Overview
First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement. In July’s update, we first review some key decisions announced at the end of the Supreme Court’s October Term 2024 that provide important guidance on questions of international litigation. Second, we examine some of the Supreme Court’s recent calls for input by the Solicitor General on cases that are pending certiorari for possible review in October Term 2025. Lastly, we provide some updates on two other cases that are being closely watched in our space. As always, our team is happy to answer any questions on these issues.
Key Decisions from October Term 2024
The Supreme Court announced important decisions in June reflecting some major developments in the law of personal jurisdiction and in cross-border disputes against both sovereign and non-sovereign defendants. Taken together, these decisions seem to indicate an increased willingness to exercise personal jurisdiction over foreign defendants in federal courts, and in that context, an increased deference to congressional grants of jurisdiction over foreign defendants.
CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., No. 23-1201
In CC/Devas (Mauritius) Limited v. Antrix Corporation Limited, the court addressed whether federal courts can exercise personal jurisdiction over a foreign sovereign and its instrumentalities without conducting a “minimum contacts” analysis when an FSIA immunity exception applies and the defendant has been properly served – holding yes, that no such analysis is required in those circumstances.[1] Previously, courts (including the Ninth Circuit below here) had held that even though foreign states are not “persons” for due process purposes, their instrumentalities may be entitled to due process protections, and thus, would require a minimum contacts analysis for personal jurisdiction. This is no longer the case.
Both parties in this case are Indian companies.[2] The defendant, Antrix, is owned by the Indian government – meaning it is an instrumentality of India for FSIA purposes.[3] Devas, the plaintiff, was in a contractual relationship with Antrix that deteriorated, and Devas obtained an arbitration award for $562 million against Antrix in 2015.[4] Devas confirmed its arbitration award in France and the UK, and sought to do so in the United States.[5] Devas sued Antrix in the Western District of Washington, pleading jurisdiction under the arbitration exception to the FSIA.[6] The trial court confirmed the award, over Antrix’s objections that it was not subject to jurisdiction, and the Ninth Circuit reversed the trial court, holding that personal jurisdiction was lacking, because the FSIA also required a traditional minimum contacts analysis under the Fifth Amendment for foreign instrumentalities.[7]
The Supreme Court disagreed, holding that the FSIA does not require a minimum contacts analysis when an FSIA exception to sovereign immunity applies, and when the defendant – either sovereign or instrumentality – has been properly served. Applying a textual reading of 28 U.S.C. § 1330(b), the court reasoned that the FSIA is clear that personal jurisdiction over a foreign sovereign or instrumentality is “automatic” when an exception to immunity applies, and when service of process has been accomplished under the FSIA’s service-of-process rules.[8]
In so holding, the court dissected the Ninth Circuit’s contrary decision, remarking that the “Ninth Circuit based its contrary interpretation on a strange statutory argument and on the FSIA’s legislative history,” neither of which “overrides [the statute’s] plain meaning.”[9] The Ninth Circuit had relied upon a 1980 precedent that the Supreme Court noted to be erroneous, as it was based on a faulty interpretation of legislative history. In the court’s view, the FSIA’s legislative history shows that its immunity provisions – in that they require contacts with the United States – provide the basis for personal jurisdiction.[10]
The court’s holding in Devas is an important one for FSIA litigants, as it confirms that a plaintiff need not prove personal jurisdiction – but as the court recognized, proving FSIA jurisdiction itself usually involves showing a certain number of contacts with the United States. The court declined to answer other questions raised by Devas in its appeal – most notably, whether the Fifth Amendment’s Due Process Clause, independent of the FSIA, requires a showing of minimum contacts before a federal court can exercise personal jurisdiction over a company owned by a foreign sovereign.[11] The court deflected the same question in the next case we discuss below.
