United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 1998 Decided July 2, 1999
No. 98-7063
Creighton Limited,
Appellant
v.
Government of the State of Qatar,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00191)
Joseph P. Hornyak argued the cause and filed the briefs
for appellant.
Eugene D. Gulland argued the cause and filed the brief for
appellee.
Before: Ginsburg, Henderson, and Rogers, Circuit Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Creighton Limited, a Cayman
Islands corporation with offices in Tennessee, contracted with
the Government of the State of Qatar to build a hospital in
Doha, the Qatari capital. Following a dispute over its perfor-
mance, Creighton obtained an arbitral award against Qatar
from the International Chamber of Commerce in Paris.
Creighton now seeks to enforce the award in the United
States District Court for the District of Columbia. Qatar
claims the court lacks subject matter jurisdiction over the
action pursuant to the Foreign Sovereign Immunities Act of
1976, 28 U.S.C. ss 1330, 1602-1611, and lacks personal juris-
diction over Qatar pursuant to the Due Process Clause of the
Fifth Amendment to the Constitution of the United States.
We hold that the district court has subject matter jurisdiction
but affirm its dismissal of Creighton's suit for lack of personal
jurisdiction.
I. Background
In the late 1970s the Government of Qatar decided to build
a new hospital in Doha. Creighton obtained the necessary
Qatari sponsor, submitted the low bid, and in 1982 contracted
with Qatar to build the hospital. The contract required
Creighton to obtain a performance bond from a Qatari issuer
and to maintain an office in Qatar, to which notices under the
contract would be sent. Qatar was to pay Creighton in Qatar,
and in fact all payments were made there in Qatari riyals.
The contract provided that it was to be performed and
interpreted under Qatari law and that all disputes were to "be
finally settled under the Rules of Conciliation and Arbitration
of the International Chamber of Commerce."
In 1986 Qatar expelled Creighton from the construction site
for unsatisfactory performance. Creighton contested its ex-
pulsion by commencing arbitration before the ICC in 1987.
Because the contract did not specify a place for arbitration,
the ICC decided to conduct the arbitration in Paris. Qatar
willingly participated in the arbitration, which resulted in an
order for Qatar to pay Creighton damages, interest, and
attorney's fees totaling over $8 million. Qatar then filed a
court action in France to set aside the award as invalid under
French law, which the Supreme Court of France ultimately
rejected. Nonetheless, Creighton has been unable to enforce
the award in France. It attempted to attach Qatari assets
located there but the Superior Court of Paris held the
particular assets in question were immune from attachment
under French law. Creighton's appeal of that decision is now
pending before the Supreme Court of France.
Meanwhile, Creighton filed this action seeking enforcement
of the award in the United States District Court for the
District of Columbia; Qatar moved to dismiss on a number of
grounds. The district court granted the motion on the
ground that it lacks personal jurisdiction over Qatar because
Qatar does not have sufficient contact with the United States
to make it amenable to suit here consistent with the due
process requirement of the fifth amendment.
II. Analysis
Qatar claims the district court lacks both subject matter
jurisdiction over this action, pursuant to the Foreign Sover-
eign Immunities Act, and personal jurisdiction over Qatar,
pursuant to the due process clause. Under the FSIA, the
district court has subject matter jurisdiction of a civil action
against a foreign state only if "the foreign state is not entitled
to immunity either under [the immunity provisions of the
FSIA itself, 28 U.S.C. ss 1605-1607] or under any applicable
international agreement." 28 U.S.C. s 1330(a).
Creighton claims that by agreeing to arbitrate in France
Qatar impliedly waived both its sovereign immunity, thereby
conferring subject matter jurisdiction upon the court, see id.
s 1605(a)(1) & (6), and its due process objection, thereby
conferring personal jurisdiction upon the court. Alternative-
ly, Creighton claims that Qatar's agreement to arbitrate in
France confers subject matter jurisdiction, see id.
s 1605(a)(6), and its contacts with the United States are
sufficient to satisfy the constitutional requirements of person-
al jurisdiction. Although we hold below (in Part II.A.2.b) that
the court has subject matter jurisdiction pursuant to
s 1605(a)(6), we find it necessary also to discuss s 1605(a)(1)
because one of Creighton's due process arguments (see Part
II.B.1) presupposes that Qatar, by agreeing to arbitrate in
France, waived its immunity pursuant to s 1605(a)(1). We
cannot resolve that due process argument without addressing
the claim about s 1605(a)(1) upon which it is predicated.
