Helmerich & Payne International Drilling Co. v. Bolivarian Republic of Venezuela

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HELMERICH & PAYNE
INTERNATIONAL DRILLING CO. and
HELMERICH & PAYNE DE
VENEZUELA, C.A.,
Civil Action No. 11-cv-1735 (RLW)
Plaintiffs,

v.

BOLIVARIAN REPUBLIC OF
VENEZUELA, PETRÓLEOS DE
VENEZUELA, S.A., and PDVSA
PETRÓLEO, S.A.,
Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

This case involves a longstanding and apparently formerly productive contractual

relationship that has since broken down. Although Defendants filed motions to dismiss,

subsequent to the filing of those motions all parties asked, and this Court agreed, to hold those

motions in abeyance so as to first answer four questions central to the disposition of the motions.

This Memorandum Opinion addresses those four questions, along with a motion filed by

Plaintiffs asking the Court to “enforce” the parties’ Joint Stipulation regarding the handling of

the four questions. As detailed below, the Court’s answers to the questions, and the resolution of

Plaintiffs’ motion, do not fully resolve the motions to dismiss, and therefore additional briefing

will be necessary on the remaining arguments raised in Defendants’ motions.

1
II. FACTUAL SUMMARY

A. Issue Background 1

Helmerich & Payne International Drilling Co. (H&P-IDC) is a Delaware-incorporated,

Tulsa, Oklahoma-based corporation that wholly owns the subsidiary Helmerich & Payne de

Venezuela, C.A. (H&P-V) (collectively, Plaintiffs). (Dkt. No. 1, ¶¶ 2, 9). H&P-V “is

incorporated in Venezuela,” and “had its principal Venezuelan office in Anaco, Venezuela . . . .”

(Id. ¶ 10). Plaintiffs are oil and gas drilling companies. (Id. ¶¶ 9-10). H&P-V began providing

contract oil and gas drilling services in Venezuela in the 1970s; H&P-IDC had been operating in

Venezuela through wholly-owned subsidiaries since 1954. (See id. ¶ 16). Venezuela’s

Superintendent of Foreign Investment, which is part of the country’s Finance Ministry, issued

H&P-V a Company Qualification Certificate stating the company “is . . . considered a FOREIGN

COMPANY at all relevant legal effects.” (Id. ¶¶ 100, 102) (capitalization in original).

There are three Defendants in this case. One is the Bolivarian Republic of Venezuela

(Venezuela), which of course is a country on the northern coast of South America. The other

two are entities owned and controlled by Venezuela: Petróleos de Venezuela, S.A. (PDVSA)

and PDVSA Petróleo, S.A. (Petróleo). (See id. ¶ 2). PDVSA and Petróleo are energy

corporations “that by law enjoy a monopoly on Venezuela’s oil reserves.” (Id.). Petróleo, a

wholly owned subsidiary of PDVSA, is the exploration and operating arm of PDVSA. (Id. ¶ 13).

The PDVSA Defendants concede they are agencies or instrumentalities of Venezuela, as that

term is defined at 28 U.S.C. § 1603(b). (See Dkt. No. 22-1, at 13).

1
Unless specifically noted otherwise, this summary is based on facts alleged in Plaintiffs’
Complaint, which are presumed true. (See Dkt. No. 34, at 3 (“The parties stipulate that they shall
rely on no factual evidence, apart from the allegations of the complaint and documents
referenced therein, and no arguments based upon such evidence, in connection with the
resolution of the Initial Issues.”)).
2
 Beginning around 1997, H&P-V provided contract drilling services exclusively to the

PDVSA Defendants and other entities owned by Venezuela. (See Dkt. No. 1, ¶ 2). H&P-V and

Petróleo signed each contract. (See id. ¶¶ 30, 32). This work involved, among other things, “the

largest, most powerful, and deepest-drilling, land-based drilling rigs available.” (Id. ¶¶ 21, 26).

At issue in this litigation are ten “fixed term” drilling contracts signed in 2007 to be performed

by H&P-V on a “day-rate” basis. (Id. ¶¶ 30, 33-35). “The agreed-upon daily rates for H&P-V . .

. were partially set forth in U.S. Dollars and partially in Venezuelan currency (‘Bolivars’ or

‘Bolivar Fuertes’).” (Id. ¶ 37) (footnote omitted). “H&P-V separately invoiced the amounts due

in U.S. Dollars (‘Dollar-based invoices’) and the amounts due in Venezuelan currency (‘Bolivar-

based invoices’).” (Id. ¶ 38).

Of the ten contracts, one related to drilling in the western region of Venezuela, and the

rest related to drilling in the eastern region. (Id. ¶¶ 39-40). The former contract required the

Dollar-based invoices to be paid “in U.S. Dollars in the United States” under certain conditions.

(Dkt. No. 40-3, at 21-22 (§ 18.14)). 2

2
Specifically, the western drilling contract provides at § 18.14 that:

“If as a result of the exchange control measures established by the competent
authorities, [H&P-V] is unable to obtain in a timely fashion the foreign currency
required to perform its obligations abroad related to the performance of this
CONTRACT, [Petróleo] agrees to pay in United States dollars the portion of the
price of this CONTRACT set in said currency, in accordance with current
regulation, “Norms and Procedures for the Payment of Foreign Exchange for
Construction, Goods and Services in the Western Division,” for those items
directly associated with the external component pursuant to the results of the
corresponding audit. [H&P-V] shall indicate, for purposes of payment, the bank
and account number where payments are to be made. [H&P-V] agrees:
a) That the deposits made by [Petróleo] in the referenced accounts will release
[Petróleo] from its obligation to pay the portion of the price set in United
States Dollars to the extent of the deposits made.
b) That it will not request from the commercial bank or other foreign exchange
operators the acquisition of foreign currency corresponding to the amounts
3
 The remaining nine contracts “were supplemented” by a 2008 agreement signed by H&P-

V and PDVSA, (Dkt. No. 1, ¶¶ 40-41), that required the PDVSA Defendants to pay “invoices

issued [by H&P-V] corresponding to the contract’s foreign currency component . . . in actual

dollars at 61% . . . abroad in the [Tulsa, Oklahoma] account specified by [H&P-V],” while “the

remaining portion, 39%, shall be paid in equivalent bolivars at the official exchange rate,” (Dkt.

No. 40-7, at 2 (¶¶ 1-2). “This 2008 agreement reiterated the terms of an earlier 2003 agreement,

which similarly provided for a set percentage of the PSVSA Defendants’ payments to be

remitted in U.S. Dollars to a bank account in the United States.” (Dkt. No. 1, ¶ 118). “Thus,

under each of the contracts at issue, the PDVSA Defendants were required to make payments to

H&P-V in U.S. Dollars directly to H&P-V’s designated bank account at the Bank of Oklahoma

in Tulsa, Oklahoma.” (Id. ¶ 43).

Around 2007, 3 the PDVSA Defendants “began systematically to breach those contracts”

in an amount that eventually amounted to over $32 million in unpaid invoices. (See id. ¶¶ 6, 56).

In January 2009, H&P, Inc., the parent company of H&P-IDC, (id. ¶ 9), “announced it would

‘cease[] operations on rigs as their drilling contracts expire’ and not renew its subsidiary’s

contracts with the PDVSA Defendants absent an ‘improvement in receivable collections,’” (id. ¶

deposited by [Petróleo] in the aforementioned account; and that if it should do
so, it will immediately return to [Petróleo], in dollars, the amounts that it
would have deposited.
c) That the payment in U.S. dollars, as set forth in this section, is of a temporary
nature and, consequently, [Petróleo] may pay the portion of the price
established in US dollars in Bolivars, at the exchange rate in effect at the place
and time of payment, when, in [Petróleo]’s judgment, the grounds that gave
rise to this form of temporary payment have ceased. In no case shall
[Petróleo] recognize expenses for commissions and/or transfers that [H&P-V]
may incur for purchasing foreign exchange.”
3
The Complaint states both that “[s]tarting in 2007” the PDVSA Defendants “fell
substantially behind in their payments to H&P-V,” (Dkt. No. 1, ¶ 46), and that they “began” to
breach the contracts at issue “in late 2008 and 2009,” (id. ¶ 6).
4
50). By November 2009, H&P-V had finished its contractually-obligated work and

disassembled its equipment. (See id. ¶ 53). In 2010, the PDVSA Defendants stopped making

payments altogether. (Id. ¶¶ 44, 56). Prior to that, they “made at least 55 payments totaling

roughly $65 million into H&P-V’s designated bank account in Tulsa,” in addition to payments

made in Bolivars. (See id. ¶ 44). The PDVSA Defendants and Plaintiffs met in Houston on May

24, 2010, in an attempt to work out a solution, but were unsuccessful. (See id. ¶ 55).