Fuld v. Palestine Liberation Organization, No. 24-20, No. 24-151
While again stopping short of addressing the full extent of personal jurisdiction over foreign defendants under the Fifth Amendment, the court announced its decision in Fuld v. Palestine Liberation Organization on June 20, holding that Congress can legislate for personal jurisdiction over foreign defendants when Congress “ties the assertion of jurisdiction . . . to conduct involving the United States and implicating sensitive foreign policy matters within the prerogative of the political branches.”[12] The statute at issue in Fuld, the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), amended the Anti-Terrorism Act to provide that the two specific defendants in this case—the Palestine Liberation Organization and the Palestinian Authority—consented to personal jurisdiction if they engaged in specified conduct – namely, overseas terrorism that injures or kills a United States national.[13]
The defendants argued that Congress’s jurisdictional grant was unlawful, because the Fifth Amendment (applicable to federal courts) requires the same analysis of minimum contacts as the Fourteenth Amendment (applicable to state courts, and mostly applicable to federal courts by Rule 4(k)).[14] Because Rule 4(k) applies the Fourteenth Amendment to personal jurisdiction in federal district courts, personal jurisdiction under the Fifth Amendment only arises “in a subset of federal cases, such as those in which personal jurisdiction is . . . authorized by a federal statute.”[15]
The court unanimously rejected the defendants’ argument, holding that personal jurisdiction under the Fifth Amendment is different than that under the Fourteenth Amendment, and that the “Fifth Amendment necessarily permits a more flexible jurisdictional inquiry commensurate with the federal government’s broader sovereign authority.”[16] But the court was clear that its holding did not address “the outer bounds” of the federal government’s ability to hale foreign defendants into US courts under the Fifth Amendment – meaning that the question of whether some (and what) amount of contacts are required by the Fifth Amendment remains open.[17] Instead, the court simply stated that “whatever the Fifth Amendment’s outer limits on the territorial jurisdiction of federal courts, the PSJVTA does not transgress them.”[18]
Especially when considered in light of CC/Devas, this case could have major implications for future congressional grants of personal jurisdiction, as it leaves the door open for Congress to make such grants in any situation where the assertion of jurisdiction is “tie[d] . . . to conduct that involves the United States and implicates sensitive foreign policy matters within the prerogative of the political branches.”[19] Many federal statutes could be read to fall into this category, and could ostensibly be amended to include grants of personal jurisdiction. These statutes include the Helms-Burton Act, which, as we have noted, has been somewhat revitalized by the Trump administration’s aggressive policy stances on Cuba.
The court’s holdings in CC/Devas and Fuld are already causing a stir in the lower courts, and the question of the Fifth Amendment’s full scope may be back before the high court soon. In Deutsche Telekom, A.G. v. Republic of India – a case about the same dispute that gave rise to CC/Devas – currently pending before the Court of Appeals for the DC Circuit, India is advancing the argument that constitutional due process protections apply to foreign states.[20] After the Supreme Court’s decisions in these cases, both parties submitted letters to the DC Circuit – with Deutsche Telecom saying Fuld forecloses India’s argument, and India saying that the question remains unresolved.[21]
Hungary v. Simon, No. 23-867
These decisions on personal jurisdiction follow other impactful decisions made by the court in this term that we have previously reviewed. Most notably, in Hungary v. Simon, the court held that the plaintiffs’ commingling theory of funds was not sufficiently “plausible” to allege the expropriation exception to sovereign immunity under the FSIA.[22] The plaintiffs in that case alleged that Hungary’s deposit of expropriated funds into a bank account that also funded its commercial activity in the United States was insufficient – because the plaintiffs needed to show “a tracing of some sort that explains the property’s lineage and how it found itself in the United States (or in the possession of a foreign sovereign agency that does commercial activity here).”[23]
But while the court held that the plaintiffs in this case had not done so, the court did not foreclose on a commingling theory altogether, explaining that a plaintiff can plead commercial activity and show such a “tracing,” for example, by “identifying an account within the United States that holds the proceeds from the sale of seized property” or showing that “soon after commingling funds from the sale of expropriated property, [the sovereign defendant] spent all the funds from the commingled account in the United States as part of its commercial activity here.”[24]
Calling the Solicitor General
As the term comes to a close, the Supreme Court has called for the views of the United States Solicitor General in connection with three certiorari petitions we have been closely monitoring. All three cases raise novel questions involving foreign sovereign immunity and/or the Helms-Burton Act.
Exxon Mobil Corp. v. Corporación CIMEX, S.A., No. 24-699
As previously reported, the Supreme Court has asked the Solicitor General for its views on Exxon’s pending petition in Exxon v. Corporación CIMEX, No. 24-6685. This Helms-Burton case uniquely involves claims brought directly against sovereign entities. Exxon alleges that Cuban entities—Corporación CIMEX, S.A. and Unión Cuba-Petróleo—are trafficking in property, including an oil refinery and service stations, that Exxon previously owned.
