United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2001 Decided August 2, 2002
No. 00-7250
World Wide Minerals, Ltd., et al.,
Appellants
v.
Republic of Kazakhstan, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 98cv01199)
Anson M. Keller argued the cause for appellants. With
him on the briefs was Marshall Lee Miller.
Waller T. Dudley argued the cause for appellees Republic
of Kazakhstan and State Committee of the Republic of Kaza-
khstan on the Management of State Property. M. Melissa
Glassman was on the brief. Stephen M. Colangelo entered
an appearance.
Jared A. Goldstein argued the cause for appellee National
Atomic Company Kazatomprom. With him on the brief was
Thomas B. Wilner.
Carolyn B. Lamm argued the cause for appellee Nukem,
Inc. With her on the brief were Francis A. Vasquez Jr. and
Eric Grannon. Judd C. Lawler entered an appearance.
Before: Ginsburg, Chief Judge, Rogers and Garland,
Circuit Judges.
Garland, Circuit Judge: In 1996 and 1997, World Wide
Minerals Ltd., a Canadian corporation, entered into a series
of agreements with the Republic of Kazakhstan. Pursuant to
those agreements, World Wide took over the management of
one of Kazakhstan's major uranium complexes and loaned
Kazakhstan several million dollars to fund the restoration of
the facility. World Wide contends that, in return, Kaza-
khstan agreed (inter alia) to permit World Wide to export
Kazakhstan uranium. World Wide alleges that Kazakhstan
breached its agreements by failing to issue World Wide a
uranium export license and by seizing its assets in Kaza-
khstan. World Wide further alleges fraudulent inducement,
tortious interference, conversion, conspiracy, and violations of
the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. s 1961 et seq.1
The defendants in this case are Kazakhstan and two of its
instrumentalities, as well as Nukem, Inc., a New York corpo-
ration that World Wide contends conspired with Kazakhstan
in committing wrongful acts against World Wide. The dis-
trict court concluded that Kazakhstan and its instrumentali-
ties had waived sovereign immunity against suit, and that the
court therefore had jurisdiction over the claims against these
defendants under the Foreign Sovereign Immunities Act
(FSIA), 28 U.S.C. ss 1330, 1605(a)(1). The court nonetheless
__________
1 Two of World Wide's subsidiaries (World Wide Resource Fi-
nance, Inc. and KazUran Corporation), as well as its sales agent
(Nuclear Fuel Resources Corporation), are also plaintiffs in this
case. For the sake of convenience, we refer to the plaintiffs
collectively as World Wide.
dismissed those claims pursuant to the act of state doctrine.
The court also dismissed World Wide's claims against Nukem,
holding that it did not have personal jurisdiction over that
New York corporation because World Wide's injuries did not
arise out of any act that took place in the District of Colum-
bia.
We affirm the dismissal of World Wide's claims against the
Kazakhstan entities, albeit on somewhat different grounds.
Although we agree that Kazakhstan waived sovereign immu-
nity for some of World Wide's claims, we conclude that it did
not waive immunity for all of the claims. As to those claims
where there was no waiver, we affirm dismissal for lack of
subject matter jurisdiction. As to the remaining claims
against Kazakhstan and one of its instrumentalities, we agree
with the district court that the act of state doctrine is fatal to
World Wide's suit. This conclusion also removes any sub-
stantial federal question with respect to identical claims
against the other instrumentality, a corporation wholly owned
by Kazakhstan. Finally, because the dismissal of the claims
against Nukem was based on a misunderstanding regarding
the date upon which World Wide alleges that officials of
Nukem and Kazakhstan met in the District of Columbia to
conspire against it, we remand those claims to permit the
district court to determine whether the facts are sufficient to
establish personal jurisdiction.
I
In 1995, the Republic of Kazakhstan issued a decree an-
nouncing the privatization of the country's uranium industry
and its intention to contract with foreign investors for the
management of previously state-run facilities. Am. Compl.
p 40.2 Shortly thereafter, World Wide submitted a proposal
__________
2 The facts set out in this Part are taken from World Wide's
amended complaint and documents incorporated by reference there-
in. Because we are reviewing the district court's decision on a
motion to dismiss, we must assume that the allegations of the
complaint are true, although many are disputed by the defendants.
See Saudi Arabia v. Nelson, 507 U.S. 349, 351 (1993).
to take over the management of Tselinny Gorno-Khimicheskii
Kombinat (TGK), a state holding company that operated a
uranium complex located in the area of Kazakhstan's North-
ern Mines. After a period of negotiation, the parties entered
into the four agreements that are at issue in this case.
The first agreement was the Management Agreement.
That agreement, signed by World Wide and the State Com-
mittee of the Republic of Kazakhstan on the Management of
State Property (Kazakhstan State Committee) on October 7,
1996, granted World Wide the right to manage and control
the assets of TGK. Id. p 56; Management Agreement p 2.11.
In return, World Wide agreed to satisfy TGK's outstanding
debts and to implement a restructuring program for the
uranium complex. Management Agreement pp 2.11(b), 2.22.
The agreement listed a number of additional points "which
have not been concluded in this Agreement" but which were
to be "addressed in good faith negotiations," including the
granting of a license to World Wide to export TGK uranium
for international sale. Id. p 2.17, Sched. 2 p 2.3. World Wide
was entitled to terminate the agreement if Kazakhstan did
not grant it the license by December 16, 1996. Id. p 2.18.
Although World Wide never received the license, it did not
suspend performance under the contract until April 30, 1997.
Am. Compl. p 73.
On November 14, 1996, World Wide, the Kazakhstan State
Committee, and TGK executed a second agreement, the Loan
Agreement. Under that agreement, World Wide agreed to
lend TGK at least $5 million to fund the restoration and
operation of the uranium complex. In the same month,
World Wide took over management of the TGK complex and
began to make loans under the Loan Agreement. Id. pp 58,
59, 61.
