dissenting:
This case was originally decided by an unpublished opinion filed in May 1993. For two reasons, I dissented in part. First, I believed that the district court, ruling prior to our decisions in Foster v. Chesapeake Insurance Co., 933 F.2d 1207 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991), and Employers Insurance of Wausau v. Crown Cork & Seal Co., 942 F.2d 862 (3d Cir.1991), had erroneously rejected TETCO’s argument that subject matter jurisdiction was lacking in two of the three civil actions that were before the court — the Texas Eastern and AEGIS actions. Second, I believed that the district court’s grant of summary judgment in favor of F & C in the third action — the F & C action — should be reversed in part. (My views on this latter issue are set out in my partial dissent from the other opinion that the panel majority has filed in this case).
On June 11, 1993, TETCO filed a petition for rehearing and a suggestion for rehearing in banc, contending that the district court lacked jurisdiction in the Texas Eastern and AEGIS cases. On August 18,1993, an order granting panel rehearing was issued. After receiving supplementary briefing on the jurisdictional questions and after reargument, the panel majority has reached precisely the same conclusion as it did before, albeit in some respects for different reasons. I remain in disagreement with the majority on these jurisdictional questions, and I therefore respectfully dissent.
As noted, three civil actions were before the district court. The first case, the F & C action, was originally filed in the United States District Court for the Northern District of Texas, with federal jurisdiction predicated on diversity of citizenship. This is the only one of the three actions in which I think *1245federal jurisdiction was present. The second ease, the Texas Eastern case, was filed in state court in Texas and subsequently removed (improperly, in my view) to the United States District Court for the Southern District of Texas. The third case, the AEGIS case, was filed in the United States District Court for the Eastern District of Pennsylvania, with federal jurisdiction based (wrongly, I believe) on 28 U.S.C. § 1380(a). Presumably because of the pendency of the AEGIS ease in the Eastern District of Pennsylvania, the Judicial Panel on Multidistrict Litigation transferred the other two actions to that district and consolidated all three eases for purposes of pretrial proceedings. In September 1988, the district court rejected TETCO’s challenges to the existence of federal jurisdiction in the Texas Eastern and AEGIS eases. Several years later, in a single order bearing the multidistriet litigation docket number assigned to the consolidated cases, the district court granted summary judgment against TETCO, and the current appeal followed. It was by this route — based from the start on erroneous jurisdictional premises — that these cases involving difficult, unsettled, and controversial questions of Texas insurance law, found their way to our court.
I will discuss, in turn, the jurisdictional questions presented in each of the three actions that were before the district court, but I will do so in the opposite order from that used by the majority. I have chosen this order, not for sheer contrariness, but because my discussion of the F & C action can best be understood after I have addressed the other two cases.
I.
The Texas Eastern Case.
As I have noted, TETCO, preferring to litigate in the Texas state courts, originally filed this action in Harris County, Texas, against its primary carrier, F & C, and its many excess carriers, including the Insurance Company of Ireland (“ICI”). ICI was a private entity when it entered into its insurance contract with TETCO, but “[w]hen financial difficulties threatened in 1985, the Irish government moved to preserve the company. Sealuehais Arachais Teoranta, a holding company created by the Irish Parliament and controlled by the Irish Minister for Industry, Trade, Commerce, and Tourism, acquired all of ICI’s shares. With financial stability, its shares are to revert to the original shareholders.” Mobile Corp. v. Abeille General Insurance Co., 984 F.2d 664, 665 (5th Cir.1993). Contending that these developments made it a “foreign state” within the meaning of 28 U.S.C. § 1603,1 ICI then removed this entire action to the United States District Court for the Southern District of Texas.
