UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PERIMETRAL ORIENTAL DE BOGOTÁ,
S.A.S.,
Petitioner,
v. Civil Action No. 25-1099 (JDB)
AGENCIA NACIONAL DE
INFRAESTRUCTURA, et al.,
Respondents.
MEMORANDUM OPINION
This dispute concerns a failed effort to build a road between the Colombian towns of Sopó
and Cáqueza. Colombia’s Agencia Nacional de Infraestructura (ANI) contracted with petitioner
Perimetral Oriental de Bogotá (POB), a private Colombian company, to construct, operate, and
maintain a 95-mile highway between the towns. After environmental concerns quickly scuttled
the project, POB commenced arbitration proceedings, alleging that ANI had breached its
obligations under their contract. An arbitral tribunal of the International Centre for Dispute
Resolution, sitting in Bogotá and applying Colombian law, sided with POB and awarded it
approximately 425 million dollars in damages.
A keen reader may now wonder: what brings a dispute over a Colombian road, between
two Colombian entities, governed by Colombian law, and arbitrated in Colombia to our shores?
The United States, Colombia, and 170 other nations are parties to the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York
Convention. See Contracting States, New York Arbitration Convention, available at https://www.
newyorkconvention.org/contracting-states [https://perma.cc/8BGH-J78T] (last visited Aug. 12,
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2026). The New York Convention “obligates each contracting state to ‘recognize [foreign] arbitral
awards as binding and enforce them in accordance with’ local procedural law.” GSS Grp. Ltd. v.
Nat’l Port Auth. (GSS Grp. I), 680 F.3d 805, 811 (D.C. Cir. 2012) (quoting The New York
Convention art. 3, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3). The
Federal Arbitration Act implements the Convention, vesting foreign arbitral awardees with a cause
of action for confirmation and enforcement of their awards, and United States federal courts with
jurisdiction over these actions. 9 U.S.C. §§ 203, 207.
POB—and its dispute with ANI—thus arrive in this District by way of the United States’
treaty obligations under the New York Convention. Invoking the Convention and the Federal
Arbitration Act which implements it,1 POB petitions this Court to confirm and enforce its arbitral
award against ANI within the United States. POB also names the Republic of Colombia as a
respondent, seeking to impute ANI’s liability onto the Colombian state.
ANI and Colombia move to dismiss POB’s petition, each disputing this Court’s jurisdiction
to confirm and enforce the award, albeit for different reasons. Colombia objects that as a sovereign
nation, it is presumptively immune from suit, and because ANI is legally distinct from Colombia,
imputing ANI’s waiver of sovereign immunity onto it is improper. ANI argues that because it has
no property in the United States, and both it and the underlying dispute have no nexus with the
United States, this Court lacks personal jurisdiction over it.
Only Colombia’s objection persuades. ANI is a separate juridical entity from Colombia,
so ANI’s agreement to arbitrate does not waive Colombia’s sovereign immunity, and the Court
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The United States and Colombia are also parties to the Inter-American Convention on International Commercial Arbitration, opened for signature Jan. 30, 1975, O.A.S.T.S. No. 42, 1438 U.N.T.S. 245 (the “Panama Convention”). The United States’ execution of the Panama Convention references its prior execution of the New York Convention, see 9 U.S.C. § 302, and the two treaties “are substantively identical for purposes of this case,” so the Court proceeds as the parties did, analyzing their dispute under the New York Convention. TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 933 (D.C. Cir. 2007).
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grants Colombia’s motion to dismiss. The Court denies ANI’s parallel motion, however, because
the Foreign Sovereign Immunities Act authorizes the Court to exercise personal jurisdiction over
ANI, and doing so does not violate ANI’s rights under the Due Process Clause of the Fifth
Amendment.
BACKGROUND
I. ANI
To improve infrastructure conditions within its borders, Colombia created a new public
entity responsible for initiating, managing, and maintaining public-private infrastructure
projects—the Agencia Nacional de Infraestructura (ANI). Decree 4165 of 2011 (“ANI Enabling
Act”) [ECF No. 1-5] art. 3. The legislative decree establishing ANI vested it with independent
juridical status and the accompanying powers to sue and be sued, enter contracts, and purchase,
hold, and sell property in its own name. See id. art. 1 (declaring ANI shall have “legal personality,
its own assets and administrative, financial and technical autonomy”). The decree also granted
ANI the power to manage its finances, obtain funding from several sources, both public and
private, and to expropriate property when necessary to execute its projects. Id. art. 4 ¶¶ 5–6, 8, 10;
id. art. 5 ¶¶ 3–4, 7.
By law, a board of directors, composed of both officials in Colombia’s national government
and independent members, governs ANI. Id. art. 8. Colombian officials held a majority of voting
board seats upon ANI’s creation, but in 2022 Colombia amended ANI’s enabling act, allotting a
majority of voting seats to independent members. See id. (decreeing that nine members of ANI’s
board shall have voting rights, five of whom are independent). Yet it is unclear whether this
amendment has had a practical effect on ANI’s governance. POB alleges that ANI’s five
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independent board seats are all vacant, citing the lack of biographies for independent board
members on ANI’s website. See Opp’n to Colombia Mot. [ECF No. 34] at 9.
As a public entity, ANI has a unique mix of obligations and powers. It must, for example,
comply with state contracting rules and submit to audits by Colombia’s comptroller, and its
leadership is subject to discipline by Colombia’s Inspector General. See Law 80 of 1993 [ECF
No. 1-14] art. 2.1(a); Decree 267 of 2000 [ECF No. 1-26] art. 4; Bulletin 1275 of 2024 [ECF No.
1-31] at 7. Along with these obligations come substantial contractual powers. ANI is empowered
to interpret, modify, or terminate certain of its contracts to avoid “serious affectation of the public
services.” Law 80 of 1993 art. 14(1). If it does so, “the recognition and payment order of the
compensation and indemnities to which the persons subject to such measures are entitled must be
carried out.” Id. ANI must also deduct taxes owed to the Colombian state by an arbitral awardee
from its payment to that awardee. ANI 2025 Pet. Resp. [ECF No. 34-5] at 16–17.
ANI’s finances, like the Colombian legal regime governing it, reflect ANI’s mixed publicprivate status. ANI avers that it maintains all its assets exclusively within Colombia. Decl. of
G.H. Rodríguez Chacón [ECF No. 16-3] ¶¶ 2–3. Those assets, and ANI’s liabilities, are formally
separate from those of the Colombian state. See ANI Enabling Act arts. 1, 5. Colombia may—
but is not obligated to—“recognize as public debt” judgments against ANI of up to 500 billion
pesos. Decree 2295 of 2023 [ECF No. 1-33] art. 65. As a practical matter, however, ANI often
depends on appropriations from Colombia’s Ministry of Finance and Public Credit to meet its
obligations to pay arbitral awards. See ANI 2025 Pet. Resp. at 15. Colombia also supplies 97%
of the capital for ANI’s infrastructure development projects, while ANI covers 92% of its operating
expenses from its own revenue sources. See Decree 1523 of 2024 [ECF No. 34-4] at 101.
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II. The Construction Contract and Ensuing Litigation
In line with its mission to improve infrastructure within Colombia, ANI sought bids from
private partners to design, build, and operate a toll road connecting two Colombian towns east of
Bogotá. Pet. [ECF No. 1] ¶¶ 17–18; Arbitral Award (“Award”) [ECF No. 2] ¶ 74. In 2014,
Perimetral Oriental de Bogotá (POB), a Colombian company, won the tender and contracted with
ANI to build the road. Pet. ¶¶ 4, 18–19. The partnership was short-lived. After natural springs
were discovered along the planned route, ANI suspended a portion of the project. See id. ¶¶ 22–
23. POB responded by invoking an international arbitration clause within their contract, alleging
that the suspension breached their agreement. Id. ¶¶ 15, 25.