Between June 12 and 14, 2010, the PDVSA Defendants, with assistance from the

Venezuelan National Guard, “surrounded and unlawfully blockaded” H&P-V’s business

premises in western and eastern Venezuela. (Id. ¶ 3). “PDVSA’s Director of Services expressly

informed H&P-V’s Administrative Manager that Defendants intended the blockade to prevent

H&P-V from removing its rigs and other assets from its premises, and to force H&P-V to

negotiate new contract terms immediately.” (Id. ¶ 63). On June 23, 2010, PDVSA issued a

press release stating they had nationalized eleven drilling rigs belonging to “Helmerich & Payne

(HP), a U.S. transnational firm.” (Id. ¶ 65). Two days later, PDVSA issued another press

release, which referred to “[t]he nationalization of the oil production drilling rigs from the

American contractor H&P . . . .” (Id. ¶ 66).

On June 29, 2010, the Venezuelan National Assembly issued a Bill of Agreement

declaring H&P-V’s property to be of public interest, and recommended to then President Hugo

Chávez that he issue a Decree of Expropriation. (Id. ¶¶ 3-4). That day, President Chávez issued

Presidential Decree No. 7532, directing PDVSA “or its designee affiliate” to seize H&P-V’s

property. (See id. ¶ 4). Also on that same day, the PDVSA Defendants hired a notary to

“conduct a judicial inspection of the rigs and other assets” in the eastern (but not western) region

of Venezuela. (Id. ¶ 71). “H&P-V hired a notary to accompany the PDVSA Defendants’ notary;

5
H&P-V’s notary simultaneously performed a rushed and incomplete inspection in the limited

time available that day.” (Id.). The property encompasses more than just the drilling rigs,

including, for example, real property, vehicles, and various equipment. (See id. ¶¶ 77-80). At

some time after that, Minister Ramirez, Venezuela’s Minister of Energy and Petroleum and also

President of PDVSA, spoke in eastern Venezuela at what had been H&P-V’s premises there

about the seizure, referring to H&P-V as an “American company” with “foreign gentlemen

investors” that would now “become part of the payroll” of PDVSA. (Id. ¶ 5). On July 1, 2010,

Petróleo filed two eminent domain proceedings in Venezuela, one in the eastern region and one

in the western. (Id. ¶¶ 72-73). In the former, as of September 2011, “H&P-V still has not been

afforded the opportunity to appear,” and in the latter “those proceedings have not progressed past

the earliest stage of the case.” (Id.). Plaintiffs have received no compensation from Venezuela

with respect to the seizure of their drilling rigs and related items. (Id. ¶ 86).

B. Procedural Background

Plaintiffs filed their Complaint in September 2011 against Defendants under two

provisions of the Foreign Sovereign Immunities Act (FSIA): the commercial activities

exception 4 and the expropriation exception. 5 (Id. ¶ 1). The Complaint states two counts:

4
28 U.S.C. § 1605(a)(2) (“A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case . . . 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.”).
5
28 U.S.C. § 1605(a)(3) (“A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case . . . in which rights in property taken in
violation of international law are in issue and that property or any property exchanged for such
property is present in the United States in connection with a commercial activity carried on in the
United States by the foreign state; or that property or any property exchanged for such property
is owned or operated by an agency or instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in the United States.”).
6
Taking in Violation of International Law, and Breach of Contract. In three briefs filed separately

on August 31, 2012—two by Venezuela, and one by the PDVSA entities—Defendants moved to

dismiss. (Dkt. Nos. 22-24). Before opposing the motions to dismiss, Plaintiffs filed a motion to

compel discovery, (Dkt. No. 29), which was fully briefed but ultimately denied without prejudice

because the parties instead agreed to a Joint Stipulation, (see Dkt. No. 36).

The Joint Stipulation lists four issues raised in the motions to dismiss, termed the “Initial

Issues,” that the parties “shall brief . . . in their next round of briefing and reserve argument on

the additional issues raised in the motions to dismiss . . . .” (Dkt. No. 36, at 3). The four Initial

Issues are:

(A) Whether, for purposes of determining whether a ‘taking in violation of
international law’ has occurred under the expropriation exception of the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(3), Plaintiff Helmerich &
Payne de Venezuela C.A. is a national of Venezuela under international law;

(B) Whether Plaintiffs’ expropriation claims are barred by the act of state
doctrine, including the issue whether this defense may be adjudicated prior to the
resolution of Defendants’ challenges to the Court’s subject matter jurisdiction;

(C) Whether, for purposes of determining the applicability of the commercial
activities exception of the FSIA, 28 U.S.C. § 1605(a)(2), Plaintiffs have
sufficiently alleged a ‘direct effect’ in the United States within the meaning of
that provision; and

(D) Whether Plaintiff Helmerich & Payne International Drilling Co. has standing.

(Id. at 3). The Joint Stipulation states that these four issues “shall be adjudicated solely on the

basis of the Plaintiffs’ allegations (including the materials attached as exhibits or referenced in

the complaint), assuming the truth of all well-pleaded factual allegations in the complaint, and

construing the complaint in the light most favorable to Plaintiffs.” (Id. at 2-3). It also states the

following: “The parties stipulate that Plaintiffs shall brief the Initial Issues in their next round of

briefing and reserve argument on the additional issues raised in the motions to dismiss (the

ownership or operation of the expropriated assets, application and enforceability of what
7
Defendants refer to as a forum selection clause, and forum non conveniens (hereafter ‘Additional

Issues’)) until a second phase of briefing on the motions to dismiss.” (Id. at 3).

Following the agreement on the Joint Stipulation, the parties completed the briefing on

the motions to dismiss. Shortly thereafter, Plaintiffs filed a motion to enforce the Joint

Stipulation, claiming that the PDVSA Defendants violated the Joint Stipulation by arguing “that

the Court cannot exercise personal jurisdiction over the PDVSA Defendants consistent with

constitutional due process,” which Plaintiffs state is not among the four Initial Issues. (See Dkt.

No. 45, at 3). Plaintiffs ask that portions of the PDVSA Defendants’ Reply that “contain the

constitutional due process argument” be stricken. (See id. at 5-6). In their Opposition to the

motion to enforce, the PDVSA Defendants argue that “a due process analysis is directly related

to a determination of direct effect because the FSIA’s commercial activity exception cannot

grant personal jurisdiction where the Constitution forbids it.” (Dkt. No. 46, at 9).

III. ANALYSIS OF INITIAL ISSUES

The Court will address the four Initial Issues in the order they appear in the parties’ Joint

Stipulation. In addition, as part of answering the question regarding whether the Plaintiffs have

sufficiently alleged a direct effect under the relevant FSIA provision, the Court will resolve

Plaintiffs’ motion to enforce.

A. Corporate Nationality of H&P-V

Listed first among the four Initial Issues is the question of whether H&P-V is considered

a national of Venezuela under international law for the purpose of determining if a taking in

violation of international law occurred under the expropriation exception of the FSIA. Based on

the weight of authority reviewed below, this Court concludes that H&P-V is considered a

national of Venezuela under international law.

8
 1. Standard of Review

International law is based on, among other sources, international conventions, principles

of law recognized by civilized nations, judicial opinions, and reputable scholarship. Doe v.

Exxon Mobil Corp., 654 F.3d 11, 36-37 n.23 (D.C. Cir. 2011) (citations omitted). See also

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW (the RESTATEMENT) § 103(2) (1987) (“In

determining whether a rule has become international law, substantial weight is accorded to (a)

judgments and opinions of international judicial and arbitral tribunals; (b) judgments and

opinions of national judicial tribunals; (c) the writings of scholars; [and] (d) pronouncements by

states that undertake to state a rule of international law, when such pronouncements are not

seriously challenged by other states.”). In the absence of an applicable treaty or controlling

federal precedent, “resort must be had to the customs and usages of civilized nations, and, as

evidence of these, to the works of jurists and commentators who by years of labor, research, and

experience have made themselves peculiarly well acquainted with the subjects of which they

treat.” The Paquete Habana, 175 U.S. 677, 700 (1900).