A. Subject Matter Jurisdiction
There are two prerequisites to the district court having
subject matter jurisdiction over this case. First, there must
be a basis upon which a court in the United States may
enforce a foreign arbitral award; and second, Qatar must not
enjoy sovereign immunity from such an enforcement action.
We discuss each requirement separately.
1. The New York Convention
Both France and the United States, but not Qatar, are
parties to the so-called New York Convention, a multilateral
treaty providing for "the recognition and enforcement of
arbitral awards made in the territory of a State other than
the State where the recognition and enforcement of such
awards are sought." Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, opened for signa-
ture June 10, 1958, art. I.1, 21 U.S.T. 2517, reprinted in 9
U.S.C.A. s 201 (historical and statutory note). The U.S.
legislation implementing the Convention declares that
[a]n action or proceeding falling under the Convention
shall be deemed to arise under the laws and treaties of
the United States. The district courts of the United
States ... shall have original jurisdiction over such an
action or proceeding, regardless of the amount in contro-
versy.
9 U.S.C. s 203.
That the New York Convention applies to the arbitral
award Creighton obtained against Qatar in France, and that
the award is therefore enforceable in United States courts, is
undisputed. See Restatement (Third) of Foreign Relations
Law s 487 comment b (1987) ("the critical element is the
place of the award: if that place is in the territory of a party
to the Convention, all other Convention states are required to
recognize and enforce the award, regardless of the citizenship
or domicile of the parties to the arbitration"). If Qatar were
a private party, then there could be no doubt about the
subject matter jurisdiction of the district court; because it is
a foreign state, however, we must consider the effect of the
FSIA upon the court's power to hear this case.
2. Sovereign Immunity
The FSIA is "the sole basis for obtaining jurisdiction over a
foreign state in our courts." Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 434 (1989). A foreign
state is "presumptively immune from the jurisdiction of Unit-
ed States courts," Saudi Arabia v. Nelson, 507 U.S. 349, 355
(1993), that is, the state is immune unless the particular
lawsuit comes within an exception in the FSIA. See 28
U.S.C. s 1604. Creighton claims that the exceptions for an
implied waiver and for arbitration, see id. s 1605(a)(1), (6),
apply to this case.
a. Implied Waiver
The former exception provides:
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the
States in any case--
(1) in which the foreign state has waived its immuni-
ty ... by implication.
Id. s 1605(a)(1). Creighton claims that Qatar, by agreeing to
arbitrate in France, implicitly waived its sovereign immunity
in the United States for, by virtue of the New York Conven-
tion, Qatar was "on notice" that an arbitral award rendered in
France would be enforceable in this country. Qatar responds
that "the FSIA and decisions applying it make clear that a
sovereign's agreement to arbitrate in a New York Convention
state is not a waiver of immunity to suit in the U.S. unless the
foreign sovereign is also party to the New York Convention."
The FSIA does not define an implied waiver. We have,
however, followed the "virtually unanimous" precedents con-
struing the implied waiver provision narrowly. Shapiro v.
Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991). In
particular, we have held that implicit in s 1605(a)(1) is the
requirement that the foreign state have intended to waive its
sovereign immunity. See Princz v. Federal Republic of Ger-
many, 26 F.3d 1166, 1174 (1994) ("[A]n implied waiver de-
pends upon the foreign government's having at some point
indicated its amenability to suit"); Foremost-McKesson, Inc.
v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C. Cir.
1990) ("courts rarely find that a nation has waived its sover-
eign immunity ... without strong evidence that this is what
the foreign state intended").
The closest Creighton comes to arguing that Qatar intend-
ed to waive its sovereign immunity is in pointing to this
statement in the House Report accompanying the FSIA: "the
courts have found [implicit] waivers in cases where a foreign
state has agreed to arbitration in another country." H.R.
