116 September 23, 2026 No. 880
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
NOVALPINA CAPITAL PARTNERS I GP S.A.R.L.,
Petitioner-Appellant
Cross-Respondent,
v.
OREGON DEPARTMENT OF JUSTICE,
Respondent-Respondent
Cross-Appellant.
Multnomah County Circuit Court
24CV48575; A187428
Jenna R. Plank, Judge.
Argued and submitted May 12, 2026.
Tara J. Plochocki argued the cause for appellant-crossrespondent. Also on the briefs were Eryn Karpinski Hoerster
and Foster Garvey PC; and Sequor Law.
Stacy M. Chaffin, Assistant Attorney General, argued the
cause for respondent-cross-appellant. Also on the brief were
Dan Rayfield, Attorney General, and Benjamin Gutman,
Interim Deputy Attorney General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed on appeal; cross-appeal dismissed as moot.
Cite as 353 Or App 116 (2026) 117
ORTEGA, P. J.
This case is a single strand of what the United
States Court of Appeals for the Ninth Circuit dubbed a
“[s]prawling tangle of litigation related to the bitter breakup between a Luxembourg-based investment fund and its former General Partner,” which has “mushroomed into a variety of civil cases and criminal investigations winding their
way through multiple legal systems.” Novalpina Capital
Partners I GP S.A.R.L. v. Read, 149 F4th 1092, 1095 (9th
Cir 2025).1
Novalpina Capital Partners I GP S.à.r.l. (Novalpina
GP) is the former General Partner of the Luxembourgbased investment fund. That fund was formerly known as
Novalpina Capital Partners I SCSp (the Fund).
In this strand of the sprawling tangle, petitioner,
Novalpina GP, appeals an order denying its petition to set
aside a civil investigative demand (CID), which was issued
by the Oregon Department of Justice (the DOJ) in September
2024 pursuant to ORS 180.775 for the purpose of determining whether “there has been a violation of the Oregon False
Claims Act.” Among other conduct, the False Claims Act
prohibits requests or demands to a public agency for money
based on “false or fraudulent information.” ORS 180.750;
ORS 180.755.
On appeal, Novalpina GP raises three assignments
of error: First, it contends that “the trial court erred in holding that specific personal jurisdiction exists over Novalpina
GP because Novalpina GP lacks minimum contacts with the
State of Oregon sufficient to comport with the Due Process
Clause”; second, it contends that “the trial court erred in
holding that the forum-selection and choice-of-law clauses
found in the agreements between the parties failed to preclude enforcement of the CID in the State of Oregon”; and,
third, it contends that “the trial court erred by refusing to
apply the Hague Evidence Convention, which would preclude enforcement of the CID in the State of Oregon.”
1
As the Oregon Department of Justice (the respondent and cross-appellant) puts it, this case involves the “same operative facts” as the petition in the litigation underlying the appeal in Novalpina Capital Partners I GP S.A.R.L. v. Read, 149 F4th 1092 (9th Cir 2025).
118 Novalpina Capital v. Dept. of Justice
We conclude that the trial court did not err when
it determined that Novalpina GP was subject to personal
jurisdiction in Oregon, because it purposefully availed
itself of the Oregon market; that this litigation arises out of Novalpina GP’s availment of the Oregon market; and that
the exercise of personal jurisdiction over Novalpina GP in
this case does not offend traditional notions of fair play and substantial justice. Additionally, we conclude that the trial
court did not err in determining that the forum-selection
and choice-of-law clauses found in the agreements between
the parties did not preclude enforcement of the CID in
Oregon and application of Oregon law. Finally, we conclude
that the trial court did not abuse its discretion when it did
not require the DOJ to comply with the Hague Evidence
Convention in this case. Accordingly, we affirm.2
I. HISTORICAL FACTS AND PROCEDURAL
BACKGROUND
We note at the outset that this case involves an
“acrimonious split” between entities who formerly did business together and, as has been the case in other litigation
involving Novalpina GP, “the parties present very different
versions of the relevant facts.” Novalpina Capital Partners I
GP S.A.R.L., 149 F4th at 1095.
Further, although the parties dispute aspects of
the standard of review in connection with the various legal
issues in this case, ultimately we understand the parties
to assert, with respect to the first and third assignments
of error, that we review the trial court’s factual findings
2
Although the trial court ultimately concluded that it had personal jurisdiction over Novalpina GP on the basis of certain contacts that Novalpina GP had with Oregon, the trial court rejected the DOJ’s alternative argument that Novalpina GP consented to personal jurisdiction in Oregon by filing a motion to compel discovery in a different case pursuant to 28 USC section 1782. The DOJ has cross-appealed that ruling, contending that the trial court erred “in determining that [Novalpina GP] did not consent to personal jurisdiction in Oregon when it affirmatively filed [a] 28 USC § 1782 petition in Oregon to compel production of discovery relating to this matter.”
The DOJ acknowledges that we need only consider the cross-appeal if we determine that the trial court incorrectly concluded that it had specific personal jurisdiction over Novalpina GP based on its contacts with Oregon. Because we conclude that the trial court did not err when it determined that Novalpina GP was subject to specific personal jurisdiction in Oregon, we do not consider the merits of DOJ’s cross-appeal, and we dismiss the cross-appeal as moot. Cite as 353 Or App 116 (2026) 119
to determine whether they are supported by any evidence,
and, where the trial court failed to make express factual
findings, we assume that the court found the relevant facts
in a manner consistent with its ultimate ruling. We agree
with the parties that that is the appropriate standard of
review for the first and third assignments of error. Espinoza
v. Evergreen Helicopters, Inc., 359 Or 63, 117, 376 P3d 960
(2016); Munson, 264 Or App at 700-01. Further, to the extent
consideration of facts is necessary to our analysis of the second assignment of error, which concerns issues of contract
interpretation, we apply that same standard of review to our
consideration of the historical facts. Batzer Construction,
Inc. v. Boyer, 204 Or App 309, 319, 129 P3d 773, rev den, 341
Or 366 (2006).3
A. Novalpina Entities and the Solicitation
In August 2017, Novalpina GP and another entity,
Novalpina Capital Partners I Group GP S.à.r.l. (the Initial
LP), created a partnership by entering into an agreement
“for the purpose of raising a fund to undertake investment activities.” That partnership was, or would ultimately
become, the Fund—i.e., Novalpina Capital Partners I SCSp.
Novalpina GP and the Initial LP are just two of
a number of what Novalpina GP refers to as “Novalpinarelated entities,” the ultimate parent of which is a company called Novalpina Capital Group S.à.r.l. (TopCo). The
“Novalpina-related” entities are part of what Novalpina GP’s
counsel in the trial court in this case “perhaps agree[d]” was a “byzantine” corporate structure, and we note that similarly the Ninth Circuit has stated that the Fund’s operating
3
We note, with respect to the first assignment of error, that the parties dispute whether we can assume that the facts alleged in the DOJ’s pleadings are true. The DOJ asserts that we must; Novalpina GP, in its reply brief, asserts that we should not.
Given the nature of this proceeding—which involves neither a complaint nor an answer—it is unclear to what “pleading” of the DOJ the parties are referring. In any event, we need not resolve that disputed issue concerning our standard of review, because the evidence—in the form of affidavits and documents—coupled with the trial court’s findings and legal conclusions, is sufficient for our review of the trial court’s rulings and compels us to affirm. Put another way, under Novalpina GP’s proffered standard of review for the first assignment of error, which does not include assuming the truth of the “DOJ’s pleadings,” Novalpina GP’s first assignment of error fails.
120 Novalpina Capital v. Dept. of Justice
structure could “be described as intricate at best and byzantine at worst.” Novalpina Capital Partners I GP S.A.R.L, 149
F4th at 1096.
TopCo is owned by three people—Stefan Kowski,
Stephen Peel, and Bastian Lueken—each of whom hold a
one-third ownership interest. Kowski, Peel, and Lueken are,
as Novalpina GP acknowledges on appeal, the “[F]ounders”
of the Fund. As explained by Novalpina GP’s counsel in the
trial court, those three individuals “organized” the Fund.
The Fund’s “carried interest partner”—Novalpina Capital
Partners I FP SCSp—had an approximately 17 percent
stake in the Fund’s profits, and the ultimate beneficial owners of those earnings were the Founders, via their interest
in TopCo.
