Strategic Technologies Pte, Ltd. v. Republic of China (Taiwan), 051007 DCDC, 05-2311 (RMC)

Docket NºCivil Action 05-2311 (RMC)
Opinion JudgeROSEMARY M. COLLYER, District Judge.
Party NameSTRATEGIC TECHNOLOGIES PTE, LTD., Plaintiff, v. REPUBLIC OF CHINA (TAIWAN), Defendant.
Case DateMay 10, 2007
CourtUnited States District Courts, District of Columbia

STRATEGIC TECHNOLOGIES PTE, LTD., Plaintiff,

v.

REPUBLIC OF CHINA (TAIWAN), Defendant.

Civil Action No. 05-2311 (RMC)

United States District Court, District of Columbia.

May 10, 2007

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Strategic Technologies PTE, Ltd. ("Strategic Tech") filed this complaint seeking to enforce a judgment rendered in Singapore in favor of Strategic Tech and against the Republic of China on Taiwan (the "ROC"). The First Amended Complaint invokes jurisdiction under the implied-waiver and commercial-activities exceptions to sovereign immunity set forth in the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 ("FSIA"). The ROC filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the exceptions do not apply in this case. The Court agrees and will grant the ROC's motion to dismiss.

I. BACKGROUND

Strategic Tech is a Singapore limited liability company. Am. Compl. ¶ 2. Strategic Tech entered into a commercial contract ("Contract") with the ROC.1 See Pl.'s Mem. in Opp. to Def.'s Mot. to Dismiss ("Pl.'s Opp."), Raynes Decl. Ex. A, Contract. The Contract provided that any disputes between the parties would be submitted to arbitration2 and that the arbitration decision would be final and binding. Id., Contract ¶¶ 25.1 & 25.4. The Contract also provided that (1) if Strategic Tech initiated the arbitration, the dispute would be arbitrated in Taipei, ROC in accordance with ROC law and (2) if the ROC initiated the arbitration, the dispute would be arbitrated in Singapore in accordance with Singapore law. Id., Contract ¶ 25.2.

Apparently, a dispute arose between the parties, and Strategic Tech brought suit against the ROC in the High Court of the Republic of Singapore (the "Singapore Court").3 The Singapore Court rendered a judgment in favor of Strategic Tech and against the ROC as follows:

$1, 573, 510.40 (U.S. dollars) plus 6% interest per year from July 22, 1998 to the date of judgment;

The U.S. dollar equivalent of S$10, 693.00 (Singapore dollars) plus interest of 6% per year from July 22, 1998 to the date of judgment; and

The U.S. dollar equivalent of S$7, 425.00 (Singapore dollars), representing costs and disbursements.

Am. Compl. ¶ 17; see Compl. Ex. A, Judgment ("Judgment").4 By bringing suit here, Strategic Tech seeks to enforce the Judgment against the ROC in the United States.

II. LEGAL STANDARD

A court may dismiss a complaint for lack of subject matter jurisdiction only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C. 2002) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)).

Because subject matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). Moreover, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Instead, to determine whether it has jurisdiction over the claim, the court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

III. ANALYSIS

A foreign state is immune from the jurisdiction of U.S. courts unless the suit comes within an exception to FSIA. Saudi Arabia v. Nelson, 507 U.S. 349, 356 (1993); Creighton Ltd. v. Government of the State of Qatar, 181 F.3d 118, 122 (D.C. Cir. 1999). Strategic Tech claims that the implied-waiver exception and the commercial-activities exception apply. The ROC bears the burden of proving that Strategic Tech's allegations do not bring this case within an exception to immunity. See Gulf Res. of Am., Inc. v. Republic of the Congo, 370 F.3d 65, 70 (D.C. Cir. 2004) (burden of proof rests upon sovereign state claiming immunity).

A. Implied-Waiver Exception

Under FSIA, a foreign state is not immune from suit when it has waived such immunity. "A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case - (1) in which the foreign state has waived its immunity either explicitly or by implication. " 28 U.S.C. § 1605(a)(1) (emphasis added). The implied-waiver exception is construed narrowly - that is, the implied-waiver exception applies only where there is evidence that the foreign state actually intended to waive its immunity. Creighton, 181 F.3d at 122; accord Foremost-McKesson, Inc. v. Islamic Repbulic of Iran, 905 F.2d 438, 444 (D.C. Cir. 1990) ("courts rarely find that a nation has waived its sovereign immunity... without strong evidence that this is what the foreign state intended").

Strategic Tech claims that the ROC implicitly waived sovereign immunity by agreeing to arbitrate in Singapore in accordance with Singapore law. Even though there is some legislative history that supports this proposition, see H.R. Rep. No. 94-1487, at 18 (1976), reprinted in 1976 U.S.C.A.N. 6604, 6617 ("courts have found waivers in cases where a foreign state has agreed to arbitration in another country"), the D.C. Circuit has rejected this broad reading of the implied-waiver exception.

[I]f the language of the legislative history [were] applied literally, a foreign government would be subject to the United States's jurisdiction simply because it agreed to have the contract governed by another country's laws, or agreed to arbitrate in a country other than itself, even though the agreement made no reference to the United States. Such an interpretation of § 1605(a)(1)'s "implicit waiver" exception would vastly increase the jurisdiction of the federal courts over matters involving sensitive foreign relations.

Creighton, 181 F.3d at 122 (quoting Seetransport Wiking Trader v. Navimpex Centrala, 989 F.2d 572, 577 (2d Cir. 1993)). "[M]ost courts refuse to find an implicit waiver of immunity to suit in American courts from a contract clause providing for arbitration in a country other than the United States." Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir. 1985).

Creighton is substantially similar to this case. In Creighton, a foreign contractor sought to enforce an arbitration award against the government of Qatar. 181 F.3d at 120. An arbitration award had been rendered by the International Chamber of Commerce in Paris, France against Qatar. Id. The plaintiff contractor claimed that Qatar had implicitly waived sovereign immunity by agreeing...

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