2. Analysis of Relevant Authority

Because no treaty controls the determination of H&P-V’s nationality, the Court must

examine the sources referenced by the RESTATEMENT § 103(2) to identify statements by

authorities on international law in this area. A review of key sources from both the international

and national arenas, and an analysis of their application to this case, follows.

a. International Sources

For several decades, the general practice in international law has been to consider a

corporation a national of the country of its incorporation. This stems in no small part from the

decision of the International Court of Justice (ICJ) in Case Concerning the Barcelona Traction,

9
Light and Power Co. (Belg. v. Spain) 1970 I.C.J. 3 (Feb. 5) (Barcelona Traction). In Barcelona

Traction, the ICJ stated that “[t]he traditional rule attributes the right of diplomatic protection of

a corporate entity to the State under the laws of which it is incorporated and in whose territory it

has its registered office. These two criteria have been confirmed by long practice and by

numerous international instruments.” Id. ¶ 70. The case also later refers to “the general rule that

the right of diplomatic protection of a company belongs to its national State . . . .” Id. ¶ 93. The

case has been and remains “widely viewed not only as an accurate statement of the law on

diplomatic protection of corporations but a true reflection of customary international law.” See

U.N. Int’l L. Comm’n, Fourth Report on Diplomatic Protection, U.N. Doc. A/CN.4/530, at 11

(Mar. 13, 2003), available at http://untreaty.un.org/ilc/documentation/english/a_cn4_530.pdf.

The ICJ recently revisited Barcelona Traction and substantially affirmed its earlier

decision. See Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic

Republic of the Congo) 2007 I.C.J. 582 (May 24) (Diallo). In Diallo, the ICJ stated that since

Barcelona Traction “the Court has not had occasion to rule on whether, in international law,

there is indeed an exception to the general rule that the right of diplomatic protection of a

company belongs to its national State, which allows for protection of the shareholders by their

own national State by substitution, and on the reach of any such exception.” Id. ¶ 87 (quotation

marks and citations to Barcelona Traction omitted). Given the opportunity to create such an

exception, the ICJ in Diallo, after “having carefully examined State practice and decisions of

international courts and tribunals,” declined to do so, finding that the universe of sources

examined did not reveal, “at least at the present time,” such an exception. See id. ¶ 89.

In Diallo, the ICJ also stated it was “bound to note that, in contemporary international

law, the protection of the rights of companies and the rights of their shareholders, and the

10
settlement of the associated disputes, are essentially governed by bilateral or multilateral

agreements for the protection of foreign investments, such as the . . . International Centre for

Settlement of Investment Disputes (ICSID) . . . .” Id. ¶ 88. A recent pronouncement from the

ICSID on corporate nationality, then, is instructive. In Tokios Tokelės v. Ukraine, the ICSID

issued a Decision on Jurisdiction. Case No. ARB/02/18 (Apr. 29, 2004). 6 That decision states

that “reference to the state of incorporation is the most common method of defining the

nationality of business entities under modern [Bilateral Investment Treaties] and traditional

international law.” Id. ¶ 63 (citing Christoph H. Schreuer, The ICSID Convention: A

Commentary, at 277 (2001)). The ICSID approvingly cites to Barcelona Traction, calling it “the

predominant approach in international law.” Id. ¶ 70. And the ICSID also cites to a treatise that

similarly notes that “it is usual to attribute a corporation to the state under the laws of which it

has been incorporated and to which it owes its legal existence; to this initial condition is often

added the need for the corporation’s head office, registered office, or its siège social to be in the

same state.” 1 OPPENHEIM’S INTERNATIONAL LAW 859-60 (Sir Robert Jennings and Sir Arthur

Watts eds., 9th ed. 1996) (footnote omitted).

Given that H&P-V was incorporated in Venezuela and had multiple offices there,

including its principal office in Anaco, a review of relevant international sources indicates that

the company is to be considered a national of Venezuela. With that in mind, the Court now turns

to national sources to confirm this understanding.

6
The decision is available at the following cumbersome url: https://icsid.worldbank.org/
ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC639_En&caseId=
C220.
11
 b. National Sources

The RESTATEMENT is published by the American Law Institute, an organization that

includes “judges, legal academicians, and lawyers in independent private practice, in

government, and in law departments of business and other enterprises.” See RESTATEMENT at

XI. The most recent version of the RESTATEMENT takes a clear position on corporate nationality

in international law: “For purposes of international law, a corporation has the nationality of the

state under the laws of which the corporation is organized.” Id. § 213. The comments to § 213

support this clear statement, noting that “[t]he traditional rule stated in this section, adopted for

certainty and convenience, treats every corporation as a national of the state under the laws of

which it was created.” Id. cmt. c. See also id. cmt. d. (“[A] corporation has the nationality of the

state that created it . . . .”). The RESTATEMENT cites approvingly to Barcelona Traction, noting

that the case “gave preference to the state of incorporation over a state with other significant

links, in representing a company against a third state.” Id. Reporters’ Notes No. 3. It also rejects

the suggestion that the place of the siège social can be an alternative basis for corporate

nationality under international law, instead finding that “[i]n practical effect it is an additional

requirement, since jurisdictions using that standard require that a firm be incorporated in the state

where it has its siège.” Id. cmt. c.

The Supreme Court has cited to § 213 of the RESTATEMENT, and the parties dispute the

significance of that citation to this case. See JPMorgan Chase Bank v. Traffic Stream (BVI)

Infrastructure Ltd., 536 U.S. 88, 91-92 (2002). Had the Supreme Court clearly held in

JPMorgan that the state of incorporation is the definitive test of nationality, that would of course

be the end of the analysis. But that was not the case. Nonetheless, because the case is important

12
and neither Plaintiffs nor Defendants squarely address its significance to these facts, a brief word

on the case is warranted.

Defendants slightly overstate the import of JPMorgan. According to the PDVSA

Defendants, “[t]he Supreme Court has held that ‘[f]or purposes of international law, a

corporation has the nationality of the state under the laws of which the corporation is

organized.’” (Dkt. No. 22-1, at 22-23) (quoting JPMorgan, 536 U.S. at 91-92 (in turn quoting

the RESTATEMENT § 213)). Similarly, Venezuela claims that in JPMorgan the Supreme Court

“has held” that “a corporation has the nationality of the state under the laws of which the

corporation is organized.” (Dkt. No. 44, at 10) (citation omitted). But there are several

indications that what Defendants claim is a holding of the Supreme Court is not actually so. One

is that the quote from the RESTATEMENT was used as a parenthetical following a “Cf.” cite, and

the quote is never discussed or analyzed. Another is that JPMorgan is not a case applying

international law—hence, the “Cf.” cite—but was rather constructing a rule for corporate

nationality under domestic law. See 536 U.S. at 98-99 (“[O]ur jurisdictional concern here is with

the meaning of ‘citizen’ and ‘subject’ as those terms are used in [28 U.S.C.] § 1332(a)(2).”)

(brackets and internal citation omitted). Thus, there is no clear holding from the Supreme Court

in JPMorgan on the issue of corporate nationality under international law or the FSIA.

But that does not mean that Plaintiffs are correct when they state JPMorgan “has no

bearing whatsoever on international law governing expropriations.” (Dkt. No. 39, at 38 n.22). 7

As our Court of Appeals has explained, “[C]arefully considered language of the Supreme Court,

even if technically dictum, generally must be treated as authoritative.” United States v. Oakar,

7
Plaintiffs’ Opposition appears to only address JPMorgan in this footnote. According to
their Table of Authorities, the case appears once on page 30, (Dkt. No. 39, at 5), but the Court
sees no mention of the case there.
13
111 F.3d 146, 153 (D.C. Cir. 1997) (citation omitted). Perhaps the Supreme Court’s passing

citation to the RESTATEMENT fails to meet this standard, nonetheless the Court’s imprimatur of

this RESTATEMENT provision carries considerable force.

Other United States courts, in line with the RESTATEMENT, have concluded that a

corporation’s nationality is determined by its state of incorporation. For example, in Rong v.

Liaoning Provincial Government, 362 F. Supp. 2d 83 (D.D.C. 2005), aff’d on other grounds, 452

F.3d 883 (D.C. Cir. 2006), Broadsino, an entity incorporated in Hong Kong, claimed that its

property was expropriated by China. Plaintiffs in Rong argued that Broadsino should not be

determined to be a national of China based in part on the fact that there had previously been an

agreement that Hong Kong corporations would be considered foreign nationals with respect to

China. See 362 F. Supp. 2d at 101. Judge Walton rejected this argument and looked to the state

of incorporation to determine nationality. “[B]ecause Broadsino is a corporation organized

under the laws of Hong Kong, [China]’s actions did not contravene international law. . . .

