Gulf Resources America, Inc. and Gulf Resources Corporation v. Republic of the Congo

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2004 Decided June 8, 2004
No. 03-7118
GULF RESOURCES AMERICA, INC. AND
GULF RESOURCES CORPORATION,
APPELLANTS
v.
REPUBLIC OF THE CONGO,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 98cv02978)
Stuart H. Newberger argued the cause for appellants.
With him on the brief were Clifton S. Elgarten, Dana C.
Contratto, and Beth Nolan.
Michael R. Lazerwitz argued the cause and filed the brief
for appellee.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Before: E DWARDS, SENTELLE and TATEL , Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS .
EDWARDS, Circuit Judge: The Foreign Sovereign Immuni-
ties Act (‘‘FSIA’’), 28 U.S.C. §§ 1602-1611 (2000), includes a
provision pursuant to which foreign states may waive their
sovereign immunity from suit in the courts of the United
States. See id. § 1605(a)(1). This case involves the applica-
bility of that provision to a contract dispute involving plain-
tiffs-appellants Gulf Resources Corporation (‘‘Gulf’’), a Pana-
manian corporation with its primary place of business in
Beirut, Lebanon, and Gulf Resources America, Inc. (‘‘Gulf
America’’), a wholly owned subsidiary of Gulf with its princi-
pal places of business in Washington, D.C. and Los Angeles,
and defendant-appellee the Republic of the Congo (‘‘Congo’’).
(Throughout this opinion, Gulf and Gulf America are referred
to collectively as ‘‘Gulf’’ or ‘‘appellant.’’)
The dispute here arises out of the sale and resale of in-kind
oil royalties owed to Congo by a subsidiary of an Italian oil
conglomerate extracting oil from Congolese oil fields. At the
heart of the dispute are several written agreements pursuant
to which Congo sold certain of the royalty oil owed to Congo
by the Italian producer to Gulf and Gulf’s U.S. business
partner. Acting through its business partner, Gulf agreed to
sell the Congolese royalty oil back to the Italian producer at
market prices. Gulf paid Congo in advance for the oil that it
purchased. The Italian company was to pay Gulf as the oil
was produced. When it had paid Gulf for just over a quarter
of the oil that Gulf had purchased from Congo, the Italian
producer, allegedly following instructions from Congo, redi-
rected to Congo the payments due to Gulf. Thus, Gulf
complains that Congo received payments owed to Gulf from
the Italian producer. In essence, Gulf alleges that Congo
received double payment for nearly three quarters of the
royalty oil that Congo sold to Gulf: Congo was paid once in
advance by Gulf and then again by the Italian producer.
Gulf filed suit in District Court alleging causes of action in
contract and tort (including conversion and interference with
contract) against Congo. Gulf sought damages and an ac-

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counting. Congo moved to dismiss under Federal Rule of
Civil Procedure 12(b)(1) asserting sovereign immunity. Gulf
argued that the District Court should exercise jurisdiction
under FSIA’s waiver provision, § 1605(a)(1), or under the
second clause of the commercial activity exception,
§ 1605(a)(2). The District Court dismissed the complaint
without prejudice, rejecting Gulf’s several theories in support
of its waiver argument, as well as its argument in support of a
commercial activity exception. Gulf Resources Am. v. Repub-
lic of Congo, 276 F. Supp. 2d 20 (D.D.C. 2003).
We reverse the judgment of the District Court and remand
the case for further proceedings. We find that Congo con-
tractually waived sovereign immunity with respect to Gulf’s
claims in this case. Having waived sovereign immunity,
Congo lost its immunity from jurisdiction pursuant to 28
U.S.C. § 1605(a)(1). In light of this finding, we need not
address Gulf’s contention that Congo also lost immunity
under the commercial activity exception in FSIA.
I. BACKGROUND
A. The Original Purchase Agreement
In April 1993, a U.S. corporation, Occidental Congo Inc.
(‘‘Occidental’’), signed a Purchase Agreement with Congo,
pursuant to which Congo was to provide Occidental with 50
million barrels of ‘‘royalty oil’’ in exchange for $150 million
and Occidental’s assistance with an economic ‘‘structural ad-
justment program.’’ Purchase Agreement (Apr. 28, 1993),
reprinted in Joint Appendix (‘‘J.A.’’) 119-35. Agip Recherch-
es Congo (‘‘Agip’’), a subsidiary of Italian oil conglomerate
ENI SpAaan, and Elf Congo S.A., a subsidiary of French
conglomerate Elf Aquitaine, had previously agreed to pay the
royalty oil to the Congo in exchange for the right to operate
various Congolese oil fields. See id. Arts. 1.1-1.3, at 3-4, J.A.
121.
Several provisions of the Purchase Agreement are of par-
ticular relevance here. First, in Article 9, the parties explicit-
ly contemplated Occidental’s assignment of its oil interests.
That provision states:

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Occidental shall have the right to assign TTT its
interest in this Agreement without first obtaining
the approval of the Government provided that any
assignment to a third party other than to an affiliate
of Occidental shall require the prior written consent
of the Government which consent shall not be unrea-
sonably withheld. Any request for such consent shall
state the main terms of such assignment. Any such
assignment TTT shall be promptly notified to the
Government.
Id. Art. 9, at 8, J.A. 128. Second, the agreement contained an
explicit acknowledgment that the transactions contemplated
by it were commercial in nature. Id. Art. 10.1(j), at 10, J.A.
130. And it included an explicit waiver of sovereign immuni-
ty. Id. Finally, the agreement provided that all disputes
which could not be resolved amicably would be settled
through arbitration following the rules of the International
Chamber of Commerce in Paris, France. Id. Art. 11.1, at 10,
J.A. 130.
B. Amendment of the Purchase Agreement
In February 1994, Occidental and Congo amended the
Purchase Agreement. Amendment to Purchase Agreement
(Feb. 19, 1994) (‘‘Amendment’’), reprinted in J.A. 154-62. The
Amendment accomplished a number of things. It provided
that the royalty oil that Congo had agreed to provide to
Occidental would come entirely from various Agip operations,
eliminating Elf from the transaction. Id. Art. 2.1, at 1-2, J.A.
154-55. The Amendment referred to this newly designated
oil as ‘‘substitute oil.’’ Id. Arts. 1, 2.1, at 1-2, J.A. 154-55.
More significantly, the Amendment contained a provision in
which Congo ‘‘directed that Occidental assign to Gulf’’ the
right to take a specified percentage of the royalty oil ‘‘under
the Purchase AgreementTTTT’’ Id. Art. 9.2, at 7-8, J.A. 160-
61. The Amendment indicated that this assignment was a
consequence of the fact that Occidental informed Congo that
Gulf, as Occidental’s joint venture partner, was to undertake
the structural adjustment program that Occidental had

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agreed to perform pursuant to the Purchase Agreement. Id.
The Amendment also made clear that the waiver of sovereign
immunity, contained in the Purchase Agreement, together
with other warranty provisions, applied mutatis mutandis to
the substitute oil. Id. Art. 6.2, at 6, J.A. 159.
C. Implementation of the Amended Purchase Agreement
Four days after the Amendment was signed, Congo and
Occidental executed a one-page protocol, which stated: ‘‘Ref-
erence is made to the Amendment, dated 19 February 1994
(the ‘Amendment’), to the Purchase Agreement dated April
28, 1993, between the Government and Occidental.’’ Protocol
(Feb. 23, 1994) (February Protocol), reprinted in J.A. 174-75.
The Protocol clarified that, notwithstanding Article 9.2 of the
Amendment (pursuant to which Congo ‘‘directed that Occi-
dental assign to Gulf’’ the right to take a specified percentage
of the royalty oil ‘‘under the Purchase Agreement’’), Congo
and Occidental agreed that the portion of the identified
royalty oil delivered to Gulf would not be counted against the
50 million barrels that Congo had sold to Occidental. See id.,
J.A. 174. In addition to being signed by representatives of
Congo and Occidental, the Chairman of Gulf indicated, by his
signature, that Gulf had ‘‘received and approved’’ the docu-
ment. Id., J.A. 175.
Several weeks later, on May 2, 1994, Congo and Gulf signed
their own protocol pertaining to the assignment of royalty oil
to Gulf. Protocol (May 5, 1994) (May Protocol), reprinted in
J.A. 176-79. This protocol explicitly referred to the Purchase
Agreement and Amendment signed by Congo and Occidental
and specified that ‘‘[t]he terms used in this Protocol shall
have the same meaning as defined in the Purchase Agree-
ment as amended, modified and supplemented by the Amend-
ment.’’ Id. at 1, J.A. 176. The protocol first expressly
acknowledged Occidental’s assignment of rights to Gulf, as
directed by Congo. Id. ¶ 1, at 1, J.A. 176. It then estab-
lished that Gulf’s rights under the assignment in the Amend-
ment equaled 10 million barrels of oil for which Gulf was to
pay Congo $30 million. Id. ¶¶ 1-2, at 1-2, J.A. 176-77. (Ap-

