*1 JAM, al., Appellants Budha Ismail et

INTERNATIONAL FINANCE

CORPORATION,

Appellee

No. 16-7051

United States Appeals, Court of

District of Columbia Circuit.

Argued February

Decided June Herz, DC,

Richard L. Washington, ar- gued appellants. the cause for With him on Simons, the briefs were Marco B. Wash- DC, ington, and Michelle C. Harrison. Deepak DC, Gupta, Washington, was on the brief for amicus curiae Daniel Bradlow in support of appellants.

Jennifer Green onwas the brief for ami- cus curiae Dr. Erica in support Gould appellants. Jr., Vasquez,

Francis A. Washington, DC, argued appellee. the cause for With him on Hyman. the brief was Maxwell J. *2 DC, IFC, Washington, Green, headquartered in and The Washington, T. Jeffrey for on the brief founded N. Munasifi were is an international Sena Bank for The curiae International It amicus countries. 1956 with over member al. in et Development, and Reconstruction to developing world loans the provides appellee. support cap- private that cannot command projects Articles, 3(i), Dec. art. Ill ital. IFC PILLARD, Judge, and Before: Circuit 117. The 1955, 7 U.S.T. 264 U.N.T.S. SILBERMAN, and Senior EDWARDS Gujarat million to Coastal IFC loaned $450 Judges. Circuit Limited, Pow- subsidiary of Tata Power er, company, Indian for construction Concurring opinion filed Circuit the Plant. operation of Tata Mundra and Judge PILLARD. agreement, with The loan accordance SILBERMAN, Judge: Senior Circuit prevent to and environ- policy social IFC’s nationals, Indian Appellants, group of Environmen- damage, included an mental a district decision dismiss- challenge court designed Plan tal and Social Action the Interna- complaint against their ing The communities. surrounding the protect (IFC) on Corporation Finance tional com- responsible was for recipient loan’s immune from the grounds IFC agreement, the but the IFC plying with needed The IFC loans provided their suit. authority and could supervisory retained Power construction the Tata Mundra for project. financial for the support revoke Gujarat, Appellants who Plant India. plant alleged—which the IFC live near Unfortunately, according to the IFC’s provisions deny—that .contrary not does by its internal audit conducted own om- agreement, plant caused the loan budsman, op- plant’s and construction damage surrounding to the communities. And comply the Plan. eration did with financially hold re- They wish to the IFC ombudsman was criticized injuries, agree their we for but sponsible inadequate supervision project. for opin- court the well-reasoned district with any steps to the IFC did not take Yet is immune to this suit ion that the IFC recipients compliance into force the loan Im- Organizations under the International the Plan. with Act, and waive munities did not Agreement. in its Articles of entire- appellants’ for this suit claims are almost nui- negligent on tort:

ly negligence, based I. however, do, sance, trespass. They and alleged party a related claim as third raise fishermen, farmers, a lo- Appellants are the social and en- contract beneficiaries of a trade union of government entity, cal Accord- vironmental terms of the contract. They way of that their fishworkers. assert immune is not ing appellants, the IFC power has been devastated life and, claims, statuto- these even it was plant.1 complaint pic- purchase freshwater neces- Appellants’ paints a dismal must elsewhere cooling system example, plant’s consumption.) plant ture. For sary because the for And sea, discharges kill- pollutipn thermal into transported coal-powered, be coal must rely ing marine life on which fishermen off convey- away open-air from nine miles on an intrusion into the for their income. Saltwater relocation, system. During coal dust groundwater—a plant’s construc- result of atmosphere disperse and ash into the longer use that farmers can no tion—means surrounding air. land and contaminate fact, (In villagers irrigation. for that water rily immunity, ereign entitled to it has immunity. waived E.g., 28 U.S.C. 1605(a)(2). immunity.