[E]xpropriation by a sovereign state of the property of its own national does not implicate settled

principles of international law.” Id. at 101-02. And recently in Best Medical Belgium, Inc. v.

Kingdom of Belgium, 913 F. Supp. 2d 230 (E.D. Va. 2012), an American company with “a

controlling share” of a Belgian subsidiary challenged an alleged expropriation by the Belgian

government. Id. at 234. The court in that case found no violation of international law, holding

that the subsidiary was a Belgian national. Id. at 239-40.

On the other side of the ledger, so to speak, from the ICJ, ICSID, RESTATEMENT, U.S.

Supreme Court, and other courts, Plaintiffs point to one case from the Second Circuit—Banco

Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962) (Sabbatino), rev’d on other

grounds, 376 U.S. 398 (1964); see also Banco Nacional de Cuba v. Farr, 383 F.2d 166, 168 (2d

14
Cir. 1967) (a continuing part of the “much-discussed previous [Sabbatino] opinions”). There is

no doubt Sabbatino is a useful case for Plaintiffs. In that case, the Second Circuit disregarded

the nationality of the corporation where it was different from the nationality of most of the

corporation’s shareholders. 307 F.2d at 861. The court stated that “[w]hen a foreign state treats

a corporation in a particular way because of the nationality of its shareholders, it would be

inconsistent for us in passing on the validity of that treatment to look only to the ‘nationality’ of

the corporate fiction.” Id. Plaintiffs claim that Sabbatino is a “seminal” case. (Dkt. No. 39, at

33). However, if the case were truly seminal, it would have strongly influenced later

developments, yet it appears that Sabbatino’s proposition that a corporation’s state of

incorporation can be ignored has never been followed by any court in the United States.

Plaintiffs point to none, and this Court has found none.

3. Conclusion

Although Plaintiffs are not without any support in arguing that H&P-V is not a national

of Venezuela under international law, the holding of the Second Circuit in Sabbatino is

overwhelmed by authorities including cases from the International Court of Justice, a Decision

on Jurisdiction from the International Center for the Settlement of Investment Disputes, other

decisions from U.S. courts, and treatises (including one endorsed by the Supreme Court). The

weight of authority therefore leads to the conclusion that H&P-V is considered a national of

Venezuela under international law.

B. Act of State doctrine

The second of the parties’ Initial Issues is whether the act of state doctrine bars Plaintiffs’

expropriation claims. As part of that inquiry, the Court must determine “whether this defense

may be adjudicated prior to the resolution of Defendants’ challenges to the Court’s subject

15
matter jurisdiction.” (Dkt. No. 36, at 3). Because this Court must first determine it has

jurisdiction before considering an act of state defense, the time is not yet ripe for resolving

whether the act of state doctrine bars Plaintiffs’ expropriation claims.

1. Background on the act of state doctrine

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). This doctrine “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.”

World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1164 (D.C. Cir. 2002)

(internal brackets omitted) (quoting W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp.,

493 U.S. 400, 405 (1990)). The doctrine is to be interpreted and applied in accordance with the

policy interests of “international comity, respect for the sovereignty of other nations on their own

territory, and the avoidance of embarrassment to the Executive Branch in its conduct of foreign

relations.” W.S. Kirkpatrick, 493 U.S. at 408; Nemariam v. Fed. Democratic Republic of

Ethiopia, 491 F.3d 470, 477 n.7 (D.C. Cir. 2007). However, the party raising the defense bears

the burden to affirmatively show that an act of state has occurred and “that no bar to the doctrine

is applicable under the factual circumstances.” Ramirez de Arellano v. Weinberger, 745 F.2d

1500, 1534 (D.C. Cir. 1984) (en banc), judgment vacated on other grounds, 471 U.S. 1113

(1985).

The Second Hickenlooper Amendment is an exception to the act of state doctrine. See 22

U.S.C. § 2370(e)(2). Through this Amendment, Congress legislatively overruled Sabbatino so

that the act of state doctrine would not preclude adjudication of an expropriation claim where the

16
court has jurisdiction to hear it. See Nemariam, 491 F.3d at 477 n.8 (“Through the Hickenlooper

Amendment, ‘Congress . . . adopted a specific statutory provision requiring federal courts to

examine the merits of controversies involving expropriation claims. [It] overrides the judicially

developed doctrine of act of state.’”) (quoting West v. Multibanco Comermex, S.A., 807 F.2d

820, 829 (9th Cir. 1987)). Specifically, the Amendment bars application of the doctrine where

there is: “[(1)] a claim of title or other right to property asserted by any party including a foreign

state (or a party claiming through such state); [(2)] based upon (or traced through) a confiscation

or other taking after January 1, 1959; [(3)] by an act of state in violation of the principles of

international law . . . .” 22 U.S.C. § 2370(e)(2).

2. Jurisdictional considerations

“Federal courts are courts of limited jurisdiction.” Gunn v. Minton, 133 S. Ct. 1059,

1064 (2013) (citation omitted). Jurisdiction is “the first and fundamental question” federal courts

must ask when overseeing any case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998). Thus, there is a threshold duty vested in every court to resolve jurisdictional disputes

prior to any ruling on the merits. See Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461, 463

(D.C. Cir. 1999).

Because “there is no unyielding jurisdictional hierarchy,” Ruhrgas A.G. v. Marathon Oil

Co., 526 U.S. 574, 578 (1999), district courts have the discretion to resequence jurisdictional

questions, United States v. Johnson, 254 F.3d 279, 287 n.11 (D.C. Cir. 2001); see also Galvan,

199 F.3d at 463 (resolving a sovereign immunity challenge before subject-matter jurisdiction,

holding “[s]overeign immunity questions clearly belong among the non-merits decisions that

courts may address even where subject-matter jurisdiction is uncertain [because] the Supreme

Court has characterized the defense as jurisdictional”) (citing FDIC v. Meyer, 510 U.S. 471, 475

17
(1994)); cf. Ruhrgas AG, 526 U.S. at 586 (expressly allowing adjudication of challenges to

personal jurisdiction prior to subject-matter jurisdiction where “concerns of judicial economy

and restraint are overriding”).

In short, district courts cannot resolve a merits defense prior to resolving a challenge to

subject-matter jurisdiction. See Steel Co., 523 U.S. at 94.

3. Application of jurisdictional considerations to the act of state doctrine

The act of state doctrine goes to the merits, and is not a jurisdictional defense. See

Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004) (“Unlike a claim of sovereign

immunity, which merely raises a jurisdictional defense, the act of state doctrine provides foreign

states with a substantive defense on the merits.”). This Circuit has repeatedly recognized the act

of state doctrine as a merits defense requiring prior resolution of jurisdictional questions. See,

e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1161 (D.C. Cir.

2002) (“[J]urisdiction must be resolved before applying the act of state doctrine, because that

doctrine is ‘a substantive rule of law.’”) (quoting In re Papandreou, 139 F.3d 247, 256 (D.C. Cir.

1998)) (footnote omitted); Marra v. Papandreou, 216 F.3d 1119, 1122 (D.C. Cir. 2000)

(reaffirming In re Papandreou’s holding that while standing, personal jurisdiction, and forum

non conveniens are jurisdictional issues, the act of state doctrine is not); In re Papandreou, 139

F.3d at 256 (“[W]e note that the Supreme Court has authoritatively classified the act of state

doctrine as a substantive rule of law. Accordingly, resolution of the case on this ground, before

addressing the FSIA jurisdictional issue, would exceed the district court’s power.”) (citations

omitted). This Circuit’s sequencing rule requires consideration of whether subject-matter

jurisdiction exists under the FSIA before deciding whether to dismiss the case under the act of

18
state doctrine. Therefore the determination of whether the act of state doctrine applies to the

facts of this case must wait.

C. The Direct Effect test

The third of the Initial Issues is “[w]hether, for purposes of determining the applicability

of the commercial activities exception of the FSIA, 28 U.S.C. § 1605(a)(2), Plaintiffs have

sufficiently alleged a ‘direct effect’ in the United States within the meaning of that provision.”