During argument in the trial court, in “clarif[ying]
what role [Novalpina] GP had,” its counsel explained that
the Founders “exercise[d] practical control and influence
over” Novalpina GP, and pointed the trial court to a document detailing aspects of the Founders’ “day-to-day effective practical control or influence over Novalpina GP.” That
document is the “Particulars of Claim”—a document filed in
the High Court of Justice Business and Property Courts of
England and Wales—which counsel for Novalpina GP represented to the trial court “really crystallizes the distinction between the entities.”
In late 2017, two of the Founders—Peel and
Kowski—came to Oregon for the purpose of soliciting an
investment by the Oregon Public Employees Retirement
Fund (OPERF) into the nascent investment fund. After the
two made a presentation to the Oregon Investment Council
on November 1, 2017, the Oregon Investment Council
approved a €200 million capital commitment to the Fund.
The slide deck presented during that meeting begins with a
slide reading “Novalpina Capital,” and a disclaimer on the
second to last page notes that the slide deck was “prepared
by Novalpina Capital LLP.”
With its investment, OPERF became the first
investor in the Fund—i.e., it became a “limited partner”
in the partnership that was created by Novalpina GP in
Cite as 353 Or App 116 (2026) 121
August 2017 “for the purpose of raising a fund to undertake
investment activities.”4
B. The Agreements
OPERF’s investment in the Fund was effectuated
in a series of agreements, the terms of which are important
to our analysis of the issues on appeal. Those agreements,
which are all dated November 15, 2017, are (1) an Amended
and Restated Limited Partnership Agreement (the LPA), (2)
a Subscription Agreement, and (3) a Side Letter Agreement.
1. The LPA
The LPA, by its terms, “govern[ed]” the operation of
the Fund. It recounts that, as noted above, a partnership was
originally established via an agreement in August 2017 for
the purpose of raising a fund to undertake investment activities, and provides that the LPA was intended to “amend
and restate” that agreement in its entirety to provide for
“the further admission of persons as Limited Partners.”
Under the LPA, Novalpina GP, “as managing
general partner * * * , is responsible for the conduct of
the Partnership’s activities.” The LPA further provides
that Novalpina GP “shall have full power and authority,
exercisable in its discretion, to manage and operate the
Partnership,” including the power and authority “to market
the Partnership and to accept applications by, and require
the Partnership to admit, prospective Investors (including
4
At this juncture, we pause to note that our task on appeal has been made more difficult by Novalpina GP’s counsel’s shifting positions concerning the record during the course of this litigation.
For example, on appeal, Novalpina GP contends that the trial court erred when it referenced two of the Founders’ “control” over Novalpina GP in its written opinion, but as noted above, that is contrary to how it encouraged the trial court to understand the record.
Further, in the trial court, Novalpina GP asserted that Peel, Kowski, and Lueken were “not founders of the Fund,” but on appeal—consistent with the record and Novalpina GP’s representation to the United States District Court for the District of Oregon in other, related litigation—Novalpina GP appears to acknowledge that Peel, Kowski, and Lueken were “Founders” of the Fund.
Additionally, in the trial court, Novalpina GP represented to the trial court that the evidence reflected that Novalpina GP intended to make a €75 million investment in the Fund but, on appeal, contends that evidence refers to a different Novalpina entity, not Novalpina GP.
122 Novalpina Capital v. Dept. of Justice
Subsequent Investors and Substitute Investors), in each
case in accordance with this agreement.”
The LPA also contains choice-of-law and forumselection clauses which, as detailed below, Novalpina GP
argues required the trial court to set aside the CID. In particular, the choice-of-law clause provides:
“This agreement and the rights and obligations of the parties shall be governed by and construed in accordance with
the laws of the Grand Duchy of Luxembourg. Noncontractual
obligations (if any) arising out of or in connection with this
agreement (including its formation) shall also be governed
by the laws of the Grand Duchy of Luxembourg.”
The forum selection clause provides:
“The parties irrevocably agree that the courts of the Grand
Duchy of Luxembourg are to have the exclusive jurisdiction to settle any disputes (whether contractual or non-contractual) which may arise out of or in connection with this
agreement and accordingly any suit, action or proceeding
arising out of or in connection with this agreement shall be
brought in such courts. Each party accordingly irrevocably
submits to the jurisdiction of the courts of the Grand Duchy
of Luxembourg, and to any other courts in which any judgment of any court of the Grand Duchy of Luxembourg may
be enforced.”
2. The Subscription Agreement
The Subscription Agreement constituted OPERF’s
“offer to invest in the Partnership”—i.e., its application
to “become a Limited Partner and an Investor in the
Partnership.” In the offer, OPERF “applied” to commit an
investment of €200 million to the Fund, and that offer was
accepted by Novalpina GP on November 15, 2017.
Like the LPA, the Subscription Agreement also
contains a choice-of-law clause and a forum-selection clause.
The choice-of-law clause provides:
“This Subscription Agreement shall be governed by and
construed in accordance with the laws of the Grand Duchy
of Luxembourg. Non-contractual and pre-contractual obligations (in each case, if any) arising out of or in connection
with this Subscription Agreement or the process leading
Cite as 353 Or App 116 (2026) 123
to the submission by the Applicant of this application
shall also be governed by the laws of the Grand Duchy of
Luxembourg.”
The forum-selection clause provides:
“The Applicant irrevocably agrees that the courts of the
Grand Duchy of Luxembourg are to have the exclusive
jurisdiction to settle any disputes (whether contractual,
non-contractual or pre-contractual) which may arise out of
or in connection with this Subscription Agreement or the
process leading to the submission by the Applicant of this
application and accordingly: (i) any suit, action or proceeding arising out of or in connection with any of the foregoing shall be brought in such courts; and (ii) the Applicant
irrevocably submits to the jurisdiction of the courts of the
Grand Duchy of Luxembourg, and any other courts in
which any judgment of any court of the Grand Duchy of
Luxembourg may be enforced.”
3. The Side Letter Agreement
Finally, we turn to the Side Letter Agreement,
which is an agreement that was provided “in consideration of the Subscriber [i.e., OPERF] agreeing to make a
Commitment to the Partnership by executing a Subscription
Agreement,” that was executed by Novalpina GP, and that is
dated November 15, 2017.
The Side Letter Agreement provides that if there is
“any inconsistency between any of the provisions of this letter agreement, the [LPA] and the Subscriber’s Subscription
Agreement, the provisions of this letter agreement shall
prevail.”
The Side Letter Agreement, like the LPA and the
Subscription Agreement, contains a choice-of-law clause and
a forum-selection clause, but those clauses differ from the
choice-of-law and forum-selection clauses in the LPA and the
Subscription Agreement, because both clauses in the Side
Letter Agreement point to the application of Oregon law and
the jurisdiction of Oregon courts in certain circumstances.
The choice-of-law clause in the Side Letter
Agreement provided:
124 Novalpina Capital v. Dept. of Justice
“This letter agreement and the rights of the parties shall
be governed by and construed in accordance with the laws
of the Grand Duchy of Luxembourg. Notwithstanding any
of the foregoing, pursuant to Oregon law all issues of law
relating to the governmental authority, and the scope of sovereign and governmental immunities, of the Subscriber,
or otherwise governed by Oregon law, must be resolved
and enforced according to the laws of the State of Oregon,
without resort to any jurisdiction’s conflict of law rules or
doctrines.”
(Emphases added.)
The forum-selection clause provided:
“Solely on the basis of the Subscriber’s status as a state
entity and the limitations on its ability to waive sovereign and governmental immunities, the General Partner
acknowledges and agrees that nothing contained in this
letter agreement, the Partnership Agreement or the
Subscription Agreement may be construed as a waiver of
the Subscriber’s right to be subject to suit only in the courts
of Oregon and the Subscriber does not agree to the jurisdiction of any state courts other than those of the State of
Oregon or to the jurisdiction of any federal or other court.”
(Emphasis added.)
C. The Drawdown Notices and the Change of General
Partner
After OPERF’s initial €200 million commitment to
the fund in November 2017, between October 2018 and June
2021, Novalpina GP sent OPERF 10 “drawdown notices”
seeking over €100 million of capital funding, which OPERF
fulfilled. The LPA defines a “drawdown notice” as a “written
notice to each Investor of any amount that the Investor is
required to pay to the Partnership under this agreement.”