Rep. No. 94-1487, at 18 (1976), reprinted in 1976
U.S.C.C.A.N. 6604, 6617. Creighton claims Qatar's agree-
ment to arbitrate in France should be deemed an implicit
waiver of its sovereign immunity in U.S. courts. Cf. id.
(explaining courts have also found such waivers "where a
foreign state has agreed that the law of a particular country
should govern a contract").
We follow the Second Circuit in rejecting such a broad
reading of the "implicit waiver" exception.
[I]f the language of the legislative history [were] applied
literally, a foreign government would be subject to the
United States's jurisdiction simply because it agreed to
have the contract governed by another country's laws, or
agreed to arbitrate in a country other than itself, even
though the agreement made no reference to the United
States. Such an interpretation of s 1605(a)(1)'s "implicit
waiver" exception would vastly increase the jurisdiction
of the federal courts over matters involving sensitive
foreign relations.
Seetransport Wiking Trader v. Navimpex Centrala, 989 F.2d
572, 577 (2d Cir. 1993); see also Frolova v. Union of Soviet
Socialist Republics, 761 F.2d 370, 377 (7th Cir. 1985) ("[M]ost
courts have refused to find an implicit waiver of immunity to
suit in American courts from a contract clause providing for
arbitration in a country other than the United States");
Maritime Int'l Nominees Estab. v. Republic of Guinea, 693
F.2d 1094, 1102 n.13 (D.C. Cir. 1982) (courts "have generally
assumed ... that Congress did not endorse the literal word-
ing of the House Report"). Indeed, the intentionality "re-
quirement is also reflected in the examples of implied waiver
set forth in the legislative history of s 1605(a)(1), all of which
arise either from the foreign state's agreement (to arbitration
or to a particular choice of law) or from its filing a responsive
pleading without raising the defense of sovereign immunity."
Princz, 26 F.3d at 1174; see also Shapiro, 930 F.2d at 1017
(explaining that legislative history lists examples of implicit
waiver "in which the waiver was unmistakable, and courts
have been reluctant to find an implied waiver where the
circumstances were not similarly unambiguous"); Maritime
Int'l, 693 F.2d at 1103 ("A key reason why pre-FSIA cases
[referred to in the legislative history] found that an agree-
ment to arbitrate in the United States waived immunity from
suit was that such agreements could only be effective if
deemed to contemplate a role for United States courts").
The Supreme Court has also read s 1605(a)(1) to require
an intention to waive immunity in the United States, though
concededly upon facts rather different from those present
here. Argentina was sued in the United States for allegedly
sinking a Liberian tanker owned by U.S. interests during the
war between Great Britain and Argentina over the Falkland
Islands. Although Argentina had signed international trea-
ties setting forth substantive rules of conduct and stating that
compensation would be paid for certain wrongs, the Court
held "we [do not] see how a foreign state can waive its
immunity under s 1605(a)(1) by signing an international
agreement that contains no mention of a waiver of immunity
to suit in United States courts or even the availability of a
cause of action in the United States." Argentine Republic,
488 U.S. at 442-43.
Creighton seeks support in three cases in which the court
found an implied waiver where a foreign government had
agreed (like Qatar) to arbitrate in the territory of a state that
had signed the New York Convention. See Seetransport, 989
F.2d at 578-79; M.B.L. Int'l Contractors v. Republic of
Trinidad & Tobago, 725 F. Supp. 52, 54-55 (D.D.C. 1989);
Ipitrade Int'l S.A. v. Federal Republic of Nigeria, 465
F. Supp. 824, 826 (D.D.C. 1978). In each of these cases,
however, the defendant sovereign was (unlike Qatar) a signa-
tory to the Convention. In Seetransport the Second Circuit
reasoned, correctly we think, that "when a country becomes a
signatory to the Convention, by the very provisions of the
Convention, the signatory state must have contemplated en-
forcement actions in other signatory states." 989 F.2d at 578.