(See Dkt. No. 36 ¶ 1). The Circuits are divided on how direct a “direct effect” must be since the

Supreme Court’s only case interpreting the relevant FSIA language. See Republic of Argentina

v. Weltover, Inc., 504 U.S. 607 (1992). But based on a review of the developments in this area,

particularly in this Circuit, Plaintiffs have sufficiently stated a direct effect under the FSIA’s

commercial activities exception.

1. Standard of Review

As the Supreme Court has explained, “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). The Act provides that foreign states are immune from the

jurisdiction of both federal and state courts, subject to those specific exceptions embedded within

the statute providing otherwise. See 28 U.S.C. §§ 1604-07. In a suit brought against a foreign

state, a district court must decide, as a threshold question, whether any of the FSIA exceptions

apply. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493-94 (1983).

Section 1605(a)(2) of the FSIA describes an exception to the presumption of foreign

sovereign immunity where “the action is based 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.” 28 U.S.C. § 1605(a)(2). Therefore, the parties’ Joint

19
Stipulation, requesting that the Court decide whether Plaintiffs have sufficiently alleged a direct

effect in the United States, operates as an incremental and narrowly-tailored facial challenge to

the Court’s jurisdiction. Federal jurisdictional pleading standards apply accordingly. See FED.

R. CIV. P. 12(b)(1).

The same standards that apply to a Rule 12(b)(6) motion to dismiss apply where the

defendant raises a facial challenge to the court’s jurisdiction on the pleadings. See Muscogee

Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010) (construing defendants’

challenge to jurisdiction as facial and therefore “apply[ing] the same standards under Rule

12(b)(1) that are applicable to a Rule 12(b)(6) motion to dismiss for failure to state a cause of

action.”); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (“When a defendant makes a

facial challenge to subject matter jurisdiction, the plaintiff, in effect, is afforded the same

procedural protections as he would receive under a Rule 12(b)(6) consideration.”); Ballentine v.

United States, 486 F.3d 806, 810 (3d Cir. 2007) (“Pursuant to Rule 12(b)(1), the Court must

accept as true all material allegations set forth in the complaint, and must construe those facts in

favor of the nonmoving party.”).

Applying a Rule 12(b)(6) level of review means “[a] complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Iqbal’s plausibility determination is a “context-specific task” requiring a level of factual

explication commensurate with the nature of the claim. Id. at 679. Rule 12(b)(1) motions in

particular require “the plaintiff [to] assert facts that affirmatively and plausibly suggest that the

pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely

consistent with such a right.’” In re Schering Plough Corp. Intron/Temodar Consumer Class

20
Action, 678 F.3d 235, 244 (3d Cir. 2012) (quoting Stalley v. Catholic Health Initiatives, 509 F.3d

517, 521 (8th Cir. 2007)).

For an effect to be “direct” under the FSIA’s commercial activities exception, Plaintiffs

must adequately allege that the effect “follows as an immediate consequence of the defendant’s

activity.” See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992) (citation,

internal quotations, and ellipses omitted); see also Princz v. Fed. Republic of Germany, 26 F.3d

1166, 1172 (D.C. Cir. 1994). While jurisdiction may not be predicated on “purely trivial

effects,” the effect need not be substantial or foreseeable. See Weltover, 504 U.S. at 618; Cruise

Connections Charter Mgmt. 1, LP v. Attorney Gen. of Canada, 600 F.3d 661, 664 (D.C. Cir.

2010) (citing Princz, 26 F.3d at 1172).

If Plaintiffs have alleged facts sufficient to fairly infer that Defendants “promised [and

failed] to perform specific obligations in the United States,” then the “direct effect” requirement

is satisfied. See de Csepel v. Republic of Hungary, 714 F.3d 591, 600-01 (D.C. Cir. 2013) (citing

Weltover, 504 U.S. at 619). Plaintiffs have alleged Defendants breached nine contracts

concerning drilling in the eastern region of Venezuela, and one contract concerning drilling in

western region, pursuant to which the PDVSA Defendants agreed to pay a portion of the

contracts in U.S. Dollars. (See Dkt. No. 1 ¶ 118). Each of the ten contracts contained a

provision related to whether and under what conditions payments made in U.S. Dollars would be

sent to the Bank of Oklahoma in Tulsa, Oklahoma. (See id. ¶ 43).

A foreign state promising to perform specific obligations in the United States, and then

breaking that promise, has a “direct effect” in the United States under FSIA, without regard to

how important the place of that performance was to the parties or the agreement. See de Csepel,

714 F.3d at 600-01; see also I.T. Consultants, Inc. v. Islamic Republic of Pakistan, 351 F.3d

21
1184, 1186 (D.C. Cir. 2003) (“[A] foreign sovereign’s failure to make a contractually required

deposit in a bank in the United States meets the statute’s definition of a ‘direct effect,’ without

regard to whether the parties considered the place of payment ‘important,’ ‘critical,’ or

‘integral.’”).

2. The contracts at issue in this litigation

Section 18.15 of the eastern drilling contracts provides:

“PDVSA” agrees to pay in United States Dollars, the portion of the price
of this CONTRACT set forth in such currency, under the following
conditions:

a) That the deposits made by PDVSA in the accounts previously identified
or in any other accounts indicated by the CONTRACTOR will release
PDVSA from its obligation to pay the portion of the price set in United
States Dollars to the extent of the deposits made.

b) PDVSA will always have the right, at any time and at its sole
discretion, to pay the portion of the price set in United States Dollars, in
that currency or in bolivars at the current rate of exchange in Caracas on
the date of payment. In the event that the payment is made in Bolivars and
the CONTRACTOR believes it has suffered losses as a consequence of
the variation in the rate of exchange applied on the date of issue of the
invoice and at the rate in force on the payment date thereof, the
CONTRACTOR will submit the relevant claim according to the
provisions of Clause 18.12 of this CONTRACT.

(Dkt. No. 40-1, at 22 (§ 18.15)).

The eastern drilling contracts were later supplemented by an Agreement on June 2, 2008

(the June 2, 2008 Agreement) whereby PDVSA agreed to “pay 61% of the invoices for services

rendered in the eastern region in U.S. dollars to a foreign bank account designated by H&P-

Venezuela and the remaining 39% of the invoices for such services in bolivars.” (Dkt. No. 22-1,

at 14; see also Dkt. No. 40-7, at 2 (¶¶ 1-2)). The PDVSA Defendants stress paragraph five of the

June 2, 2008 Agreement, claiming they had no obligation to make payments in the United States

because they retained an option not to do so:

22
 Without prejudice to all that is indicated above, the present agreement of
partial payment in foreign currency shall be without effect when PDVSA
deems it discretionally convenient, in accordance with its interests and
considering changes in its Policies and Internal Rules.

(Dkt. No. 40-7, at 2 (¶ 5)).

Once PDVSA received an invoice from H&P-V, PDVSA had 30 days to dispute a line

item before payment was due. (Dkt. No. 40-1, at 21 (§ 18.4); see also Dkt. No. 1, ¶ 45). The

eastern region contract also reads that “in the event that PDVSA, for any reason, has not made

the payments within this thirty (30) day term, the parties agree that this does not entitle them to

legal actions against the other party.” (Dkt. No. 40-1, at 21 (§ 18.4)). Nonetheless, until 2010,

Defendants approved many invoices requiring payment in U.S. Dollars to the Tulsa, Oklahoma

bank account, pursuant to the June 2, 2008 Agreement. (See Dkt. No. 1, ¶ 44). In all, there

were approximately 55 payments totaling $65 million to the Oklahoma bank account during the

time period relevant to this litigation. (See id.).

Under the western drilling contract, payment was to be made in bolivars unless the

foreign exchange control measures in Venezuela prevented H&P-V from exchanging local

currency for U.S. Dollars, as necessary to meet U.S. Dollar obligations outside of Venezuela:

If as a result of the exchange control measures established by the
competent authorities, [H&P-V] is unable to obtain in a timely fashion the
foreign currency required to perform its obligations abroad related to the
performance of this CONTRACT, [Petróleo] agrees to pay in United
States dollars the portion of the price of this CONTRACT set in said
currency in accordance with current regulation, “Norms and Procedures
for the Payment of Foreign Exchange for Construction, Goods and
Services in the Western Division,” for those items directly associated with
the external component pursuant to the results of the corresponding audit.
[H&P-V] shall indicate, for purposes of payment, the bank and account
number where payments are to be made.

(Dkt. No. 40-3, at 21 (§ 18.14)).