Assuming that ICI falls within 28 U.S.C. § 1603’s definition of a “foreign state,” I nevertheless believe that this removal was improper and that federal jurisdiction was lacking because the insurance contract between TETCO and ICI contained a clause featuring language that our court has already construed as a waiver of the right to remove. The clause in the TETCO-ICI contract stated that if ICI failed to pay any TETCO claim, ICI would, “at the request of the Insured,” “submit to the jurisdiction of any court of competent jurisdiction within the United States” and would “comply with all requirements necessary to give such Court jurisdiction.” In Foster v. Chesapeake Insurance Co., supra, one insurance company, Chesapeake, agreed to a virtually identical clause in a contract with another insurance company, Mutual Fire. When the rehabili-tator appointed to marshal Mutual Fire’s assets later sued Chesapeake in state court, Chesapeake removed the action based on diversity of citizenship. Holding that Chesa*1246peake had waived its right to remove, we wrote as follows:
[B]y consenting to “submit ” to “any court ” of competent jurisdiction “at the request of the Company,” and to comply with all requirements necessary to give “such court ” jurisdiction, Chesapeake agreed to go to, and stay in, the forum chosen by Mutual Fire.
Foster, 933 F.2d at 1216-17 (emphasis in original). In light of this holding, the virtually identical clause in the TETCO-ICI contract must be construed in the same way.
Although the majority tries to distinguish Foster on the ground that Foster involved removal based on diversity, rather than the Foreign Sovereign Immunities Act (FSIA), I find that effort unconvincing. The majority states:
Given Congress’ unusually strong preference for adjudication of claims against foreign states in the federal court system, we hold that it would contravene strong public policy to permit a less than absolutely unequivocal contractual provision to divest a federal district court of FSIA subject matter jurisdiction.
Maj.Op. # 1, at 1243 (emphasis added). This argument seems to fly in the face of Foster. Immediately after noting that In re Delta Insurance Co., 900 F.2d 890 (6th Cir.), cert. denied, 498 U.S. 890, 111 S.Ct. 233, 112 L.Ed.2d 193 (1990), had held that a waiver of the right to remove under the FSIA must be clear and unequivocal, the Foster panel wrote:
[W]e do not see why contractual waivers of the right to remove must be clear and unequivocal....
We think the “clear and convincing” standard so stringent as to be contrary to the right of parties to contract in advance regarding where they will litigate. A court simply should determine contractual waiver of the right to remove using the same benchmarks of construction and, if applicable, interpretation as it employs in resolving all preliminary contractual questions. Indeed, inasmuch as the determination of whether there is a waiver of the right of removal to be derived from a forum selection clause will at least in some cases, such as here, be a matter of construction and thus of law, it seems anomalous to speak of a “clear and unequivocal” standard for we simply make plenary determinations of legal issues.
933 F.2d at 1218 n. 15 (emphasis added). I do not believe that the majority’s decision in this ease can be reconciled with this passage.
Moreover, even if such reconciliation were possible, I would find the majority’s position unacceptable, for I cannot understand why “foreign states,” when they choose to enter into contracts, should have the benefit of especially favorable rules of contract construction or interpretation. Are “foreign states” unable to afford competent lawyers to draft and review their contracts and thereby insure that the removal rights conferred by 28 U.S.C. § 1441(d) are not inadvertently compromised?
In any event, even if it were appropriate to apply such a rule to contracts signed by a foreign state, it simply makes no sense to apply that rule to the TETCO-ICI contract, since ICI was not a “foreign state” when that contract was formed. When TETCO entered into its agreement with ICI, it contracted for (and presumably paid for) ICI’s agreement not to exercise any of the rights it then possessed to resist the jurisdiction of any court of competent jurisdiction in the United States. I do not think that TETCO should lose the benefit of this bargain simply because the Irish government chose to acquire ICI’s assets. Nor do I think that TETCO should be penalized for failing to secure from ICI an agreement specifically stating that, if ICI should subsequently become a “foreign state,” it would not exercise the special removal rights that such states possess. We can properly demand that parties exercise prudent foresight; we cannot require clairvoyance.
II.
The AEGIS Action.