The Cuban entities have invoked sovereign immunity under the Foreign Sovereign Immunities Act (FSIA). After the DC Circuit ruled partially in Exxon’s favor on the applicability of the FSIA, the parties are now engaged in jurisdictional discovery. In parallel, Exxon has asked the Supreme Court to overturn the Eleventh Circuit’s determination that the FSIA applies to its claims. Citing the plain language of the statute and a dissenting opinion by Judge Randolph, Exxon argues that the Helms-Burton Act itself abrogates sovereign immunity, allowing claims against sovereign defendants without the need to establish a waiver under the FSIA—thus avoiding protracted litigation on this issue.[25]
Steptoe has had the privilege of representing Exxon throughout this matter alongside appellate counsel at Sullivan and Cromwell.
Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 24-983
Havana Docks is among the first wave of Helms-Burton Act cases to reach the appellate courts. The case involves allegations by the owner of a concession to a port in Havana, whose property was confiscated by the Cuban regime. That port is now used by several major cruise lines to discharge passengers. Havana Docks alleges that the cruise lines were “trafficking” in the confiscated property and are therefore liable under the Helms-Burton Act.
While the district court granted summary judgment on liability, the Eleventh Circuit reversed in a 2-1 decision.[26] Broadly, it found that Havana Docks’ concession expired in 2004 and, therefore, the alleged trafficking between 2016 and 2019 did not involve property in which Havana Docks held a claim. In dissent, Judge Brasher emphasized that the Act’s focus must be on the property interest at the time of confiscation—not on what might occur in the future. He noted that the majority’s interpretation was inconsistent with the Act’s remedial purpose and would exclude a range of protected property interests, including intellectual property and contingent rights.
Havana Docks has sought certiorari on this question. In urging the court to take the case, it emphasized that the Helms-Burton Act is a “central pillar” of US foreign policy and that the Eleventh Circuit’s narrow reading undermines the broad, deterrent effect Congress intended.[27] A bipartisan group of members of Congress submitted an amicus brief in support.[28] The cruise lines responded by arguing that the case is not cert-worthy, characterizing it as a discrete dispute over the scope of Havana Docks’ property interest.[29]
Wye Oak Technology, Inc. v. Republic of Iraq, No. 24-759
Finally, the Supreme Court has asked for the Solicitor General’s views in Wye Oak Technology, a case involving the application of the FSIA. In that case, a US defense contractor seeks to enforce a judgment against the Republic of Iraq for breach of a 2003 contract to rebuild and manage Iraq’s military vehicle fleet. The DC Circuit dismissed the case, holding that Iraq was immune under the FSIA and that the commercial activity exception to the FSIA—which broadly abrogates sovereign immunity for commercial activity with certain nexus to the United States—did not apply.
Wye Oak’s cert petition concerns two of the three clauses of the FSIA’s commercial activity exception.
The second clause abrogates immunity for lawsuits based on an “act performed in the United States in connection with a commercial activity of the foreign state elsewhere.” The DC Circuit held that only a foreign sovereign’s act can support jurisdiction—i.e., Wye Oak’s own acts could not form the basis for jurisdiction. Wye Oak argues that this ruling conflicts with a Fourth Circuit decision involving the same facts, which found the opposite before transferring the case to the DC District Court.
The third clause abrogates immunity for lawsuits based on an “act performed in the United States in connection with a commercial activity of the foreign state elsewhere” that causes a direct effect in the United States. The DC Circuit found that Iraq’s breach did not have a direct effect in the US because the contract did not “establish[] or necessarily contemplate performance in the United States.” Wye Oak contends that this ruling deepens a circuit split over whether a contract must specify or necessarily imply US performance to qualify as having a direct effect.[30]
Conclusion
The Solicitor General’s views on any of these cases will be revealing as each case in some way concerns the extent to which an American company can access the US courts to seek redress for wrongdoing by foreign actors.[31] The Trump administration has clearly advocated for a more protectionist foreign policy and has expressed a willingness by the US government to intervene and regulate foreign commercial relationships that in any way touch on the United States.[32] A broad reading of the Helms-Burton Act and the FSIA would appear to be consistent with these directives. But, will the Solicitor General’s office follow suit?
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In service of our clients and their cases, our team at Steptoe keeps a close watch on these developments from the Supreme Court and other federal courts on international disputes, judgment enforcement, and foreign sovereign litigation. If we can answer any questions or assist you in any way, please do not hesitate to get in touch with us.
Other Updates
Petersen Energia Inversora, S.A.U. v. Argentine Republic, No. 15-cv-2739 (S.D.N.Y.)
