Aenergy, S.A. v. Republic of Angl.

31 F.4th 119

AENERGY, S.A., Combined Cycle Power Plant Soyo, S.A., Plaintiffs-Appellants,

v.REPUBLIC OF ANGOLA, Ministry of Energy and Water of the Republic of Angola, Ministry of Finance of the Republic of Angola, Empresa Pública De Produção De Electricidade, EP, Empresa Nacional De Distribuição De Electricidade, General Electric Company, General Electric International, Inc., GE Capital EFS Financing, Inc., Defendants-Appellees.

Nos. 21-1510-cv (L)

21-1752 (Con)

August Term 2021, 21-1752

United States Court of Appeals, Second Circuit.

Argued: February 1, 2022

Decided: April 13, 2022

Vincent Levy (Gregory Dubinsky, Brian T. Goldman, on the brief), Holwell Shuster & Goldberg LLP, New York, NY, for Plaintiffs-Appellants.

Michael D. Ehrenstein (Latasha Johnson, on the brief), Ehrenstein Sager, Coral Gables, FL (Marc R. Rosen, Robert M. Tuchman, Kleinberg, Kaplan, Wolff & Cohen, P.C., New York, NY, on the brief), for Defendants-Appellees Republic of Angola, Ministry of Energy and Water of the Republic of Angola, Ministry of Finance of the Republic of Angola, Empresa Pública De Produção De Electricidade, EP, and Empresa Nacional De Distribuição De Electricidade.

Thomas H. Dupree, Jr. (Samuel Liversidge, Ilissa Samplin, Daniel Nowicki, on the brief), Gibson, Dunn & Crutcher LLP, Washington, DC, for General Electric Company, General Electric International, Inc., and GE Capital EFS Financing, Inc.

Before: Cabranes, Lynch, and Nardini, Circuit Judges.

José A. Cabranes, Circuit Judge:

Plaintiffs Aenergy, S.A., and Combined Cycle Power Plant Soyo, S.A. (together, "AE"), sue various Angolan Government entities (together, "Angola"), plus General Electric Co. and related entities (together, "GE"). AE alleges that Angola wrongfully cancelled AE's Angolan power plant contracts and seized its related property in violation of state and international law. It further alleges that GE interfered with its contracts and prospective business relations in violation of state law. This case presents two questions. The first is whether standard principles of forum non conveniens apply to AE's lawsuit brought pursuant to exceptions to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605.¹ We hold that they do. The second is whether the United States District Court for the Southern District of New York (John P. Cronan, Judge ) abused its discretion in dismissing AE's Complaint on forum non conveniens grounds. We hold that it did not. Accordingly, we AFFIRM the orders of the District Court.

I. BACKGROUND

"The factual recitation here, while primarily taken from the complaint, is supplemented with information from affidavits."² AE is an Angolan energy company owned by a Portuguese citizen, Ricardo Machado. Beginning in 2013, AE worked with GE to construct and service electricity-generating facilities in Angola. In August 2017, Angola³ awarded AE thirteen contracts totaling $1.1 billion. To pay, Angola⁴ secured a $1.1 billion credit facility from GE's affiliate,⁵ of which $644 million was disbursed in December 2017. The contracts required AE to provide power plant services and to sell Angola eight GE-manufactured turbines. Around the same time, AE entered into various service contracts with GE⁶ and bought 14 turbines from GE—six more than the eight turbines called for in the contracts with Angola.

GE mistakenly thought that 12 of these turbines would be promptly sold by AE to Angola. As a result, GE over-estimated the extent to which the $1.1 billion credit facility issued by its affiliate would be used to pay GE itself—an error with serious accounting consequences. While Angola considered AE's proposal on behalf of GE to amend the contracts to include 12 rather than eight turbines, Wilson da Costa—CEO of GE's Angola business—fabricated letters indicating that Angola had already approved the change, which he and Leslie Nelson—the head of GE's sub-Saharan Africa business—distributed to other GE employees. Angola⁷ subsequently rejected AE's proposed amendment to the contracts.

Several months later, da Costa presented the forged letters to Angolan officials, and GE subsequently maintained that the $644 million disbursement had in fact paid for 12 turbines, not eight as reflected in Angola's contracts with AE. As a result, on September 2, 2019, Angola—pointing to purported irregularities related to the four disputed turbines—terminated its contracts with AE in favor of contracting with GE directly. AE appealed this decision, and the record indicates that the Supreme Court of Angola has received briefing. On October 4, 2019, Angola initiated a civil suit in Luanda Provincial Court to restrain the four turbines. After holding an ex parte injunction hearing, the Luanda Provincial Court preliminarily restrained the turbines. AE alleges that Angola's state-owned electricity companies—not the court-designated custodian—now possess the turbines and have moved them to a power plant facility.