Qatar not having signed the Convention, we do not think
that its agreement to arbitrate in a signatory country, without
more, demonstrates the requisite intent to waive its sovereign
immunity in the United States. As Creighton directs us to no
other evidence of such an intent, we hold that s 1605(a)(1)
does not confer subject matter jurisdiction upon the district
court.
b. Arbitration
The Congress added the following exception to the FSIA in
1988:
A foreign state shall not be immune from the jurisdic-
tion of courts of the United States or of the States in any
case ... in which the action is brought ... to confirm an
award made pursuant to ... an agreement to arbitrate,
if ... the agreement or award is or may be governed by
a treaty or other international agreement in force for the
United States calling for the recognition and enforcement
of arbitral awards.
28 U.S.C. s 1605(a)(6). Qatar does not contest Creighton's
assertion that because the New York Convention calls for
enforcement of any arbitral award rendered within the juris-
diction of a signatory country, the quoted exception applies by
its terms to this action. Indeed, it has been said with
authority that the New York Convention "is exactly the sort
of treaty Congress intended to include in the arbitration
exception." Cargill Int'l S.A. v. M/T Pavel Dybenko, 991
F.2d 1012, 1018 (2d Cir. 1993); see also Chromalloy Aeroser-
vices v. Arab Republic of Egypt, 939 F. Supp. 907, 909
(D.D.C. 1996).
Qatar's sole defense is that application of the arbitral
exception here would be impermissibly retroactive because it
was added to the statute after the contract was signed, indeed
after the Paris arbitration was commenced. In reply, Creigh-
ton suggests that because the FSIA is a jurisdictional statute,
its application to events that occurred before it was enacted
would not be retroactive, for the FSIA speaks not to the
primary conduct of the parties but rather to the question of
which tribunal may enforce the arbitral award.
As the Supreme Court has pointed out, it
regularly applie[s] intervening statutes conferring or
ousting jurisdiction, whether or not jurisdiction lay when
the underlying conduct occurred or when the suit was
filed. ... Application of a new jurisdictional rule usual-
ly takes away no substantive right but simply changes
the tribunal that is to hear the case. Present law
normally governs in such situations because jurisdictional
statutes speak to the power of the court rather than to
the rights or obligations of the parties.
Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994). So it
is in this case, for s 1605(a)(6) does not affect the contractual
right of the parties to arbitration but only the tribunal that
may hear a dispute concerning the enforcement of an arbitral
award. See McGee v. International Life Ins. Co., 355 U.S.
220, 224 (1957) (holding long-arm statute enacted after parties
entered into contract "did nothing more than to provide
petitioner with a California forum to enforce whatever sub-
stantive rights she might have against respondent"). Under
established principles, therefore, application of s 1605(a)(6) is
not retroactive, let alone impermissibly retroactive, and Qatar
does not claim that a different result should obtain simply
because a foreign state is affected by the change in a jurisdic-
tional statute. See Princz, 26 F.3d at 1171 (postulating,
though not deciding, that application of 1976 version of FSIA
to acts committed before 1952 would not be retroactive
because it "would not alter Germany's liability under the
applicable substantive law in force at the time, i.e. it would
just remove the bar of sovereign immunity to the plaintiff's
vindicating his rights under that law"). Accordingly, we hold
that the district court has subject matter jurisdiction over this
case pursuant to the arbitration exception in s 1605(a)(6).
B. Personal Jurisdiction
Not long ago we determined that the requirements of the
FSIA for personal jurisdiction, see 28 U.S.C. s 1330(b),* "do
not affect the constitutional in personam jurisdiction require-
ment [of] the due process clause of the Fifth Amendment."
Foremost-McKesson, 905 F.2d at 442 n.10; see also Maritime
Int'l, 693 F.2d at 1105 n.18 ("Of course, a finding of FSIA
personal jurisdiction, which would rest in part on a finding of
non-immunity, must comport with the demands of due pro-
cess, and Congress intended that the Act satisfy those de-
mands"); Gilson v. Republic of Ireland, 682 F.2d 1022, 1028
(D.C. Cir. 1982) ("a statute cannot grant personal jurisdiction
where the Constitution forbids it"). More recently, however,
the Supreme Court questioned whether the personal jurisdic-
tion requirement of the due process clause applies at all to
foreign states, citing its prior holding that a State of the
Union is not a "person" for purposes of that clause. See
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 619
(1992) (citing South Carolina v. Katzenbach, 383 U.S. 301,
323-24 (1966)). And the district court in turn has held that
the requirement of personal jurisdiction does not apply to a
foreign state. See Flatova v. Islamic Republic of Iran, 999
F. Supp. 1, 19-21 (D.D.C. 1998).
Nonetheless, Creighton does not argue the point. Rather,
Creighton claims that Qatar's entitlement to due process is
__________
* "Personal jurisdiction over a foreign state shall exist as to every
claim for relief over which the district courts have jurisdiction under
subsection (a) where service has been made under section 1608 of
this title."