More specifically, in November 2018, Novalpina
GP—on behalf of the Fund—issued the first drawdown notice
(for over €15 million) and transmitted it to OPERF. That
drawdown notice was signed by directors of Novalpina GP—
Philip Zarb Mizzi, Allen Foley, and Gaëtan Dumont—and
attached an “investment summary” signed by Peel, Kowski,
and Lueken, on behalf of the Fund’s Investment Advisors
Cite as 353 Or App 116 (2026) 125
(which are defined in the LPA to be Novalpina Capital LLP
and Novalpina Capital Management International LLP).
A second drawdown notice was transmitted to
OPERF in July 2019 (for over €38 million), and a third in
February 2020 (for over €4 million), each also signed by
directors of Novalpina GP—Mizzi, Foley, and Dumont—and
each attaching an investment summary signed by Peel,
Kowski, and Lueken, on behalf of the Investment Advisors.
Then, between September 2020 and June 2021,
additional drawdown notices were transmitted to OPERF,
and each was signed by Mizzi, Foley, and Dumont, on behalf
of Novalpina GP.
Ultimately, OPERF’s investments as a limited partner in the Fund were considerable in amount for the Fund;
as of June 30, 2021, the Fund’s limited partners had contributed “only €548 million” in total, and OPERF was the
Fund’s largest investor.
In July 2021, the limited partners voted to remove
Novalpina GP as General Partner of the Fund “without
cause” pursuant to a “no fault divorce” clause in the LPA.
In other litigation, Novalpina GP contends that, as a result
of the removal, and as the “original general partner of the
fund, Novalpina GP and its related entities are owed payment of substantial contractual entitlements * * * likely
worth hundreds of millions of dollars.”
D. DOJ’s Investigation, the CID, and the Instant Litigation
Since September 2023, the DOJ has been conducting an Oregon False Claims Act investigation in connection
with OPERF’s investment in the Fund. The purpose of the
investigation is to “determine whether there has been a violation of the Oregon False Claims Act, ORS 180.750 through
ORS 180.785, in connection with claims for payments submitted to [OPERF] in connection with its investment into
Novalpina Capital Partners I.” Among other conduct, the
Oregon False Claims Act prohibits presenting “for payment
or approval, or caus[ing] to be presented for payment or
approval, a claim that the person knows is a false claim.”
ORS 180.755. A “false claim” is a claim that, among other
126 Novalpina Capital v. Dept. of Justice
things, “[c]ontains, or is based on, false or fraudulent information.” ORS 180.750.
On September 16, 2024, as part of its investigation,
the DOJ issued the CID pursuant to ORS 180.775. See ORS
180.775(1) (“If it appears to the Attorney General that a person has possession, custody or control of any information,
document or other materials that are relevant to an investigation of a violation of ORS 180.755, or that could lead to
the discovery of relevant information in an investigation of
a violation of ORS 180.755, the Attorney General may cause
an investigative demand to be served upon the person.”).
The CID sought documents and deposition testimony, and
it propounded interrogatories on Novalpina GP. Id. (“The
investigative demand may require the person: (a) To appear
and testify under oath at the time and place stated in the
investigative demand; (b) To answer written interrogatories;
or (c) To produce relevant documentary material or physical
evidence for examination at the time and place stated in the
investigative demand.”).
Novalpina GP moved to set aside the CID in
Multnomah County Circuit Court pursuant to ORS
646.618(2), which provides, in pertinent part, “At any time
before the return date specified in an investigative demand
* * * a petition to * * * set aside the demand, stating good
cause * * * may be filed in the appropriate court.”5 Novalpina GP asserted, among other points, that the demand should be
set aside for three reasons. First, it contended that there is no “personal jurisdiction over Novalpina GP in the State of
Oregon, and therefore, the CID is not enforceable.” Second,
it argued that “mandatory forum selection and choice of law
clauses found in the limited partnership agreement between
OPERF, an instrumentality of the State of Oregon, and
Novalpina GP, require all contract and non-contract claims
‘arising out of or in connection with’ the limited partnership agreement to be brought against Novalpina GP in courts of
5
For purposes of this opinion, we assume without deciding that the procedures for setting aside a CID set forth in ORS 646.618(2), which appear to concern civil investigative demands issued under ORS 646.618(1), concerning the Oregon Unlawful Trade Practices Act, are applicable to the demand in this case, which was issued by the Attorney General under ORS 180.755 and concerns the Oregon False Claims Act.
Cite as 353 Or App 116 (2026) 127
the Grand Duchy of Luxembourg and under Luxembourgish
law.” As to that argument, Novalpina GP contended that “the
State has waived its right to hail [Novalpina GP] into its
courts and has furthermore waived claims under Oregon’s
False Claims Act by agreeing to the exclusive application
of the laws of Luxembourg.” And, third, Novalpina GP
asserted that the DOJ’s “attempt to gather what amounts to
civil discovery through a CID fails to comply with international law, including but not limited to the Hague Evidence
Convention.”
Ultimately, in a written opinion, the trial court
rejected Novalpina GP’s arguments. Regarding personal
jurisdiction, the trial court concluded that Novalpina GP’s
“contacts with the State of Oregon are sufficient to subject [it] to specific jurisdiction.” The court reasoned that the “ ‘shell’ corporate structure in place between [Novalpina GP], a
[General Partner], and the persons/entities who functionally
own [it] and actively aimed their communications at Oregon
through solicitation of investment of Oregon funds while
in Oregon, does not function to entirely shelter [Novalpina
GP] from jurisdiction” and that, “the actions of the persons/
entities who functionally owned and operated Novalpina GP
are sufficient to establish * * * purposeful availment of privileges and laws of the forum state, and establish minimum
contacts with the forum state of Oregon.” The court also
found that “[p]ersons with functional control over Novalpina
GP were aware that any fraud-related injury arising from
the relationship between [Novalpina GP] and [the State
of Oregon] would be directed at and sustained in Oregon,”
and further determined that “[h]ailing [Novalpina GP] into
Oregon to answer for possible injury arising out of an ongoing financial relationship with an Oregon entity, that exists
as a result of [its] active solicitation of said relationship in Oregon also does not offend notions of fair play or substantial justice under the law.”
Regarding the choice-of-law and forum-selection
clauses, the court determined, among other points, that “the
forum selection clauses of the agreement do not control [the
DOJ’s] choice of venue for purposes of pursuing claims and
process pursuant to ORS 180.755,” which “exist outside the
128 Novalpina Capital v. Dept. of Justice
parameters of the parties’ contractual agreement.” Further,
the court concluded that nothing in the choice-of-law clauses
“provides any support for [Novalpina GP’s] position that
the ORS 180.755 (False Claims Act) claim [that the DOJ]
seeks to investigate and assert against [Novalpina GP]
can only be brought in Luxembourg and must be subject to
Luxembourgish law.”
Regarding compliance with the Hague Evidence
Convention, the court determined that adherence to the
Hague Evidence Convention is not mandatory and would
likely not result in production of the requested information,
which militated against its application in this case. The court noted further that Novalpina GP had not pointed to any
Luxembourg law that prohibited pre-litigation disclosure of
the requested material. Moreover, the court observed that
“comity analysis also favors application of domestic discovery rules, laws and process over Hague Convention process.”
Thus, the trial court denied the petition to set aside.
This appeal followed.
II. PERSONAL JURISDICTION
As noted, in its first assignment of error, Novalpina
GP argues that “[t]he trial court erred in holding that specific personal jurisdiction exists over Novalpina GP because
Novalpina GP lacks minimum contacts with the State of
Oregon sufficient to comport with the Due Process Clause.”
“Under ORCP 4 L—the catchall provision of this
state’s long-arm statute—Oregon may exercise specific
personal jurisdiction over a defendant ‘in any action where
prosecution of the action against a defendant in this state
is not inconsistent with the Constitution of this state or the Constitution of the United States.’ ” M. C. v. Quest Global,
Inc., 328 Or App 378, 382, 537 P3d 571 (2023), rev den,
372 Or 718 (2024) (quoting ORCP 4 L).6 “Thus, for Oregon
to exercise specific personal jurisdiction over a defendant,
6
The parties agree that “general personal jurisdiction” does not exist in this case; that is, there is no contention that Novalpina GP has the kind of “continuous” operations within Oregon that are “so substantial and of such a nature” as to give rise to general personal jurisdiction. See Robinson v. Harley-Davidson Motor Co., 354 Or 572, 578, 316 P3d 287 (2013) (explaining the nature of general personal jurisdiction).
Cite as 353 Or App 116 (2026) 129
there must be ‘minimum contacts’ between the defendant
and Oregon.” Id. “In determining whether those contacts
exist, we look to three considerations.” Id. at 383.