Attacking appellants make II. First, two related contentions. Atkinson *3 was wrong to conclude that when Con- Appellants swimming upriver; are both gress immunity tied the of international arguments of their run counter to our organizations to foreign sovereigns, it long-held precedent concerning the scope immunity meant the foreign sovereigns en- organization immunity of international joyed Instead, in 1945. according to appel- immunity charter-document waivers. lants, arguments who echo the pressed in itself, Atkinson The relies on lawmakers intended the International the immunity of organizations the Organizations (IOIA), rise or Immunities Act fall—like together—with two boats tied that provides organiza which international the scope of the sovereigns’ immunity. In enjoy immunity tions “shall the same words, other even assuming foreign sover- enjoyed by foreign govern ... as is suit eigns enjoyed immunity 1945, absolute if ments, to the such except extent that or that diminished, immunity as it has with ganizations may expressly waive their im the codification of the commercial activity munity purpose any proceedings for the of exception, Congress intended that interna- 22 any of terms contract.” U.S.C. organizations tional fare no better. 288a(b). The President determines is whether entitled such The problem with this argument—even immunity. 22 U.S.C. IFC has meritorious, we it thought which we do designated organiza an international been not—is that runs counter to Atkinson’s “privileges, exemptions, tion entitled to the holding, explicitly rejected which such an and immunities” conferred statute. evolving notion of organiza- 10,680, 7,647 Exec. 21 Reg. Order No. Fed. tion immunity. See 156 at F.3d 1341. We (Oct. 5,1956). Congress noted that anticipated possi- bility change immunity of a of interna- In response to the IFC’s of statu claim tional organizations, but explicitly delegat- IOIA, tory under appel entitlement ed the responsibility to the President boldly lants rather assert that Atkinson v. change—not effect that judiciary. Id. (D.C. Inter-Am. Dev. 156 1335 F.3d Morever, legislation, considering when 1998), leading Cir. our case on the immuni Congress rejected a commercial activities organizations of that exception—which exactly the evolution- statute, should not be followed. Atkinson ary step appellants wish to have adopt. us organizations held that foreign receive the As recognized, Id. the district court we immunity foreign governments that en recently saying reaffirmed that joyed passed, the time the IOIA was vigorous case “remains Circuit law.” “virtually immunity.” which was absolute Nyambal Fund, Monetary v. Int’l at 1340 (quoting Id. Verlinden B.V. v. Cen 277, 2014). Nigeria, Bank tral 461 U.S. of (1983)). 103 S.Ct. 76 L.Ed.2d Recognizing And that a frontal attack on At- holding not even if require diminished kinson’s an en banc decision, foreign governments of has been appellants argued next that we modified, can, should, subsequently particularly by precedential bypass its acceptance widespread impact and codification of the Supreme because Court has a “commercial activities exception” premise—that to sov- undermined its 1945 the speak scope to the abso- tervention does sovereigns was foreign