POB and ANI arbitrated their contract dispute before a tribunal of the International Centre
for Dispute Resolution, sitting in Bogotá, Colombia. Id. ¶¶ 15, 25, 29. Colombia itself was neither
a party to the arbitration nor a signatory of the underlying contract. See id. ¶¶ 19, 25. After four
years of proceedings, the tribunal found ANI liable for breach of contract and awarded POB 1.33
trillion Colombian Pesos—approximately 425 million dollars. Id. ¶ 36. ANI has since requested
that the Colombian Council of State set the award aside. ANI Mot. [ECF No. 16-1] at 6. Although
that set-aside request remains pending, POB has begun efforts to collect its award, petitioning this
Court to confirm and enforce the award against both ANI and Colombia. Pet. ¶ 1.
ANI and Colombia have each moved to dismiss POB’s petition, contending that United
States district courts lack jurisdiction to confirm the award, albeit for different reasons. Colombia
objects that as a sovereign nation, it is presumptively immune from suit. And because ANI is
legally distinct from Colombia, imputing ANI’s waiver of sovereign immunity onto it is improper.
Colombia Mot. [ECF No. 33-1] at 1. ANI argues that because it has no property in the United
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States, and both it and the underlying dispute have no nexus with the United States, the Court lacks
personal jurisdiction over it. ANI Mot. at 1.
DISCUSSION
I. Colombia’s Motion to Dismiss
Colombia moves to dismiss POB’s petition for want of jurisdiction, asserting that as a
sovereign nation, it is immune from suit. To assess Colombia’s immunity defense, the Court charts
a winding course through the foundations of sovereign immunity law, the Foreign Sovereign
Immunities Act, and the common law governing imputation of an instrumentality’s obligations
onto its sovereign creator, before returning to the merits of POB’s and Colombia’s dispute.
A. Foreign Sovereign Immunity and its Exceptions
Begin with the basics—foreign sovereigns are presumptively immune from suit in
American courts. Fed. Republic of Germany v. Philipp, 592 U.S. 169, 173 (2021). This immunity
derives from “grace and comity,” not constitutional prerogative, and is therefore subject to
congressional definition. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983).
In 1976, Congress enacted a comprehensive scheme for determining when foreign states
and their political subdivisions, agencies, and instrumentalities may be sued in our courts, the
Foreign Sovereign Immunities Act (FSIA). Id. at 488; 28 U.S.C. §§ 1602–11. The FSIA imposes
a baseline rule: “foreign states and their instrumentalities are immune from suit unless one of the
Act’s enumerated exceptions applies.” CC/Devas (Mauritius) Ltd. v. Antrix Corp., 605 U.S. 223,
229 (2025) (citing 28 U.S.C. § 1604); see also Exxon Mobil Corp. v. Corporacion Cimex, S. A.
(Cuba), 146 S. Ct. 1909, 1917 (2026). Where no exception applies, federal courts lack subject
matter jurisdiction over the dispute. Fed. Republic of Germany, 592 U.S. at 176.
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At the motion to dismiss stage, the petitioner bears the initial burden to allege the facts
necessary to demonstrate that an exception to foreign sovereign immunity applies. See Helmerich
& Payne Int’l Drilling Co. v. Bolivarian Republic of Venezuela (Helmerich & Payne I), 743 F.
App’x 442, 449 (D.C. Cir. 2018). Once the petitioner has done so, the burden shifts to the foreign
sovereign to refute the petitioner’s claim by a preponderance of the evidence. Agudas Chasidei
Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 940 (D.C. Cir. 2008). Furthermore, because
sovereign immunity is jurisdictional, “the court must go beyond the pleadings and resolve any
disputed issues of fact” necessary to judge its own power to adjudicate the petition. De Csepel v.
Republic of Hungary, 27 F.4th 736, 743 (D.C. Cir. 2022) (quoting Phoenix Consulting, Inc. v.
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)).
Two of the FSIA’s exceptions to sovereign immunity are relevant here: the arbitration
exception and the implied waiver exception. The Court considers POB’s contentions under each
in turn.
B. The Arbitration Exception
Section 1605(a)(6) of the FSIA establishes an exception to foreign sovereign immunity for
suits to confirm and enforce arbitral awards. CC/Devas, 605 U.S. at 230. This exception applies
in actions to confirm and enforce an arbitral award against a foreign state, where the award was
issued pursuant to an agreement to arbitrate “made by the foreign state with or for the benefit of a
private party” and is “governed by a treaty or other international agreement in force for the United
States calling for the recognition and enforcement of arbitral awards.” 28 U.S.C. § 1605(a)(6)(B);
see also CC/Devas, 605 U.S. at 230.
In other words, courts must find three jurisdictional facts before applying the FSIA’s
arbitration exception: the existence of (1) an arbitration agreement binding on the parties, (2) an
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arbitration award pursuant to that agreement, and (3) a treaty governing enforcement of the award
in the United States. NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088,
1100 (D.C. Cir. 2024), cert. denied sub nom. Spain v. Blasket Invs. LLC, No. 24-1130, 2026 WL
1855038 (U.S. June 29, 2026); see also TIG Ins. Co. v. Republic of Argentina, 110 F.4th 221, 231
(D.C. Cir. 2024) (concluding that an agreement is “made by” a foreign state, within the meaning
of 28 U.S.C. § 1605(a)(6), “if it legally binds that sovereign to arbitrate with the party opposing
the sovereign’s sovereign immunity”).
POB asserts that all three jurisdictional prerequisites to the application of the FSIA’s
arbitration exception are satisfied in this action—citing its contract with ANI, which includes an
international arbitration clause, the arbitral award rendered by the Bogotá tribunal, and the New
York Convention, to which both Colombia and the United States are signatories. Opp’n to
Colombia Mot. at 11–13. Colombia disagrees. It disputes the existence of a binding agreement to
arbitrate, pointing out that the Republic of Colombia neither signed the contract between ANI and
POB nor participated in the Bogotá arbitration. Colombia Mot. at 1.
1. Bancec and the Imputation of an Entity’s Liability onto its Sovereign
At the heart of ANI and Colombia’s dispute is a legal question—under what circumstances
can a separately constituted public entity bind its sovereign creator to the agreements it makes?
Colombia contends that the Supreme Court’s decision in First National City Bank v. Banco Para
El Comercio Exterior de Cuba, 462 U.S. 611 (1983) [hereinafter Bancec], supplies the rule of
decision. POB insists that the relevant standard is whether, under the terms of the FSIA, the
contracting entity is an instrumentality or a subdivision of a foreign state. Colombia is correct.
In Bancec, the Supreme Court considered whether an American bank could hold Cuba’s
national bank liable for Cuba’s expropriation of its property. Id. at 613. The Court began by
explaining that the FSIA did not resolve the dispute, because “[t]he language and history of the
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FSIA clearly establish that the Act was not intended to affect the substantive law determining the
liability of a foreign state or instrumentality, or the attribution of liability among instrumentalities
of a foreign state.” Id. at 620. Questions of substantive liability turn instead on federal common
law and principles of international law. Id. at 623.