First, “we determine whether the defendant ‘purposefully availed’ itself of the privilege of conducting activities in Oregon or ‘purposefully directed’ its activities at
residents of Oregon.” Id. (citing Cox v. HP Inc., 368 Or 477,
497, 507, 492 P3d 1245 (2021)). Second, “if a contact exists,
* * * we next consider whether the litigation ‘arises out of
or relates to’ that contact.” Id. (quoting State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151, 159, 854 P2d 461
(1993)). Third, if both of those prerequisites are met, “we
consider whether exercising jurisdiction over the defendant
would comport with ‘fair play and substantial justice.’ ” Id.
(quoting Circus Circus Reno, Inc., 317 Or at 159-60).
A. Purposeful Availment
A foreign defendant’s “activities within Oregon rise
to the level of ‘minimum contacts’ ” only when “the defendant
has ‘purposefully availed’ itself of the privilege of conducting activities in Oregon or ‘purposefully directed’ its activities at residents of Oregon.” Id. at 383. That requirement exists
“to prevent foreign defendants from being haled into local
courts because of ‘random, fortuitous or attenuated contacts’
with the forum state or the ‘unilateral activity’ of a plaintiff.” Id. at 383 (quoting Burger King Corp. v. Rudzewicz, 471 US 462, 475, 105 S Ct 2174, 85 L Ed 2d 528 (1985)). Thus,
a “purposeful availment” analysis involves “a qualitative
evaluation of the defendant’s contact with the forum state
in order to determine whether the defendant’s conduct and
connection with the forum state are such that he should reasonably anticipate being haled into court there.” Munson v.
Valley Energy Investment Fund, 264 Or App 679, 699, 333
P3d 1102 (2014).
Importantly, “mere injury to a forum resident is
not a sufficient connection to the forum.” M. C., 328 Or App
Additionally, we note that although many cases use the word “defendant” when describing issues of personal jurisdiction, Novalpina GP was a “petitioner” in the trial court. Neither party has argued that Novalpina GP’s petitioning the court for relief in this case should play a role in our analysis of personal jurisdiction.
130 Novalpina Capital v. Dept. of Justice
at 384 (internal quotation marks and brackets omitted).
Instead, the defendant “must have deliberately reached
out beyond its home by engaging in some act in the forum
state,” and that act, or acts, “must create a substantial connection with the forum state and must have been created by
the defendant himself.” Id. (internal quotation marks and
brackets omitted).
Ultimately, “[s]pecific personal jurisdiction is a
highly fact-specific inquiry,” and as such, “it can be established in a wide variety of circumstances.” Id. at 387. In the context of a financial relationship such as this one, “contracting alone with a party located in the forum state is
not automatically enough to establish sufficient minimum
contacts.” Ancor Holdings, L.P. v. Landon Capital Partners,
L.L.C., 114 F4th 382, 395 (5th Cir 2024).7 A contract is
ordinarily merely “an intermediate step serving to tie up
prior business negotiations with future consequences which
themselves are the real object of the business transaction.”
Burger King Corp., 471 US at 479. The court must “analyze
prior negotiations and contemplated future consequences,
along with the terms of the contract and the parties’ actual
course of dealing, to determine whether the defendant purposefully established minimum contacts within the forum.”
Ancor Holdings, L.P., 114 F4th at 395 (internal quotation
marks omitted).
Here, we conclude that the trial court did not err
when it determined that Novalpina GP had purposefully
availed itself of the privilege of conducting activities in
Oregon. We understand the trial court to have determined
that in late 2017, when two of the Founders—Peel and
Kowski—came to Oregon for the purpose of soliciting an
investment by OPERF into the Fund, they did so as representatives of, and on behalf of, Novalpina GP, the General
Partner of that Fund. That is, the trial court determined
that Novalpina GP itself “active[ly] solicit[ed] * * * said relationship in Oregon.” That finding is supported by the record:
As detailed in the LPA, which was entered into on the
7
We are, of course, not bound by the decisions of lower federal courts, but we may consider them as “persuasive authority.” Mears v. Marshall, 138 Or App 476, 478, 909 P2d 212 (1996). Our citation to federal courts in this opinion—other than to the United States Supreme Court—should be so understood. Cite as 353 Or App 116 (2026) 131
same day that OPERF’s €200 million capital commitment
was accepted, Novalpina GP was “responsible for the conduct of the Partnership’s [(i.e., the Fund’s)] activities,” and Novalpina GP had authority “to market the Partnership
[(i.e., the Fund)].”8 Moreover, Novalpina GP stood to financially benefit, directly, from OPERF’s investment in the
Fund. Novalpina GP’s solicitation in Oregon of an investment from OPERF supports a determination of purposeful
availment. See Decker Coal Co. v. Commonwealth Edison
Co., 805 F2d 834, 840 (9th Cir 1986) (concluding that, “if
the defendant directly solicits business in the forum state,
the resulting transactions will probably constitute the deliberate transaction of business invoking the benefits of the
forum state’s laws”).
We further note that the Side Letter Agreement
between OPERF and Novalpina GP contained a choice-oflaw provision providing that Oregon law would apply to all
issues of law “governed by Oregon law” and “all issues of law
relating to the governmental authority,” which, as explained
below, we understand to include CIDs issued by the Attorney
General pursuant to an Oregon statute. That choice-of-law
provision, too, seemingly supports the trial court’s conclusion regarding personal jurisdiction. See Burger King Corp.,
471 US at 482 (observing that a choice-of-law provision
“standing alone would be insufficient to confer jurisdiction,” but that by entering into contracts expressly providing that
Florida’s laws would govern disputes a defendant “purposefully availed himself of the benefits and protections of
Florida’s laws”).
Finally, as detailed above, subsequent to Novalpina
GP’s solicitation in Oregon of the initial investment from
OPERF, Novalpina GP transmitted 10 drawdown notices to
OPERF, seeking over €100 million of capital funding, all of
which OPERF fulfilled.
8
We acknowledge that the LPA was entered into 14 days after the solicitation of OPERF in Oregon and that the record does not contain the August 2017 agreement between Novalpina GP and the Initial LP, which created the partnership. Seemingly, it was the August 2017 agreement, not the LPA, that was in effect at the time of the solicitation. Nevertheless, we think on this record, relying on the LPA to understand Novalpina GP’s role at the time of the solicitation constitutes a legally permissible inference.
132 Novalpina Capital v. Dept. of Justice
We are persuaded that that cumulative conduct
establishes Novalpina GP’s purposeful availment, and the
trial court did not err in so concluding. See Walden v. Fiore, 571 US 277, 285, 134 S Ct 1115, 188 L Ed 2d 12 (2014) (“[W]
e have upheld the assertion of jurisdiction over defendants
who have purposefully reach[ed] out beyond their State and
into another by, for example, entering a contractual relationship that envisioned continuing and wide-reaching contacts in the forum State.” (Internal citation and quotation
marks omitted; second brackets in Walden.)); Ooma, Inc. v.
Dept. of Rev., 369 Or 95, 101, 501 P3d 520 (2021) (considering “cumulative conduct” in determining whether a party purposefully availed itself “of the Oregon market”).
In arguing that the trial court erred, Novalpina GP
raises two arguments of note. First, Novalpina GP argues
that the trial court erred because it—Novalpina GP—did
not have “minimum contacts with Oregon sufficient to constitute purposeful availment,” given that there “is no evidence that Novalpina GP solicited anything.” (Emphasis in
Novalpina GP’s brief.) As we understand Novalpina GP’s
argument, that is because, in its view, “Peel and Kowski
attended the meeting as Novalpina Capital LLP, which was
putting together a Fund to be called Novalpina Capital
Partners I SCSp,” and neither “Peel nor Kowski ever had a
role in Novalpina GP.”
We are not persuaded. This record permits an inference that Peel and Kowski were also soliciting the investment on behalf of Novalpina GP, the General Partner of the
Fund, which stood to benefit from investment in the Fund.
That is particularly true given that Peel and Kowski, along
with Lueken, “organized” the Fund and that Novalpina GP,
as General Partner of the Fund, was responsible for the conduct of the Fund’s activities. Indeed, although Novalpina GP
argues that, at the time of the solicitation, it was “not doing anything” because it did not have “a Fund to manage,” by
the time of the solicitation in November 2017, Novalpina GP
had created the partnership “for the purpose of raising a
fund to undertake investment activities”—precisely what it
was doing in Oregon, as the trial court found. In the circumstances of this case, as the trial court aptly put it, Novalpina’s Cite as 353 Or App 116 (2026) 133
corporate structure “does not function to entirely shelter”
Novalpina GP from jurisdiction.