23
 In addition to the provisions regarding payment, particularly relevant to the direct effects

analysis are the contractual provisions requiring the procurement by H&P-V of products from

American companies. For example, H&P-V had to buy transformers from a company in

Fremont, Ohio (see Dkt. No. 40-1, at 37; Dkt. No. 39, at 64); equipment used with blowout

preventers to space equipment apart from a company in Stephenville, Texas (see Dkt. No. 40-1,

at 38; Dkt. No. 39, at 64); a top drive from a company in Erie, Pennsylvania (see Dkt. No. 40-6,

at 36; Dkt. No. 39, at 64); a blow out preventer from a company in Houston, Texas (see Dkt. No.

40-6, at 42; Dkt. No. 39, at 64); hardbanding from a different company in Houston, Texas (see

Dkt. No. 40-4, at 38; Dkt. No. 39, at 64); flanged fittings from a company in Willison, Florida

(see Dkt. No. 40-4, at 41; Dkt. No. 39, at 64); a forklift from a company in Peoria, Illinois (see

Dkt. No. 40-6, at 44; Dkt. No. 39, at 64); and various products from a third company in Houston,

Texas (see, e.g., Dkt. No. 40-3, at 35; Dkt. No. 39, at 64). (See also Dkt. No. 1, ¶ 124 (“H&P-V

routinely entered into third-party agreements with vendors, suppliers, and services companies in

the United States, for the purpose of delivering goods and services from the United States to

Venezuela to permit H&P-V to perform its contracts with the PDVSA Defendants.”).

3. Direct effect regarding payments to United States

The Supreme Court has addressed the meaning of “direct effect” in the context of the

FSIA’s commercial activities exception only once. See Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992). In Weltover, the government of Argentina issued a Presidential Decree to

extend the time it had to pay certain bonds. Certain entities “refused to accept the rescheduling

and insisted on full payment, specifying New York as the place where payment should be made.”

Id. at 610. As to the “direct effect” component of 28 U.S.C. § 1605(a)(2), the Court rejected the

suggestion that there is a “substantiality” or “foreseeability” requirement, and stated that “an

24
effect is direct if it follows as an immediate consequence of the defendant’s activity.” 504 U.S.

at 618 (citation, quotation marks, and ellipses omitted). It then found a direct effect with “little

difficulty” because the entities challenging Argentina “had designated their accounts in New

York as the place of payment, and Argentina made some interest payments into those accounts

before announcing that it was rescheduling the payments. . . . Money that was supposed to have

been delivered to a New York bank for deposit was not forthcoming.” Id. at 618-19.

Two years after Weltover, the D.C. Circuit decided Goodman Holdings v. Rafidain Bank,

26 F.3d 1143 (D.C. Cir. 1994). In Rafidain, two Irish corporations sought to recover payments

on letters of credit from banks that were part of the Iraqi government. Previously, the banks had

made installment payments on the letters “mostly from accounts in United States banks.” Id. at

1144. The Rafidain court distinguished Weltover because “[n]either New York nor any other

United States location was designated as the ‘place of performance’ where money was

‘supposed’ to have been paid . . . . Rafidain might well have paid them from funds in United

States banks but it might just as well have done so from accounts located outside of the United

States, as it had apparently done before.” Id. at 1146-47 (footnote omitted). Even where there

was no “‘immediate consequence’ in the United States from Rafidain’s failure to honor the

letters,” the Court still found a “direct effect” in the United States under § 1605(a)(2). Id.

Interesting to note about Rafidain is Judge Wald’s concurrence, where she “emphasize[d] that,

for an act to have a ‘direct effect’ in the United States, there is no prerequisite that the United

States be contractually designated as the place of performance. . . . [E]ven absent a contractual

provision mandating the involvement of U.S. banks, if the longstanding consistent customary

practice between Rafidain and Goodman had been for Rafidain to pay Goodman from its New

25
York accounts, the breach of the letters of credit might well have had a direct and immediate

consequence in the United States.” Id. at 1147 (Wald, J., concurring).

As a result of Weltover, Judge Wald’s concurrence in Rafidain, and other cases, Judges

on the District Court for the District of Columbia have found that our Court of Appeals has “left

open the possibility that a court could find a ‘direct effect’ based upon a non-express agreement

to pay in the United States.” Idas Resources N.V. v. Empresa Nacional de Diamantes de Angola

E.P., 2006 WL 3060017, at *9 (D.D.C. Oct. 26, 2006) (Huvelle, J.) (quoting Global Index, Inc.

v. Mkapa, 290 F. Supp. 2d 108, 114 (D.D.C. 2003) (Kennedy, J.)); see also Agrocomplect, AD v.

Republic of Iraq, 524 F. Supp. 2d 16 (D.D.C. 2007) (Walton, J.) (“[T]his court need not consider

whether it is necessary for parties to enter into an agreement designating a place for payment or

vesting one party with complete discretion to name a place for payment contemporaneously with

a contract giving rise to a breach of contract suit . . . .”); cf. Cruise Connections, 600 F.3d at 666

(stating “we have no need to consider . . . whether a foreign sovereign had to have agreed to the

use of a U.S. bank account,” and distinguishing cases that addressed the issue in part because

“none of those cases dealt with a situation like the one we face here: where the alleged breach

resulted in the direct loss of millions of dollars worth of business in the United States.”) But

whether or not Defendants’ pattern and practice of making numerous payments totaling millions

of dollars to a bank in the United States constitutes a direct effect that trumps Defendants’

contractual discretion to pay Plaintiffs in Venezuela in Bolivars is not necessary for this Court to

decide. There is a direct effect based on third-party impacts under the contracts based on D.C.

Circuit precedent.

26
 4. Direct effect regarding third party impacts

In Cruise Connections Charter Management 1, LP v. Attorney General of Canada, the

D.C. Circuit indicated a broad view of the direct effect test. See 600 F.3d 661 (D.C. Cir. 2010).

In Cruise Connections, the Royal Canadian Mounted Police (RCMP) cancelled a contract with

the American company Cruise Connections to provide cruise ship services during the 2010

Olympics. The company had subcontracted with two U.S.-based cruise lines, Holland America

and Royal Caribbean. The district court found that the defendant enjoyed sovereign immunity in

part because “Cruise Connections’ inability to perform its contractual obligations to the third

party cruise lines constituted an intervening element between RCMP’s breach and the broken

third-party agreements.” 600 F.3d at 664 (citation and quotation marks omitted). The D.C.

Circuit reversed, finding not only that “the alleged breach resulted in the direct loss of millions

of dollars worth of business in the United States,” but that the “direct effect” need not necessarily

harm the plaintiff. Id. at 666. The FSIA “requires only that the effect be ‘direct,’ not that the

foreign sovereign agree that the effect would occur.” Id. at 665 (citation omitted). 8

Plaintiffs here allege an impact of the breach that is sufficiently similar to the breach

found to have a direct effect in Cruise Connections. In Cruise Connections, the contract itself

required the ships to come from U.S.-based companies. Relying on this fact, the D.C. Circuit

found that “RCMP’s termination of the Cruise Connections contract led inexorably to the loss of

revenues under the third-party agreements. This is sufficient.” Id. The material before this

Court indicates that Defendants agreed to contracts with Plaintiffs that required the purchase and

use of specific parts from specific U.S.-based companies. The D.C. Circuit has previously

8
Cruise Connections also claimed that lost revenue expected from on-board purchases by
security personnel staying on the ships constituted a direct effect, but the D.C. Circuit found it
“need not decide whether non-payment of on-board revenues qualifies as a direct effect” because
it found a direct effect through other factors.
27
indicated that such a finding is sufficient for a finding of direct effect. Accordingly, there is a

direct effect here under the meaning of § 1605(a)(2).

This accords with the D.C. Circuit’s recent interpretation of Weltover. In Weltover, the

Supreme Court stated: “Money that was supposed to have been delivered to a New York bank

for deposit was not forthcoming.” 504 U.S. at 619 (emphasis added). In Cruise Connections,

the D.C. Circuit extended this language, finding that “[b]ecause RCMP terminated the contract,

revenues that would otherwise have been generated in the United States were ‘not

forthcoming.’” 600 F.3d at 665 (emphasis added). The D.C. Circuit’s interpretation of

Weltover, binding on this Court, indicates that the third party contracts at issue here, the breach

of which allegedly resulted in the loss of “revenues that would otherwise have been generated in

the United States,” have a direct effect as that term is used in the FSIA.