Drawing from those bodies of law, the Bancec Court determined that “government
instrumentalities established as juridical entities distinct and independent from their sovereign
should normally be treated as such.” Id. at 626–27. To hold otherwise and permit American courts
to “[f]reely ignore[e] the separate status of government instrumentalities,” would create
“substantial uncertainty over whether an instrumentality’s assets would be diverted to satisfy a
claim against the sovereign, and might thereby cause third parties to hesitate before extending
credit to a government instrumentality without the government’s guarantee.” Id. at 626. The
Supreme Court thus held that substantive liability may not be imputed between a sovereign state
and its instrumentality, subject to two defined exceptions. Id. at 626–28, 630. Just as with private
corporations, an instrumentality could be liable for the actions of its sovereign, and vice versa,
only if the instrumentality was “so extensively controlled” by the sovereign state that a
principal/agent relationship was created, or if affording the instrumentality a separate legal identity
“would work fraud or injustice.” Id. at 628–30 (citation modified). 2
In the years since the Supreme Court decided Bancec, the D.C. Circuit has clarified that its
standard governs not only attribution of monetary liability, but legal obligations more generally,
including imputation of an instrumentality’s agreement to arbitrate onto its sovereign. See
Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 446 (D.C. Cir. 1990)
2
In 2008, Congress amended the Foreign Sovereign Immunities Act, abrogating Bancec to allow victims of state sponsored terrorism to hold a terrorist state’s instrumentalities liable for its terroristic acts. Otherwise, Bancec remains good law. See Rubin v. Islamic Republic of Iran, 583 U.S. 202, 209–11 (2018).
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(reasoning that the Bancec standard governs imputation of jurisdictional waivers); Transamerica
Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000) (explaining that
Bancec’s principal/agent and fraud exceptions to an instrumentality’s presumption of separateness
“serve also as exceptions to the rule that a foreign sovereign is not amenable to suit based upon
the acts of [its] instrumentality” (emphasis added)); GSS Grp. Ltd. v. Nat’l Port Auth. of Liberia
(GSS Grp. II), 822 F.3d 598, 602–05 (D.C. Cir. 2016) (applying Bancec and Transamerica Leasing
to assess whether an arbitration clause in a construction contract between the petitioner and
Liberia’s national port authority waived Liberia’s sovereign immunity).
POB sued Colombia, requesting that this Court attribute ANI’s agreement to arbitrate to
the Colombian state. Controlling precedent from this Circuit and the Supreme Court mandates
that the Court apply Bancec’s two-part test before doing so. See, e.g., Foremost-McKesson, 905
F.2d at 446; see also Rubin, 583 U.S. at 209 (reinforcing that in actions not involving state
sponsored terrorism, Bancec, not the FSIA, supplies the standard for determining “under what
circumstances, if any, the agencies or instrumentalities of a foreign state could be held liable for
judgments against the state”).
POB resists the Court’s conclusion, insisting that whether ANI’s agreement to arbitrate
binds Colombia turns only on whether ANI falls within the FSIA’s definition of “instrumentality,”
as used in § 1608 of the Act and construed by the D.C. Circuit in Transaero, Inc. v. La Fuerza
Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994). Opp’n to Colombia Mot. at 14–15, 23–28.
POB’s argument is a non sequitur. Section 1608 of the FSIA distinguishes between foreign
states and their instrumentalities to prescribe rules for service of process, not imputation of
immunity waivers. See 28 U.S.C. § 1608(a)–(b) (establishing how “a foreign state or political
subdivision” and “an agency or instrumentality of a foreign state” may be served). In nearly every
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other section of the Act3—including its arbitration exception—the term “foreign state” means both
a foreign sovereign and its instrumentalities. See id. § 1603(a) (defining “foreign state” to include
instrumentalities, except as used in § 1608). And Colombia does not dispute that if it entered an
arbitration agreement, it could fall within the FSIA’s provision that “[a] foreign state shall not be
immune” from this Court’s jurisdiction to confirm and enforce an arbitral award. Id.
§ 1605(a)(6)(B) (emphasis added); see also Colombia Mot. at 3. The live question is whether
Colombia did so.
Put differently, this case does not present a question of statutory construction. Its animating
controversy occurs upstream of the FSIA’s terms, asking whether ANI’s contractual obligations
may be imputed to Colombia. A case on which POB heavily relies, Amaplat Mauritius Ltd. v.
Zimbabwe Mining Development Corp., 663 F. Supp. 3d 11 (D.D.C. 2023), 4 illustrates the
distinction. In Amaplat, the plaintiff petitioned the district court to recognize a foreign judgment
enforcing an arbitral award against Zimbabwe’s Chief Mining Commissioner. Id. at 16.
Substantive liability was not disputed; the mining commissioner “actually participated in the
arbitration against Plaintiffs,” so the Bancec framework was inapposite. Id. at 26. Rather, “the
heart of the parties’ dispute” was statutory: whether Zambia’s Chief Mining Commissioner, as a
3
The Flatow Amendment and the expropriation provision of the FSIA are two notable and inapposite exceptions. The Flatow Amendment, subsequently replaced by the FSIA’s terrorism exception, § 1605A, permitted “punitive damages against an official, employee, or agent of a foreign state designated as a state sponsor of terrorism, [but] not against the foreign state itself.” Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 116 (D.D.C. 2005) (citation modified).
Under the expropriation provision, a foreign state is not immune from suit involving property taken in violation of international law if the property is owned by a state instrumentality engaged in commercial activity in the United States. 28 U.S.C. § 1605(a)(3). By contrast, where the taken property is owned by the foreign state itself, the FSIA abrogates the foreign state’s sovereign immunity only if the property is actually “present in the United States in connection with a commercial activity carried on in the United States by the foreign state.” Id.
This case, of course, concerns neither expropriation nor terrorism.
4
The D.C. Circuit reversed in part and vacated in part the district court’s decision in Amaplat because the district court had conflated actions to confirm and enforce arbitral awards with actions to domesticate foreign judgments. See 143 F.4th 496, 499, 505 (D.C. Cir. 2025).
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human person, could be a “‘foreign state’ under § 1603(a), which does not include individuals
sued in their personal capacity.” Id. at 26–28. To resolve the statutory question, the district court
applied Transaero. Id. at 27–28.
This case presents the inverse of Amaplat. There is no question that the Republic of
Colombia is a foreign state under § 1603(a) of the FSIA or that Colombia did not participate in the
arbitration that rendered the award POB now seeks to enforce. What is disputed is whether POB
may impute ANI’s agreement to arbitrate onto Colombia—a substantive liability issue that the
FSIA does not resolve. Bancec, 462 U.S. at 620; see also TIG, 110 F.4th at 234 (“There is no
indication that Congress intended the FSIA to displace common-law contract principles that
inform our understanding of what constitutes the ‘making’ of an ‘agreement.’”).
The Court therefore follows the lead of the D.C. Circuit and other judges in this District
and rejects POB’s attempt to apply Transaero outside of its statutory context. See, e.g., TMR
Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 301 (D.C. Cir. 2005) (confining
Transaero’s test to assessments of service of process and “the meaning of statutory terms” in the
FSIA); DRC, Inc. v. Republic of Honduras, 71 F. Supp. 3d 201, 208–09, 213–14 (D.D.C. 2014)
(holding that Bancec, not Transaero, governs whether the plaintiff could impute liability from a
Honduran instrumentality onto the Honduran state); Entes Indus. Plants, Constr. & Erection
Contracting Co. v. Kyrgyz Republic (Entes I), Civ. A. No. 18-2228, 2019 WL 5268900, at *8–9
(D.D.C. Oct. 17, 2019) (identifying “[t]he starting point” for determining whether the plaintiff
could impute liability from the Ministry of Transport and Communications of the Kyrgyz Republic
onto the Republic itself as Bancec, not Transaero). 5
5
Nearly every case POB cites for the proposition that the Court should look to Transaero to determine ANI’s legal status involved disputes over the construction of the FSIA’s terms, not substantive liability. See Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48, 74 (D.D.C. 2011) (applying Transaero’s core functions test to assess sufficiency of service under the FSIA); Magness v. Russian Fed’n, 247 F.3d 609, 612–13 (5th Cir. 2001)
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Instead, the Court looks to Bancec to assess whether POB may hold Colombia liable, as
Bancec both describes the nature and characteristics of government entities entitled to a
presumption of separate legal identity and defines the circumstances in which that presumption
may be overcome. See, e.g., DRC, 71 F. Supp. 3d at 208–09 (describing Bancec’s two-part
analysis); Archirodon Constr. (Overseas) Co. v. Gen. Co. for Ports of Iraq, Civ. A. No. 22-1571,