Additionally, Novalpina GP points to the forumselection clauses in the various agreements, contending that
“the parties’ choice of Luxembourg law and forum for all disputes, regardless of whether they are precontractual, noncontractual or contractual in nature, is strong evidence that
Novalpina GP did not purposefully invoke the benefits and
protections of a State’s laws.” (Emphasis in Novalpina GP’s
brief.) As described below, however, in our consideration of
Novalpina GP’s second assignment of error, we disagree
with Novalpina GP’s interpretation of the applicability of
the forum-selection clauses and choice-of-law clauses; to
the extent the various agreements have bearing here, they
reflect that the parties understood Oregon law would apply
to this issue and did not intend for it to be litigated exclusively in the Grand Duchy of Luxembourg.9
9
In connection with personal jurisdiction, Novalpina GP raises other arguments, too, but they are, in our view, lacking in substance.
By way of one example, Novalpina GP contends that the trial court “wrongly assumed and declared [that Kowski and Peel] own and control [Novalpina GP].” But, as noted above, in the trial court, counsel for Novalpina GP encouraged the trial court to understand that the Founders—Kowski, Peel, and Lueken—exercised “practical control and influence over” Novalpina GP, 353 Or App at 120, and the record is replete with evidence from which the trial court could find that TopCo, which is owned by the Founders, has an ownership interest, at least indirectly, in Novalpina GP.
Additionally, Novalpina GP points to the trial court’s use of the term “ ‘shell’ ” and asserts that “[t]here were no facts in the record to support the trial court’s finding that there was a ‘shell corporate structure’ between Novalpina GP and the three investment advisers.” But, as we understand the trial court’s ruling, the word “shell” was in quotation marks in its written opinion for a reason: As the transcript of oral argument makes clear, the trial court used the word “shell” in paraphrasing Novalpina GP’s argument about its own role in the Fund’s corporate structure. We see no error with the trial court’s use of the word “shell” when the trial court ruling is read in context. See State v Pothast, 352 Or App 468, 472, ___ P3d ___ (2026) (trial court statements must be read in context).
Finally, Novalpina GP argues that the trial court erred in “concluding on a bare record that specific personal jurisdiction over Novalpina GP exists on account of an implied piercing/reverse piercing or alter ego analysis.” But as the DOJ notes, “the trial court did not mention, much less rely on, the theory of piercing the corporate veil or alter ego to conclude that petitioner was subject to personal jurisdiction in Oregon,” but instead relied on Novalpina GP’s “contacts with the State of Oregon.”
Given the nature of many of Novalpina GP’s arguments on appeal, in this opinion, we have addressed some but not all of them. To the extent we did not address an argument expressly, we reject it.
134 Novalpina Capital v. Dept. of Justice
B. Arising Out of or Related To
As noted, to give rise to specific personal jurisdiction, the litigation must “arise out of or relate to” the party’s “minimum contacts” with the forum. M. C., 328 Or App at
384. “At a minimum, to satisfy that requirement, the ‘nature
and quality’ of the defendant’s Oregon activities must permit a determination that it was ‘reasonably foreseeable’ that
the defendant would be sued in Oregon for the type of claim
at issue.” Cox, 368 Or at 496.
On appeal, Novalpina GP does not meaningfully
develop an argument that it is not subject to personal jurisdiction because the CID does not “arise out of or relate to”
its minimum contacts with Oregon. Instead, it asserts that
“[w]here there are no minimum contacts establishing purposeful availment of the forum, there can be no facts that
the claim arises out of or relates to the defendant’s forumrelated activities.”
In our view, the trial court did not err in determining that this prong of the minimum contacts analysis is satisfied: In this case, the DOJ has initiated a False Claims Act investigation regarding investments solicited by Novalpina
GP and, as part of that investigation, it issued the CID. The
CID—which is the subject of this matter—both arises out
of and relates to the contacts between Novalpina GP and
Oregon. The “reasonably foreseeable” standard is met here.
C. Fair Play and Substantial Justice
We turn to the last prong of the specific personal
jurisdiction analysis. Oregon “may exercise jurisdiction
over a foreign defendant only if doing so ‘would comport
with fair play and substantial justice.’ ” M. C., 328 Or App at 384 (quoting Burger King Corp., 471 US at 476). Under that
prong, the burden shifts to the party contesting the assertion of jurisdiction “to present a compelling case that the
presence of some other considerations would render jurisdiction unreasonable.” Id. at 385 (internal quotation marks
omitted). Moreover, where the party responsible for meeting
the first two prongs—here, the DOJ—meets their burden
on those prongs, the party with the burden on the third
prong—here, Novalpina GP—“carries a substantial burden
Cite as 353 Or App 116 (2026) 135
to make a compelling case that the exercise of jurisdiction
would not be reasonable.” Id. at 389.
Whether the exercise of jurisdiction comports with
fair play and substantial justice presents a “fact-specific
inquiry which requires balancing * * * seven factors.” Id.
Those factors are:
“ ‘(1) the extent of the defendant’s purposeful interjection;
(2) the burden on the defendant in defending in the forum;
(3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating
the dispute; (5) the most efficient judicial resolution of the
controversy; (6) the importance of the forum to plaintiff’s
interest in convenient and effective relief; and (7) the existence of an alternative forum.’ ”
Id. at 385 (quoting Munson, 264 Or App at 700).
Having considered the trial court’s ruling, the
record, and the parties’ arguments, we conclude that the
trial court did not err.
Concerning “the extent of the defendant’s purposeful interjection,” Novalpina GP argues that its “minimum
contacts, properly assessed, are completely lacking,” which
“makes the unreasonableness of the court’s exercise of personal jurisdiction over Novalpina GP * * * glaring,” and that
Novalpina GP did not “inject itself into Oregon’s affairs.”
But, as detailed above, given the trial court’s findings, we
disagree with Novalpina GP’s contentions regarding its contacts with Oregon. 353 Or App at 130-32.
Concerning the “burden on the defendant in defending in the forum,” Novalpina GP has not persuasively
explained why responding to the CID is particularly burdensome, and in that regard, we note that the trial court
required the DOJ to allow Novalpina GP to provide the
requested deposition testimony “via remote video means.”
See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements
Ltd., 328 F3d 1122, 1133 (9th Cir 2003) (recognizing that
“modern advances in communications and transportation have significantly reduced the burden of litigating in
another country” (internal quotation marks omitted)); see
also Societe Nationale Industrielle Aerospatiale v. U.S. Dist. 136 Novalpina Capital v. Dept. of Justice
Court for S. Dist. of Iowa, 482 US 522, 539, 107 S Ct 2542,
96 L Ed 2d 461 (1987) (explaining that “interrogatories and
document requests are staples of international commercial
litigation” and can be “routine”). Nor has Novalpina GP persuasively explained how responding to the CID “conflict[s]
with the sovereignty” of the Grand Duchy of Luxembourg,
when Novalpina GP traveled to Oregon to solicit investment from OPERF in Oregon, agreed in the Side Letter
Agreement that Oregon law would govern certain disputes
when accepting OPERF’s investment, and the CID concerns a False Claims Act investigation undertaken by the
Attorney General of Oregon. See Vitamins Antitrust Litig.,
120 F Supp 2d 45, 50, amended in part, 2000 WL 33142129
(DDC Nov 22, 2000) (“[T]he Court sees no reason why the
foreign nations’ sovereign interests would be offended by the
investigation of this antitrust price-fixing conspiracy; many
of these nations prohibit this type of conduct in their own
laws and presumably all of these countries would want to
have these laws enforced to the fullest extent.”).
Moreover, concerning “the forum state’s interest in
adjudicating the dispute,” the trial court determined that
“[t]he State of Oregon has a substantial interest in vindicating the rights of Oregonians, and in enforcement of ORS
180.750 et. seq., Oregon’s False Claims Act,” and further that the “identification of persons involved in and/or transactions that potentially constitute the basis of [a False Claims Act]
claim is integral to litigation and prosecution of said claim
under ORS 180.760,” the statute that permits the Attorney
General to bring a False Claims Act claim. We agree with
that assessment concerning the State of Oregon’s interests.