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proximately seven months later, Congo and Gulf agreed to
limit the sale to five million barrels for the first $15 million
paid by Gulf. See Complaint ¶ 25, at 9, J.A. 33.)
Also on May 2, 1994, Congo, Occidental, and Gulf signed a
letter agreement stating that Gulf would take over Occiden-
tal’s obligations to advise Congo on a structural adjustment
program. Id. ¶ 22, at 8, J.A. 32. In conjunction with the
letter agreement, Congo and Gulf executed a Structural
Adjustment Program Service Agreement stating ‘‘that Gulf
would provide the Congo with some consulting services relat-
ing to the financial management and implementation of the
Congo’s structural adjustment program.’’ Id. ‘‘The Congo
directed Occidental to work out with Gulf any compensation
due Gulf for Gulf’s performance of Occidental’s obligations
under the structural adjustment program.’’ Id. ¶ 23, at 9,
J.A. 33.
D. Agips’ Purchase of the Royalty Oil
Gulf’s complaint alleges that Congo directed Agip to begin
delivering royalty oil to Occidental and Gulf in August 1994.
Id. ¶ 38, at 13, J.A. 37. It also alleges that before the first
delivery was made, Occidental entered into an agreement on
behalf of itself and Gulf pursuant to which Agip agreed to buy
all of Occidental’s and Gulf’s shares of the Congo royalty oil
at ‘‘the monthly per barrel official price (‘prix fixe’) for Congo
oilTTTT’’ Id. ¶ 26, at 10, J.A. 34; see also Congo Crude Oil
Sales Agreement ¶ 5 (Aug. 18, 1994) (Agip Purchase Agree-
ment), reprinted in J.A. 180-84. Pursuant to the Agip Pur-
chase Agreement, Agip made payments for the oil to a bank
specified by Occidental. Id. ¶ 6, at 3, J.A. 182. According to
the complaint, Agip was aware of Gulf’s interest in the royalty
oil that Agip was purchasing and purposely paid Occidental
for Gulf’s share of the oil. Complaint ¶¶ 27, 36, J.A. 34, 36;
see also Memo from Pietro Cavanna, Senior Vice Pres., Agip
(Nov. 22, 1994), reprinted in J.A. 185-86. The royalty oil
owed to Occidental and Gulf was never physically separated
from the rest of the oil produced by Agip. See Agip Purchase
Agreement ¶ 1, at 1, J.A. 180. Thus, disposition of this