2024 WL 341066, at *3 (D.D.C. Jan. 30, 2024) (doing the same).
2. ANI’s Relationship to Colombia
Having traversed the contested legal territory of this case, the Court now presses forward
into disputed factual land and examines the nature of ANI’s relationship with Colombia under the
Bancec framework.6
(doing the same); Mississippi v. The People’s Republic of China, 2025 WL 3252405, *8 (S.D. Miss. Nov. 14, 2025) (doing the same); Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 62–63 (D.D.C. 2010) (applying Transaero to “interpret[] and apply[] [the FSIA’s] statutory definitions” and find that Iran and its Ministry of Information and Security were both “foreign states” subject to the court’s original jurisdiction); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234–35 (D.C. Cir. 2003) (applying Transaero to determine that Iran’s Ministry of Foreign Affairs was not an instrumentality of Iran under the Flatow Amendment); Salazar, 370 F. Supp. 2d at 116 (doing the same for Iran’s Ministry of Information and Security and its Islamic Revolutionary Guard Corps); Crist v. Republic of Turkey, 107 F.3d 922, at *2–3 (D.C. Cir. 1997) (unpublished table decision) (applying Transaero to determine that the Turkish Army was Turkey itself, not Turkey’s instrumentality, for purposes of applying the FSIA’s expropriation exception); Taylor v. Kingdom of Sweden, Civ. A. No. 18-1133, 2019 WL 3536599, at *3 (D.D.C. Aug. 2, 2019) (doing the same but for Sweden and its National Museums of World Culture).
The only citation POB can marshal in support of applying Transaero in this context is a nonprecedential opinion from the Second Circuit, in which the defendant conceded that Transaero was the governing framework. See Servaas Inc. v. Republic of Iraq, 653 F. App’x 22, 24 (2d Cir. 2011). Suffice to say that the Court is unpersuaded by Servaas for all of the foregoing reasons.
6
Colombia contends that the Court need go no further. In its telling, POB “failed to plead alter ego or otherwise engage with the Bancec framework,” so POB cannot withstand Colombia’s motion to dismiss. See Colombia Mot. at 9. This contention misconstrues the heart of civil litigation’s notice pleading requirement. “[S]o long as the basis for a claim is clear, a complaint need not ‘plead law’ in specific detail.” Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 18 n.5 (D.C. Cir. 2008); see also Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (per curiam) (summarily reversing the dismissal of the plaintiffs’ complaint for its “imperfect statement of the legal theory supporting the claim asserted”).
As POB has acknowledged, the allegations in its complaint speak directly to its claim that Colombia should be held to ANI’s agreement to arbitrate—and those allegations remain largely relevant under Bancec. See Opp’n to Colombia Mot. at 34 & n.9. Given that the basis for POB’s claim is clear, the Court will consider whether the facts it has alleged are sufficient under the Bancec framework.
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a. ANI is a separate instrumentality.
Bancec’s presumption of separate legal identity applies only to “government
instrumentalities established as juridical entities distinct and independent from their sovereign.”
462 U.S. at 626–27. So to determine whether ANI is entitled to the presumption, the Court must
assess whether ANI is a juridical entity distinct and independent from Colombia. Bancec’s core
reasoning, together with the Supreme Court’s identification of common attributes of government
instrumentalities, guide the Court’s analysis.
In Bancec, the Supreme Court rested its determination that government instrumentalities
are presumptively separate from their sovereigns on two central premises—one of public
administration, and one of international law. The first premise observes that partnerships between
the public and private sectors can be a potent driver of economic development. See id. at 625. Yet
private actors are often wary of doing business with the state, for fear that if a deal goes sour, or
the capital they contribute is redirected, they will have no recourse. See id. at 625–26.
Enter government instrumentalities: “separately constituted legal entities” with their own
assets and liabilities, and the power to sue and be sued. Id. at 624. By creating instrumentalities
to administer public-private partnerships, a sovereign state can mitigate risks to private partners
that would otherwise stifle the state’s efforts to obtain the loans and capital necessary to make
large-scale national investments. Id. at 624–26. With “[l]imited liability [as] the rule, not the
exception; . . . vast enterprises are launched, and huge sums of capital attracted.” Id. at 626
(quoting Anderson v. Abbott, 321 U.S. 349, 362 (1944)).
The Bancec Court’s second premise, drawn from principles of comity in international law,
provides that “[d]ue respect” for foreign sovereigns requires American courts to refrain from
frustrating their efforts “to structure their governmental activities in a manner deemed necessary
to promote economic development and efficient administration.” Id.; see also Bank of N.Y. v.
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Yugoimport, 745 F.3d 599, 614 (2d Cir. 2014) (observing that the desire “to give respect, but not
conclusive effect, to foreign sovereigns’ policy decisions” was the primary driver of the Supreme
Court’s decision in Bancec).
Combined, these twin premises produce Bancec’s core holding: “government
instrumentalities established as juridical entities distinct and independent from their sovereign
should normally be treated as such.” 462 U.S. at 626–27. They also shed light on the nature of
the instrumentalities the Court deemed entitled to a presumption of separateness—public entities
purposefully configured by their sovereign creators to avoid economic uncertainty and reassure
business partners that the entity’s assets would not “be diverted to satisfy a claim against the
sovereign.” Id. at 626.
The provision of economic certainty also manifests as the throughline of the features the
Supreme Court identified as typical of government instrumentalities. Despite “vary[ing]
considerably” in their missions and organizational structures, Bancec’s government
instrumentalities are juridically separate, enabling them to sue and be sued. Id. at 624. They are
also financially separate, “run as . . . distinct economic enterprise[s]” with the power to hold
property in their own names, and primary responsibility for their own finances, “[e]xcept for
appropriations to provide capital or to cover losses.” Id. So while profits may flow from the
instrumentality to the state, capital contributions, once transferred to an instrumentality, remain in
the instrumentality’s exclusive possession. See DRC, 71 F. Supp. 3d at 211 (emphasizing the
importance of an entity’s “ownership of its assets” to Bancec’s “central rationale”). Finally,
Bancec’s prototypical government instrumentality possesses some operational independence from
the state. It derives its powers and duties from its enabling statute, not executive whim, and that
15
statute generally establishes that the instrumentality shall be “managed by a board selected by the
government.” 462 U.S. at 624.
ANI possesses most, albeit not all, of the attributes of government instrumentalities that
Bancec identifies. ANI has its own, separate “legal personality” within Colombia’s “decentralized
sector.” ANI Enabling Act art. 1; contrast Entes Indus. Plants, Constr. & Erection Contracting Co.
v. Kyrgyz Republic (Entes II), Civ. A. No. 18-2228, 2020 WL 1935554, at *4 (D.D.C. Apr. 22,
2020) (holding that the Kyrgyz Republic Ministry was not an instrumentality in part because it
was not defined “as a separate entity” or one decentralized from the sovereign). And as POB
demonstrated before the Bogotá tribunal, ANI may contract in its own name and be sued for its
contract violations. See ANI Enabling Act art. 4; ANI-POB Contract [ECF No. 1-4] at 2, 270
(declaring that the agreement was “[b]etween” “Agencia Nacional De Infraestructura” as grantor,
and “Perimetral Oriental de Bogotá S.A.S.” as dealer).