satisfied because Qatar waived its objections to personal
jurisdiction by agreeing to arbitrate in France or, in the
alternative, because Qatar has the requisite minimum con-
tacts with the United States. We take the dispute as the
parties frame it, of course. See United Transp. Union-
Illinois Legis. Bd. v. STB, 175 F.3d 163, 1999 WL 279754, at
*4 (D.C. Cir. May 7, 1999); cf. Afram Export Corp. v.
Metallurgiki Halyps, S.A., 772 F.2d 1358, 1362 (7th Cir. 1985)
("Countless cases assume that foreign companies have all the
rights of U.S. citizens to object to extraterritorial assertions
of personal jurisdiction. The assumption has never to our
knowledge actually been examined"). Accordingly, we pro-
ceed upon the unchallenged assumption that Qatar must be
afforded the protection it claims under the due process clause.
1. Waiver
For a court to assert personal jurisdiction over a defendant
not physically present in the forum, the defendant normally
must "have certain minimum contacts with [the forum] such
that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice." International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Because
this "personal jurisdiction requirement recognizes and pro-
tects an individual liberty interest," however, like other indi-
vidual rights it may be waived--for example, if the defendant
agrees "to submit to the jurisdiction of a given court." In-
surance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites,
456 U.S. 694, 702, 704 (1982).
Relying upon the legislative history of the FSIA, Creighton
claims that we need not engage in a separate due process
analysis of Qatar's contacts with the United States because
the Congress designed all the exceptions to sovereign immu-
nity in the FSIA to comport with due process. The House
Report explains:
The requirements of minimum jurisdictional contacts and
adequate notice are embodied in the provision [namely,
28 U.S.C. s 1605(a)(1)-(5)]. Cf. International Shoe Co. v.
Washington, 326 U.S. 310 (1945), and McGee v. Interna-
tional Life Insurance Co., 355 U.S. 220, 223 (1957). ...
Significantly, each of the immunity provisions in the bill
... requires some connection between the lawsuit and
the United States, or an express or implied waiver by the
foreign state of its immunity from jurisdiction. These
immunity provisions, therefore, prescribe the necessary
contacts which must exist before our courts can exercise
personal jurisdiction.
H.R. Rep. No. 94-1487, at 13, reprinted in 1976 U.S.C.C.A.N.
at 6612. Creighton reasons that because Qatar impliedly
waived its sovereign immunity under s 1605(a)(1), and alter-
natively because subject matter jurisdiction is proper under
what it terms the "arbitral waiver" provision of s 1605(a)(6),
Qatar has necessarily waived its objection to personal juris-
diction. The predicate for the first of these arguments we
rejected when we held (in Part II.A.2.a) that Qatar did not
impliedly waive its sovereign immunity under s 1605(a)(1).
We now consider the second argument.
The House Report upon which Creighton relies accompa-
nied the original 1976 legislation. As noted above,
s 1605(a)(6) was added to the FSIA only in 1988. The 1976
legislative history, whatever it might be worth as a guide to
the original Act, has little if any bearing upon the later
amendment. Cf. Rein v. Socialist People's Libyan Arab
Jamahiriya, 162 F.3d 748, 761 (2d Cir. 1998) ("The elements
of s 1605(a)(7) [enacted in 1996], unlike those of the commer-
cial activities exception [in s 1605(a)(2), which was enacted in
1976], do not entail any finding of minimum contacts").
