and Atkinson stated that immunity from suits based on
‘commercial transactions with the outside world’ can hinder an
organization’s ability to operate in the marketplace.” Osseiran v.
Int’l Fin. Corp., 552 F.3d 836, 840 (D.C. Cir. 2009) (citations
omitted) (rejecting claim of immunity by defendant organization
for suit by prospective investor claiming estoppel and breach of
contract).

It appears therefore that the reasoning underlying the
FSIA’s exception for suits arising out of a government’s
commercial transactions from the broad immunity it otherwise
accords such a government is equally applicable to international

15
organizations and is incorporated into the IOIA.

IV.

We will therefore affirm the order of the District Court
and remand this matter to the District Court for further
proceedings consistent with this opinion.

16