immunity of immunity. absolute). (or virtually lute event, holding of Atkinson— In sure, has said dicta the Court To be im- one characterizes the regardless how “ ‘consistently ... de that in courts munity foreign sovereigns 1945—was political the decisions ferred to given that international were of the Exec those particular, branches—in immunity by the IOIA unless it complete jurisdic to take Branch—on whether utive the President intervened. was waived or against foreign actions particular tion’ over noted, holding was reaf- And as we Austria Republic sovereigns....” Supreme Nyambal firmed in after appellants primarily Altmann, S.Ct. Court dicta on which 541 U.S. *4 Therefore, precedent we conclude our (2004) rely. 2240, 159 (quoting Verlin L.Ed.2d impassable appel- an barrier to stands as 1962). But den, 103 S.Ct. 461 U.S. at argument. lants’ first time, at that when practice, a matter of sued, sovereign was the foreign a ever III. sovereign request did Department State argu brings That us to the waiver only arguable exception immunity. Id. question no that the IFC ment. There is against ship in rem a a lawsuit involved In immunity for some claims. has waived Mexico; it by was possessed owned but not deed, charter, literally, would its read Republic against Mexico. See not a suit categorical a waiver.2 But seem to include 30, 65 S.Ct. Hoffman, v. 324 U.S. Mexico key interpreting case identical waiver our (1945). And, even L.Ed. 729 charter, in the Bank Men language World executive are correct the appellants (D.C. Bank, 717 F.2d 610 daro v. World in immu important an role played branch 1983), narrowly to language read that Cir. 1945, that nity does determinations only type type suit allow of the immu the absolute nature diminish plaintiff organiza that “would benefit the sovereigns enjoyed; although nity those term,” long v. Int’l tion over the Osseiran to the mecha Supreme Court dicta refers (D.C. Corp., 552 F.3d Cir. Fin. foreign 2009) conferring immunity on nism for at (citing 156 F.3d 618).3 Mendaro, Branch in- sovereigns in Executive Articles, 3(vi). provision art. That Agreement contains the fol- 2. The Articles of and effect in the United carries “full force lowing the Cor- provision, titled "Position of Finance Cor- States" under the International Regard poration to Judicial Process”: with 282g. poration Act. 22 U.S.C. may brought against Corpo- be Actions argue impermissi- Appellants that Mendaro competent jurisdic- a ration in court of case, bly overruled our earlier Lutcher S.A. a in which tion in the territories of member Develop Papel e v. Inter-American Celulose office, appoint- Corporation has an has Bank, 1967), (D.C. Cir. ment 382 F.2d 454 accepting agent purpose of ed an for the intervening Supreme Court or en without process, or notice of or has issued service rely Appellants on dicta in banc decision. shall, guaranteed actions or securities. No Lutcher, holding but its was that the Inter- however, per- brought by be members Development waived immuni American Bank acting deriving for or claims sons a of contract suit a debtor. 382 to breach property and assets of members. The expressly considered F.2d at 456-68. Mendaro shall, Corporation located and wheresoever Lutcher and declined to ex the rationale of held, all be immune from whomsoever holding to the suit before it. 717 tend its seizure, or execution forms of attachment Indeed, emerged test at 614-17. the Mendaro against delivery judgment before the of final part from Lutcher's discussion Corporation. language at issue indicated charter sure, it a that it strange ganization] To bit is would have to subject be itself to judiciary that determines when claim suit in to objec- order achieve its chartered organization; the international “benefits” tives.” at 615. Id. all, the when after eases come to us We have stretched that to in concept claim, organizations deny the and one of promissory clude claim estoppel, see think that the would