In any event, Creighton's argument proceeds from a mis-
taken premise, for unlike s 1605(a)(1), s 1605(a)(6) deals not
with waiver but with forfeiture. Cf. United States v. Olano,
507 U.S. 725, 733 (1993) ("Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the intentional relinquishment or aban-
donment of a known right"). Section 1605(a)(6) reflects the
decision of the Congress to deny a foreign state immunity
from suit in the United States if that state has agreed to
arbitrate in any country that is party to a treaty (such as the
New York Convention) calling for the enforcement of an
arbitral award. Unlike subsection (a)(1), subsection (a)(6)
contains no intentionality requirement. Therefore, although
subsection (a)(6) confers subject matter jurisdiction upon the
court, it does not follow that Qatar waived its objection to
personal jurisdiction.
Although we have held that Qatar did not, by agreeing to
arbitrate in France, waive its sovereign immunity under
s 1605(a)(1), it is conceivable (though as we shall see, unlike-
ly) that a different conclusion could follow with regard to
whether Qatar waived its objection to personal jurisdiction
under the due process clause. Creighton, however, has not
cited, nor are we aware of, any authority for the proposition
that an agreement to arbitrate in one forum constitutes a
waiver of the right to challenge personal jurisdiction in anoth-
er. On the contrary, the decisions of which we are aware
have held that an implicit waiver of personal jurisdiction in a
defendant's agreement to litigate or to arbitrate in a particu-
lar jurisdiction is applicable only within that jurisdiction. See
Victory Transport Inc. v. Comisaria General de Abasteci-
mientos y Transportes, 336 F.2d 354, 363 (2d Cir. 1964) ("By
agreeing to arbitrate in New York, where the United States
Arbitration Act makes such agreements specifically enforce-
able, the [government of Spain] must be deemed to have
consented to the jurisdiction of the court that could compel
the arbitration proceeding in New York. To hold otherwise
would be to render the arbitration clause a nullity"); Microfi-
bres, Inc. v. McDevitt-Askew, 20 F. Supp. 2d 316, 322 (D.R.I.
1998) (holding agreement to litigate contractual disputes in
Rhode Island implicitly waived right to challenge personal
jurisdiction there); Inso Corp. v. Dekotec Handelsges, 999
F. Supp. 165, 167 (D. Mass. 1998) (holding "contractual
stipulation to a particular forum implies consent to personal
jurisdiction in that forum").
While the analogy is imperfect, we think it instructive to
compare the New York Convention to the Full Faith and
Credit Clause of the United States Constitution: "Full Faith
and Credit shall be given in each State to the ... judicial
Proceedings of every other State." Art. IV, s 1; see also 28
U.S.C. s 1738. It is implausible that a defendant in Connect-
icut who had agreed to arbitrate all disputes in New York,
and thereby implicitly waived any objection to personal juris-
diction in a suit brought in New York to enforce the resulting
arbitral award, also waived its objection to personal jurisdic-
tion in such an action brought in California merely because
the full faith and credit clause would make a valid New York
judgment enforceable in the courts of California. Indeed, to
accept such a bootstrap argument, under which the courts in
every state would have personal jurisdiction over a defendant
who had waived its objection in any one state, would in this
context eviscerate an important limitation upon the principle
of full faith and credit--that "a judgment need not be hon-
ored if it was entered by a court that lacked personal ...
jurisdiction." 18 Charles A. Wright et al., Federal Practice
and Procedure s 4467, at 634 (2d ed. 1981); see also Baker v.
General Motors Corp., 522 U.S. 222, 233 (1998); Pennoyer v.
Neff, 95 U.S. 714, 729-33 (1877); D'Arcy v. Ketchum, 52 U.S.
(11 How.) 165, 175-76 (1850). It seems to us likewise implau-
sible that Qatar, by agreeing to arbitrate in France, a signa-
tory to a treaty containing a similar reciprocal "recognition
and enforcement" clause, should be deemed thereby to have
waived its right to challenge personal jurisdiction in the
United States.
For these reasons we hold that Qatar did not waive its
objection to personal jurisdiction in the United States by
agreeing to arbitrate in France.
2. Minimum Contacts
As noted above, when lack of personal jurisdiction is raised
as a defense, due process requires that for the case to go
forward the absent defendant must "have [had] certain mini-
mum contacts with [the forum] such that the maintenance of
the suit does not offend traditional notions of fair play and
substantial justice." International Shoe, 326 U.S. at 316.
