Williams v. Federal Government of Nigeria
1:23-cv-07356
| S.D.N.Y. | Aug 12, 2024Background
- In 1986 plaintiff Dr. Louis Emovbira Williams was induced by a London solicitor to transfer US$6,520,190; the funds were received by the Central Bank of Nigeria (CBN) and later seized and plaintiff was imprisoned in Nigeria; he was pardoned in 1993.
- In 1993 the Federal Government of Nigeria (FGN) issued a "Fidelity Guarantee" directing return of specified dollar and naira sums with compound interest and containing broad language waiving defenses and immunities in proceedings "in any jurisdiction" to enforce that obligation.
- Plaintiff sued FGN and AG-FGN in the U.K. in 2016; defendants defaulted, the Commercial Court entered judgment in 2018 (relying on fraud grounds under U.K. law), and the U.K. court denied defendants’ attempt to set aside that judgment in 2023.
- Plaintiff filed in New York in 2023 to domesticate and enforce the U.K. judgments against Nigerian assets (including alleged bank accounts in New York); CBN and other U.S. defendants removed; FGN and AG-FGN moved to dismiss.
- Defendants argued lack of subject-matter jurisdiction under the FSIA (immunity and inapplicable exceptions), defective service under 28 U.S.C. §1608, lack of personal jurisdiction over AG-FGN, forum non conveniens, and that the U.K. judgments are not final/enforceable.
- The district court denied the motion to dismiss, finding (inter alia) that the Fidelity Guarantee contains a clear and unambiguous waiver of sovereign immunity under the FSIA, service under §1608(a)(3) was adequate, AG-FGN is sued in official capacity so FSIA waiver controls, forum non conveniens does not bar recognition, and the U.K. judgments are entitled to recognition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA bars suit or FGN waived immunity | Fidelity Guarantee contains broad, clear waiver of immunity for enforcement in "any jurisdiction" | U.K. ruling found no waiver under U.K. law; mention of U.K./English law and forum means no waiver for U.S. courts | Court: Waiver is clear and unambiguous under FSIA §1605(a)(1); U.K. decision on different law not preclusive here |
| Whether FSIA commercial or expropriation exceptions apply | Underlying fraud and seizure justify FSIA exceptions (commercial activity or expropriation) | Defendants say acts were sovereign/expropriatory and lacked U.S. nexus | Court: Commercial and expropriation exceptions do not apply (no relevant U.S. commercial act or direct U.S. effect; domestic takings rule defeats expropriation claim) |
| Whether service on foreign state complied with 28 U.S.C. §1608 | Service was effected under §1608(a)(3) by mail from NY clerk with signed receipts | Defendants claim a prior "special arrangement" (acceptance via Nigeria High Commission) required use of §1608(a)(1) | Court: No continuing special arrangement for this U.S. action; plaintiff’s proof of dispatch and signed delivery satisfies §1608(a)(3) |
| Whether AG-FGN must be dismissed for lack of personal jurisdiction or official immunity | Plaintiff need not plead New York long-arm jurisdiction to domesticate foreign judgment; AG-FGN sued in official capacity so is judgment debtor | Defendants argue no personal jurisdiction and common-law official immunity applies | Court: AG-FGN sued in official capacity is an organ of state; FSIA immunity applies but is waived by FGN’s waiver, so dismissal not warranted |
| Whether forum non conveniens or choice-of-forum bars New York recognition | Plaintiff seeks mechanical domestication in NY to execute on NY assets; U.K. forum selection does not preclude recognition elsewhere | Defendants: Fidelity Guarantee contemplates U.K. forum and U.K. is more appropriate; clause favors U.K. | Court: Article 53 limits nonrecognition to enumerated grounds; convenience alone is not a statutory basis to deny recognition; forum non conveniens not a proper basis to dismiss enforcement action here |
| Whether U.K. judgments are final and enforceable | U.K. judgments are final; defendants’ set-aside was denied | Defendants contend additional U.K. procedures (e.g., TPDO) are needed before NY recognition | Court: Second U.K. Judgment and Order establish finality for recognition purposes; defendants failed to show non-enforceability |
Key Cases Cited
- Kensington Int’l Ltd. v. Itoua, 505 F.3d 147 (2d Cir. 2007) (FSIA is sole source of jurisdiction over foreign states)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (U.S. 1989) (FSIA provides exclusive basis for jurisdiction over foreign states)
- Opati v. Republic of Sudan, 590 U.S. 418 (U.S. 2020) (FSIA baseline rule of sovereign immunity)
- Weltover, Inc. v. Republic of Argentina, 504 U.S. 607 (U.S. 1992) (definition and analysis of commercial activity under FSIA)
- Saudi Arabia v. Nelson, 507 U.S. 349 (U.S. 1993) (commercial-vs-sovereign distinction under FSIA)
- Transatlantic Shiffahrtskontor GmbH v. Shanghai Foreign Trade Corp., 204 F.3d 384 (2d Cir. 2000) (tension over whether enforcement actions look to judgment or underlying conduct for FSIA commercial exception)
- Capital Ventures Int’l v. Republic of Argentina, 552 F.3d 289 (2d Cir. 2009) (explicit waiver under FSIA can be broad and need not reference U.S.)
- Shaffer v. Heitner, 433 U.S. 186 (U.S. 1977) (quasi in rem jurisdiction principles relevant to enforcing preexisting debt against forum property)
- Hilton v. Guyot, 159 U.S. 113 (U.S. 1895) (recognition of foreign judgments grounded in comity)
- Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011) (forum non conveniens analysis in international enforcement contexts)