See Harris Rutsky & Co. Ins. Servs., Inc., 328 F3d at 1133
(recognizing that California has “a strong interest in providing an effective means of redress for its residents who are
tortiously injured” (brackets and internal quotation marks
omitted)).
Finally, concerning whether there is an “alternative
forum” for the Attorney General to obtain the documents it
seeks to investigate a potential violation of the Oregon False Claims Act, Novalpina GP takes the position—and the trial
court found—that “Luxembourgish law generally has no
Cite as 353 Or App 116 (2026) 137
mechanism for pretrial discovery.” Consequently, the trial
court could find, in our view, that “convenient and effective
relief” lies in this forum and that this forum will provide
“efficient judicial resolution of the controversy.”
D. Conclusion Regarding Personal Jurisdiction
In sum, we conclude that the trial court did not
err when it determined that Novalpina GP was subject to
personal jurisdiction in Oregon. Specifically, it did not err
when it determined that Novalpina GP purposefully availed
itself of the Oregon market; that this litigation arises out of Novalpina GP’s availment of the Oregon market; and that
the exercise of personal jurisdiction over Novalpina GP in
this case does not offend traditional notions of fair play and substantial justice.
III. FORUM-SELECTION AND CHOICE-OF-LAW
CLAUSES
In its second assignment of error, Novalpina GP contends that “the trial court erred in holding that the forum
selection and choice-of-law clauses found in the agreements
between the parties failed to preclude enforcement of the
CID in the State of Oregon.”10
As noted, regarding the forum-selection clauses,
the trial court determined that those clauses do not “control
[the DOJ’s] choice of venue for purposes of pursuing claims
and process pursuant to ORS 180.755,” which “exist[s] outside the parameters of the parties’ contractual agreement.”
In so determining, the trial court relied on Black v. Arizala, 337 Or 250, 95 P3d 1109 (2004). As also noted, regarding the
10
Neither the LPA, the Subscription Agreement, nor the Side Letter Agreement was signed by the Attorney General. In analyzing this assignment of error, given the trial court’s ruling, we assume, without deciding, that those agreements are binding on the parties in this litigation.
We also observe that it is not apparent from Novalpina GP’s arguments why a forum selection clause in the LPA, Subscription Agreement, or Side Letter Agreement would require the court to set aside the CID, which is the relief it sought in the trial court. It may be that, if the clauses were applicable to the CID, the appropriate court to resolve a dispute concerning the scope of the CID would be a court in the Grand Duchy of Luxembourg, but it does not necessarily follow from the forum selection that the CID would need to be set aside. Ultimately, however, we need not resolve the issue because the agreements do not reach the CID in the manner argued by Novalpina GP.
138 Novalpina Capital v. Dept. of Justice
choice-of-law clauses, the trial court determined that nothing in those clauses “provides any support for [Novalpina
GP’s] position that the ORS 180.755 (False Claims Act)
claim [that the DOJ] seeks to investigate and assert against
[Novalpina GP] can only be brought in Luxembourg and
must be subject to Luxembourgish law.”
As explained below, we agree with the trial court.
A. Contract Interpretation Under Oregon Law
Under Oregon law, “[c]ontract interpretation presents a question of law that we review for legal error.”11
Santoro v. Eagle Crest Estate Homesite Owners Assn., 319
Or App 793, 798, 512 P3d 828 (2022). In interpreting a contract, “the court first examines the text of the disputed provision, in the context of the document as a whole, inquiring
whether the provision at issue is ambiguous.” Id. (internal
quotation marks omitted). Our goal is to “discern the intent
of the parties in entering into that agreement.” Black, 337
Or at 267. In the absence of an ambiguity, “the court construes the words of a contract as a matter of law, and the
analysis ends.” Santoro, 319 Or App at 800. A court may consider “extrinsic evidence of the circumstances underlying
the formation of the contract” in determining whether a contract is ambiguous. Riverside Homes, Inc. v. Murray, 230 Or
App 292, 302, 214 P3d 835 (2009) (internal quotation marks
omitted). If the contract remains ambiguous even after considering such evidence, “the court then examines extrinsic
evidence of the contracting parties’ intent” to determine the
meaning of the contract. Id.
B. The Forum-Selection Clauses
We first consider the meaning and scope of the
forum-selection clauses. Novalpina GP notes that the forumselection clause in the LPA covers “any disputes (whether
11
Both the Subscription Agreement and the LPA designate “the laws of the Grand Duchy of Luxembourg” for interpretation of those agreements, including, presumably, the scope of the forum-selection clauses in those agreements. But, on appeal, neither party offers law from the Grand Duchy of Luxembourg regarding interpretation of such provisions. In the absence of such law, we apply Oregon law. Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to on recons, 187 Or App 472, 68 P3d 259 (2003) (“[I]t is not this court’s function to speculate as to what a party’s argument might be” nor “to make or develop a party’s argument when that party has not endeavored to do so itself.”). Cite as 353 Or App 116 (2026) 139
contractual or non-contractual) which may arise out of or
in connection with this agreement” and the Subscription
Agreement forum selection clause covers “any disputes
(whether contractual, non-contractual or pre-contractual)
which may arise out of or in connection with this Subscription Agreement or the process leading to the submission by the
Applicant.” (Emphases added.) Novalpina GP argues that
because “[t]he State” has “no other connection to Novalpina
except through the contracts[,] all disputes will arise in connection with the investment agreement[s].” Novalpina GP
further argues that the trial court’s reliance on Black to
conclude the forum-selection clauses are not controlling was
misplaced, because the forum-selection clauses in this case
are “far broader” than the clause at issue in Black.
In Black, the Oregon Supreme Court considered
whether, in a contract governed by Delaware law, a choiceof-venue clause required the plaintiffs to bring their claim
for damages for “securities law violations and related torts”
in Puerto Rico. 337 Or at 256. The clause at issue in Black
provided that the “venue for any legal action arising from
this Agreement, * * * shall be in San Juan, Puerto Rico.” Id.
at 266 (emphasis in Black). After noting that the objective
in “construing the venue agreement is to discern the intent
of the parties in entering into that agreement,” the court
looked to the dictionary definitions of the verb “arise” and,
based on those definitions, determined that the parties’ contract “must be the specific place of origin or the source of the legal action to trigger application of the venue agreement.”
Id. at 267.
Consequently, the court concluded that the plaintiffs in Black could “maintain an action [in Oregon] based
on noncontractual sources of their rights even though the
claims arise from some of or all the same facts that relate
to the parties’ contractual transactions.” Id. at 270. In so
concluding, the court in Black discussed with approval a
Delaware Supreme Court case, Parfi Holding AB v. Mirror
Image Internet, Inc., 817 A2d 149 (Del 2002), cert den, 538
US 1032 (2003).
In Parfi, the Delaware Supreme Court considered
the scope of an arbitration clause bearing some similarity
140 Novalpina Capital v. Dept. of Justice
to the forum-selection clauses in this case.12 The issue in
Parfi was whether an arbitration clause providing that the
parties agreed to arbitrate “any dispute, controversy, or
claim arising out of or in connection with this Agreement”
extended to certain breach of fiduciary duty claims under
Delaware law. Id. at 155. The court concluded that “the arbitration provision, no matter how broadly drafted, can reach
only the claims within the scope of the contract” and did not
apply to the breach of fiduciary duty claims since the “fiduciary duties * * * consist of a set of rights and obligations
that are independent of any contract.” Id. at 151, 157. The
court reasoned that, although the language of the arbitration clause had a “broad scope,” the arbitration clause “signals” only “an intent to arbitrate matters that touch on the
rights and performance related to the contract” and must
be “considered in that light.” Id. at 156. It further explained that, although similar conduct might lead to claims for relief based on breach of contract and breach of fiduciary duty,
the court must consider that the “separate rights pursued by
plaintiffs under both the contract and the independent fiduciary duties rather than the similarity of the conduct that
led to potential claims for both the contract and fiduciary
breaches of duty.” Id. (emphases in original).