What’s more, ANI’s enabling act expressly provides that it may exercise its core juridical
powers autonomously—in other words, independently from the state. ANI Enabling Act art. 1
(vesting ANI with “administrative, financial and technical autonomy”), see also Entes II, 2020 WL
1935554, at *4 (reasoning that while juridical rights alone are not dispositive under Bancec, when
combined with indicia of “autonomy or [a] degree of separation from the state,” they become
stronger evidence that an entity is an instrumentality).
POB resists the reality of ANI’s distinct legal identity primarily by arguing that ANI has
too much power to be independent of its sovereign creator. POB objects that ANI can both
expropriate property and unilaterally terminate or modify its contracts, powers POB characterizes
as indivisible from the sovereign state. See Opp’n to Colombia Mot. at 24–26. Colombia, for its
part, disputes POB’s characterization of ANI’s powers. It asserts that all expropriations require
16
judicial permission and compensation, and that private parties may wield contract rights
indistinguishable from ANI’s. See Colombia Mot. at 16–17.
The specifics of ANI’s contractual and eminent domain powers aside, POB’s contention
fails to persuade because Bancec imposes no express limits on the functions or powers a sovereign
may vest in its instrumentality. Instead, Bancec’s primary concern is whether those powers are
both legally defined and independently wielded, such that private partners may contract with
certainty. Granted, certain types of sovereign powers—such as the authority to wage war—may,
in and of themselves, indicate that a juridical entity lacks true independence from the state. Cf.
Entes II, 2020 WL 1935554, at *3 (explaining that an enabling law prescribing an entity’s powers
counts for little if those powers “are strictly controlled by the Government”). But the powers POB
identifies do not give rise to such an inference.
Expropriation and unilateral contract termination powers are, in fact, commonly wielded
by private entities. The American historical record contains many examples of delegations of the
eminent domain power to private entities. See, e.g., Jessica L. Asbridge, Private Delegations and
Eminent Domain, 101 Or. L. Rev. 359, 373–74 (2023). And Colombia correctly notes that private
parties may agree to vest one another with contractual rights that resemble ANI’s. As a result,
POB must do more than cite ANI’s possession of these powers in order to undercut ANI’s
independent juridical identity; it must come forward with evidence indicating that Colombia has
guided ANI’s hand as ANI wielded those powers. POB has not done so.
ANI’s independence from Colombia is also evident in its distinct fiscal identity. ANI
possesses the power to manage its own finances, including by holding property in its own name,
setting its own budget, and making decisions about whether to enter public-private partnerships.
See ANI Enabling Act arts. 1, 9 ¶ 7. While Colombia may choose to assume some of ANI’s legal
17
liabilities, by default ANI’s legal debts are its own. On the record before the Court, it appears that
Colombian law even prohibits the state from assuming judgments against ANI exceeding 500
billion pesos—like the award in this case. See Decree 2295 of 2023 art. 65.
To be sure, ANI relies on financial support from Colombia to pay for 97% of its capital
investment budget and many of its legal liabilities. See Decree 1523 of 2024 at 101; ANI 2025
Pet. Resp. at 15. Yet where ANI derives its capital investment funds from is of little import to this
Court’s analysis. Bancec excludes “appropriations to provide capital or to cover losses” from its
measure of economic independence. 462 U.S. at 624; see also Transamerica Leasing, 200 F.3d at
852 (explaining that “the infusion of state capital to cover [an entity’s] losses” is “a normal aspect”
of an instrumentality’s relations with its sovereign).7 Indeed, Bancec itself, which the Supreme
Court determined was a separate government instrumentality, received all its capital from the
Cuban government. Bancec, 462 U.S. at 614.
The exclusion of state appropriations from Bancec’s financial calculus is also consistent
with the Supreme Court’s broader reasoning. Bancec anticipates that foreign states may create
instrumentalities “to make large-scale national investments,” including in “utilities.” Id. at 625.
But capital investment in utilities, like roads and power grids, and the liabilities those utilities can
produce, often dwarf the direct revenue they generate. Utility franchises may nevertheless operate
as distinct economic enterprises as they work to balance their revenue and operating expenses. For
the state, return on investment arrives indirectly, through the positive externality of accelerated
economic growth.
7
The Supreme Court recently echoed this principle in the domestic sovereign immunity context, reasoning that “formal legal liability” is more relevant to whether a public entity is an instrumentality than the “entity’s practical financial relationship with the State, such as its expectation that the State would cover its judgments if needed.” Galette v. N.J. Transit Corp., 607 U.S. 509, 525 (2026).
18
Colombia acted just as Bancec anticipated when it created ANI. It sought to partner with
the private sector to make a large-scale investment in its national road infrastructure—a utility.
See ANI Enabling Act at 53 (creating ANI “to achieve greater efficiency and effectiveness in the
administration of the country’s infrastructure, as well as to strengthen the linkage of private capital
to projects associated with the infrastructure of the transport sector”). To accomplish this goal,
Colombia simultaneously infused ANI with capital contributions and vested it with economic
responsibility for its own operations. On the limited record before the Court, ANI appears to have
made substantial strides towards Colombia’s objective. ANI currently covers 92% of its operating
expenses with its own revenue. See Decree 1523 of 2024 at 101; contrast Entes II, 2020 WL
1935554, at *5–6 (finding a Kyrgyz Ministry lacked financial independence when there was “no
suggestion that the Ministry raises funds on its own”).
That ANI must comply with Colombian public contracting law and audits by Colombia’s
comptroller does not undercut the Court’s confidence in its financial independence, either. While
status as a government instrumentality may absolve a public entity of some of the “budgetary and
personnel requirements with which government agencies must comply,” Bancec, 462 U.S. at 624,
it cannot shield the entity from all regulation. So as another judge in this District observed, “the
government’s maintenance of some degree of financial oversight” does not “transform[] a
juridically separate instrumentality into an organ of the state.” DRC, 71 F. Supp. 3d at 211.
ANI’s role in aiding Colombia’s tax collection efforts gives the Court more pause. POB
has offered evidence that ANI must deduct an arbitration awardee’s outstanding taxes before
paying out an award against it. ANI 2025 Pet. Resp. at 16–17. While there is no indication that
ANI directly transmits its assets to Colombia to cover these tax debts, money is fungible.
19
Colombia could, for example, reduce its appropriations to ANI proportionately to the taxes ANI
indirectly collects, opening a financial portal for ANI’s assets to become Colombia’s.
Nevertheless, upon close examination of Bancec’s beating heart—respect for other
nations’ policy choices when they elect to infuse their public-private partnerships with economic
certainty—the Court cannot say that Colombia’s tax law deprives ANI of the presumption of
separate legal identity. Formally, Colombia is not treating ANI’s assets as its own, freely
transferring capital between ANI and itself. And functionally, offsetting an entity’s legitimate tax
liability is not the kind of redirection of capital that moots Colombia’s other efforts to assure ANI’s
private partners. Private partners owe the money, they are not experiencing asset confiscation, and
they may unilaterally avoid triggering this process by paying their tax bills. Moreover, because
both Colombia’s tax laws and ANI’s duty to offset arbitral awards with awardee’s unpaid taxes
are codified, ANI’s sophisticated private partners may contract with certainty. Simply put, the tax
offset law does not blur the lines between ANI’s liabilities and Colombia’s such that Colombia’s
decision to imbue ANI with separate juridical status is meaningless and need not be respected by
American courts.
Turning to ANI’s governance structure, the limited evidence submitted thus far presents a
mixed picture. Bancec states that the enabling statute of a typical government instrumentality
“specifies that it is to be managed by a board selected by the government in a manner consistent
with the enabling law.” 462 U.S. at 624. That is true of ANI. ANI Enabling Act arts. 6, 8. At the
same time, when POB contracted with ANI to construct the ill-fated road in this case, majority
control of ANI’s board lay with government ministers and officials. See id. art. 8 (initial text)
(establishing that five members of ANI’s nine-member board would be national ministers or
directors). Even today, after the 2022 Amendments vested majority control of ANI with
20
independent board members, the Court is unsure whether those independent seats are currently
occupied. See Opp’n to Colombia Mot. at 8–9.