The third agreement was the Strategic Alliance Agreement,
which World Wide entered into with Kazatomprom on Febru-
ary 28, 1997. Kazatomprom is a corporation, wholly owned
by the Republic of Kazakhstan, that is charged with manag-
ing nuclear energy complexes and promoting the development
of uranium production in Kazakhstan. Id. p 60. In the
Strategic Alliance Agreement, the parties agreed to form a
joint venture to explore, develop, and mine several other
uranium sources, including deposits in Kazakhstan's Southern
Mines, and to market uranium from those sources. Id. p 69.
Kazatomprom also agreed to "assist" World Wide in obtaining
a uranium export license from Kazakhstan. Strategic Alli-
ance Agreement p 8.2.
Finally, on March 25, 1997, World Wide, TGK, and the
Kazakhstan State Committee entered into a fourth agree-
ment, the Pledge Agreement. This agreement gave World
Wide a security interest in the assets and shares of TGK as
collateral for its loans. The Pledge Agreement also prohibit-
ed the transfer of any of the pledged assets or shares. Am.
Compl. pp 70, 85; Pledge Agreement p 5.1.3.
On March 27, 1997, following execution of the Pledge
Agreement, World Wide entered into an contract with Con-
sumers Energy Company, a Michigan utility, to deliver ap-
proximately $4.1 million worth of Kazakhstan uranium. In
order to fulfill this contract, World Wide needed to receive an
export license by May 30, 1997. By the end of April, howev-
er, World Wide had not received the necessary license, and,
on April 30, it suspended mining operations at the TGK
complex. Am. Compl. pp 71-73.
In May 1997, in response to its requests for an export
license, a Kazakhstan official told World Wide that Kaza-
khstan had previously given another company, Nukem, exclu-
sive rights to the entire quota of uranium that Kazakhstan
was permitted to export to the United States. That quota
was determined by a Suspension Agreement between the two
countries. Id. pp 77, 78.3 Although World Wide continued to
__________
3 Kazakhstan had entered into the Suspension Agreement in
return for the United States' agreement to suspend an antidumping
investigation initiated by the Department of Commerce under the
Tariff Act, 19 U.S.C. s 1673a. See Agreement Suspending the
Antidumping Investigation on Uranium from Kazakhstan ("Suspen-
sion Agreement"), reproduced at 57 Fed. Reg. 49,220, 49,222 (Oct.
30, 1992); Am. Compl. p 33. The Suspension Agreement specifical-
ly provided that uranium exported to the United States required
seek an export license from Kazakhstan, and negotiated
several extensions of its contract with Consumers Energy
pending the grant of such a license, its final extension ran out
on July 4, 1997. On July 10, the contract between World
Wide and Consumers Energy was terminated. World Wide
alleges that, during the period in which it was trying to obtain
a license, Nukem approached Consumers Energy with an
offer to sell it uranium in the event that World Wide failed to
obtain the license, and that subsequently Nukem did sell
Kazakhstan uranium to Consumers Energy. Id .pp 82-84.
Thereafter, what was left of World Wide's relationship with
Kazakhstan quickly deteriorated. On August 1, Kazakhstan
terminated the Management Agreement, declaring that
World Wide had failed to fulfill its obligations. It then
allegedly seized $1 million worth of World Wide's uranium
and other property located at the TGK complex, and forced
World Wide's employees to leave the country. Id. pp 86-87.
Finally, on October 2, 1997, Kazakhstan issued a decree
transferring all of the assets and shares of TGK to Kazatom-
prom. Id. p 17; Republic of Kazakhstan, Ministry of Fi-
nance, Resolution No. 317 (Oct. 2, 1997) (J.A. at 431).
In May 1998, World Wide sued Kazakhstan, the Kaza-
khstan State Committee, Kazatomprom, and Nukem in the
United States District Court for the District of Columbia. In
its eleven-count amended complaint, World Wide alleged that
Kazakhstan and the Kazakhstan State Committee (collective-
ly Kazakhstan) breached their agreements with World Wide,
fraudulently induced World Wide to enter into several of the
agreements, wrongfully converted its property, tortiously in-
terfered with its contracts, unlawfully conspired against it,
and committed acts that violated RICO. In addition to
damages for these violations, World Wide sought a declarato-
ry judgment establishing its "right to market Kazakhstan
uranium under the Suspension Agreement or otherwise."
Am. Compl. p 161. World Wide joined Kazatomprom in most
__________
"export licenses and certificates ... issued in a manner determined
by the Government of Kazakhstan, in accordance with laws of
Kazakhstan." Suspension Agreement p V.A, 57 Fed. Reg. at 49,224.
of these counts, and joined Nukem as a defendant in the
counts for tortious interference, conspiracy, and violation of
RICO, and in its request for a declaratory judgment. Al-
though World Wide alleges various wrongful conduct, the
amended complaint identifies Kazakhstan's denial of its appli-
cation for an export license as "the very heart of this matter."
Id. p 157.4
The defendants moved to dismiss World Wide's amended
complaint, arguing that the court lacked personal and subject
matter jurisdiction, and that the act of state doctrine barred
adjudication of World Wide's claims. The district court
granted the motions to dismiss, and denied World Wide's
request to file a second amended complaint as futile. World
Wide Minerals Ltd. v. Republic of Kazakhstan, 116 F. Supp.
2d 98 (D.D.C. 2000). The court began by holding that,
because Kazakhstan had expressly waived its sovereign im-
munity in the Pledge Agreement, the FSIA, 28 U.S.C.
ss 1330(a) & (b), 1605(a)(1), gave the court personal jurisdic-
tion over Kazakhstan and Kazatomprom and subject matter
jurisdiction over all of World Wide's claims against them.
