Those doing business with foreign governments would be wise to adhere to the dictate of caveat venditor: seller beware. Cross-border “government” contracting often involves doing business not directly with the sovereign itself, but rather with an enterprise created by, owned by and answerable to, but legally distinct from, the government. These state-owned entities abound in various sectors, including oil and gas, telecommunications, finance, healthcare and transportation, as well as sovereign wealth funds. While disputes may arise with those companies as in any commercial relationship, enforcing the terms of a contract with a state-owned enterprise or otherwise holding such an entity or its sovereign owner legally accountable can present special challenges.
The largest state-owned enterprises may have a presence and assets in various countries around the world, and thus can be subject to effective enforcement of court judgments or arbitral awards for breach of contract. But smaller state-owned companies may not do business outside their home countries, making it difficult, and often impractical, to sue them elsewhere. In those cases, jilted contractors may seek to recover against the sovereign itself, on the theory that the state enterprise is the agent or alter ego of the government. In the United States, however, that approach requires piercing a rather resilient sovereign veil, in some cases by showing that the government controls the company’s “day to day” operations.
In its May 17, 2016, decision in GSS Group LTD v. National Port Authority of Liberia and Republic of Liberia, No. 14-7041, the U.S. Court of Appeals for the D.C. Circuit added another wrinkle, holding that the government of Liberia could not be sued in the United States to enforce an arbitral award that was based on that government’s forcing its state-owned company to cancel a contract with a private firm. In contrast to decisions in prior cases, the court found that the government was acting as a regulator, not as a business principal, when it intervened to direct the actions of its company. The case thus serves as a reminder of the dual role that foreign sovereigns play with regard to offshore investments, and the importance of a proper risk-mitigation strategy.
State-Owned Enterprise as Alter Ego of the Sovereign: The Bancec Test
In determining whether a foreign government can be held liable for the acts of a state-owned enterprise in a U.S. court, the starting point is the Supreme Court’s 1983 decision in First National City Bank v. Banco Para el Comercio Exterior de Cuba (Bancec), 462 U.S. 611 (1983). In that case, the court held that “government instrumentalities established as juridical entities distinct and independent from their sovereign should ordinarily be treated as such.”1 It thus established, as a general rule, that a foreign government may not be sued in U.S. courts based on the actions of state-owned or state-created companies.2 At the same time, however, it recognized certain limited exceptions. First, it held that under traditional rules of agency, a foreign government can be liable for the acts of a state company when the company “is so extensively controlled by its owner that a relationship of principal and agent is created.”3 Second, it held that a foreign government can be made liable for a state company’s actions when failure to do so would “work fraud or injustice.”4
Courts have repeatedly addressed attempts to invoke the “extensive control” exception. In Transamerica Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 849-50 (D.C. Cir. 2000), the D.C. Circuit held that a principal-agent relationship would arise under the exception only if (1) the sovereign makes plain its desire for the instrumentality to act on the sovereign’s behalf; (2) the instrumentality agrees to so act; (3) the sovereign has final say over matters delegated to the instrumentality; and (4) the sovereign wields its power more directly than voting a majority of the instrumentality’s stock or choosing the instrumentality’s board of directors.5 The exception has been held not to apply even when the foreign government owns the entirety of the company’s stock;6 determines the appointment and removal of the company’s directors and officers;7 appoints its own officials to the company’s board;8 borrows or directs the use of the company’s funds;9 provides funding to the company;10 or makes major policy decisions for the company.11
To establish the exception and treat the company as an agent of the government, a plaintiff must demonstrate that the government exercised substantial day-to-day control over the ordinary business operations of the company.12 Relevant factors in this analysis include whether the government (1) uses the instrumentality’s property as its own; (2) ignores the instrumentality’s separate status or ordinary corporate formalities; (3) deprives the instrumentality of the independence from close political control that is generally enjoyed by government agencies; (4) requires the instrumentality to obtain approvals for ordinary business decisions from a political actor; and (5) issues policies or directives that cause the instrumentality to act directly on behalf of the government.13 Other courts have recognized different factors as relevant.14
For example, in McKesson Corporation v. Islamic Republic of Iran, 52 F.3d 346 (D.C. Cir. 1995), a U.S. company sued the Iranian government, claiming that the government, through its control of an Iranian dairy company in which the U.S. company had invested (pre-revolution), had deprived it of its interest in that company. Thus, the U.S. plaintiff’s claim rested on the theory that the dairy company was an agent and the Iranian government its principal. The D.C. Circuit agreed, finding that government agents, through their dominance of the dairy company’s board, had “dictated” that company’s “routine business decisions,” such as “declaring and paying dividends to shareholders and honoring the dairy’s contractual commitments” – as well as withholding dividends from the U.S. company – while Iran’s cabinet ministers “became involved in the decision-making process.”15 The court found that this “extensive involvement in the day-to-day operations” of the dairy company rendered that company the government’s agent.16
Government-Ordered Breach of Contract: GSS Ltd.