Two of TETCO’s excess insurers, Associated Electric & Gas Insurance Services, Ltd. (AEGIS) and National Surety Corp. (NS), filed this action in the United States District *1247Court for the Eastern District of Pennsylvania against TETCO, F & C, and TETCO’s other excess carriers, including ICI. Relying on ICI’s status as a defendant, the complaint alleged that jurisdiction was present based on 28 U.S.C. § 1330(a), which confers jurisdiction over a “civil action against a foreign state.”
In its initial brief on appeal, TETCO argued that this action was not in reality against a foreign state. TETCO contended that the “primary issue” test adopted in Employers Insurance of Wausau v. Crown Cork & Seal Co., supra, should be applied, that the realignment of the parties was therefore required, and that ICI should be realigned as a plaintiff. After such realignment, TETCO argued, jurisdiction under 28 U.S.C. § 1330(a) would be lacking because the action would not be one “against a foreign state.” TETCO Br. at 67-68 (emphasis added).
In response, the carriers did not argue that the “substantial conflict” test or any other lesser standard should be applied to determine whether ICI’s interests were adverse to those of the other carriers. Nor did the carriers even hint that there was any real conflict between ICI and the other carriers. Instead, the carriers contended that “[r]ea-lignment to test subject matter jurisdiction is not appropriate where jurisdiction is based on the FSIA. Rather, it is an antidote to artificial maneuvers by parties to create diversity jurisdiction.” Appellees’ Joint Br. at 66. Alternatively, the carriers argued that, if the parties were realigned, one of the following two realignments should be chosen: “TETCO as plaintiff and the Carriers as defendants” or “all Carriers plaintiffs and TETCO a defendant.” Id. at 66, 67. Tellingly, both of these realignments place all of the carriers, including ICI, on the same side.
In its initial unpublished opinion, the panel majority agreed with the carriers that realignment need not be considered. The panel described realignment as “a creature of diversity jurisprudence” and concluded that “application of realignment to Immunities Act jurisdiction would not serve any purpose.” Op. at 7. Now, however, the majority states:
[I]t is self-evident that Congress conditioned its conferral of jurisdiction on the substantive party alignment of any purported FSIA action. Thus we are obliged to ascertain the real adversity of interest between AEGIS and ICI in the AEGIS case and to realign them according to their substantive interests before recognizing § 1330 jurisdiction.
Maj.Op. # 1, at 1239. Nevertheless, the majority again reaches the conclusion that the district court had jurisdiction over the AEGIS action under 28 U.S.C. § 1330(a). The majority reasons that this provision requires a lesser degree of adversity than is needed in diversity cases. Rejecting the “primary issue” test that our court has adopted in diversity cases, the majority holds that no more than a “substantial conflict” is necessary and finds that that test is satisfied here. The majority bases this conclusion on (1) the fact that the AEGIS complaint sought, among other things, a declaration of the plaintiffs’ rights with respect to the carriers named as defendants, including ICI, and (2) a statement made by the carriers’ counsel at oral argument. Maj.Op. # 1, at 124H2. I disagree with this approach.
First, I question whether we should abandon the “primary issue” test simply because federal jurisdiction is invoked under 28 U.S.C. § 1330(a) rather than 28 U.S.C. § 1332(a)(1).- Particularly if the “substantial conflict” test can be satisfied with the type of showing that the majority finds sufficient, I fear that that test may permit the unwarranted evasion of federal jurisdictional requirements. Second, even if the “substantial conflict” test is to be applied, I am not willing to hold that a “substantial conflict” exists in this case based on the facts that the majority cites. Surely, a “substantial conflict” cannot be found solely because that the complaint requests a declaration of AEGIS’s and NS’s rights with respect to ICI. Nor do I think that we should base our decision solely on the remarks of the carriers’ attorney at oral argument. I certainly recognize, as the carriers’ attorney pointed out, that the interests of the primary carrier, F & C, might under some circumstances become adverse to those of the excess carriers and that the interests *1248of excess carriers at “different levels” might become adverse. The critical question here, however, is whether there was in fact at least a “substantial conflict” between, on the one hand, two particular excess carriers (AEGIS and NS) and, on the other hand, another particular excess carrier (ICI). This question cannot be decided without analyzing the actual terms of the relevant insurance contracts. The parties have never provided us with any such analysis, and I do not think that we should attempt to perform such analysis on our own at the panel rehearing stage. Therefore, at the very least, I think that a remand to the district court is needed so that an appropriate analysis can be undertaken and so that the disposition of this question can be based on facts rather than supposition.