This long-standing case involves YPF S.A., the largest oil and gas company in Argentina, which is an instrumentality of the Argentine government, and against which a group of plaintiffs obtained a $16.1 billion judgment that has not been paid.[33] On June 30, the Southern District of New York ordered the turnover of Argentina’s shares in YPF, which are worth several billion dollars, in partial satisfaction of the unpaid judgment.[34] The court rejected arguments advanced by Argentina (and agreed with by the State Department) that a turnover order would contravene principles of international comity, and it did so in strong terms: “While the Republic demands that this court extend comity, it simultaneously refuses to make any effort to honor the court’s unstayed judgment. Comity is not a one-way street.”[35]
Argentina has said that it will appeal the order and seek a stay pending appeal, but it is unclear whether Argentina will be able to obtain such a stay, as it seems unlikely that Argentina would be willing to post security to do so. The case otherwise remains pending on separate appeal to the Second Circuit to address whether the judgment itself was properly awarded by the trial court, which held that jurisdiction over Argentina was proper under the FSIA’s commercial activity exception.[36]
Crystallex International Corp. v. Bolivarian Republic of Venezuela, No. 17-mc-151 (D. Del.)
As we have previously updated, the Crystallex matter remains of current, significant interest in our space. Last week, the special master overseeing the sale of Citgo’s parent company recommended a bidder to the court for the purchase of Citgo shares. The bidder is a subsidiary of mining company Gold Reserve, which has agreed to a $7.382 billion purchase price. According to the special master, the bid was the highest among those that met the court’s requirements for the bid. The bid is also significantly higher than a $3.806 billion revised stalking horse bid submitted earlier this year by an affiliate of Contrarian Capital Management.
A final hearing has been scheduled for August 18 on the sale processes. Some parties have filed objections to the recommendation, which will be considered at the August 18 hearing. The US Treasury Department must also greenlight the auction’s winner. The auction of Citgo shares is being conducted to satisfy billions of dollars in Venezuelan debt subject to unpaid judgments in the United States. The purchase price being higher than expected may result in more creditors being paid than were previously expected.
[1] CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., 605 U.S. __, 145 S. Ct 1572 (2025).
[2] Id. at 1576.
[3] Id. at 1577.
[4] Id. at 1577.
[5] Id.
[6] Id.
[7] Id. at 1579 (quotations omitted).
[8] Id. at 1580 (citing 28 U.S.C. § 1330(b)).
[9] Id. at 1581.
[10] Id. at 1582.
[11] Id.
[12] Fuld v. Palestine Liberation Organization, No. 24-20, 24-151, 606 U.S. ___, ___ S. Ct. ___ (2025).
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Appellant’s Brief at 51, Deutsche Telekom, A.G. v. Republic of India, No. 24-7081 (D.C. Cir. filed Sept. 16, 2024).
[21] Letter from Appellee, Id. (June 26, 2025); Response from Appellant, Id. (June 16, 2025).
[22] Hungary v. Simon, 604 U.S. __, 145 S. Ct. 480 (2025).
[23] Id. at 491.
[24] Id. at 492.
[25] See generally Petition, Exxon Mobil Corp. v. Corporación CIMEX, S.A., No. 24-699
[26] Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., 119 F. F4th 1276 (11th Cir. 2024).
[27] Petition at 16-24, Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 24-983
[28] Brief Amici Curiae of Representative Mario Diaz-Balart et al., Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 24-983
[29] See generally Brief in Opposition, Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 24-983
[30] Petition. at 3-4, Wye Oak Technology, Inc. v. Republic of Iraq, No. 24-759.
[31] To date, we are aware of only once instance where the United States Government has expressed its views on a Helms-Burton Case. The brief was jointly submitted by the Solicitor General’s Office and the State Department’s Office of Legal Counsel under the Biden Administration in a case before the Eleventh Circuit and concerned whether Helms-Burton Claims could be inherited.. See ECF No. 81, Garcia-Bengochea v. Carnival Corporation, No. 20-12960 (11th Cir. filed Apr. 11, 2022).
[32] https://www.whitehouse.gov/fact-sheets/2025/04/fact-sheet-president-donald-j-trump-declares-national-emergency-to-increase-our-competitive-edge-protect-our-sovereignty-and-strengthen-our-national-and-economic-security/
[33] Petersen Energia Inversora, S.A.U. v. Argentine Republic, No. 15-cv-2739, 2025 WL 1796392, at *3 (S.D.N.Y. June 30, 2025).
[34] Id. at *13.
[35] Id. at *12.
[36] Petersen Energia Inversora S.A.U. v. Argentine Republic, No. 23-7370 (2d Cir. 2023).