116 F. Supp. 2d at 103.5 The court concluded, however, that
__________
4 The eleven counts, and the defendants to which they apply, are
as follows: Count I, against Kazakhstan and Kazatomprom, for
breach of the Management Agreement; Count II, against Kaza-
khstan, for breach of the Loan Agreement; Count III, against
Kazakhstan, for breach of the Pledge Agreement; Count IV,
against Kazatomprom, for breach of the Strategic Alliance Agree-
ment; Count V, against Kazakhstan and Kazatomprom, for fraud in
the inducement to enter into the Management and Loan agree-
ments; Count VI, against Kazakhstan and Kazatomprom, for fraud
in the inducement to enter into the Strategic Alliance Agreement;
Count VII, against Kazakhstan and Kazatomprom, for conversion;
Count VIII, against all defendants, for tortious interference with
World Wide's contracts with its sales agent and Consumers Energy;
Count IX, against all defendants, for civil conspiracy; Count X,
against all defendants, for violation of RICO; and Count XI, against
all defendants, for a declaratory judgment.
5 The FSIA grants United States courts both subject matter and
personal jurisdiction (where service of process has been made) over
"granting World Wide relief would require a judgment on the
acts of a sovereign state," including Kazakhstan's failure to
grant World Wide an export license and its decision to
expropriate World Wide's property. Accordingly, the court
held the claims against the Kazakhstan defendants barred by
the act of state doctrine. Id. at 104.
The district court also dismissed World Wide's claims
against Nukem, holding that it lacked personal jurisdiction
over the corporation. The court rejected all of the jurisdic-
tional theories asserted by World Wide, including the "trans-
acting business" clause of the District of Columbia's long-arm
statute, D.C. Code s 13-423(a)(1), and "conspiracy jurisdic-
tion." The court rejected the latter two theories on the
ground that the only act sufficient to satisfy their prerequi-
sites took place after World Wide's injuries had already been
incurred. 116 F. Supp. 2d at 108. World Wide now appeals.
II
We review the district court's dismissal of World Wide's
complaint de novo, and must accept the complaint's allega-
tions as true for purposes of this appeal. See El Hadad v.
United Arab Emirates, 216 F.3d 29, 31, 32 n.5 (D.C. Cir.
2000). In doing so, we consider only the allegations of the
(first) amended complaint. Although World Wide indicated in
its notice of appeal that it planned to challenge the district
__________
any claim against a foreign state as to which the state is not entitled
to immunity. 28 U.S.C. s 1330(a), (b). The district court held that,
where one of the FSIA's exceptions to sovereign immunity (e.g.,
waiver) applies, a foreign government and its instrumentalities are
subject to suit without the need to apply the "minimum contacts"
test traditionally used in determining whether the assertion of
personal jurisdiction satisfies due process. 116 F. Supp. 2d. at 102-
03. Subsequently, this circuit reached the same conclusion with
respect to "an actual foreign government," but expressed no view as
to whether that conclusion also applied to "other entities that fall
within the FSIA's definition of 'foreign state'--including corpora-
tions in which a foreign state owns a majority interest." See Price
v. Socialist People's Libyan Arab Jamahiriya, No. 00-7244, slip op.
at 26 (D.C. Cir. June 28, 2002).
court's refusal to permit it to file a second amended com-
plaint, see Fed. R. Civ. P. 15(a), it failed to do so until its reply
brief. As we have said many times before, a party waives its
right to challenge a ruling of the district court if it fails to
make that challenge in its opening brief. See, e.g., Students
Against Genocide v. Department of State, 257 F.3d 828, 834-
35 (D.C. Cir. 2001); Board of Regents v. EPA, 86 F.3d 1214,
1221 (D.C. Cir. 1996); see also Terry v. Reno, 101 F.3d 1412,
1415 (D.C. Cir. 1996) (holding that where the appellants listed
challenges in the "Statement of Issues," but failed to brief
them, the challenges were waived).
World Wide contends that none of the defendants' motions
to dismiss should have been granted. In response, Kaza-
khstan, Kazatomprom, and Nukem assert that the district
court was correct in ruling that a variety of threshold obsta-
cles, including sovereign immunity, the act of state doctrine,
and lack of personal jurisdiction, barred World Wide's claims.
In the following three Parts, we address the issues relating to
each defendant separately.
III
World Wide's amended complaint levels ten of its eleven
charges against Kazakhstan (including the Kazakhstan State
Committee). They are: Count I (breach of the Management
Agreement), Count II (breach of the Loan Agreement), Count
III (breach of the Pledge Agreement), Count V (fraud in the
inducement to enter into the Management and Loan agree-
ments),6 Count VI (fraud in the inducement to enter into the
Strategic Alliance Agreement), Count VII (conversion), Count
VIII (tortious interference), Count IX (civil conspiracy),
Count X (violation of RICO), and Count XI (declaratory
judgment). In Part III.A, we conclude that the district court
lacked subject matter jurisdiction over seven of these counts,
because Kazakhstan has sovereign immunity against their
__________
6 Although the title of this count also alleges fraud in the induce-
ment to enter into the "Preliminary Agreement," neither the count
nor World Wide's briefs allege any damages or make any argument
relating to that agreement, and we therefore give it no independent
consideration.
adjudication in United States courts. In Part III.B, we
conclude that the remaining three counts were properly dis-
missed pursuant to the act of state doctrine.