would be Osseiran, 552 840-41, F.3d at quasi- and a judge a better as to what claims benefit it unjust enrichment, contract claim of see judiciary. why Perhaps than the v. Vila Inter-Am. Invest. Corp., 570 F.3d Osseiran, Mendaro, when applying refers (D.C. 2009). 278-80 Cir. all But long-term goals, rather than immediate accepted claims we have grown have out of tactics. litigating business relations with companies outside But whether or not the test Mendaro (or an individual engaged directly outside using be better a term described in negotiations with organization).4 “benefit,” than different it is the Mendaro Compare Lutcher Papel S.A. Celulose e we are obliged apply. Ironically, criteria Dev. Inter-Am. 382 F.2d 454 applying the line of cases ended 1967) (finding waiver in suit debtors’ waiver to up tying commercial transac- agreement) Mendaro, loan enforce with tions, there superficial similarity so is a *5 611 (rejecting 717 F.2d at employee sexual appel- that the commercial activities test claim); harassment discrimination At urge lants would us to But whatev- accept. kinson, (rejecting gar 156 F.3d at 1336 scope of er the the commercial activities proceeding against organization nishment immunity, to that exception sovereign employee). than necessarily standard is broader test; if exception applied Mendaro that Appellants attempt to define “benefit” IFC, organization never re- would broadly. They more argue holding that immunity since are operations tain its sole- very IFC to the environmental and social “commercial,” i.e., does ly the IFC not put contract, in conditions conditions any “sovereign” undertake activities. formulated, which the IFC itself would goals. though ap- IFC’s benefit the Even The Mendaro test instead focused on pellants relationship had no commercial identifying those where the transactions (other than, allegedly, with the IFC negotia- would not into party other enter party agree- third beneficiaries of the contract loan organization tions or with the ab- they ment’s requirements), See 717 contend (inferring sent waiver. F.2d at 617 “necessary will benefit from lawsuit waiver insofar as to enable IFC their functions”). they are [organization] attempting to fulfill because to hold its stated mission its own provided examples: suits IFC its and to debtors, creditors, bondholders, compliance processes. They argue and “those that ob- plaintiffs “community required potential taining support” [or- other to whom is a beneficiaries, "vulnerability party qualified where to suit contributes to the lants as third [organization's] opera- address, effectiveness of the point they we do not were not a Lutcher, 382 F.2d at 456. tions.” Accordingly, necessary negotiating party. in- ferring with this case stands at odds present Appellants party do a third benefi- Mendaro, i.e., reasoning in that Mendaro claim, which, claims, ciary unlike their other negotiated implies parties waiver when the principles We sounds of contract law. have background organi- with the of international previously found the distinction between con- immunity. zation and non-contract See tract claims relevant. Vila, appel- 570 F.3d at 280 n.3. even if But note separately case. I write suggest that control this project, and IFC part have left the law that those decisions unlikely support communities will be immunity in organizations’ amenable to if the IFC is not projects IFC both cases were perplexing state. believe to enforce the re- ability Appellants’ suit. decided, may and our circuit wish wrongly protect that the IFC surround- quirement them. to revisit as central to the IFC’s ing communities is ability partner’s a commercial mission as Organizations Im 1. The International that the IFC requirement to enforce the 79-291, (IOIA), Act Pub L. No. munities electricity its bill. pay (1945) (codified at 22 U.S.C. Stat. organi seq.), grants 288 et distinction drew another But Mendaro enjoyed the same “as is zations and those that that survive between claims 2(b). When by foreign governments.” Id. internal implicate claims that don’t. Those the IOIA in for Congress enacted of an international operations “virtually im enjoyed absolute eign states claims aris suspect because especially are long Department as the munity,” so State ancillary operations, of core ing out requested on their behalf. Ver transactions, threaten the business Nigeria, B.V. v. Central Bank linden organization. Ac policy discretion 480, 486, 103 S.Ct. 461 U.S. (Williams, J., Vila, cord 286-89 (1983). President Eisenhower L.Ed.2d 81 dissenting). designated the IFC as entitled to immuni appel- applies That notion here. Should the IOIA in 1956. See Exec. every loan permitted, lants’ suit' be (Oct. 10,680, 7,647 Reg. 21 Fed. Order No. developing projects makes to fund 1956). the courts have Congress and subject of a suit could be the countries recognized foreign governments’ since Appellee’s suggestion Washington.5 limited, immunity is more