As other judges in this District have observed, the presence of government ministers on an
entity’s board may raise the specter that the entity is part and parcel of the state. It is not, however,
dispositive by itself. See, e.g., DRC, 71 F. Supp. 3d at 211–12; Entes II, 2020 WL 1935554, at
*4. After all, a board “consisting of delegates from Cuban governmental ministries governed and
managed Bancec.” Bancec, 462 U.S. at 614. And the D.C. Circuit has held that even “[m]ajority
shareholding and majority control of a board of directors, without more, are not sufficient” to
overcome Bancec’s presumption. See Foremost-McKesson, 905 F.2d at 448.
What matters is that the foreign state configures the entity such that it has “a greater degree
of flexibility and independence from close political control than is generally enjoyed by
government agencies.” Bancec, 462 U.S. at 624–25. ANI meets that standard. The presence of a
governing board, combined with a statute vesting ANI with administrative autonomy, see ANI
Enabling Act art. 1, establishes political distance between ANI and Colombia.
To show that distance is a legal illusion, POB must come forward with at least some
evidence that Colombia directs day-to-day decisions at ANI. See, e.g., Entes II, 2020 WL
1935554, at *4 (finding a state ministry was not an instrumentality where it was required to conduct
its activities “in accordance with” presidential decrees and the Kyrgyz government had the right
to veto the ministry’s acts); McKesson Corp. v. Islamic Republic of Iran, 672 F.3d 1066, 1082
(D.C. Cir. 2012) (finding Iran liable for its state-owned enterprise’s actions, where Iran was
extensively involved in the enterprise’s day-to-day operations and directed the enterprise to deny
its foreign shareholders dividends). The record in this case contains no such evidence.
21
Examining ANI’s powers, obligations, and governance holistically, the Court finds that
Colombia has structured ANI as a juridical entity separate and independent from the state. That
policy choice works to ANI’s prospective partners’ benefit, as they may avoid diversion of their
capital investments and can sue ANI for breaches of their agreements. It also works to their
detriment, as Colombia is not guaranteed to satisfy any judgment they obtain against ANI. Both
of those legal certainties should have been apparent to POB when it entered its agreement with
ANI. Guided by Bancec and principles of comity, the Court declines to unsettle these economic
certainties by failing to give due respect to Colombia’s decision to imbue ANI with independent
juridical status. ANI is an instrumentality of Colombia, and the Court will afford it Bancec’s
presumption of separate legal identity.
b. Neither of Bancec’s exceptions apply.
Bancec’s presumption of separateness is, of course, only a presumption. It may be
overcome when the entity “is so extensively controlled by its owner that a relationship of principal
and agent is created,” or when applying the presumption “would work fraud or injustice.” Bancec,
462 U.S. at 629.
Courts consider five factors when determining whether a principal/agent relationship has
arisen between a sovereign and its instrumentality:
(1) the level of economic control by the government;
(2) whether the entity’s profits go to the government;
(3) the degree to which government officials manage the entity or otherwise have a
hand in its daily affairs;
(4) whether the government is the real beneficiary of the entity’s conduct; and
(5) whether adherence to separate identities would entitle the foreign state to
benefits in United States courts while avoiding its obligations.
22
Rubin, 583 U.S. at 210 (quoting Walter Fuller Aircraft Sales, Inc. v. Republic of Philippines, 965
F.2d 1375, 1380 n.7 (5th Cir. 1992)).
The D.C. Circuit has further held that while the proponent of the principal/agent
relationship need not show the sovereign exercises “complete dominion” over the instrumentality,
“[a]t a minimum” it must show that (1) “the parent has manifested its desire for the subsidiary to
act upon the parent’s behalf,” (2) “the subsidiary has consented so to act,” (3) “the parent has the
right to exercise control over the subsidiary with respect to matters entrusted to the subsidiary,”
and (4) “the parent exercises its control in a manner more direct than by voting a majority of the
stock in the subsidiary or making appointments to the subsidiary’s Board of Directors.”
Transamerica Leasing, 200 F.3d at 849.
Whether considering the Rubin factors or this Circuit’s Transamerica floor, POB has not
carried its burden to show a principal/agent relationship between ANI and Colombia. POB has
alleged only that Colombia exercises control over ANI via general regulations and its board
structure. Neither supply the level of economic control required to find a principal/agent
relationship. Compare GSS Grp. II, 822 F.3d at 606–07 (reasoning that sovereigns may influence
their instrumentality as shareholder and as regulator without creating a principal/agent
relationship), with Helmerich & Payne Int’l Drilling Co. v. Venezuela (Helmerich & Payne II),
153 F.4th 1316, 1329 (D.C. Cir. 2025) (finding an instrumentality was the alter ego of the state
when the instrumentality admitted that the state controlled it and determined its capital investment
and other spending programs).
Nor has POB offered evidence that ANI’s profits remit to Colombia or that Colombia is
the sole or “real” beneficiary of ANI’s conduct. 8 To the contrary, the record established so far
8
This Court does not construe the second Rubin factor to mean that a sovereign state cannot derive any benefit, direct or indirect, from its instrumentality’s work. Such a reading would contradict Bancec’s definition of an
23
indicates that ANI collects tolls and other revenue from its projects, which it relies on to fund its
operations. See ANI Enabling Act art. 5 ¶ 8; Decree 1523 of 2024 at 101.
POB has also failed to allege a single instance where Colombia directed a specific decision
made by ANI as to a matter entrusted to ANI, a crucial factor in principal/agent analyses. For
example, in McKesson Corp., the D.C. Circuit hinged its determination that a state-owned
enterprise was an alter ego of Iran on the fact that Iran forced the enterprise to disregard its
corporate mission and deny the foreign plaintiff-shareholders dividends. 52 F.3d at 351–52; see
also Transamerica Leasing, 200 F.3d at 853 (construing McKesson Corp. as turning on Iran’s
actual efforts to control its state-owned enterprise). In cases lacking such evidence, like this one,
this Circuit has roundly rejected assertions of a principal/agent relationship. See, e.g., GSS Grp.
II, 822 F.3d at 606–08; TIG, 110 F.4th at 239; Transamerica Leasing, 200 F.3d at 853.
POB fares no better under Bancec’s fraud-or-injustice exception. While POB briefly
suggests that ANI may have been undercapitalized, see Opp’n to Colombia Mot. at 4, 38, this
Circuit has held that bare allegations of undercapitalization are not sufficient to defeat a motion to
dismiss, TIG, 110 F.4th at 239. The Court therefore finds that POB has not rebutted Bancec’s
presumption of separateness by showing that ANI is an agent of the Colombian state or that
respecting ANI’s separate juridical status would work a fraud or injustice.
* * *
The FSIA’s arbitration exception abrogates a foreign sovereign’s immunity from suit only
where the sovereign “made” an agreement to arbitrate “with or for the benefit of a private party.”
28 U.S.C. § 1605(a)(6). Colombia did not agree to arbitrate disputes with POB, and ANI’s
instrumentality’s core purpose: to carry out tasks that benefit the state but are more efficiently accomplished by an independent legal entity. See Bancec, 462 U.S. at 624–25.
24
agreement to arbitrate is not attributable to Colombia under the Bancec framework. Consequently,
the FSIA’s arbitration exception does not render Colombia amenable to POB’s suit.
C. The Implied Waiver Exception
In the alternative, POB asserts that the implied waiver exception to the FSIA abrogates
Colombia’s sovereign immunity. This contention, too, is unavailing.
The implied waiver exception establishes that a foreign state shall not be immune from suit
in any case in which it “has waived its immunity either explicitly or by implication.” 28 U.S.C.