A
We turn first to whether the district court was correct in
concluding that it had subject matter jurisdiction over all of
World Wide's claims against Kazakhstan. See In re Papan-
dreou, 139 F.3d 247, 254-56 (D.C. Cir. 1998) (holding that
jurisdiction must be resolved before applying the act of state
doctrine, because that doctrine is "a substantive rule of law").7
The FSIA is "the sole basis for obtaining jurisdiction over a
foreign state in our courts." Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 434 (1989). Under the
FSIA, a district court has jurisdiction over a civil action
against a foreign state for any claim "with respect to which
the foreign state is not entitled to immunity." 28 U.S.C.
s 1330(a). The Act provides that a foreign state is generally
immune from the court's jurisdiction unless one of the excep-
tions listed in the statute applies. Id. ss 1604, 1605; Verlin-
den B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89
(1983).8
In the district court, World Wide argued that the court had
subject matter jurisdiction under two FSIA exceptions: the
waiver exception, 28 U.S.C. s 1605(a)(1), and the commercial
activity exception, id. s 1605(a)(2). In its briefs on appeal,
__________
7 In its reply brief, World Wide argues that we cannot review the
district court's finding of subject matter jurisdiction because the
appellees "failed to cross-appeal on this issue." World Wide Reply
Br. at 11. To the contrary, we have an independent responsibility
to consider that question. See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 95 (1998).
8 World Wide does not dispute that the Kazakhstan State Com-
mittee is an "agency or instrumentality of a foreign state" within
the meaning of the FSIA. 28 U.S.C. s 1603(a), (b); see World
Wide Br. at xiii. As such, like Kazakhstan, the State Committee is
entitled to immunity unless one of the statute's enumerated excep-
tions applies. Id. s 1604.
however, World Wide did not argue that the commercial
activity exception was applicable, relying instead on the waiv-
er exception.9 And at oral argument, World Wide eschewed
any reliance on the FSIA's commercial activity exception.
Accordingly, we limit our inquiry to whether the district court
had jurisdiction by virtue of Kazakhstan's waiver of immuni-
ty.10 Under the FSIA's waiver exception, a state is not
immune from suit in any case "in which the foreign state has
waived its immunity either explicitly or by implication." Id.
s 1605(a)(1). World Wide does not rely on a theory of
implied waiver, but rather on the explicit waivers of sovereign
immunity contained in the Pledge and Management agree-
ments.11
__________
9 This was so despite the fact that Kazatomprom devoted a
substantial portion of its brief to arguing against the applicability of
the commercial activity exception. See Kazatomprom Br. at 14-24.
10 The defense of sovereign immunity may be raised at any time
because, if valid, it means that the court lacks power to hear the
case. See Steel Co., 523 U.S. at 94-95. A challenge to sovereign
immunity, by contrast, is an argument that can be waived. See
Watters v. Washington Metro. Area Transit Auth., No. 01-7092,
slip. op. at 7 n.13 (D.C. Cir. July 17, 2002) (holding that a claim that
sovereign immunity has been waived is itself waived if not argued
on appeal).
11 As we have previously noted, the "FSIA does not define an
implied waiver." Creighton Ltd. v. Government of the State of
Qatar, 181 F.3d 118, 122 (D.C. Cir. 1999). This circuit, however,
has "followed the 'virtually unanimous' precedents construing the
implied waiver provision narrowly." Id. (quoting Shapiro v. Repub-
lic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991)). Courts have
found implied waiver where a foreign state has filed a responsive
pleading without raising the defense of sovereign immunity. Id. at
123. They have also found implied waiver where the state has
agreed to arbitrate or to adopt a particular choice of law, under
circumstances not present in this case. Id.; see id. at 122 (" '[M]ost
courts have refused to find an implicit waiver of immunity to suit in
American courts from a contract clause providing for arbitration in
a country other than the United States.' " (quoting Frolova v.
Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir.
In general, explicit waivers of sovereign immunity are
narrowly construed "in favor of the sovereign" and are not
enlarged "beyond what the language requires." Library of
Cong. v. Shaw, 478 U.S. 310, 318 (1986) (internal quotation
marks omitted); see Watters v. Washington Metro. Area
Transit Auth., No. 01-7092, slip. op. at 5 (D.C. Cir. July 17,
2002) (requiring "clear and unequivocal" waiver); Forman v.
Small, 271 F.3d 285, 296 (D.C. Cir. 2001). A foreign sover-
eign will not be found to have waived its immunity unless it
has clearly and unambiguously done so. See Aquamar S.A.
v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1292
(11th Cir. 1999) ("An express waiver under section 1605(a)(1)
must give a clear, complete, unambiguous, and unmistakable
manifestation of the sovereign's intent to waive its immunity."
(internal quotation marks omitted)); see also Maritime Int'l
Nominees Establishment v. Republic of Guinea, 693 F.2d
1094, 1100 n.10 (D.C. Cir. 1982) (holding that under the FSIA,
Congress contemplated waivers of a "specific and explicit
nature").12
There is no question that Kazakhstan clearly indicated its
intent to waive its immunity for the claims contained in Count
I (breach of the Management Agreement) and Count III
(breach of the Pledge Agreement), as both the Management
and Pledge agreements contain express waivers of sovereign
immunity--the latter referring specifically to the FSIA.13
__________
1985))); id. at 126 (holding "that Qatar did not, by agreeing to
arbitrate in France, waive its sovereign immunity under
s 1605(a)(1)"). As we have also noted, " 'courts have been reluctant
to stray beyond these examples when considering claims that a
nation has implicitly waived its defense of sovereign immunity.' "
Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C.
Cir. 1994) (quoting Frolova, 761 F.2d at 377).
12 Cf. C & L Enters., Inc. v. Citizen Band Potawatomi Indian
Tribe, 532 U.S. 411, 418, 421 n.3, 423 (2002) (holding that "to
relinquish its immunity, a tribe's waiver must be clear" and "not
ambiguous," and finding instructive "the law governing waivers of
immunity by foreign sovereigns" (internal quotation marks omit-
ted)).