More recently, in Peters v. C21 Investments, Inc., 322
Or App 462, 465, 520 P3d 920 (2022), rev den, 371 Or 309
(2023), we considered whether a forum-selection clause providing that each “of the Parties hereto irrevocably attorns
[(consents)] and submits to the exclusive jurisdiction of the
courts of the Province of British Columbia in respect of the
subject matter of this Agreement” applied to certain “tort
claims for intentional interference with business relations
and intentional interference with employment relations.” Id.
at 464 (brackets in Peters). Following the analysis of Black
in making that determination, we looked to the dictionary
definition of “in respect of” and concluded that the forumselection clause applied to claims “ ‘as to’ or ‘as regards’ or ‘with respect to’ the specific subject matter” of the agreement
12
We note that, although the clause at issue in Parfi was an arbitration clause, and the clause at issue in Black was a choice of venue clause, the court in Black explained that those differences played “no role” in its analysis. Black, 337 Or at 269. So too with regard to the forum-selection clause at issue in this case. Cite as 353 Or App 116 (2026) 141
at issue, as well as “associated agreements,” and concerned
disputes regarding “specific contractual obligations” between
the parties. Id. at 474. In ruling that the tort claims were not covered by the clause, we reasoned that, although the claims
concerned “interference with th[e] agreements” subject to the
forum-selection clause, the claims were not themselves “ ‘in
respect of the subject matter’ of the agreements,” notwithstanding that the agreements “could provide information to
the court in its analysis of plaintiffs’ tort claims.” Id.
Guided by the analysis in Black, which applied
Delaware law, and Peters, which applied the same approach
as Black under Oregon law, and Parfi, which we consider
persuasive authority, we conclude that the forum-selection
clauses in the LPA and the Subscription Agreement did not
require the trial court to set aside the CID.
Novalpina GP’s argument that the forum-selection
clauses in the LPA and the Subscription Agreement apply to
the CID is largely based on the words “in connection with”
in those contracts. As our Supreme Court has observed,
relying on Webster’s Third New International Dictionary, the
phrase “in connection with” is an “ ‘ambiguous phrase that
means a relationship or association.’ ” Portland Distributing
Co. v. Dept. of Rev., 307 Or 94, 99, 763 P2d 1189 (1988) (citing Webster’s Third New International Dictionary 481 (1971)); see
also Webster’s Third New International Dictionary 481 (2002)
(defining “connection” as, among other definitions, “relationship or association in thought” and “the act of connecting”).
But “dictionaries do not tell us what words mean, only what
words can mean, depending on their context and the particular manner in which they are used.” State v. Corcilius,
294 Or App 20, 23, 430 P3d 169 (2018) (emphasis in original; internal quotation marks omitted). Here, the dictionary
definition is of little utility in interpreting the phrase “in connection with” in the LPA and Subscription Agreement
because, as our Supreme Court has also observed, the “ ‘only
merits’ ” of the phrase “in connection with” are its “ ‘vagueness & pliability’ ”; it is a phrase that “ ‘everyone who prefers vigorous to flabby English will have as little to do with as
[they] can.’ ” Id. at 99 n 5 (quoting Margaret Nicholson, A
Dictionary of American-English Usage 102 (1957)).
142 Novalpina Capital v. Dept. of Justice
As was the agreement to arbitrate in Parfi, we
believe the forum-selection clause in this case is of “broad
scope” and covers disputes that “touch on the rights and
performance related to the contract,” id. at 155-56, but,
from the “vague[ ] & pliab[le]” language of the clause, we do
not understand the parties to have intended to require the
Attorney General to have forfeited the separate statutory
right under Oregon law to serve and enforce a CID on “a person” that the Attorney General believes to have “possession,
custody or control of any information, document or other
materials that are relevant to an investigation of a violation of ORS 180.755.” ORS 180.755 (setting forth that authority).
That is, here, “the right[ ] pursued” by the DOJ to serve and
enforce a CID is entirely statutory in nature, created by
legislative action in 2009, see Or Laws 2009, ch 292, § 6,
and exists wholly independently from any contract between
OPERF and Novalpina GP. The Attorney General’s statutory authority would exist even if the contracts were never
entered into or if they were void. Although similar conduct
might be both a breach of contract and give rise to a claim
for violation of the False Claims Act, as explained in Parfi,
that does not mean the latter is “in connection with” the
contract.
Moreover, we think Novalpina GP’s argument concerning the scope of the forum-section clauses in the LPA
and the Subscription Agreement is misplaced because the
jurisdictional provision of the Side Letter Agreement provides, as noted, that the “Subscriber does not agree to the
jurisdiction of any state courts other than those of the
State of Oregon or to the jurisdiction of any * * * other court.” (Emphases added.) That provision is inconsistent with the
forum-selection clauses in the LPA and the Subscription
Agreement, the latter of which provides that “Applicant
irrevocably agrees that the courts of the Grand Duchy of
Luxembourg are to have the exclusive jurisdiction to settle any disputes * * *, which may arise out of or in connection with this Subscription Agreement,” and the former of
which provides that the parties “irrevocably agree that the
courts of the Grand Duchy of Luxembourg are to have the
exclusive jurisdiction to settle any disputes * * *, which may arise out of or in connection with this agreement.” The Side
Cite as 353 Or App 116 (2026) 143
Letter Agreement is inconsistent because, plainly, a party
cannot both agree to the jurisdiction of the Grand Duchy
of Luxembourg (as in the Subscription Agreement and the
LPA) and, simultaneously, not agree to the jurisdiction of any courts other than Oregon (as in the Side Letter Agreement).
By its terms, and as noted, the Side Letter Agreement “prevail[s]” if there is “any inconsistency between” it and the
LPA or the Subscription Agreement.
Thus, we reject Novalpina GP’s argument that the
trial court was required to set aside the CID due to the
forum-selection clauses in the various agreements.
C. The Choice-of-Law Clauses
Turning next to the choice-of-law clauses, we
agree with the trial court that nothing in those clauses
“provides any support for [Novalpina GP’s] position that
the ORS 180.755 (False Claims Act) claim [that the DOJ]
seeks to investigate and assert against [Novalpina GP]
can only be brought in Luxembourg and must be subject to
Luxembourgish law.”
As an initial matter, as suggested by our discussion above concerning the forum-selection clauses, it is not
clear that the LPA, the Subscription Agreement, and the
Side Letter Agreement are broad enough to control the right
of the Attorney General to issue a CID under ORS 180.775,
which is a right that exists independent of any contractual
rights.
But more to the point regarding the choice-of-law
provisions, the choice-of-law provision in the Side Letter
Agreement provides, in relevant part, “all issues of law
relating to the governmental authority, and the scope of sovereign and governmental immunities, of the Subscriber,
or otherwise governed by Oregon law, must be resolved and
enforced according to the laws of the State of Oregon, without resort to any jurisdiction’s conflict of law rules or doctrines.” (Emphases added.) The Attorney General’s authority to
issue CIDs under ORS 180.775 is an issue of “governmental authority” that is “governed by Oregon law.” See Etter
v. Dept. of Rev., 360 Or 46, 52, 377 P3d 561 (2016) (observing that “federal law” governs the meaning of “a federal
144 Novalpina Capital v. Dept. of Justice
statute”). And, as noted, the Side Letter Agreement, by its
terms, “prevail[s]” if there is “any inconsistency between” it and the LPA or the Subscription Agreement.
Thus, we agree with the trial court regarding the
choice-of-law provisions.
D. Conclusion Regarding Forum-Selection and Choice-ofLaw Clauses
In sum, we conclude that the trial court did not err
in determining that the forum-selection and choice-of-law
clauses found in the agreements between the parties did not
preclude enforcement of the CID in Oregon by application of
Oregon law.
IV. THE HAGUE EVIDENCE CONVENTION
In its third assignment of error, Novalpina GP contends that the trial court erred “by refusing to apply the
Hague Evidence Convention, which would preclude enforcement of the CID in the State of Oregon.”
By way of background, the Hague Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters,
Mar 18, 1970, 23 U.S.T. 2555 (the Convention), “prescribes
certain procedures by which a judicial authority in one contracting state may request evidence located in another contracting state.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 US 522, 524, 107
S Ct 2542, 96 L Ed 2d 461 (1987) (Aerospatiale). Both the
United States and the Grand Duchy of Luxembourg are contracting states.
The Convention’s “purpose was to establish a system for obtaining evidence located abroad that would be
‘tolerable’ to the state executing the request and would produce evidence ‘utilizable’ in the requesting state.” Id. The
procedures in the Convention for requesting evidence “are
not mandatory,” but, instead, the Convention is “one method
of seeking evidence that a court may elect to employ.” Id.
at 541. Thus, the procedures are a “permissive supplement,
not a pre-emptive replacement, for other means of obtaining
evidence located abroad.” Id. at 536.