In GSS Ltd., the D.C. Circuit considered whether a foreign government’s instructing a state-owned company to cancel a contract demonstrated enough of a principal-agency relationship to trigger the “extensive control” exception. The plaintiff, GSS, had signed a contract with the National Port Authority of Liberia, a state-owned company, to build a container park at the port of Liberia’s capital, Monrovia, which had been seriously damaged in the country’s 1999-2003 civil war. For purposes of the GSS contract, the Port Authority had sought and obtained from Liberia’s transitional government an exemption from the usual requirement of open competitive bidding for public contracts. The contract then drew the scrutiny of the international commission that oversaw the transitional government, which directed the Port Authority to cancel the contract and undertake a competitive bidding process to replace it.
In response, GSS initiated international arbitration proceedings in London against the Port Authority, pursuant to an arbitration clause in the contract. The sole arbitrator found the Port Authority liable and issued an award for GSS in the amount of $44,347,260.
GSS then spent several years attempting to have the arbitral award enforced in U.S. courts. It first brought an enforcement action against the Port Authority. That attempt, however, was dismissed by the U.S. District Court for the District of Columbia and the D.C. Circuit for lack of personal jurisdiction. As the courts found, the Port Authority had no contact whatsoever with the District of Columbia or any other U.S. jurisdiction.
GSS then tried again in a new enforcement action, this time naming the Liberian government itself as a defendant and asserting that under Bancec, the government had such thorough control over the Port Authority that a principal-agent relationship existed, and thus the government could be held liable in U.S. courts for payment of the arbitral award. As GSS noted, the Port Authority was wholly owned by the Liberian government, its board of directors was primarily composed of government officials and individuals appointed by the president, the government had absorbed tens of millions of dollars of the Port Authority’s debts, and government officials had executed the agreement that replaced GSS’s canceled contract. Moreover, as GSS emphasized, it was the government’s compelling the Port Authority to cancel the contract with GSS that had given rise to the dispute.
The district court rejected GSS’s arguments and dismissed the action. On appeal, the D.C. Circuit made quick work of the majority of GSS’s “extensive control” theory. The court found that under a straightforward application of Transamerica Leasing, the government’s ownership of the Port Authority, appointment of its directors and absorption of its debts did not establish sufficient control.17
As to the government’s forcing the cancellation of the contract, however, the D.C. Circuit provided a more thorough analysis. It agreed that “[s]uperficially, GSS has a point,” as the government’s instructions “left the Port Authority with no discretion to ignore the cancellation order.”18 Thus, from one perspective, the sovereign had exercised complete control over a quintessentially commercial action: terminating a problematic vendor contract. In that sense, as GSS argued, the action seemed to satisfy the “day-to-day control” test courts have used to identify a principal-agent relationship for state enterprises.