13 The Management Agreement states: "In respect of any arbi-
tration or legal action or proceedings arising out of or in connection
But the district court further held that the waiver in the
Pledge Agreement indicated Kazakhstan's intention to waive
immunity for World Wide's entire lawsuit. As to this we
cannot agree. Neither the waiver in the Pledge Agreement,
nor that in the Management Agreement, describes the kind of
claims for which Kazakhstan waived immunity. And there is
nothing "clear and unambiguous" about either waiver other
than that each extends to claims for breach of the agreement
in which it is contained.14 We see nothing in these waivers to
indicate that they extend to breaches of the two other agree-
ments at issue in this case (the Loan and Strategic Alliance
agreements), neither of which contains a waiver of its own.
Indeed, the fact that only two of the four agreements
contain waivers is particularly significant in creating ambigui-
__________
with this Agreement, ... [the Kazakhstan State Committee] hereby
irrevocably agrees not to claim and hereby irrevocably waives ...
immunity for itself and the assets of the Republic of Kazakstan to
the full extent permitted by the laws of such jurisdiction." Manage-
ment Agreement p 6.4. The Pledge Agreement states: "[T]he
Grantor [defined as Kazakhstan and TGK] hereby irrevocably
agrees not to claim and hereby irrevocably waives ... immunity for
themselves and their Assets to the full extent permitted by the laws
of such jurisdiction with the intent inter alia that the foregoing
waiver of immunity shall have irrevocable effect for the purposes of
the [FSIA] in any legal action or proceedings to which such Act
applies." Pledge Agreement p 19.5.
14 Supporting the conclusion that the waivers do not apply to all
of World Wide's claims is the fact that each of these agreements
contains a provision limiting the agreement's scope. The Manage-
ment Agreement states that "[t]he subject of this Agreement shall
be the transfer to World Wide of the right to manage, control, use
and own the State-owned or controlled block of shares in [TGK]."
Management Agreement p 1. And the Pledge Agreement includes
an integration clause stating that "[t]his Pledge Agreement consti-
tutes and contains the entire agreement of the parties." Pledge
Agreement p 21.1. Although the Pledge Agreement grants World
Wide a security interest in TGK shares and assets, id. p 2.1, it does
not itself include an agreement to repay World Wide's loans to
TGK.
ty. Although it could be argued that the parties saw no need
for repetition once a waiver was made in the Management
Agreement, which was the first of the four, that does not
explain why they thought it necessary to include a waiver in
the Pledge Agreement, which was the last. Moreover, re-
gardless of what could be argued, the fact is that the pres-
ence of waivers in only two of four agreements creates real
ambiguity as to Kazakhstan's intent. Cf. Marra v. Papan-
dreou, 216 F.3d 1119, 1123 (D.C. Cir. 2000) ("If the Greek
government were sued by Marra for breach of two different
contracts, it certainly would have the prerogative to waive a
sovereign immunity defense with respect to one of the con-
tracts and invoke that defense for the other."). So, too, do
provisions in both the Loan and Strategic Alliance agree-
ments that suggest Kazakhstan did not contemplate that
disputes over those agreements would be resolved in United
States courts, but rather by arbitration in Kazakhstan and
Sweden.15
Nor do we see evidence that, by waiving immunity for
claims for breach of the Management and Pledge agreements,
Kazakhstan unambiguously intended to expose itself to the
miscellany of tort and tort-like claims with which World Wide
has charged it. Unlike the claims for breach of those two
contracts, which arise out of consensual agreements contain-
ing waivers of immunity, the tort claims arise out of exoge-
nous law. Indeed, in this case that law is truly "exogenous."
__________
15 See Strategic Alliance Agreement p 9.3 ("If any dispute or
difference arises out of or in connection with any matter in relation
to this Strategic Alliance Agreement ..., the same shall be arbi-
trated between the Parties and the arbitration shall be conducted
... in Almaty, Kazakhstan."); Loan Agreement p 4.2 ("If any
default or dispute or difference ... arises out of or in connection
with any matter or thing in relation to the provisions of this
Agreement, ... any party may submit the Dispute to be settled by
arbitration ... conducted in Stockholm, Sweden...."). Although
an agreement to arbitrate may in some circumstances constitute an
implied waiver of sovereign immunity, this is not such a circum-
stance and World Wide does not contend that it is. See supra note
11 and accompanying text.
World Wide seeks application of the law of the United States
(including RICO), see World Wide Opp'n to Mot. to Dismiss,
notwithstanding that no American national was a party to any
of the four agreements, and notwithstanding that each agree-
ment declares that it "shall be governed by and construed in
accordance with the laws of Kazakhstan." Management
Agreement p 6.1; Pledge Agreement p 18.1; Loan Agreement
p 4.1; Strategic Alliance Agreement p 9.2.16 Plaintiff makes
no argument and cites no cases that support extending the
waivers to these kinds of claims, and analogous cases are to
the contrary.17
In sum, we find that Kazakhstan clearly and unambiguous-
ly waived its sovereign immunity only for claims of breach of
the Management and Pledge agreements, and we therefore
hold that the district court only had jurisdiction to hear
counts that make such claims. Those counts are Count I
(breach of the Management Agreement) and Count III
(breach of the Pledge Agreement), as well as Count XI
__________
16 Kazakhstan's contention that as a civil law jurisdiction it does
not recognize common law torts, may be still further evidence that
Kazakhstan did not intend to waive immunity for tort claims like
those asserted here. See Kazakhstan Mot. to Dismiss for Failure to
State a Claim, at 9-10. In light of the significant ambiguities
concerning waiver noted in the text, we need not rely on this point
to decide this case, and hence need not consider Kazakhstan's
representation regarding its legal system. We note, however, that
World Wide did not dispute that representation. See World Wide
Opp'n to Mot. to Dismiss.