The defendant's contacts with the forum must be of a quality
that it "should reasonably anticipate being haled into court"
there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980). It is "essential in each case that there be
some act by which the defendant purposefully avails itself of
the privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws." Han-
son v. Denckla, 357 U.S. 235, 253 (1958).*
Creighton claims that Qatar has the requisite minimum
contacts mainly because Qatar entered into a contract with a
company based in the United States. Because that contract
provided for ICC arbitration of all disputes and (according to
Creighton) Qatari law does not recognize or enforce arbitral
awards, "it was certainly foreseeable that Creighton would
seek to enforce any award in its favor ... in the United
States." In addition Creighton asserts that Qatar contacted
Creighton in Tennessee during the negotiations leading to the
contract in order to clarify an apparent error in Creighton's
bid, Creighton signed a modification to the contract in Ten-
nessee, and during construction Qatar telexed weekly status
reports to Creighton's offices in Tennessee.
These contacts, however, do not demonstrate that Qatar
purposefully availed itself of the laws of the United States
and hence should reasonably have anticipated the risk of
being haled into court here. Creighton's reliance upon the
mere fact that Qatar contracted with a United States compa-
ny (and the concomitant foreseeability that the company
might try to bring suit in the United States) is misplaced, for
the Supreme Court has squarely rejected the proposition that
"an individual's contract with an out-of-state party alone can
automatically establish sufficient minimum contacts in the
other party's home forum." Burger King v. Rudzewicz, 471
U.S. 462, 478 (1985) (emphasis in original).
Our doubt about the adequacy of Qatar's contacts with the
United States is increased when we consider "prior negotia-
tions and contemplated future consequences, along with the
terms of the contract and the parties' actual course of deal-
ing." Id. at 479. As Qatar notes, the contract was offered,
__________
* We note that Qatar does not argue that due process requires
that a foreign state have contacts with the forum state as opposed
to the United States in general. See SEC v. Vision Communica-
tions, Inc., 74 F.3d 287, 289 (D.C. Cir. 1996) (suggesting the latter).
accepted, and performed in Qatar pursuant to a sponsorship
arrangement between Creighton and a Qatari contractor.
The contract was made subject to the laws of Qatar, payment
was made in Qatari riyals to Creighton's bank account in
Qatar, and the alleged breach occurred in Qatar.
Overall, it seems Qatar's contacts with Creighton in Ten-
nessee were necessitated by Creighton's decision to base
itself there, and are not instances of Qatar purposefully
availing itself of the benefits of the laws of Tennessee or of
the United States. See id. at 475 ("Th[e] purposeful avail-
ment requirement ensures that a defendant will not be haled
into a jurisdiction solely as a result of random, fortuitous, or
attenuated contacts, or of the unilateral activity of another
party or a third person"). As we explained in an analogous--
indeed, controlling--case, Creighton
seems to confuse a distant purchaser "reaching out" to a
seller in the forum state with a seller "reaching out" to a
distant state in order to do business there. At least if it
circulates its wares there, the seller purposefully avails
itself of forum state law. By contrast, a purchaser who
selects an out-of-state seller's goods or services based on
their economic merit does not thereby purposefully avail
itself of the seller's state law, and does not merely by
purchasing from the seller submit to the laws of the
jurisdiction in which the seller is located or from which it
ships merchandise. Of course, a seller suing in its home
state might argue that an out-of-state buyer has availed
itself of that forum's laws in the sense that the buyer
typically could have sued the seller in the forum state for
breach of contract had the need arisen. In light of
Burger King, however, this contingent type of "contact"
is plainly not enough, as it would alone and automatically
extend personal jurisdiction over all buyers in interstate
contract actions, without regard to the parties' actual
course of dealing and its relation to the forum.
Health Communications, Inc. v. Mariner Corp., 860 F.2d
460, 464-65 (D.C. Cir. 1988). We therefore conclude that
Qatar lacks the minimum contacts with the United States that
would make it amenable to suit here consistent with due
process.
III. Conclusion
For the foregoing reasons, we hold that the district court
had subject matter jurisdiction over this suit but lacked
personal jurisdiction over Qatar. The judgment of the dis-
trict court is therefore
Affirmed.