AE filed its Complaint in the District Court on May 7, 2020. AE alleges that Angola—which AE sues under exceptions to the Foreign Sovereign Immunities Act ("FSIA")⁸ —breached its contract and took AE's turbines in violation of New York state and international law. AE further alleges that GE tortiously interfered with AE's contracts and prospective business relations in violation of New York state law. After briefing, oral argument, and post-argument letter briefing, the District Court on May 19, 2021, conditionally dismissed AE's Complaint on forum non conveniens grounds, finding that the courts of Angola would be a more "convenient" forum.⁹ On June 24, 2021, the District Court removed the conditions, and dismissed the case. AE timely appealed both orders.

II. DISCUSSION

AE argues as to Angola that forum non conveniens dismissal is unavailable—or, at least, the standard for dismissal must be higher—where a claim is brought against a foreign state under an exception to the FSIA. AE argues as to GE, and alternatively as to Angola, that the District Court erred or "abused its discretion" in dismissing the Complaint on forum non conveniens grounds. We consider and reject each of AE's arguments.

A. Standard Forum Non Conveniens Principles Apply to AE's Claims Under the FSIA

AE argues that "[t]he FSIA does not permit application of standard [forum non conveniens ] doctrine."¹⁰ To support its position, AE points out that the FSIA is designed to give foreign states "some protection from the inconvenience of suit as a gesture of comity."¹¹ Because Congress has already considered convenience to foreign states, and "the central focus of the forum non conveniens inquiry is convenience,"¹² AE argues that applying forum non conveniens principles here would upset the careful balance struck by Congress.

We reject AE's argument. Initially, it is inconsistent with the principle articulated by the Supreme Court that the FSIA "does not appear to affect the traditional doctrine of forum non conveniens ."¹³ While we have not squarely decided the issue after briefing, our holdings have assumed that this principle is an accurate and valid statement of the law. We cited it explicitly in affirming a conditional dismissal on forum non conveniens grounds and noted that "[t]he traditional doctrine of forum non conveniens is still applicable in cases arising under the FSIA."¹⁴ And we implicitly assumed its validity in at least two other cases, where we found proper the forum non conveniens dismissal of complaints brought under an exception to the FSIA.¹⁵

This approach is sensible, as the principles underlying the forum non conveniens doctrine apply with equal weight—indeed, in some cases perhaps with greater weight—to lawsuits against foreign states. For example, it may be inconvenient for a foreign state to retain competent counsel, submit to pre-trial discovery, and produce its officials for trial in U.S. courts.¹⁶ While a United States jury may have little or no relation to disputes involving a foreign state,¹⁷ there may be a strong interest in resolving claims brought against a foreign state in that state's courts, particularly when the allegations relate to the state's domestic conduct.¹⁸ And litigation involving foreign states may require applying foreign law.¹⁹ These general principles, while not applicable to every lawsuit involving a foreign sovereign, suggest that the forum non conveniens doctrine remains useful in the FSIA context as a "tool that helps prevent this country's judicial system from becoming the courthouse to the world, or an international court of claims."²⁰

None of AE's arguments to the contrary are persuasive. Forum non conveniens does not require a case-by-case consideration of comity, and therefore is consistent with the FSIA's purpose in establishing a "comprehensive set of legal standards."²¹ The fact that the FSIA gave foreign states "some protection from the inconvenience of suit as a gesture of comity"²² does not suggest that Congress intended by statute to override the common law principles of forum non conveniens ,²³ as the doctrine counsels a broader inquiry into a venue's convenience for all parties and the public.²⁴ Nor does applying traditional forum non conveniens principles necessarily allow foreign sovereigns to "avoid accountability even where Congress dictated otherwise,"²⁵ as the availability of an adequate alternative forum is required for forum non conveniens dismissal.²⁶ Finally, Wiwa v. Royal Dutch Petroleum Co.²⁷ does not control here. In Wiwa, we held only that "suits should not be facilely dismissed ... unless the defendant has fully met the burden of showing that the [factors identified in Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ] tilt strongly in favor of trial in the foreign forum."²⁸ Wiwa thus does not suggest, much less support, AE's thesis that forum non conveniens has no place or a lesser place in FSIA cases.

B. The District Court Did Not Abuse Its Discretion in Dismissing AE's Complaint on Forum Non...