as described *6 open would be does floodgates Immunities Act. 28 Foreign Sovereign Finally, if the IFC’s exaggeration. seem an 1604-05; Argen §§ Republic U.S.C. see of report were to be used compliance internal Weltover, 504 U.S. 112 S.Ct. tina v. IFC, against a claim we to buttress (1992). took a 119 L.Ed.2d 394 We to inter- strong create a disincentive wrong turn in Atkinson when we read the using an internal re- organizations national a grant organizations international IOIA to though appellants even process. view So is, now, static, by immunity absolute that convince us that the term “benefit” by enjoyed “as is not at all the same a misnomer—its claim something of substantially foreign governments,” but thought of as a “bene- some sense can be broader. Mendaro test. fit”—it fails the incorporates existing a statute law When Accordingly, the district court decision is reference, incorporation generally by affirmed. dynamic, not As the in- treated as static: So ordered. develops, its role in the corporated law keeps up. Atkinson itself referring statute PILLARD, concurring: Judge, Circuit acknowledged that a “statute correctly Mendaro, subject generally adopts refers to agree [that] that Atkinson circuit, subject,” including “all the in this the law on binding which remain law the doctrine of forum non conveniens. appellee’s alternative 5. We need not reach argument may be dismissed that this case gan’s amendments and modifications of the law 1983 exercise of authority section 1 subsequent immunity INTERPOL, to the time the to withhold reference stat from by ute followed President was enacted.” Atkinson Inter-Amer Obama’s 2009 resto- immunity of the ration after Development ican INTERPOL F.3d York). 1998) opened liaison office in omitted); New Noth- (emphasis Cir. ing suggests about section 1 Encanto, Co., Congress that Hatch see El Inc. v. Chile framed intended it to (10th 2016). be the 1161, 1164 exclusive means which an organiza- international foreign sovereign The IOIA references immunity tion’s might be determined to be immunity, we ap- but Atkinson did not less than absolute. dynamic incorpo- ply the familiar rule of The inference we drew from section in ration because we IOIA thought another particularly Atkinson seems strained be- provision Congress that showed intended cause it assumes that Congress chose an to be Section 1 reference static. of indirect and freezing obscure route to in- IOIA the President authorizes to “with- organizations’ ternational immunity over a any hold or such withdraw [interna- direct and obvious one. If Congress intend- em- organization or its officers or tional] grant ed to ployees any privileges, exemptions, unchanging (subject absolute immunity provided and immunities for” the IOIA. presidential power to recognize language IOIA 1. We read that to mean organization-specific it exceptions) could Congress intended President simply have It might express- said so. have forward, ability, going alone to have the ly organizations’ tied international immuni- adjust organizations’ immuni- enjoyed to that by foreign governments ty from where it as of stood the IOIA’s Or, date of enactment. even enactment better, might have avoided cross-refer- presidential was, power 1341. That we altogether by stating ence that internation- thought, exclusive of shift in interna- al organizations’ immunity is absolute. As might tional organizations’ it happens, original House version of be wrought developments the law that, just did providing IOIA interna- foreign sovereign to which the organizations “immunity tional from suit IOIA refers. every judicial form process.” H.R. read, however, Correctly section 1 mere- (as introduced, Cong, 79th Oct. *7 ly empowers the organ- President make Comm, 1945; Ways referred to H. on and function-specific ization- and exemptions Means), rejected but the Senate that as “a otherwise-applicable immunity rules. broad,” 12,531 Cong. little too 91 Rec. says It may that the President “withhold (1945), even as it retained the absolute or organiza- withdraw from such immunity language provisions in granting singular—“or tion”—note its officers property of organizations international employees any exemp- of the privileges, search, immunity from confiscation and tions, provided and immunities” otherwise 2(c), §§ See IOIA 6. In of taxation. lieu by (emphasis for IOIA. 1 IOIA add- language, House version’s broad the Sen- ed). 1 Section thus Presi- empowers the adopted of ate the current formulation sec- organiza- 2(b), dent to back an roll international provides tion which or- immunity on organization-specific tion’s ganizations immunity ... as is “same See, Wilcox, e.g., Digest basis. R. enjoyed by governments.” Elizabeth foreign H.R. Comm, (as 4489, Cong, reported by United States Practice International 79th S. of (2009) (describing Finance, 18,1945). Law 405 President Rea- on Dec. 710 Atkinson. See Exec. Order from suit under Department of the view