§ 1605(a)(1). The FSIA itself does not define how a sovereign may waive its immunity from suit
by implication, and this Circuit has repeatedly instructed courts to construe the provision narrowly.
See Glob. Voice Grp. SA v. Republic of Guinea, 177 F.4th 299, 302 (D.C. Cir. 2026); Khochinsky
v. Republic of Poland, 1 F.4th 1, 8 (D.C. Cir. 2021); Creighton Ltd. v. Gov’t of State of Qatar, 181
F.3d 118, 122 (D.C. Cir. 1999).
The D.C. Circuit has identified only three ways in which a foreign sovereign may impliedly
waive its immunity: by “(1) executing a contract containing a choice-of-law clause designating the
laws of the United States as applicable; (2) filing a responsive pleading without asserting sovereign
immunity; or (3) agreeing to submit a dispute to arbitration in the United States.” TIG, 110 F.4th
at 236 (citation modified). POB has not alleged that Colombia took any of these three actions.
Instead, POB urges this Court to adopt the reasoning of a Second Circuit case, Seetransport,
and find that Colombia impliedly waived its sovereign immunity when it ratified the New York
Convention and then made an agreement to arbitrate disputes in a nation bound by the
Convention—that is, at home. See Opp’n to Colombia Mot. at 31–32 (citing Seetransport Wiking
Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala
Navala, 989 F.2d 572, 578–79 (2d Cir. 1993)). The D.C. Circuit has yet to adopt or reject
25
Seetransport. See Process & Indus. Devs. Ltd. v. Fed. Republic of Nigeria, 27 F.4th 771, 774
(D.C. Cir. 2022). This Court need not weigh in on the debate, however, because as it has just
explained, POB has not offered sufficient facts to show that ANI’s agreement with POB is
attributable to Colombia, and thus that Colombia made an agreement to arbitrate. So even under
Seetransport, Colombia has not waived its sovereign immunity by implication.
* * *
Foreign nations are presumptively immune from suit in American courts. Where no
exception to this sovereign immunity applies, courts lack subject matter jurisdiction to hear claims
against them. Fed. Republic of Germany, 592 U.S. at 176. POB has failed to make out a prima
facie case that its dispute with Colombia falls within an exception to Colombia’s sovereign
immunity. The Court therefore lacks subject matter jurisdiction over POB’s claims against
Colombia and will grant Colombia’s motion and dismiss the petition against it without prejudice.
See Fed. R. Civ. P. 12(h)(3).
II. POB’s Request for Leave to Amend and Conduct Jurisdictional Discovery
Anticipating this Court’s decision that the Bancec framework governs whether ANI’s
agreement bound Colombia, and that its petition fails to carry its burden under Bancec, POB seeks
leave to amend its petition and conduct jurisdictional discovery. Opp’n to Colombia Mot. at 34–
39. Colombia opposes both requests. Colombia Reply [ECF No. 35] at 23. The Court will grant
POB leave to amend but deny its motion for jurisdictional discovery, without prejudice to a
renewed motion once it files its amended petition.
District courts must freely give plaintiffs leave to amend their complaints “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend should not be refused without “sufficient
reason, such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
26
previous amendments, or futility of amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.
Cir. 1996) (per curiam) (citation modified). No such reason to deny POB’s request exists. POB
made its request for leave to amend timely and in good faith, it has not previously amended its
petition, and given the fact-bound nature of the Bancec framework, amendment is not futile. The
Court will therefore grant POB’s request for leave to amend.
By contrast, a much more stringent standard governs POB’s request for jurisdictional
discovery. In FSIA cases, jurisdictional discovery must be “carefully controlled and limited,” to
“avoid burdening a sovereign that proves to be immune from suit.” Phoenix Consulting, 216 F.3d
at 40; see also TIG, 110 F.4th at 240. Discovery may be ordered “only to verify allegations of
specific facts crucial to an immunity determination.” Nyambal v. Int’l Monetary Fund, 772 F.3d
277, 281 (D.C. Cir. 2014) (quoting First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d
172, 176 (2d Cir. 1998)).
POB has not yet filed an amended petition with the Court, so at this juncture, the Court
cannot say whether such a petition will contain new “allegations of specific facts crucial to an
immunity determination” that would benefit from discovery. See id. And without new allegations,
any approval of jurisdictional discovery would be premature.
POB resists this conclusion by pointing to several issues raised in its petition and central
to the Court’s immunity determination, including whether ANI was undercapitalized and whether
Colombia leveraged its control of ANI’s board to direct ANI’s day-to-day operations. See Opp’n
to Colombia Mot. at 36–37. Yet POB’s broad gestures at dispositive issues do not entitle it to
jurisdictional discovery. To obtain discovery, POB must specify the “relevant facts it believe[s]
jurisdictional discovery would uncover”—not simply the legal conclusions it seeks to establish.
27
TIG, 110 F.4th at 240 (emphasis added). Because POB has not yet done so, the Court denies its
motion for jurisdictional discovery.
III. ANI’s Motion to Dismiss
ANI also moves to dismiss POB’s petition, asserting that this Court lacks personal
jurisdiction over it because it operates exclusively within Colombia and there is no nexus between
the United States and the underlying dispute. ANI Mot. at 1. ANI further contends that even if
the Court has jurisdiction, it should nevertheless dismiss POB’s petition under the doctrine of
forum non conveniens. Id. at 2. The Court considers ANI’s contentions in turn.
A. Personal Jurisdiction
The limitations on a federal court’s exercise of personal jurisdiction over a nonconsenting
defendant are two-fold. First, a federal statute, the Federal Rules of Civil Procedure, or the law of
the forum state must authorize personal jurisdiction over the defendant. See Ins. Corp. of Ireland
v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 711 (1982) (Powell, J., concurring in the
judgment); see also Fed. R. Civ. P. 4(k). Second, the court’s exercise of personal jurisdiction must
comport with the Due Process Clause of the Fifth Amendment. See Fuld v. Palestine Liberation
Org., 606 U.S. 1, 18 (2025); Gligorov v. Nation of Brunei, -- F.4th --, No. 24-7150, 2026 WL
2276372, at *1, 4 (D.C. Cir. Aug. 7, 2026).
The Supreme Court’s recent decision in CC/Devas forecloses ANI’s objection that this
Court lacks statutory authorization to exercise personal jurisdiction over it. CC/Devas held that
the FSIA imposes only two prerequisites to the exercise of personal jurisdiction over a foreign
state or instrumentality: (1) an applicable exception to foreign sovereign immunity, and (2) proper
service under the Act. 605 U.S. at 232–33 (discussing 28 U.S.C. § 1330(b)). Minimum contacts
with the United States are not required. Id. As ANI concedes, both of the FSIA’s prerequisites
28
are satisfied in this action: the FSIA’s arbitration exception encompasses POB’s claims against
ANI, and POB has properly served ANI with process. ANI Mot. at 7 n.2.
ANI’s constitutional claim—that this Court’s exercise of personal jurisdiction over it
would violate the Due Process Clause of the Fifth Amendment—rests on more uneven legal
ground. In Fuld v. Palestine Liberation Organization, the Supreme Court considered whether
federal courts’ exercise of personal jurisdiction over the Palestine Liberation Organization (PLO)
under the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), 18 U.S.C.
§§ 2333–34, violated the Fifth Amendment. 606 U.S. at 5–6. The Court found that the minimum
contacts standard, which governs assessments of state court exercises of personal jurisdiction
under the Fourteenth Amendment, did not apply in the Fifth Amendment context. Id. at 16. But
the Court declined to specify what standard does govern Fifth Amendment analyses of exercises
of personal jurisdiction. See id. at 18 (“[W]e do not purport to delineate the outer bounds of the
Federal Government’s power, consistent with due process, to hale foreign defendants into U.S.
courts.”).9
The Fuld Court held only that “the Fifth Amendment necessarily permits a more flexible
jurisdictional inquiry commensurate with the Federal Government’s broader sovereign authority.”