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royalty oil was accomplished entirely as a bookkeeping mat-
ter. See Complaint ¶ 11, at 4-5, J.A. 29-30.
Some 15 months after the Agip Purchase Agreement was
signed, Occidental and Gulf entered into an agreement re-
garding the disbursement of the proceeds from Agip’s pur-
chase of Gulf’s royalty oil. Agreement and Direction Regard-
ing Sales of Congo Royalty Oil and Disbursement of Proceeds
(Dec. 1, 1995) (Disbursement Agreement), reprinted in J.A.
188-94; see also Complaint ¶ 36, at 12, J.A. 36. The Dis-
bursement Agreement, which formalized the collection and
disbursement arrangement between Occidental and Gulf, was
necessitated by the fact that a Gulf subsidiary was merging
with Clark USA, Inc. (‘‘Clark’’), a U.S. company. See Decla-
ration of William C.F. Arnold, Pres., Gulf Resources Corpora-
tion, ¶ 27, at 11-12 (June 2, 1999), reprinted in J.A. 75-99.
Before entering into the merger agreement with Clark, Gulf
transferred to its subsidiary its interest in the outstanding
proceeds from the sale of the royalty oil to Agip. Id. ¶ 23, at
9-10, J.A. 83-84. In exchange, Clark was to give to Gulf
Clark stock. Id. In keeping with these arrangements, Gulf,
through the Disbursement Agreement, directed Occidental to
pay Gulf’s share of the Agip royalty oil proceeds to Clark.
Complaint ¶ 37, at 13, J.A. 37; Disbursement Agreement ¶ 2,
at 2-3, J.A. 189-90. According to the complaint, Gulf repre-
sentatives discussed the Gulf–Clark merger with the then-
President of the Congo, who supported the merger. Id. ¶ 33,
at 11, J.A. 35.
E. Congo’s Repurchase of Occidental’s Royalty Oil and
Ensuing Events
In March 1996, Congo and Occidental signed an accord and
satisfaction whereby Congo paid $215 million to buy back
Occidental’s remaining rights to the 50 million barrels that
Occidental purchased from Congo pursuant to the 1994 Pur-
chase Agreement. Complaint ¶ 40, at 13-14, J.A. 37-38; Ac-
cord and Satisfaction Agreement (Mar. 1, 1996) (Accord and
Satisfaction), reprinted in J.A. 195-205. In identifying the
royalty oil subject to repurchase by Congo, the Accord and
Satisfaction specifically excluded oil ‘‘assigned by Occidental

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to a third party pursuant to Section 9.2 of Amendment No. 1
dated 19 February 1994, to the Purchase Agreement.’’ Id.
Art. 1.9, at 2, J.A. 196. Moreover, in a separate article titled
‘‘No Effect on Rights or Obligations of Third Parties,’’ the
Accord and Satisfaction referenced Article 9.2’s assignment of
oil to Gulf and stated that the assignment was not affected by
the repurchase of Occidental’s oil by Congo. Accord and
Satisfaction Art. 7, at 6, J.A. 200; see also Complaint ¶ 42, at
14, J.A. 38. In other words, the Accord and Satisfaction did
not alter the arrangement between Congo and Gulf or in any
way diminish Gulf’s interest in the royalty oil purchased from
Congo. See Complaint ¶¶ 12, 43, at 5, 43, J.A. 29, 38.
The complaint alleges that in July 1996, several months
after the execution of the Accord and Satisfaction, ‘‘Congo
stopped delivery of Gulf and Clark’s royalty oil.’’ Complaint
¶ 39, at 13, J.A. 37. It elaborates: ‘‘Upon information and
belief, Agip entered into an agreement with the Congo where-
by the Congo directly sold the royalty oil to Agip.’’ Id. ¶ 44,
at 15, J.A. 39.
For purposes of its Rule 12(b)(1) motion, Congo did not
dispute any of the facts alleged by Gulf, but argued only that
the asserted facts were insufficient, as a matter of law, to
abrogate Congo’s sovereign immunity. Congo Br. at 3. The
District Court agreed, finding that Congo retained its sover-
eign immunity to suit with respect to the claims made by
Gulf. The District Court dismissed the complaint without
prejudice and Gulf appealed.
II. Analysis
FSIA sets forth a comprehensive framework for determin-
ing when a federal or state court may exercise jurisdiction
over a foreign state. Republic of Argentina v. Weltover, Inc.,
504 U.S. 607, 610 (1992). It authorizes ‘‘ ‘a foreign plaintiff to
sue a foreign sovereign in the courts of the United States,
provided the substantive requirements of the Act are satis-
fiedTTTT’ ’’ Id. at 619 (quoting Verlinden B.V. v. Cent. Bank
of Nigeria, 461 U.S. 480, 489 (1983)). And it grants federal