The considered (Oct. 23, Atkinson, 10,405 11,059, Reg. State, to before 27 Fed. harking back No. or- 1962); of international on Lakes that the see also Convention Great 10, 1954, was not frozen Fisheries, Can.-U.S., IOIA ganizations Sept. 1945, developments follows as of but the IOIA nor our U.S.T. 2836. Neither sovereign immunity under foreign law of explain why nations interpreting cases letter, then-Legal In the FSIA. contracts or other- collectively breach that, by opined Roberts Owen Adviser unlawfully through organizations wise act FSIA, ... international or- “virtue immunity in our courts when enjoy should jurisdic- subject to the aré now ganizations immunized conduct would not be the same of their com- respect courts in tion of our acting a nation on directly committed B. from Roberts activities.” Letter mercial its own. Adviser, Owen, Department Legal U.S. I would Were not bound Counsel, Clark, State, D. General Leroy im organizations’ hold Opportunity Commis- Equal Employment as the munity under the IOIA is same (June 24, 1980), reprinted, in Marian sion by foreign Ac immunity enjoyed states. Nash, Contemporary L. Practice of Nokalva, European cord OSS Inc. v. Relating to International United States (3d Agency, 617 F.3d 762-64 Space (1980). Law, Int’l L. 917-18 74 Am. J. 2010) (declining to follow Atkinson Cir. Department’s interpre- Although the State that restricted holding binding is not on the tation of the IOIA FSIA, including in the its com codified court, Department’s involvement activity applies to inter exception, mercial extra of the IOIA lends its view drafting IOIA). under the national 79-1203, at 7 Rep. H.R. No. weight. See (1945) “pre- the draft bill as (referring to Atkinson's, compounded error is also Department”); the State see pared under the involving certain suits Alvarez-Machain, 542 U.S. Sosa v. In Mendaro doctrine. Mendaro World n.21, 124 159 L.Ed.2d 718 S.Ct. pare that courts should we decided (2004) Depart- (citing a letter of the State organization’s appar- an international back encouraging Legal ment’s Adviser immunity from suit whenever ent waiver of weight to the Exec- “give courts to serious yield the waiver would no “cor- we believe may Branch’s view” in cases utive organization. responding benefit” to the foreign policy). affect (D.C. 1983); see 717 F.2d Cir. dynamically link Reading the IOIA Corp., v. Int’l Fin. Osseiran immunity to that of their organizations’ 2009) (holding organization’s contrary makes member states sense. immunity effective facially broad waiver of appears to adopted in Atkinson view we and claims types plaintiffs as to states, subject to under the com- allow suit that “would benefit the over FSIA, activity exception of the mercial *8 term”). lacks a long That doctrine immu- carry on commercial activities with to legal foundation and is awkward sound organizations. nity through international I by precedent, were I not bound apply; Thus, subject government the Canadian reject would it. disputes in courts for to suit United States here, undisputed It IOIA arising from its commercial activities waived, 288a(b), 22 may U.S.C. be Fishery Lakes Commis- but the Great the IFC’s majority recognizes and Can- sion—of which the United States categori- seem to include a immune charter “would are the members—is ada sole Maj. n.2; Op. cal waiver.” 706 & see IFC operations” Bank’s “internal in Mendaro 6, Agreement Articles of May art. would not “appreciably advance the Bank’s 7 U.S.T. ability perform U.N.T.S. 118. Half its functions.” Id. at 618- omitted). century ago, a Agreement (emphasis we read the words, In other establishing the Inter-American Develop assumes that business counter- (IADB) parties ment Bank will unwilling to effectuate a be broad to transact with organization waiver of the Bank’s immunity. See Lutch if they lack judicial it, er A. Papel against S. Celulose e recourse Inter-Ameri but that mak- ing employees’ Development legal rights can unenforceable 1967) J.). against organization such an (Burger, will not affect IFC’s their willingness Articles of to work Agreement, which there. We use the same thus facially held that a broad language waiver of an as did the IADB in organization’s Luteher, immunity should be read not appear would to waive the IFC’s employee allow claims. immunity here. reasoning Under the Luteher, IFC, like the IADB in that The “corresponding benefit” doctrine case, may be sued in United States court. calls on courts second-guess internation- al organizations’ own waiver decisions and But Luteher was not our last word. As to treat a inapplicable waiver as unless it just noted, we in decided Mendaro to hon- bring organization a “corre- or an organization’s “facially sponding benefit”—presumably one offset- broad immunity” only waiver of insofar as ting the amenability burden of to suit. The doing provided so a “corresponding bene- majority acknowledges that “it is a bit fit” to the organization. at strange” that judicia- Mendaro calls on the thought 617. it appropriate We to look to ry to re-determine an international organi- the “interrelationship between the func- zation’s own Op. waiver calculus. tions” of the international agree that the organization itself inis underlying “the purposes of international position better than we are to know what immunities” to cabin a charter document’s But, is in its institutional interests. where- immunity waiver. Id. at 615. The member my colleagues point to the fact that “the states, Mendaro, opined