17 Cf. Hercules, Inc. v. United States, 516 U.S. 417, 423 (1995)
(holding that the Tucker Act's waiver of sovereign immunity for
contract claims does not extend to claims for contracts implied in
law); Watters, slip op. at 5-7 (concluding that the WMATA Com-
pact's waiver of immunity for contracts and torts does not extend to
attorney's liens); Doe v. Civiletti, 635 F.2d 88, 94-95 (2d Cir. 1980)
(holding that the Tucker Act's waiver does not extend to statutory
claims); Rodenbur v. Kaufmann, 320 F.2d 679, 683-84 (D.C. Cir.
1963) (holding that a lease's waiver of trial by jury for "any matters
whatsoever arising out of or in any way connected with this lease"
did not extend to a tort claim).
(declaratory judgment) to the extent that it seeks a declara-
tion that Kazakhstan breached the Management Agreement.18
As for all of the other claims against Kazakhstan, there has
been no waiver, and we therefore affirm their dismissal for
lack of subject matter jurisdiction.
B
Having concluded that the district court had subject matter
jurisdiction over the claims in Counts I, III, and XI, we now
turn to Kazakhstan's contention that another threshold objec-
tion--the act of state doctrine--bars adjudication of those
counts. Although ordinarily we would first examine the
validity of the district court's decision that it had personal
jurisdiction over Kazakhstan, see Papandreou, 139 F.3d at
254-56, Kazakhstan does not dispute that decision on appeal.
Unlike subject matter jurisdiction, a party waives the right to
dispute personal jurisdiction by failing to contest it on appeal.
See Spann v. Colonial Village, Inc., 899 F.2d 24, 32-33 (D.C.
Cir. 1990).
The act of state doctrine "precludes the courts of this
country from inquiring into the validity of the public acts a
recognized foreign sovereign power committed within its own
territory." Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398, 401 (1964). It is applicable when "the relief sought or
the defense interposed would [require] a court in the United
States to declare invalid the official act of a foreign sovereign
performed within" its boundaries. W.S. Kirkpatrick & Co.,
Inc. v. Environmental Tectonics Corp., 493 U.S. 400, 405
(1990). When it does apply, the doctrine serves as " 'a rule of
__________
18 In Count XI, World Wide asks the court to declare that it "had
the right to market Kazakhstan uranium under the Suspension
Agreement." Am. Compl. p 161. Since World Wide obtained this
right, if at all, under the Management Agreement, we construe
Count XI as a request for a declaration that Kazakhstan breached
that agreement by not granting World Wide an export license. To
the extent that this relatively opaque count asserts other claims,
Kazakhstan has not waived its immunity and the district court was
without jurisdiction to entertain them.
decision for the courts of this country,' " id. at 405 (quoting
Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918)),
which requires that, "in the process of deciding [a case], the
acts of foreign sovereigns taken within their own jurisdictions
shall be deemed valid," id. at 409. Although the Supreme
Court's description of the jurisprudential rationale for the
doctrine has evolved over the years, the Court has most
recently described it "as a consequence of domestic separa-
tion of powers, reflecting 'the strong sense of the Judicial
Branch that its engagement in the task of passing on the
validity of foreign acts of state may hinder' the conduct of
foreign affairs." Id. at 404 (quoting Sabbatino, 376 U.S. at
423). The policies underlying the doctrine include "interna-
tional comity, respect for the sovereignty of foreign nations
on their own territory, and the avoidance of embarrassment
to the Executive Branch in its conduct of foreign relations."
Id. at 408; see id. at 409.
The gravamen of Count I is a claim that Kazakhstan
breached the Management Agreement by "failing to issue an
export license" to World Wide. Am. Compl. p 93. Count XI
seeks a declaratory judgment for breach of that agreement,
and declares that "the denial of Plaintiff[']s export license" is
"the very heart of this matter." Id. at p 157. We have no
doubt that issuance of a license permitting the removal of
uranium from Kazakhstan is a sovereign act. As we have
previously held in the context of the FSIA, the "right to
regulate imports and exports is a sovereign prerogative."
Millen Indus., Inc. v. Coordination Council for North Am.
Affairs, 855 F.2d 879, 885 (D.C. Cir. 1988) (internal quotation
marks and alteration omitted); see Int'l Ass'n of Machinists
v. OPEC, 649 F.2d 1354, 1361 (9th Cir. 1981) (affirming "the
principle of supreme state sovereignty over natural re-
sources" in applying the act of state doctrine); cf. Rush-
Presbyterian-St. Luke's Med. Ctr. v. Hellenic Republic, 877
F.2d 574, 578 (7th Cir. 1989) (holding that "a contract where-
by a foreign state grants a private party a license to exploit
the state's natural resources is not a commercial activity
[under the FSIA], since natural resources, to the extent they
are 'affected with the public interest,' are goods in which only
the sovereign may deal"); MOL, Inc. v. Peoples Republic of
Bangladesh, 736 F.2d 1326, 1328 (9th Cir. 1984) (holding that
"licensing the exploitation of natural resources is a sovereign
activity" under the FSIA).
Because the relief sought here would require us to question
the "legality" of Kazakhstan's denial of the export license by
ruling that denial a breach of contract,19 the act of state
doctrine applies. Kirkpatrick, 493 U.S. at 405. Moreover,
this is plainly a case in which the policies underlying the
doctrine "justify its application," id. at 409, since questioning
the export control policies of a foreign state would both
disrupt international comity and interfere with the conduct of
foreign relations by the Executive Branch. Cf. Clayco Petro-
leum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 408
(9th Cir. 1983) ("[I]t is clear that judicial scrutiny of sovereign
decisions allocating the benefits of oil development would
embarrass the political branches of our government in the
conduct of foreign policy."). Indeed, as the amended com-
plaint reveals, both the export of Kazakhstan uranium to the
United States and the use of licenses to control the quantity
of such exports are the subjects of diplomatic efforts by the
Executive. See supra note 3 and accompanying text. Ac-
cordingly, we conclude that the claims asserted in Counts I
and XI must fail as a consequence of the act of state doctrine,
and we therefore affirm the dismissal of those counts.