III.
The F & C Action.
This action was filed by F & C in the United States District Court for the Northern District of Texas against TETCO, with jurisdiction based on diversity of citizenship. There is no question that the district court had jurisdiction with respect to this action, but it is now hotly disputed whether the excess insurance carriers were or could properly be made parties to this action. F & C did not name the excess insurers as parties— and F & C could not have named many of them without destroying federal jurisdiction, since they share common citizenship with TETCO. As noted, however, the excess carriers were named as parties in the Texas Eastern and AEGIS actions. After those cases had been consolidated with the F & C action and after TETCO’s jurisdictional challenges in the Texas Eastern and AEGIS actions had been rejected, TETCO filed counterclaims against the excess insurers in the F &C case, but TETCO never served the excess carriers with summonses, and many of them asserted the absence of personal jurisdiction as a defense. For the most part, however, it appears that the parties and the district court paid little if any attention to the question whether the excess insurers were parties in the F & C case as opposed to the other two consolidated cases.
It was not until TETCO petitioned for rehearing that the parties paid any significant attention to the question whether the excess insurers had been made parties in the F & C case. Then, after panel rehearing was granted, both sides advanced precisely the opposite of the arguments that one would have expected them to make when the counterclaims were filed. TETCO offered a long list of reasons why its own counterclaims were defective: the counterclaims were never served, and the excess insurers did not waive their objections to personal jurisdiction; the counterclaims were improper under Fed.R.Civ.P. 13(h) and, in any event, the district court never decided whether, in the exercise of its discretion, it would permit the excess insurers to be joined under that provision; and finally, since there was no independent federal jurisdictional basis for TETCO’s counterclaims against the excess insurers, the district court could not, under Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), exercise jurisdiction over them. The carriers responded with an equally lengthy list of reasons why the excess insurers had properly been made parties. Agreeing with the carriers, the majority rejects all of TETCO’s arguments. Among other things, the majority finds that the excess insurers waived their objections to personal jurisdiction by litigating in the district court, and the majority adopts a narrow (and, to my mind, questionable) interpretation of Finley.
I think it is inadvisable for the panel to delve into these questions at this juncture. For example, I would not, at the rehearing stage, decide whether the excess insurers participated in the F & C case (as opposed to the other two cases) so as to be deemed to have waived their objections to personal jurisdiction; this is a fact-bound question never addressed by the district court. Nor would I rush to decide whether, despite Finley, the district court could exercise subject matter jurisdiction over the counterclaims.
Beginning in September 1988, when the district court rejected TETCO’s jurisdictional challenges to the Texas Eastern and AEGIS actions, the proceedings in the three consolidated cases went forward on the premise that the court had jurisdiction in all three *1249actions. Hence, when the district court granted summary judgment against TETCO, it issued a single order bearing the multidis-trict litigation docket number assigned to all three consolidated eases. Since I believe that the district court lacked jurisdiction in two of those actions, I would vacate that order and remand the F & C case to the district court. The district court could then, in the first instance, rule on whatever arguments the parties chose to pursue. If necessary, the district court could also, in the first instance, decide the fact-bound question whether the excess insurers waived any objections to personal jurisdiction in the F & C case as a result of participating in it. Until the district court has ruled, however, I do not think that our court should consider the long list of questions — some highly artificial, some fact-bound, and some legally difficult — that the parties advanced with respect to these counterclaims after panel rehearing was granted.
. Under 28 U.S.C. § 1603(a) and (b), the term "foreign state” includes any entity
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3)which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.