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district courts subject matter jurisdiction over in personam
civil claims with respect to which the defendant foreign state
is not entitled to immunity under 28 U.S.C. §§ 1605-1607. 28
U.S.C. § 1330(a) (2000).
A district court order granting a Rule 12(b)(1) motion to
dismiss on grounds of sovereign immunity is reviewed de
novo. Price v. Socialist People’s Libyan Arab Jamahiriya,
294 F.3d 82, 91 (D.C. Cir. 2002); McKesson HBOC, Inc. v.
Islamic Republic of Iran, 271 F.3d 1101, 1105 (D.C. Cir.
2001). ‘‘ ‘In accordance with the restrictive view of sovereign
immunity reflected in FSIA,’ the defendant bears the burden
of proving that the plaintiff’s allegations do not bring its case
within a statutory exception to immunity.’’ Phoenix Consult-
ing, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir.
2000) (quoting Transamerican S.S. Corp. v. Somali Demo-
cratic Republic, 767 F.2d 998, 1002 (D.C. Cir. 1985)). ‘‘If,’’ as
in this case, ‘‘the defendant challenges only the legal sufficien-
cy of the plaintiff’s jurisdictional allegations, then the TTT
court should take the plaintiff’s factual allegations as true and
determine whether they bring the case within any of the
exceptions to immunity invoked by the plaintiff.’’ Phoenix
Consulting, 216 F.3d at 40. Applying these standards, we
hold that Gulf’s allegations are sufficient to bring this case
within the statutory exception to immunity under FSIA
§ 1605(a)(1).
A. Article 10.1(j) of the Purchase Agreement Applies to
Gulf
Section 1605(a)(1) provides that ‘‘[a] foreign state shall not
be immune from the jurisdiction of courts of the United
States TTT in any case TTT in which the foreign state has
waived its immunity either explicitly or by implicationTTTT’’
28 U.S.C. § 1605(a)(1). Congo does not dispute that Article
10.1(j) of the original Purchase Agreement contains an explic-
it waiver of sovereign immunity. Rather, Congo principally
contends that this waiver does not apply to Gulf, because Gulf
was not a party to the original Purchase Agreement. See
Congo Br. at 28, 29-30. This argument fails.

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It is true that Gulf was not a signatory to the original
Purchase Agreement. However, under the 1994 Amendment,
Gulf reached an explicit agreement with Congo for the pur-
chase of royalty oil, the sale of which was clearly set within
the framework of the original Purchase Agreement. In other
words, pursuant to the 1994 Amendment, Gulf was incorpo-
rated into and made a beneficiary of and participant in the
Purchase Agreement. This conclusion is inescapable on the
record before us.
First, Congo and Occidental clearly anticipated the possible
addition of new participants in the sale of the royalty oil and
drafted the Purchase Agreement to allow for such additions.
Indeed, the Purchase Agreement explicitly states that Occi-
dental’s rights are transferrable. Purchase Agreement Art.
9, at 8, J.A. 128. The anticipated addition of participants was
realized in the 1994 Amendment when Congo ‘‘directed that
Occidental assign to Gulf the right (a) to lift twenty five
percent (25%) of the Royalty Oil under the Purchase Agree-
ment TTT and (b) to receive seventy five percent (75%) of the
royalties paid in cash to Occidental during the six months
notice period for the election to take Royalty Oil in kind, as
provided in Article 3.1 of this Amendment.’’ Amendment Art.
9.2, at 8-9, J.A. 160-61. Moreover, the terms of the Amend-
ment make it clear that the understandings reached therein
were to be treated as part of the Purchase Agreement. Thus,
the Amendment is entitled ‘‘Amendment to Purchase Agree-
ment’’ and it plainly states that ‘‘the term ‘Agreement’ when
used in the Purchase Agreement shall mean the Purchase
Agreement as amended, modified and supplemented by this
AmendmentTTTT’’ Id. Art. 1, at 1, J.A. 154. Finally, the
Amendment makes it clear that the waiver of sovereign
immunity contained in Article 10.1(j) of the Purchase Agree-
ment ‘‘shall apply mutatis mutandis to the Substitute Oil, the
fields from which the Substitute Oil is produced, and the
contracts, conventions, and establishment agreements applica-
ble to such fields.’’ Id. Art. 6.2, at 6, J.A. 159 (making all but
two of the warranty provisions of the Purchase Agreement
applicable, mutatis mutandis, to the substitute oil described
in the Amendment).

