You should be able to reach a conclusion by relying on approximately six to eight cases (though you may cite more) and law review articles, in addition to the text of the Foreign Sovereign Immunities Act itself.
- Your memo should be approximately 7 to 10 double-spaced pages in length.
- Submit the assignment anonymously to the assignment drop box on TWEN no later than the beginning of class on Nov. 7.
To:
From:
Re:
Date:
Daniel Rodnos, a partner in your law firm, has asked you to research an issue presented in an international contract dispute that he is handling. Your client is Alpha Ltd. (Alpha) a stock corporation incorporated and doing business in Taral, a new nation state that seceded from the former Soviet Union by declaring its independence in 1992. Taral’s status as an independent nation has been recognized by many countries, including the United States. In contrast to the United States where natural resources are not owned by the government, the government of Taral owns all of the country’s natural resources, including its oil and gas deposits in certain areas of Taral, both on land and offshore. The state of Taral owns 51% of Alpha’s stock.
General counsel for Alpha has provided the following information regarding the dispute: six months ago, Alpha entered into a contract with Lodo, Inc. (Lodo). Lodo is a company incorporated and doing business in Gotham City, Columbia,[1] and is engaged in the construction of oilrigs. After lengthy negotiations in Columbia, the parties agreed that Lodo would construct and sell ten oilrigs to Alpha. The contract calls for delivery and installation of the oilrigs at designated locations off the coast of Taral during the month of December. Alpha agreed to pay the total amount due under the contract, $12.5 million, via irrevocable letter of credit to be established within three months after execution of the contract. The contract designated Gotham City Bank in Gotham City as the financial institution through which the letter of credit was to be made payable.
Alpha has not established the letter of credit, and does not plan on doing so in the future. Alpha explains that it found a third party who is willing to construct and install the oilrigs at a substantially lower price. Last week, Alpha informed Lodo that it is canceling the agreement, although Lodo has already begun to perform. In response, Lodo has threatened to sue Alpha in Columbia for breach of contract. It is clear from these facts that Lodo would prevail if this contract dispute were litigated on its merits, and general counsel for Alpha anticipates that Lodo will commence litigation within days. Mr. Rodnos advises the general counsel that the only defense on which Alpha could possibly rely in such litigation would be the Foreign Sovereign Immunities Act.
Mr. Rodnos wants you to prepare a memorandum in which you discuss and decide whether the Foreign Sovereign Immunities Act would provide your client with immunity from the jurisdiction of the U.S. courts. In preparing your memorandum, indicate avenues for further factual inquiry, if more facts are needed. You should be able to reach a conclusion by relying on approximately six to eight cases (though you may cite more) and law review articles, in addition to the text of the Act itself. Mr. Rodnos does not need you to research or write about breach of contract, minimum contacts or personal jurisdiction issues.
[1] For the purposes of this exercise assume that Gotham City is in the state of Columbia, and is the 51
st state of the United States. It is under the jurisdiction of the United States Twelfth Circuit Court of Appeals. (This is a fictitious jurisdiction).