Cite as 353 Or App 116 (2026) 145
In Aerospatiale, the Court expressly rejected a party’s argument that the Convention was the “exclusive means
for obtaining evidence located abroad”—which it characterized as an “extreme position”—explaining that that would
effectively “subject every American court hearing a case
involving a national of a contracting state to the internal
laws of that state.” Id. at 529, 539. In so concluding, the Court observed that “[i]nterrogatories and document requests are
staples of international commercial litigation” and “a rule of exclusivity would subordinate the court’s supervision of even
the most routine of these pretrial proceedings to the actions
or, equally, to the inactions of foreign judicial authorities.” Id.
Notwithstanding that use of the Convention is not
mandatory in all cases, courts have the power “to insist
upon the use of Convention procedures to obtain evidence.”
St. Jude Med. S.C., Inc. v. Janssen-Counotte, 104 F Supp
3d 1150, 1160 (D Or 2015). The decision whether to do so
requires “scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective.” Aerospatiale, 482 US at 544.
The Court identified the following factors in
Aerospatiale as “relevant to any comity analysis” concerning
the Convention:
“(1) the importance to the litigation of the documents
or other information requested;
“(2) the degree of specificity of the request;
“(3) whether the information originated in the United
States;
“(4) the availability of alternative means of securing
the information; and
“(5) the extent to which noncompliance with the
request would undermine important interests of the United
States, or compliance with the request would undermine
important interests of the state where the information is
located.”
Id. at 544 n 28 (internal quotation marks omitted). However,
those factors are not exclusive. See St. Jude Med. S.C., Inc., 146 Novalpina Capital v. Dept. of Justice
104 F Supp 3d at 1161 (considering also “[1] the extent and
the nature of the hardship that inconsistent enforcement
would impose upon the person, and [2] the extent to which
enforcement by action of either state can reasonably be
expected to achieve compliance with the rule prescribed by
that state” (internal quotation marks omitted)).
For us, it appears to be a matter of first impression
which party bears the burden of persuasion on the issue of
whether resort to the Convention should be required and also
our standard of review with regard to a trial court ruling on
whether to require a party to use the Convention—i.e., there
is no directly controlling case law on those points. Having
considered the relevant case law, however, we readily conclude that the party urging use of the Convention—here,
Novalpina GP—has the burden of persuasion as to whether
to require the generally “optional use of the Convention procedures.” See, e.g., In re Auto. Refinishing Paint Antitrust
Litig., 358 F3d 288, 305 (3d Cir 2004) (so concluding and
collecting cases); see also Aerospatiale, 482 US at 547 (stating that the court should give “the foreign litigant a full
and fair opportunity to demonstrate appropriate reasons for
employing Convention procedures in the first instance, for
some aspects of the discovery process” (emphasis added)).
We also conclude that we review the trial court’s determination of whether comity requires resort to the Convention
for abuse of discretion. See, e.g., Arcelik A.S. v. E.I. DuPont de Nemours & Co., 856 Fed Appx 392, 395 (3d Cir 2021) (“We
review the District Court’s balancing of the international
comity factors for abuse of discretion.”); see also Kotera v.
Daioh Int’l U.S.A. Corp., 179 Or App 253, 274, 40 P3d 506
(2002) (“A court’s invocation of comity in declining to consider an issue is a matter of discretion, which we review for
abuse of discretion.”).
Before turning back to our analysis in this case, we
note that, before “addressing Aerospatiale’s comity factors,”
as set forth above, some courts require, “as an initial step,” identification of “a true conflict between U.S. law and foreign law.” Arcelik A.S., 856 Fed Appx at 397 n 9; e.g., In re
Sealed Case, 932 F3d 915, 931 (DC Cir 2019) (explaining
that, “[a]bsent a clash of foreign and domestic law, American
Cite as 353 Or App 116 (2026) 147
courts may press forward free from worry that their rulings
will threaten the international legal ties that advance the
rule of law within and among nations” (internal quotation
marks omitted)). Such a conflict may exist where, for example, requiring discovery from a foreign entity would subject
the entity to legal penalties in their home country. In re
Sealed Case, 932 F3d at 931.
Here, as noted above, the trial court determined
that a comity analysis using Aerospatiale’s comity factors
may be unnecessary because there was no Luxembourg law
that Novalpina GP pointed to that prohibits disclosure of
the requested materials; that is, that there was no “true
conflict” because Novalpina GP did not identify a law that
would prohibit disclosure of the materials sought in the CID.
And the trial court also determined that, even if it were to
apply a comity analysis, that analysis “favors application
of domestic discovery rules, laws and process over Hague
Convention process.”
Having considered the comity analysis undertaken
by the trial court, the record, and the parties’ arguments,
we conclude that the trial court did not abuse its discretion
when it determined that comity did not require resort to the
Convention in this case.
As an initial matter, the trial court correctly
observed that, in determining whether to require resort to
the Convention, a court should consider “the likelihood that
resort to those procedures will prove effective.” Aerospatiale, 482 US at 544. Here, the trial court determined that it was
likely “accurate” that “adherence to the [C]onvention process will be fruitless” because, pursuant to Article 23 of the Convention, Luxembourg “declared that Letters of Request
issued for the purpose of obtaining pre-trial discovery of
documents as known in common law countries shall not
be executed.” The finding that resort to the Convention
would likely be “fruitless” is amply supported by the record:
Luxembourg counsel for Novalpina GP filed a declaration in
this action stating that “the CID should [be] considered as a
request for pre-trial discovery, which Luxembourg has prohibited via its declaration under Article 23 of the Evidence
Convention.” Consequently, in our view, the trial court
148 Novalpina Capital v. Dept. of Justice
correctly determined this factor weighs against requiring resort to the Convention. See St. Jude Med. S.C., Inc.,
104 F Supp 3d (requiring compliance with the Convention
is “counsel[ed] against” when the request is likely to prove
fruitless, such as when a country made a statement pursuant to Article 23 of the Convention stating pretrial discovery would not be allowed).
In reaching its conclusion, the trial court also carefully considered the five factors set forth in Aerospatiale and quoted above. Regarding (1) “the importance to the litigation of the documents or other information requested,” the
trial court determined, among other points, that the information sought by the CID “is important to the litigation
of an Oregon False Claims Act claim” and that the “State
of Oregon has a substantial interest in vindicating the
rights of Oregonians, and in enforcement of * * * Oregon’s
False Claims Act.” Regarding (2) “the degree of specificity
of the request,” the trial court determined that, although
the request was “broad,” it was not “nonspecific” insofar as
it identifies “by name the entities, individual persons, subject matters, relative time frames, documents, and communications sought.” Regarding (3) “whether the information
originated in the United States,” the trial court determined
that the information sought “likely did not originate in
the United States” and that that was the “only factor that
weighs in favor of application of the Convention process.”
Regarding (4) “the availability of alternative means of securing the information,” the trial court determined that there
are “no obvious alternative means of obtaining the information sought.” And, finally, regarding (5) “the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the
request would undermine important interests of the state
where the information is located,” the trial court determined
that the CID is “based on an investigation conducted for the
purpose of vindicating the statutory rights of Oregonians
conferred by ORS 180.750 et. seq.” and that the “lack of
stated Luxembourg statute or law barring production of the
information sought leaves the Court without an identified
sovereign interest in nondisclosure of these specific kinds of material.” (Internal quotation marks and brackets omitted.)
Cite as 353 Or App 116 (2026) 149
In arguing that the trial court erred in weighing
the comity factors, Novalpina GP contends that the CID is
“part of a fishing expedition into matters that are truly only related to commercial claims being pursued by Novalpina
GP, OPERF, or OPERF’s allies in the UK and Luxembourg”
and that the CID is a “quintessential fishing expedition * * * not permitted under U.S. or Luxembourg law.” The difficulty
for Novalpina GP is that the trial court was not required to
accept Novalpina GP’s view of the nature and purpose of
the CID and, in fact, in its ruling, the trial court expressly rejected Novalpina GP’s argument that the CID issued by
the DOJ “should be set aside because it was issued for an
illegitimate or fraudulent purpose.”
Likewise, we are not persuaded by Novalpina GP’s
other arguments concerning comity.
V. CONCLUSION
In sum, we conclude that the trial court did not err
when it determined that Novalpina GP was subject to personal jurisdiction in Oregon. We also conclude that the trial
court did not err in determining that the forum-selection
clauses and the choice-of-law clauses did not require the
trial court to set aside the CID. Finally, we conclude that
the trial court did not abuse its discretion when it did not
require the DOJ to comply with the Convention in this case.
Affirmed on appeal; cross-appeal dismissed as
moot.