5. Plaintiffs’ motion to enforce

Because the issue of whether this Court can exercise personal jurisdiction over the

PDVSA Defendants consistent with constitutional due process is not clearly encompassed within

the Initial Issues, the question will not be answered at this time. The Joint Stipulation was forged

in part to postpone any obligations by Defendants to respond to Plaintiffs’ discovery requests.

Yet to resolve the question of constitutional due process in this case, discovery would likely be

necessary. The parties came to an agreement to avoid discovery regarding the Initial Issues, and

therefore deciding this issue without permitting any discovery would conflict with precedent

from the D.C. Circuit. See El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996)

(“A plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to

reasonable discovery, lest the defendant defeat the jurisdiction of a federal court by withholding

information on its contacts with the forum.”).

28
 In addition, the PDVSA Defendants both indicated that the issues of statutory direct

effect under the FSIA and constitutional due process, while related, are distinct, and also

acknowledged that there are elements of the analysis of constitutional due process that are tied

up with issues explicitly denoted as Additional Issues. As to the former point, the PDVSA

Defendants indicated in their motion to dismiss that the statutory and constitutional issues are

distinct. (See Dkt. No. 22-1, at 32). In their reply the PDVSA again indicated the issues are,

though related, distinct. (See Dkt. No. 43, at 31 (“[N]ot only does H&P-Venezuela fail to satisfy

the direct effect requirement of the FSIA, but the assertion of jurisdiction would also violate the

due process protections to which the PDVSA Defendants are entitled.” (emphasis added;

citation omitted)). While the PDVSA Defendants argue that Plaintiffs have conceded the due

process issue because the issue was raised in the PDVSA Defendants’ motion to dismiss and not

responded to, (see Dkt. No. 43, at 31 n.24), this argument fails to persuade. Defendants made a

number of arguments in their motions to dismiss that went unaddressed by Plaintiffs because of

the Joint Stipulation. Constitutional due process is among them, and was not simply conceded.

As to the latter point, Defendants describe the constitutional argument as inextricably

bound with issues that are clearly articulated as Additional Issues. (See Dkt. No. 43, at 10 and

n.2 (stating that an assertion of jurisdiction would violate due process in part because the

contracts “were negotiated and performed entirely in Venezuela [and] governed by Venezuelan

law with a Venezuelan forum-selection clause,” and arguing that this issue, clearly enumerated

as an Additional Issue, should nonetheless “inform this Court’s determination of whether it

would be reasonable to assert jurisdiction commensurate with due process”); id. at 32

(referencing the alleged forum selection clauses again when arguing that “jurisdiction over the

PDVSA Defendants would not comport with due process” (citation omitted))).

29
 There are yet still other reasons why the constitutional due process argument should not

be considered as part of the Initial Issues. For example, the D.C. Circuit has stated that “[t]he

statutory requirements for personal jurisdiction do not affect the constitutional in personam

jurisdiction requirement that, pursuant to the due process clause of the Fifth Amendment, certain

‘minimum contacts’ must exist between the person and the jurisdiction.” Foremost-McKesson,

Inc. v. Islamic Republic of Iran, 905 F.2d 438, 442 n.10 (D.C. Cir. 1990). Because the D.C.

Circuit has previously separated the statutory and constitutional questions, because of the need

for additional discovery, because of the way the issue was briefed by the PDVSA Defendants,

and fundamentally because of the language of the Joint Stipulation, this Court finds that deciding

the constitutional due process argument is not proper as part of the Initial Issues.

D. Standing of H&P-IDC

Standing jurisprudence springs from two sources: Article III’s case-or-controversy

requirement, and judicially self-imposed, prudential limitations. See Elk Grove Unified Sch.

Dist. v. Newdow, 542 U.S. 1, 11 (2004). To establish constitutional standing, a plaintiff must

demonstrate that it has suffered a concrete and particularized injury in fact, fairly traceable to the

defendant’s unlawful conduct, and show that the wrong is likely to be redressed by the relief

sought. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Defendants do not

challenge whether Article III’s case-or-controversy requirements have been met, but only assert

their challenge under the shareholder standing rule. (See Dkt. No. 22-1 at 18-20); (Dkt. No. 43

at 10-12); (Dkt. No. 44 at 29-31); cf. (Dkt. No. 36, at 2-3) (clarifying that the Initial Issues are

derived from Defendants’ motions to dismiss).

Plaintiffs concede that H&P-IDC does not have standing regarding the breach of contract

claims. (Dkt. No. 39, n.26) (“Plaintiffs do not contend that H&P-IDC has standing to bring the

30
breach of contract claims.”). The only issue regarding standing, then, is whether the company

has standing regarding the expropriation claim.

Plaintiffs have alleged that H&P-IDC “suffered the expropriation of an entire company

without compensation,” (Dkt. No. 1, ¶ 85), and that “Venezuela’s expropriation of the rigs

deprived H&P-IDC of its ownership and control of H&P-V . . . depriv[ing] H&P-IDC of its

subsidiary and its business as a going concern, directly impacting the operations and bottom line

of H&P-IDC,” (id. ¶ 139). Plaintiffs have not only alleged that Venezuela took H&P-V’s real

and personal property, but that “[t]he seizure constituted a taking of the entirety of H&P’s

Venezuelan business operations . . . .” (Id. ¶ 75). Plaintiffs aver that “Defendants took the entire

business, which they now operate as a state-owned commercial enterprise,” and as a result “H&P

no longer . . . maintains any commercial operations in Venezuela,” (Id. ¶¶ 81, 85).

Defendants argue that, because H&P-IDC is not a party to any of the contracts at issue,

they lack standing to bring a claim. As the PDVSA Defendants argue in their Reply, “H&P-

IDC’s standing argument has no merit. It has not, and cannot, cite a single case in which a court

has permitted a shareholder to assert an injury to its corporation, as opposed to an injury to itself,

when the corporation is able and willing to assert its own rights.” (Dkt. No. 43, at 8).

Particularly relevant here is the prudential restriction regarding standing referred to as the

shareholder standing rule. See Franchise Tax Bd. v. Alcan Aluminum Ltd., 493 U.S. 331, 336

(1990). As the Supreme Court has said, this equitable rule “prohibits shareholders from

initiating actions to enforce the rights of the corporation unless the corporation’s management

has refused to pursue the same action for reasons other than good-faith business judgment.” Id.;

see also Am. Airways Charters, Inc. v. Regan, 746 F.2d 865, 873, n.14 (D.C. Cir. 1984) (“No

shareholder—not even a sole shareholder—has standing in the usual case to bring suit in his

31
individual capacity on a claim that belongs to the corporation.”). “A basic tenet of American

corporate law is that the corporation and its shareholders are distinct entities.” Dole Food Co. v.

Patrickson, 538 U.S. 468, 474 (2003). And, indeed, “[a] corporate parent which owns the shares

of a subsidiary does not, for that reason alone, own or have legal title to the assets of the

subsidiary.” Id. However, shareholders may still bring an action to enforce their own individual

rights, “even where the corporation’s rights are also implicated.” Franchise Tax Board, 493 U.S.

at 336. Therefore, standing for the plaintiff-shareholder depends on whether the shareholder’s

claim derives from the rights of the corporation or from a “direct, personal interest in [the] cause

of action . . . .” Id.

According to the PDVSA Defendants, the shareholder standing “rule ‘prohibits

shareholders from initiating actions to enforce the rights of the corporation.’” (Dkt. No. 22-1, at

18 (quoting Franchise Tax Bd., 493 U.S. at 336)). But the word before that quote from

Franchise Tax Bd. and omitted by the PDVSA Defendants is important: “generally.” The

sentence following the quote is instructive as well: “There is, however, an exception to this rule

allowing a shareholder with a direct, personal interest in a cause of action to bring suit even if the

corporation’s rights are also implicated.” Franchise Tax Bd., 493 U.S. at 336.

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003), also relied upon by Defendants, does

not directly address this issue. As is relevant here, in Dole Food the Supreme Court addressed a

specific question, namely “whether a corporate subsidiary can claim instrumentality status where

the foreign state does not own a majority of its shares but does own a majority of the shares of a

corporate parent one or more tiers above the subsidiary.” 538 U.S. at 471. The Court answered

no to that question, and it also noted that “[t]he veil separating corporations and their

shareholders may be pierced in some circumstances . . . .” 538 U.S. at 475. Thus, Dole Food is

32
not directly on point, nor does it suggest that Plaintiffs’ standing argument in this case is

foreclosed.

In Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984) (en banc), the

D.C. Circuit rejected an argument similar to the one offered here by Defendants regarding the

standing of H&P-IDC. However, although the case supports Plaintiffs’ argument about H&P-

IDC’s standing, it has a procedural history that Defendants suggest undercuts its precedential

value. But considered together, the case and the developments that followed it suggest that

Plaintiffs have the better argument.

In Ramirez, U.S. citizen Temistocles Ramirez de Arellano (Ramirez) was the sole

shareholder of two U.S. corporations, which in turn wholly owned four subsidiaries incorporated

in Honduras. Through this “chain of title,” Ramirez owned “a large agricultural-industrial

complex in the northern region of Honduras.” 745 F.2d at 1506. The U.S. Department of

Defense (DoD) seized “over half of the ranch’s 14,000 acres and nearly 90% of the year-round

grazing land,” and the DoD’s operations helped to “destroy[] the plaintiffs’ investment and

Ramirez’s life’s work.” 745 F.2d at 1508. Ramirez brought an action requesting declaratory and

injunctive relief for the occupation and destruction of his property and for the deprivation of

property without due process. The DoD raised a standing argument very similar to the one

raised by Defendants in this case, and the D.C. Circuit rejected it. The Ramirez majority called

the standing objection “a most extreme form of fanciful thinking. It is bizarre to posit that the

claimed seizure and destruction of the United States plaintiffs’ multi-million dollar investment,

businesses, property, assets, and land is not an injury to a protected property interest.” 745 F.2d

at 1515. See also id. at 1518 (“The fact that the United States plaintiffs do not directly hold legal

title to the real property does not deprive them of a property interest in the assets nor does it

33
defeat their constitutional claims. Ramirez has a protected property interest in the allegedly

occupied property both by virtue of his status as sole shareholder of the corporation and by virtue

of his possession of the land for more than twenty years.”).

It is true that after the 1984 Ramirez decision, the Supreme Court vacated it. See 471

U.S. 1113 (1985). The Supreme Court’s one paragraph decision vacated and remanded for

reconsideration in light of legislation enacted after the D.C. Circuit issued its 1984 opinion. On

remand, the Circuit did not address the standing issue, but did dismiss the case without prejudice

“so as not to bar reinstatement of the suit in the event the challenged activity resumes.” See 788

F.2d 762, 764 (D.C. Cir. 1986). Although a decision vacated by the Supreme Court does not

have precedential value when vacated because of disagreement with the ruling, see Al Odah v.

United States, 321 F.3d 1134, 1143 (D.C. Cir. 2003), such is not the case here. 9 The Supreme

Court did not address Ramirez’s discussion of standing. However, while the case is helpful to

Plaintiffs, its value is somewhat obscured by subsequent developments. Other cases, however,

further the argument for H&P-IDC’s standing.

The D.C. Circuit later recognized that a plaintiff could have standing for purposes of the

FSIA expropriation exception under circumstances similar to those at issue here. See Nemariam,

491 F.3d 470. In Nemariam, the D.C. Circuit addressed the reasoning of the court in Kalamazoo

Spice Extraction Co. v. Provisional Military Government of Socialist Ethiopia, 616 F. Supp. 600

(W.D. Mich. 1985). In its discussion of that case, the D.C. Circuit approvingly cited that court’s

holding that “the seizure of the controlling stockholder’s interest in a corporation, triggered the

[FSIA’s] expropriation exception.” See Nemariam, 491 F.3d at 478. The D.C. Circuit endorsed

9
The 1984 Ramirez decision continues to be cited approvingly by the D.C. Circuit, as well
as other courts. See, e.g., Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598
(D.C. Cir. 1992); Munns v. Clinton, 822 F. Supp. 2d 1048 (E.D. Cal. 2011).
34
the Kalamazoo court’s reasoning that “a controlling interest in the corporation’s stock was no

different from the corporation’s physical assets under section 1605(a)(3) because ‘[i]n either

case, the foreign state has expropriated control of the assets and profits of the corporation.’”

Nemariam, 491 F.3d at 478 (quoting Kalamazoo, 616 F. Supp. at 663) (footnote omitted).

The Ninth Circuit has also come to the same conclusion regarding standing with respect

to the FSIA expropriation exception. See Siderman de Blake v. Republic of Argentina, 965 F.2d

699 (9th Cir. 1992). In Siderman, the plaintiffs brought an action claiming, among other things,

that the Argentine military had unlawfully expropriated an Argentine corporation that was owned

by four people, three with a 33% share each and a fourth with a 1% share. See 965 F.2d at 703.

The corporation’s “assets comprised numerous real estate holdings including a large hotel in

[Argentina].” 965 F.2d at 703. One plaintiff in Siderman was a U.S. citizen who owned a 33%

share, and the Ninth Circuit found that she had asserted a “substantial and non-frivolous” claim

that her “property had been taken in violation of international law,” and thus she had standing “to

invoke the international takings exception.” 965 F.2d at 711-12. This parallels Plaintiffs’

allegations in this case, whereby the Venezuelan military seized H&P-V by physically taking its

assets. 10 The Siderman holding suggests H&P-IDC’s standing argument is even stronger, as

H&P-IDC is the full owner of H&P-V, as opposed to the 33% owner as in Siderman.

It is generally maintained that “[t]he shareholders’ essential right is to share in the profits

and in the distribution of assets on liquidation in proportion to their interest in the enterprise.” 1

JAMES D. COX & THOMAS LEE HAZEN, TREATISE ON THE LAW OF CORPORATIONS § 7:2 (3d ed.

10
To the extent the PDVSA Defendants are trying to distinguish between the taking of
corporate assets and the taking of a corporation, the parties have stipulated that the Court is to
presume the truth of well-pleaded allegations in the complaint, and Plaintiffs have alleged more
than the taking of a few corporate assets—they have alleged the taking of the entire corporation.
(See Dkt. No. 1, ¶ 85).
35
2012). Thus, the complete physical seizure of a parent company’s wholly-owned subsidiary, to

the point of eliminating the corporation entirely (or comprehensively taking its assets and

profits), deprives the parent shareholder of its “essential” and unique rights, giving rise to claims

that would not belong to the corporation. Plaintiffs have alleged that Venezuela completely

expropriated all the physical property of H&P-V, such that H&P-IDC no longer has commercial

operations in Venezuela. Construing Plaintiffs’ allegations favorably, Defendants’ actions have

deprived H&P-IDC, individually, of its essential and unique rights as sole shareholder of H&P-V

by dismantling its voting power, destroying its ownership, and frustrating its control over the

company. Thus, H&P-IDC has “a direct, personal interest” in the complete taking of its wholly

owned subsidiary, and has standing to bring its wrongful expropriation claim. 11

CONCLUSION

To summarize, the Court finds that H&P-V is a national of Venezuela under international

law, H&P-IDC has standing to pursue the expropriation claim, Plaintiffs have sufficiently

alleged a direct effect under 28 U.S.C. § 1605(a)(2), and the time is not yet ripe for a decision on

whether the act of state doctrine bars Plaintiffs’ expropriation claims. In addition, the issue of

constitutional due process is not among the four Initial Issues, and therefore is not addressed as

11
International custom has also recognized that shareholders have certain direct and
individual rights in these kinds of expropriation claims:

It is well known that there are rights which municipal law confers upon
the [shareholder] distinct from those of the company, including the right to
any declared dividend, the right to attend and vote at general meetings, the
right to share in the residual assets of the company on liquidation.
Whenever one of his direct rights is infringed, the shareholder has an
independent right of action. On this there is no disagreement between the
Parties.

Barcelona Traction 1970 I.C.J. at 36. Plaintiffs have listed a number of additional sources for
this practice in international law. (See Dkt. No. 39, at 43 n.25).
36
part of this Memorandum Opinion. Based on the foregoing analysis and the parties’ Joint

Stipulation, there will now be “a second phase of briefing on the motions to dismiss.” (Dkt. No.

36, at 3).

Accordingly, Defendants’ Motions to Dismiss (Dkt. Nos. 22, 23, and 24) are

TEMPORARILY GRANTED IN PART and DENIED IN PART, and Plaintiff’s Motion to

Enforce (Dkt. No. 45) is GRANTED.
Digitally signed by Judge Robert
L. Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court,
ou=Chambers of Honorable
Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
Date: 2013.09.20 14:43:40 -04'00'
Date: September 20, 2013
ROBERT L. WILKINS
United States District Judge

37