2013 COA 105
Colo. Ct. App.2013Background
- Kukkiwon is a South Korean organization promoting Taekwondo; plaintiffs United States Taekwondo Committee and U.S. Kukkiwon formed an overseas U.S. branch via contract.
- South Korea passed a law making Kukkiwon a 'special corporation' under government oversight of certain activities.
- Kukkiwon notified plaintiffs it unilaterally cancelled the contract; plaintiffs sued for breach.
- Kukkiwon (as the special corporation) moved to dismiss on FSIA immunity grounds and on act of state doctrine grounds.
- Trial of the contract claim and an evidentiary hearing on the motions were combined; the court denied both motions.
- Defendant appealed the FSIA ruling and the act of state ruling; proceedings stayed; court remanded with portions affirmed and others dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FSIA immunity ruling is immediately appealable | Plaintiffs contend the FSIA ruling should not be reviewed on an interlocutory appeal | Kukkiwon argues the FSIA ruling is appealable as a collateral-order final decision | FSIA immunity ruling is immediately appealable |
| Whether the act of state ruling is immediately appealable | Plaintiffs contend the act of state ruling should be reviewable on interlocutory appeal | Kukkiwon argues it is appealable collateral order or via pendent jurisdiction | Act of state ruling is not immediately appealable; no pendent jurisdiction exists |
| Whether the contract with plaintiffs constitutes 'commercial activity' under FSIA and has a 'direct effect' in the United States | Contractal arrangements created an overseas U.S. branch and revenue-creating activity | Dispute whether the contract was commercial activity or caused a direct effect in the U.S. | Contract constituted commercial activity with a direct effect in the United States |
Key Cases Cited
- W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Intl., 493 U.S. 400 (1990) (collateral order doctrine; immediate review of immunity rulings)
- Southway v. Central Bank of Nigeria, 198 F.3d 1210 (10th Cir.1999) (collateral order appealability of immunity rulings)
- Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020 (D.C.Cir.1997) (immunity rulings may be reviewed on interlocutory appeal under collateral order doctrine)
- Furlong v. Gardner, 956 P.2d 545 (Colo.1998) (interlocutory appeals permitted for certain immunity rulings; neutrality considerations)
- Weltover, Inc. v. Republic of Argentina, 504 U.S. 607 (1992) (defining 'commercial activity' and 'direct effect' under FSIA)