we in “could cases come to us when the have intended to waive the Bank’s immuni- deny claim,” id., I would be inclined to debtors, creditors, from suits its think that organizations’ assessments of bondholders, potential and those other their own long-term goals are more reli- plaintiffs to whom the Bank would have to ably reflected their poli- charters and subject itself to suit in order to achieve its cies—here, in the broad waiver included objectives.” chartered Id. We decided the IFC’s Articles of Agreement—than in waiver did not apply to the claim of Men- litigation their positions defending against daro, a former Bank employee challenging pending claims. termination, her because recognizing em- entirely It is not why clear we have ployment claims had no “corresponding particular drawn the line pursuant we have benefit” for the Bank. Id. at 612-14. Why Mendaro. are suits a consul distinguishable tant, investor, We saw Mendaro as potential corporate and a Allowing Luteher. the debtor’s organization’s claims borrower an international interest, directly Luteher “would Bank in aid the but suits employees and their borrowers,” attracting responsible dependents whereas not? Compare, e.g., Vila v. In *9 complying Investment, with the governing law Corp., ter-American 570 F.3d 2009) accountability to the com- legal of (permit- benefits 279-82 serve, con- the IFC consultant); Osseiran, munities seeks ting by suit a treating the waiver in its Arti- tends that by poten- suit a (permitting at 840-41 as effective here would Agreement cles of Lutcher, investor); F.2d at 459-60 tial floodgate litigation of in United open a borrower), corporate by suit (permitting argument That has it back- States courts. with, Atkinson, 156 F.3d at 1338-39 e.g., majority to persuaded The IFC wards: seeking former wife (barring by suit anticipates flood it litigation stem a wages); of husband’s garnishment former in the immunity IFC’s because Mendaro, (barring at 618-19 suit Agreement opened own Articles asserting a sex employee a terminated gate. claim). and discrimination harassment for odd perceived The need Mendaro’s charter-doc- to construe Our cases seem had, would not have arisen we approach immunity waivers to allow suits ument to confer read the IOIA back likely to be only by parties commercial organizations the same on international substan- by parties or with repeat players, enjoyed by foreign govern- immunity as is opposite But bargaining power. tial that, immunity to- ments—i.e. restrictive doing make more sense: Entities would governed by the FSIA. As day, would be organi- with international regular business observes, majority Op. at into zations can write waivers applied cases in which we have Mendaro See, organizations. with the their contracts immunity- are not to hold that claims (con- Nokalva, F.3d at 759 e.g., OSS remarkably like cases that barred look developer authorizing software tract clause proceed would be allowed to under Agency in state European Space to sue The activity exception. commercial FSIA’s Jersey). Sophis- and federal courts New we held to be non-immunized— activities that fail to bar- ticated commercial actors creditors, “debtors, [and] such as suits surely entitled for such terms are less gain bondholders,” Mendaro, F.2d at from broad waivers to benefit based on commercial transactions “suits takings of torts or who lacked than victims affecting organ- world” with the outside bargaining opportunity, unsophisti- “ability operate in the market- ization’s anticipate and parties unlikely cated Osseiran, 552 F.3d at place,” immunity bar. bargain around an unjust enrichment claims commercial successfully argued here that it The IFC Vila, lending specialists, 570 F.3d at enjoy “corresponding benefit” no just like the kinds of claims 279-82—seem immunity waiver. The local entities the com- permitted that would be under this con- brought and residents that suit activity should have exception. mercial We effect here to the IFC’s .giving tend that result, Mendaro’s achieved via Corporation’s advance the test, waiver would by recog- “corresponding benefit” but organizational goals. requires The “IFC scope that the hitched the nizing IOIA funding community support’ ‘broad before immunity to organizations’ power Mundra projects” like the Tata foreign governments that of may hesitate plant, body and “local communities of law FSIA. There is a time-tested appellants high-risk project,” to host a that delineates its con- under the FSIA contend, “if.they activity that the can commercial tours—including know its promises exception. pattern apply- its and standards and of decisions ignore own may approximate Br. some of the they Appellants ing will have no recourse.” occurred had in- directly addressing the results that would have at 48-49. Without *10 subject ternational been but Mendaro FSIA, begs impor- other questions

tant that assimilation of IOIA

immunity to the FSIA would resolve. separate

Our efforts chart a course misguided

under the IOIA were from the

start, tangle doctrinal has only

deepened light amorphous waiv-

er-curbing developed doctrine has un- Mendaro.

der believe that full court

should revisit both Atkinson and

in an appropriate case. But because those binding precedent

decisions remain in our

circuit, I concur. al.,

DL, Appellees et COLUMBIA, OF

DISTRICT

Municipal Corporation, al., Appellants

No. 16-7076 Appeals,

United Court of States

District Columbia Circuit.

Argued March

Decided June