849 F.3d 1299
11th Cir.2017Background
- GDG (successor to Intelco) sued the Government of Belize in Florida for ~$10M in unpaid rent under two five-year telecommunications equipment leases (MLA) signed in 2002; Intelco had assigned payments to the International Bank of Miami for an upfront payment.
- The MLA was executed by Glenn Godfrey for Intelco and by Ralph Fonseca as Minister (Budget/Finance) purportedly for Belize; the MLA contained an express waiver of sovereign immunity, an exclusive Florida forum-selection clause, and a venue/inconvenient-forum waiver.
- Belize made 40 quarterly payments (totaling ~$13.5M) over the lease terms (2002–2008), retained the equipment, and stopped payments after 2008; Intelco’s rights were assigned to GDG in 2012.
- The district court initially dismissed on forum non conveniens/comity; this Court vacated and remanded to assess enforceability of the forum-selection clause per Atlantic Marine.
- On remand the district court held Fonseca had authority (applying Aquamar presumption), found the waiver and forum clause enforceable, and denied dismissal; Belize appealed.
Issues
| Issue | GDG's Argument | Belize's Argument | Held |
|---|---|---|---|
| Whether Belize waived sovereign immunity under the MLA | Waiver clause is explicit; payments and retention of equipment show Belize consented | Fonseca lacked authority to waive sovereign immunity; waiver ineffective | Court held Belize waived immunity by ratifying Fonseca’s acts through conduct (payments, retention) |
| Whether Fonseca had authority to bind Belize | Even if initial authority uncertain, Belize ratified his acts by performance | Aquamar presumption for ambassadors doesn’t apply to a minister; actual authority under Belize law required | Court declined Aquamar presumption here but found ratification under U.S. agency law; no need to decide actual authority initially |
| Scope of ratification — did payments ratify only payment obligations or entire contract (including waiver & forum clause)? | Payments and retention of benefits ratified the entire transaction, including waiver and forum clause | Payments only ratified payment obligations; contract void ab initio; reliance on Caribbean Court of Justice decision | Court applied Restatement rule: ratification of a transaction includes its entirety; payments + retention ratified waiver and forum clause |
| Whether forum non conveniens dismissal was required despite forum clause | Forum-selection clause is binding; Atlantic Marine requires giving it controlling weight | Local law and authority issues should affect enforceability; district court erred applying Aquamar | Court affirmed: because Belize ratified the MLA, forum clause is binding; district court did not abuse discretion in denying dismissal |
Key Cases Cited
- Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279 (11th Cir. 1999) (created presumption that an ambassador can waive sovereign immunity absent compelling evidence)
- Atlantic Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct. 568 (2013) (forum-selection clauses receive controlling weight in forum non conveniens analysis)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (FSIA provides the sole basis for obtaining jurisdiction over a foreign state in U.S. courts)
- GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024 (11th Cir. 2014) (prior panel vacated dismissal and remanded to assess enforceability of forum-selection clause per Atlantic Marine)