Id. at 16. The PSJVTA satisfied that flexible inquiry because it was reasonable, even considering
the factors the Court has relied upon to assess the constitutionality of an exercise of personal
jurisdiction under the Fourteenth Amendment. Id. at 23–25; but see id. at 23 (refusing to fully
endorse a reasonableness standard and remarking only that “the Fifth Amendment might entail
a[n] . . . inquiry into the reasonableness of the assertion of jurisdiction” (emphasis added)).
9
Because neither ANI nor POB addressed the impact of the Supreme Court’s decision in Fuld in their principal briefs, the Court sought supplemental memoranda from each party on the issue. See POB Supp. Mem. [ECF No. 36]; ANI Supp. Mem. [ECF No. 37].
29
Reasonableness, the Supreme Court explained, depends on “the burden on the defendant,
the interests of the forum State, and the plaintiff’s interest in obtaining relief,” id. at 24 (quoting
Asahi Metal Indus. Co. v. Sup. Ct. of Cal., 480 U.S. 102, 113 (1987)), and “[t]he PSJVTA ticks
all three boxes,” id. The United States has a “substantial interest” in adjudicating claims against
terrorists that target Americans, plaintiffs have a strong interest in pursuing justice under the
PSJVTA, and “sophisticated international organizations” with large budgets, like the PLO, are not
burdened by having to litigate in the United States. Id.
As a threshold matter, the Court finds that ANI—as an instrumentality, not a foreign
sovereign—is a “person” entitled to the protections of the Fifth Amendment’s Due Process Clause.
See GSS Grp. I, 680 F.3d at 815 (reasoning, based on Bancec, that “if an instrumentality does not
act as an agent of the state, and separate treatment would not result in manifest injustice, the
instrumentality will enjoy all the due process protections available to private corporations”
(citation omitted)); see also supra I.B.2. The Court will not expound on the precise contours of
those Fifth Amendment protections, however, because assuming without deciding that federal
exercises of personal jurisdiction must be reasonable, the Court’s exercise of jurisdiction over ANI
satisfies that requirement.10
Exercising personal jurisdiction over ANI is reasonable for many of the same reasons that
the exercise of personal jurisdiction over the PLO under the PSJVTA was reasonable. To begin,
the political branches have articulated a strong public policy in favor of arbitration. TermoRio,
487 F.3d at 933 (citing Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614,
631 (1985)); see also Gligorov, 2026 WL 2276372, at *8 (underscoring the importance of
“communicate[d]” and “substantive” federal policy to the Fuld Court’s determination that
10
See, e.g., Gligorov, 2026 WL 2276372, at *8 (taking a similar approach to a Fifth Amendment due process challenge to personal jurisdiction after Fuld).
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exercising personal jurisdiction over the PLO was constitutional). This “emphatic federal policy
in favor of arbitral dispute resolution . . . applies with special force in the field of international
commerce” and is implemented through the United States’ participation in and adherence to the
New York Convention. Mitsubishi Motors Corp., 473 U.S. at 631.
By enthusiastically complying with the New York Convention at home, the United States
ensures that its citizens’ arbitral awards will be recognized and enforced abroad. Cf. Scherk v.
Alberto-Culver Co., 417 U.S. 506, 516–17 (1974) (“[P]arochial refusal by the courts of one
country to enforce an international arbitration agreement . . . would invite unseemly and mutually
destructive jockeying by the parties to secure tactical litigation advantages”). So just as in Fuld,
the United States has a substantial interest in supplying a forum to arbitral awardees seeking to
enforce their awards.
True, the underlying conduct in this case has a much less direct connection to the United
States than that of foreign terrorists targeting American victims. See Fuld, 606 U.S. at 24
(emphasizing the PSJVTA’s protection of Americans); see also Gligorov, 2026 WL 2276372, at
*9 (finding that a dispute’s lack of impact on “the United States, its residents, or its property”
counseled against finding an exercise of personal jurisdiction constitutional). But Fuld describes
courts’ Fifth Amendment inquiries as “flexible,” 606 U.S. at 16, so this Court does not read Fuld
to require that any lawful exercise of personal jurisdiction must protect Americans’ interests
directly, as opposed to via the enforcement of international treaties and norms. The Court is also
reassured by the limitations of the FSIA’s arbitration exception, which encompasses only a specific
cause of action: confirmation of arbitral awards governed by an applicable treaty against foreign
states and their instrumentalities. The exception does not put a wide array of respondents “at broad
risk of being haled into U.S. courts for myriad civil liability actions.” Id. at 20.
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POB’s interest in this action is comparatively modest. Because ANI avers that it has never
had assets in the United States, Decl. of G.H. Rodríguez ¶¶ 2–3, and POB may not impute ANI’s
liability onto Colombia, what POB stands to gain from a federal judgment confirming and
enforcing its award is uncertain. Still, neither ANI nor POB can predict the future, and given the
United States’ central role in world financial markets, it remains possible that ANI could
accumulate assets within the United States in the future. Cf. TMR Energy, 411 F.3d at 303 (“Even
if [a foreign arbitral award debtor] currently has no attachable property in the United States,
however, it may own property here in the future, and [the creditor] having a judgment in hand will
expedite the process of attachment.”). POB thus has a cognizable interest in seeking confirmation
and enforcement of its award now, so that it is prepared to satisfy that award in the future.
POB’s modest interest in this action is mirrored in the action’s minimal burden on ANI.
As a sophisticated organization that operates a nearly three-billion-dollar budget, see Decree 1523
of 2024 at 101, and which had clear notice that its activities could subject it to suit in the United
States, ANI is not so burdened by a federal court’s exercise of personal jurisdiction to render that
exercise “unreasonable and unfair.” Fuld, 606 U.S. at 25. As a result, ANI may not rely on the
burden this suit imposes to assert that haling it into this Court would violate its rights under the
Fifth Amendment’s Due Process Clause.
Considering the Asahi reasonableness factors holistically, then, the Court concludes that
exercising personal jurisdiction over ANI in this action is reasonable. The Court thus holds that
subjecting ANI to suit in this Court will not violate its rights under the Due Process Clause of the
Fifth Amendment and denies ANI’s motion to dismiss the petition against it for lack of personal
jurisdiction. See Fuld, 606 U.S. at 23–24.
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B. Forum Non Conveniens
Finally, ANI contends that POB’s petition should be dismissed under the doctrine of forum
non conveniens. ANI Mot. at 2. “A forum non conveniens dismissal . . . is a determination that
the merits [of a case] should be adjudicated elsewhere.” Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 432 (2007). Yet only American courts may attach foreign property
found within the United States. Tatneft v. Ukraine, 21 F.4th 829, 840 (D.C. Cir. 2021). There is
no other equivalent forum that could hear POB’s petition to do so. The D.C. Circuit has thus held
that “forum non conveniens is not available in proceedings to confirm a foreign arbitral award,” a
blanket prohibition that applies “even if the defendant ‘currently has no attachable property in the
United States, [as] it may own property here in the future.’” Id. (quoting TMR Energy, 411 F.3d
at 303); see also NextEra Energy, 112 F.4th at 1105. Accordingly, the Court denies ANI’s motion
to dismiss on forum non conveniens grounds.
CONCLUSION
For these reasons, the Court will grant Colombia’s motion to dismiss and POB’s motion
for leave to amend its petition. It will deny, however, ANI’s motion to dismiss and POB’s request
for leave to conduct jurisdictional discovery. A separate order will follow this memorandum
opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: August 14, 2026
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