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The protocols implementing the amended Purchase Agree-
ment contain no limitations suggesting that Gulf is not enti-
tled to the full benefit of the amended Purchase Agreement.
The first protocol, to which Gulf’s Chairman affixed his
signature as proof that Gulf had received and approved it,
simply made clear that the oil Congo assigned to Gulf in the
amended Purchase Agreement (a percentage of the royalty or
substitute oil removed from specified fields) did not count
against the total number of barrels that Occidental was
entitled to collect under the Purchase Agreement. February
Protocol, J.A. 174. The second protocol, signed by Gulf and
Congo, established the total amount of oil, in barrels, to which
Gulf was entitled as a result of its assigned right to collect a
percentage of the royalty or substitute oil produced at the
specified fields. May Protocol, ¶ 1, at 1, J.A. 176. It also set
the total amount that Gulf owed Congo in consideration for
that oil. Id. ¶ 2, at 1-2, J.A. 176-77.
Moreover, the protocols belie any suggestion that they are
self-contained agreements separate from the amended Pur-
chase Agreement. Both protocols introduce the substantive
matters contained therein with an explicit reference the
Amendment and the Purchase Agreement. February Proto-
col, J.A. 174; May Protocol, at 1, J.A. 176. In addition to
referencing the preceding agreements, the second protocol
states that ‘‘[t]he terms used in this Protocol shall have the
same meaning as defined in the Purchase Agreement as
amended, modified and supplemented by the Amendment.’’
Id. at 1, J.A. 176. Finally, it is clear that the protocols would
be devoid of content if read apart from the amended Purchase
Agreement. This is because they do no more than para-
phrase Article 9.2 of the Amendment – i.e., the assignment
article – and then simply clarify certain details regarding that
assignment.
Additional and explicit confirmation of Gulf’s status as a
participant in and beneficiary of the amended Purchase
Agreement is found in the Accord and Satisfaction pursuant
to which Congo bought back the royalty oil purchased by
Occidental. Article 7 of that agreement states:

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No provision of this Agreement shall be deemed or
interpreted to apply to limit or affect the rights or
obligations of any third parties with respect to
agreements between such third parties and the Con-
go, including, without limitation, the third party
referred to in Article 9.2 of Amendment No. 1 to the
Purchase Agreement.
Accord and Satisfaction Art. 7, at 6, J.A. 200. Congo thus
recognized that Gulf was a party with whom it had an
agreement that was defined and memorialized in the amended
Purchase Agreement.
B. The Nature of the Waiver Provided by Article 10.1(j)
The various agreements at issue here make clear that Gulf
is covered by the amended Purchase Agreement. The only
remaining question is whether Gulf’s claims fit within the
contours of the waiver contained in Article 10.1(j) of the
amended Purchase Agreement. They do.
Article 10.1(j) states:
The transactions contemplated by this Agreement
are commercial transactions, and the Government
shall not, by legislative or executive act or proceed-
ing, or otherwise, (i) take any action which would
alter or impair the rights of Occidental under this
Agreement, (ii) contest or defend or assert defenses
against TTT claims, if any, made by Occidental, based
in whole or in part upon the Government’s status as
a sovereign, or (iii) in any manner avail itself of TTT
any other benefits or protections of any nature
whatsoever which might otherwise be available to
the Government connected with the Government’s
status as a sovereign state in relation to this Agree-
ment.
Purchase Agreement Art. 10.1(j), at 10, J.A. 130. The parties
agree that, under subsection (ii), Congo waived sovereign
immunity with respect to Occidental. The dispute here turns
on the meaning of subsection (iii). Gulf argues that the plain