Our analysis of Count III is the same. In that count,
World Wide alleges that Kazakhstan breached the Pledge
Agreement by "transferring the shares of TGK to Kazatom-
prom and by converting all pledged property, assets and
interests for [its] own use." Am. Compl. p 103. The amend-
ed complaint makes clear that this transfer and alleged
conversion were accomplished pursuant to an official decree
of the Republic of Kazakhstan. Id. p 17; see Republic of
__________
19 If anything, the specific relief sought in Count XI challenges
the validity of Kazakhstan's actions even more directly, as it asks
the court to declare that, despite the absence of a license, World
Wide had "the right to market Kazakhstan uranium." Am. Compl.
p 161.
Kazakhstan, Ministry of Finance, Resolution No. 317 (Oct. 2,
1997) (J.A. at 431). That kind of expropriation of property is
the classic act of state addressed in the case law. And as the
Supreme Court declared in Sabbatino, "the Judicial Branch
will not examine the validity of a taking of property within its
own territory by a foreign sovereign government." 376 U.S.
at 428; see id. at 430, 439; Riggs Nat'l Corp. v. Comm'r of
Internal Revenue Serv., 163 F.3d 1363, 1367 (D.C. Cir. 1999)
(citing Sabbatino, 376 U.S. at 403-04); Dayton v. Czecho-
slovak Socialist Republic, 834 F.2d 203, 206 (D.C. Cir. 1987);
Empressa Cubana Exportadora, Inc. v. Lamborn & Co., 652
F.2d 231, 237-38 (2d Cir. 1981); Hunt v. Mobil Oil, 550 F.2d
68, 73 (2d Cir. 1977). Because Count III would require the
court to undertake just such an examination, we affirm its
dismissal.
At oral argument, World Wide acknowledged that both the
denial of export licenses and the expropriation of property are
sovereign acts under the act of state doctrine. It nonetheless
contended that this case comes within an exception to that
doctrine for "commercial activity." The existence of such an
exception is an unsettled question that this court has never
addressed.20 Nor need we do so today.
In claiming the benefit of the exception here, World Wide
contends that its claims are not based on Kazakhstan's expro-
priation of its assets or on its denial of an export license, but
rather on the following "purely" commercial conduct: 1)
Kazakhstan's failure to repay loans and interest; 2) its refusal
to enter into a joint venture with World Wide; and 3) its
failure to pay management fees. World Wide Br. at 24, 26.
However, the first of these claims is made only in Count II
(breach of the Loan Agreement)--a count that we have
already held must be dismissed for lack of subject matter
__________
20 See Kirkpatrick, 493 U.S. at 404-05 (noting that "some Justices
have suggested" a possible exception for commercial activity, but
finding it unnecessary to consider the question to resolve the case);
Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 695 (1976)
(plurality opinion of White, J., adopting commercial activity excep-
tion).
jurisdiction. The second is made only in Count IV (breach of
the Strategic Alliance Agreement), which does not name
Kazakhstan as a defendant (and for which there was also no
waiver of sovereign immunity). And the third is not made
anywhere in the complaint--not even in what would seem the
most likely place, Count I (breach of the Management Agree-
ment). We, therefore, have no cause to address World
Wide's contention that its claims fall within a commercial
activity exception to the act of state doctrine.
In sum, we conclude that, although the district court had
subject matter jurisdiction over three claims against Kaza-
khstan (Counts I, III, and XI), all three must nonetheless be
dismissed under the act of state doctrine.
IV
In addition to naming Kazakhstan as a defendant, most of
the counts of the amended complaint also name Kazatom-
prom, a corporation wholly owned by Kazakhstan.21 World
Wide does not dispute that Kazatomprom is an instrumentali-
ty of Kazakhstan. World Wide Br. at xiii; see 28 U.S.C.
s 1603(b) (providing that an "instrumentality of a foreign
state" includes any corporation, "a majority of whose shares
or other ownership interest is owned by a foreign state"). As
a consequence, Kazatomprom is entitled to the immunity of
the sovereign. See 28 U.S.C. ss 1603(a), 1604; NYSA-ILA
Pension Trust Fund v. Garuda Indonesia, 7 F.3d 35, 38 (2d
Cir. 1993) ("A defendant corporation that is owned entirely by
a foreign state also is considered to be a distinct foreign state
and immune from the jurisdiction of the federal courts.").
Thus, for the same reasons discussed in Part III.A, the
district court lacked jurisdiction to consider against Kazatom-
prom any of the counts of the amended complaint other than
those alleging breaches of the only two agreements contain-
ing waivers of immunity: the Management and Pledge agree-
__________
21 See supra note 4 for a list of the counts. Kazatomprom is not
named in Count II (breach of the Loan Agreement) or Count III
(breach of the Pledge Agreement). It is the sole defendant in
Count IV (breach of the Strategic Alliance Agreement).
ments. And because Kazatomprom is not a defendant in
Count III (breach of the Pledge Agreement), that leaves only
Count I (breach of the Management Agreement) and Count
XI (declaratory judgment, limited to breach of the Manage-
ment Agreement).22
Our decision in Part III.B also effectively disposes of those
two remaining counts. In that part, we held that because the
gravamen of both Counts I and XI is an attack on the legality
of Kazakhstan's refusal to grant World Wide an export
license, those counts are barred--as against Kazakhstan--by
the act of state doctrine. And since World Wide offers no
reason to distinguish between Kazakhstan and Kazatomprom
for purposes of the application of that doctrine,23 our holding
in Part III.B dispositively resolves the identical claims
against Kazatomprom. This means that there is no substan-
tial federal question as to World Wide's claims against Kaza-
tomprom. And because in the absence of a substantial
federal question the district court lacks jurisdiction, we may
affirm the dismissal of these counts as well for lack of
jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 98-99 (1998) (noting that the Court has regarded a
judgment against a plaintiff, entered because the same issue
had been "dispositively resolved" in a companion case, as
"equivalent to a jurisdictional dismissal for failure to present
a substantial federal question" (citing Norton v. Mathews, 427
U.S. 524, 530-31 (1976))).