But the court went on to observe that “a government can wield power not only ‘as shareholder’ but also as ‘regulator.’”19 The latter, the court found, was not consistent with a principal-agent relationship.20 As to the Port Authority, the court recounted that during the period when the contract was signed, Liberia was struggling to reverse a “history of government corruption and financial mismanagement,” and the criticism of the no-bid contract by the international commission and the transitional government was driven by this policy goal.21 Further, the court found that the stated bases of the government’s decision to require termination of the contract were its findings that (1) competitive bidding was mandated by the rules imposed by the international commission; (2) the asserted ground for the exemption to the competitive bidding process, and thus the award of the contract itself, were legally invalid; and (3) the contract did not materially contribute to compliance with the port’s international responsibilities.22 Thus, the court concluded that in ordering the cancellation of the contract, the government was acting in a sovereign, regulatory capacity, rather than treating the Port Authority as its agent in commercial activity.23
The D.C. Circuit’s decision in GSS can be contrasted with the Eleventh Circuit’s decision in S & Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d 1292 (11th Cir. 2000). In that case, a U.S. company entered into a contract to sell wheat to a corporation owned by the government of Yemen. The Yemeni company, apparently at the direction of the Yemeni Minister of Supply and Trade, breached the contract. The U.S. company then initiated arbitration, won an award against the Yemeni company and sought to enforce it in Alabama federal court against the Yemeni government, claiming that the Yemeni company was the government’s alter ego or agent. In evaluating that argument, the Eleventh Circuit noted that the Yemini minister had signed the contract and been directly involved in its negotiation, and that Yemen had failed to provide any evidence (such as articles of incorporation, documentation of board meetings, records of accounts in the company’s own name) to show that the company was an independent entity.24 In particular, the court observed that “by issuing direct orders to terminate the contract, the sovereign became more of a managing partner over” the company.25 It thus accepted the U.S. company’s argument, and found the arbitral award enforceable against the Yemeni government.26
The GSS decision also differs from the McKesson holding described above, in which the Iranian government’s influence over an Iranian business, including causing the business to withhold dividends from a U.S. shareholder, established that the business was the government’s agent. Although the Iranian government in that case was not responding to the mandate of an international body, it was, by the court’s own description, advancing the government’s policy agenda when it acted to harm the U.S. investor.27 The main distinction seems to be that the Liberian government in GSS (unlike the governments in S & Davis and McKesson) acted through a regulatory instruction under a previously articulated set of rules, rather than through informal means based on an ad hoc decision-making process.
GSS underlines the complex issues companies must address in attempting to hold foreign governments liable in U.S. courts for the acts of state-owned companies and instrumentalities, including through the enforcement of successful international arbitral awards. Even when the foreign sovereign creates, funds and governs the state enterprise, and even when it directs the enterprise to take a commercial action that harms the plaintiff company, it should not be assumed that the foreign government is an alternate source of recovery in case of a dispute. Whether the sovereign veil will be pierced depends on the details of the government’s control over the company, and possibly the nature of its involvement in the transaction.
The case also highlights the fact that a company transacting with a sovereign government (or a company it owns) is effectively doing business with its own regulator. The legal and financial risks entailed thus not only are commercial, but also involve the danger of adverse actions to enforce the law or regulations of the foreign jurisdiction. The ordinary means of recourse for such regulatory actions – and even the relatively unusual mechanisms permitted under U.S. foreign sovereign immunity law – may not be available.
Those doing business abroad with state-affiliated entities, particularly those that lack operations or assets in a jurisdiction with a reliable court system, should take this into account in evaluating the risk of the transaction. To address commercial risk, a company can:
- Evaluate the risks of the transaction with the legal framework for sovereigns in mind and mitigate the risk through pricing or commercial protections such as guarantees, letters of credit or the like.
- Ensure that the contract contains a dispute settlement clause allowing for arbitration or litigation in a neutral and reliable forum, with the state-owned company explicitly consenting to the jurisdiction of that forum and waiving any sovereign immunity defense to jurisdiction or enforcement.
- Investigate whether the state-owned company has a business presence or assets in the United States or another jurisdiction with a reliable and independent judicial system known for enforcing judgments and arbitral awards.
- If the state-owned company does not do business or hold assets in a pro-enforcement jurisdiction, investigate whether the government that owns it does. (Embassy or military property would generally not suffice.)
- If the government has assets in the United States, determine whether the sovereign controls the day-to-day activity of the entity. For example, do government officials (in their official capacity) sign the company’s contracts? Do they oversee decisions about specific investments or transactions? Does the government determine funding for specific company projects?
- If possible, obtain the government’s contractual guarantee of the company’s performance under the contract, its written confirmation that the company is acting at its direction and its explicit waiver of immunity for an action to enforce the guarantee.
As to the risk of adverse regulation, other steps would be appropriate:
- Structure the investment so as to take advantage of investment treaties the country may have entered into, particularly those that permit foreign investors to initiate arbitration claims against the host government for wrongful actions.
- Obtain written assurance from the government that relevant laws and regulations will not be modified or unfairly applied to the company’s detriment for the duration of the investment, such as through an investment agreement or stabilization agreement with an arbitral dispute resolution clause.
- Ensure that the company’s operations are compliant at all times with applicable regulations and licensing requirements, particularly those on which the company’s admission into the country is conditioned.
If the other options fail, consider another contractual or commercial risk mitigation device, such as a third-party (e.g., bank) guarantee, letter of credit, escrow arrangement or political risk insurance.
Doing business with foreign state-owned companies is not for those who are unduly risk averse. But a clear understanding of how such semi-sovereign entities can and cannot be held accountable is critical to effectively identifying and mitigating those risks.