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terms of subsection (iii) cover Gulf’s claims, because Gulf’s
claims against Congo arise ‘‘in relation to’’ the Purchase
Agreement. Gulf Br. at 57-59; Reply Br. at 17-20. We
agree.
Subsection (iii) contains a waiver of sovereign immunity,
not, as Congo suggests, a waiver of some other, unspecified
and unidentifiable, defense. We cannot imagine a ‘‘benefit[ ]’’
or ‘‘protection[ ]’’ that is ‘‘connected with [Congo’s] status as a
sovereign state’’ that is not an assertion of sovereign immuni-
ty. Indeed, that is precisely the meaning that Congo gives
the phrase ‘‘the Government’s status as a sovereign state’’ in
subsection (ii). Congo Br. at 29. More significantly, Congo
suggests no other ‘‘benefit[ ]’’ or ‘‘protection[ ]’’ that is ‘‘con-
nected with the Government’s status as a sovereign state’’ to
which subsection (iii) might refer other than sovereign immu-
nity.
Congo asserts that subsection (ii), which waives sovereign
immunity with respect to Occidental, is superfluous if subsec-
tion (iii) waives sovereign immunity more generally. Conse-
quently, Congo argues, subsection (iii) cannot be read as a
waiver of Congo’s sovereign immunity with respect to Gulf’s
claims here. Congo Br. at 34. This argument proves too
much. Congo and Occidental were the original parties to the
Purchase Agreement. Therefore, as Gulf argues, subsection
(ii) logically, and not surprisingly, refers to these two parties
alone. See Reply Br. at 20. However, as the original Pur-
chase Agreement makes clear in explicitly providing for the
assignment of Occidental’s oil interests, Purchase Agreement
Art. 9, at 8, J.A. 128, Congo and Occidental contemplated that
other parties might later be brought into the Agreement.
Subsection (iii) anticipates the addition of other investors,
such as Gulf, to the arrangement and affords these other
investors the same waiver of sovereign immunity given to
Occidental in subsection (ii). As Gulf argues, one can view
subsections (ii) and (iii) as covering, without overlap, two
different groups – Occidental and the rest of the universe,
respectively. Reply Br. at 19-20. In that case, subsection (ii)
is not superfluous.

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Even if subsection (ii) is seen as a subset of subsection (iii),
this is not fatal to the extension of Congo’s waiver to Gulf.
Though the parties need not have written subsection (ii) as a
subset of subsection (iii), a decision to do so in order to give
the benefit of a waiver to contemplated but as yet unidenti-
fied participants in the purchase of Congo’s royalty oil is
plausible. Congo explicitly acknowledges that the transac-
tions contemplated by the Purchase Agreement are ‘‘commer-
cial.’’ Purchase Agreement Art. 10.1(j), at 10, J.A. 130. This
being the case, it is hard to imagine any business entity
entering into a commercial agreement with a sovereign state
for millions of dollars if the state is unwilling to make itself
amenable to suit for breach of contract. In any event, the
main point is that Congo’s suggestion that subsection (iii)
refers to defenses other than sovereign immunity is specious.
Congo offers nothing to support this claim, the District Court
found nothing, and we can think of nothing. Subsection (iii)
must have meaning, and the only plausible meaning that has
been offered is the interpretation pressed by Gulf.
Finally, Congo argues that Gulf will gain more than was
given to Occidental under subsection (ii) if subsection (iii) is
read as a waiver of sovereign immunity. In particular, Congo
says that Occidental was required to arbitrate any disputes
under the Purchase Agreement before the International
Chamber of Commerce in France and that Gulf seeks to avoid
this duty. See Congo Br. at 31. It is true that ‘‘most courts
have refused to find an implicit waiver of immunity to suit in
American courts from a contract clause providing for arbitra-
tion in a country other than the United States.’’ Frolova v.
Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th
Cir. 1985), quoted in Creighton, Ltd. v. Gov’t of Qatar, 181
F.3d 118, 122 (D.C. Cir. 1999) (emphasis added). But in those
cases the relevant contract contained only an arbitration
provision. There was not, as there is here, a separate,
explicit waiver provision. Congo’s position seems to be that
the waiver provision should be read, in conjunction with the
arbitration provision, as waiving immunity to suit only in
France, but we reject that view for two reasons. First,
unlike the arbitration provision, the waiver provision makes

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no reference to any country, thus indicating a broader scope.
Second, Congo’s initial contract partner, Occidental, was an
American company. We cannot accept that Congo never
contemplated being sued in an American court even though it
explicitly waived sovereign immunity in a contract that it
signed with an American company. Our rejection of Congo’s
immunity claim does not, of course, address its argument that
Gulf is bound by the Purchase Agreement’s arbitration provi-
sion. Whether Gulf is obligated to arbitrate any claims
against Congo under the amended Purchase Agreement is a
matter the District Court can, in the first instance, resolve.
III. Conclusion
For the foregoing reasons, the judgment of the District
Court is reversed and the case remanded for further proceed-
ings.

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