V
Finally, we turn to the district court's decision to dismiss
World Wide's claims against Nukem. The amended com-
__________
22 Although we did not directly address Count IV (breach of the
Strategic Alliance Agreement) in Part III.A since Kazakhstan was
not named as a defendant in that count, the analysis of that Part
applies because the Strategic Alliance Agreement does not contain a
waiver of sovereign immunity. The district court therefore lacked
subject matter jurisdiction over that count.
23 Nor does the amended complaint distinguish between the two
in these counts.
plaint names Nukem as a defendant in four counts: Count
VIII (tortious interference), Count IX (civil conspiracy),
Count X (violation of RICO), and Count XI (declaratory
judgment). Because Nukem is neither a state nor the instru-
mentality of a state, it cannot assert sovereign immunity as a
defense. Nor can we say, as we did regarding Kazatomprom,
that our resolution of the act of state issues with respect to
Kazakhstan removes any substantial federal question regard-
ing the claims against Nukem, since we never reached the act
of state question with respect to Counts VIII-XI, dismissing
them instead for lack of subject matter jurisdiction.24 We
must therefore turn to the jurisdictional ground upon which
the district court dismissed the counts against Nukem: per-
sonal jurisdiction.
Nukem is a New York corporation with its principal place
of business in Connecticut. In the district court, World Wide
asserted four alternative grounds for personal jurisdiction, all
of which the court rejected: the transacting business clause
of the District of Columbia's long-arm statute, D.C. Code
s 13-423(a)(1); conspiracy jurisdiction; the nationwide ser-
vice of process provision of RICO, 18 U.S.C. s 1965(d); and
the nationwide service of process provision of the Clayton
Act, 15 U.S.C. s 22. On appeal, World Wide argued only the
first two grounds in its opening brief and has therefore
waived reliance on the latter two. See Students Against
Genocide, 257 F.3d at 834-35.
Under the District's long-arm statute, local courts may
exercise personal jurisdiction over any person "as to a claim
for relief arising from the person's ... transacting any busi-
ness in the District of Columbia." D.C. Code s 13-423(a)(1).
The statute makes clear that, where jurisdiction is predicated
__________
24 In Part III.B, we did conclude that Count XI is barred by the
act of state doctrine to the extent that it reasserts Count I's claim
of breach of the Management Agreement. But Nukem is not a
defendant in Count I, and our act of state analysis did not address
the allegation of Count XI that concerns Nukem--that it does not
have an exclusive right to market Kazakhstan uranium in the
United States. Am. Compl. pp 157-60.
solely upon the long-arm statute, "only a claim for relief
arising from acts enumerated in this section may be assert-
ed." Id. s 13-423(b). Thus, personal jurisdiction under this
theory "is limited to claims arising from the particular trans-
action of business" in the District. AMAF Int'l Corp. v.
Ralston Purina Co., 428 A.2d 849, 850 (D.C. 1981); see
Naartex Consulting Corp. v. Watt, 722 F.2d 779, 785-86 (D.C.
Cir. 1983). Similarly, to establish jurisdiction under a theory
of civil conspiracy, the plaintiff must plead with particularity
"overt acts within the forum taken in furtherance of the
conspiracy." Jungquist v. Sheikh Sultan Bin Khalifa Al
Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997) (internal quota-
tions marks omitted).
The district court held, and World Wide does not dispute,
that the only act that might satisfy these jurisdictional re-
quirements was a meeting between Nukem officials and Kaza-
khstan's Ambassador, which World Wide alleges took place at
Kazakhstan's embassy in Washington, D.C. 116
F. Supp. 2d at 106-07; World Wide Br. at 45. World Wide
alleges that these individuals met at the embassy "for the
purpose of obtaining and/or confirming [Kazakhstan's] agree-
ment to unlawfully breach its contract with Plaintiffs by
denying their pending petition for a license to export" Kaza-
khstan uranium to the United States. Am. Compl. p 6. As a
result of some confusion in the parties' pleadings, the district
court understood World Wide to allege that this meeting took
place in December 1997. Since the court also understood
from World Wide's allegations that all of its injuries occurred
prior to that date, the court concluded that World Wide's
claims could not have arisen from that meeting and that the
meeting could not have furthered the conspiracy. The court
therefore concluded that it had neither long-arm nor conspir-
acy jurisdiction over Nukem. 116 F. Supp. 2d at 106, 108.
On appeal, the parties agree that there was a misunder-
standing in the district court regarding the date upon which
the embassy meeting allegedly occurred. Both World Wide
and Nukem now agree that the relevant allegation--which we
must take as true for purposes of this appeal--is that Nukem
and Kazakhstan conspired together at a meeting that took
place in the District of Columbia in late May 1997. See Am.
Compl. p 6; Nukem Br. at 11. The basis for the district
court's dismissal therefore no longer suffices. Although Nuk-
em contends that May 1997 was also too late to have contrib-
uted to the injuries claimed by World Wide, World Wide
disputes that contention. Accordingly, we must remand the
case to the district court to resolve the dispute over its
jurisdiction.
VI
For the foregoing reasons, we affirm, although in part for
different reasons, the district court's dismissal of World
Wide's complaint against Kazakhstan and Kazatomprom.
The dismissal with respect to Nukem is remanded for further
proceedings consistent with this opinion.
Affirmed in part and remanded in part.