JOSÉ A. CABRANES, Circuit Judge:
The question presented is whether certain funds owned by the Republic of Argentina (the "Republic" or "Argentina") were subject to attachment pursuant to 28 U.S.C. § 1610 because they were "used for a commercial activity in the United States." 28 U.S.C. § 1610(a).
This appeal arises from a judgment of the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge), granting and confirming attachment and restraining orders against
Plaintiffs-appellees NML Capital, Ltd. ("NML") and EM Ltd. ("EM") (jointly, the "plaintiffs") have acquired on the secondary market hundreds of millions of dollars of non-performing bonds issued by the Republic.
On September 12, 2008, the plaintiffs, moving on an ex parte basis, sought and obtained from the District Court restraining orders (for the actions that had reached final judgment) and attachment orders (for the actions in the pre-judgment phase) seizing the ANPCT Account. On that date, the Account contained more than $3.26 million. On September 30, 2009, the District Court confirmed the restraining orders (but not the attachment orders) to the extent they related to the ANPCT Account, holding that the Account was attachable under § 1610 of the FSIA. NML Capital Ltd. v. Republic of Argentina, No. 08 Civ. 3302, Docket No. 171, at 16, 2009 WL 3149601 (S.D.N.Y. Sept. 30, 2009)
The plaintiffs subsequently moved for reconsideration with respect to the pre-judgment attachment orders as they related to the ANPCT Account. On September 30, 2010, the District Court acknowledged its "mistake" and confirmed the attachments of the ANPCT Account.
The Republic now appeals the underlying restraining and attachment orders, as well as the orders confirming the restraint and attachment of the ANPCT Account, claiming that the District Court should have granted it immunity from execution pursuant to the FSIA.
We review de novo legal conclusions denying FSIA immunity to a foreign
The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). As a general matter, the property of a foreign state present in the United States is immune from execution in satisfaction of a debt. Such property may be attached and executed upon only when one of the FSIA's exceptions applies. 28 U.S.C. § 1609;
Subsections 1610(a) and (d), the applicable exceptions in this case, provide that when the foreign state has "waived its immunity" from attachment and execution, a court may attach or execute upon property that the sovereign "used for commercial activity in the United States." 28 U.S.C. § 1610(a) (post-judgment); id. § 1610(d) (pre-judgment). The Republic has waived its immunity, see EM Ltd., 473 F.3d at 480-81 & n. 18, and does not dispute that ANPCT is responsible for the Republic's debts. The only question on appeal is whether the Republic "used" the ANPCT Account "for a commercial activity in the United States" under § 1610. Stated another way, we must decide whether the Republic's remittance to a seller of goods of a prearranged purchase price for those goods, which are then conveyed directly from the seller to a third party—returning no tangible benefit to the Republic—constitutes activity "in the market." We hold that it does.
The FSIA defines "commercial activity" as "a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. § 1603(d). "The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." Id. The legislative history of the FSIA "explicitly asserts the congressional intention to leave to the `courts ... a great deal of latitude in determining what is a commercial activity for purposes of [the FSIA].'" Kato v. Ishihara, 360 F.3d 106, 110 (2d Cir.2004) (quoting
To determine the nature of a sovereign's act, we ask "`whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in trade and traffic or commerce.'" Anglo-Iberia Underwriting Mgmt. v. P.T. Jamsostek, 600 F.3d 171, 177 (2d Cir.2010) (quoting Republic of Argentina v. Weltover, 504 U.S. 607, 614, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992)) (internal quotation marks omitted). We begin by "examining the act of the foreign sovereign that serves as the basis for the plaintiff's claim." Id.
In this case, the allegedly commercial act of the foreign sovereign is the purchase of scientific equipment. In Weltover, the Supreme Court concluded that when a sovereign purchases goods in the market, it has engaged in a "commercial activity" because such a purchase is "the type of action[] by which a private party engages in trade and traffic or commerce." Weltover, 504 U.S. at 614, 112 S.Ct. 2160 (internal quotation marks omitted). Thus, the Supreme Court noted that "a contract to buy army boots or even bullets is a `commercial' activity, because private companies can similarly use sales contracts to acquire goods." Id. at 614-15, 112 S.Ct. 2160.
We reached a similar conclusion in Texas Trading & Mill. Corp. v. Fed. Republic of Nigeria, 647 F.2d 300 (2d Cir.1981), in which we considered whether Nigeria's purchase of cement qualified as a "commercial activity." Id., overruled on other grounds by Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 400 (2d Cir.2009). Because Nigeria's activity was "in the nature of a private contract for the purchase of goods," we held that "[i]ts purpose to build roads, army barracks, whatever[,] is irrelevant." Id. at 310. Accordingly, we concluded that Nigeria's cement purchase program constituted "commercial activity." Id.
Relying on Letelier v. Republic of Chile,
Indeed, in Texas Trading we directly considered activity having a public purpose, and we noted that "[d]ictum in [our pre-FSIA cases] states that a contract made by a government for a public purpose, e.g., bullets for the army, is not `commercial activity.'" Tex. Trading & Mill. Corp., 647 F.2d at 310 n. 27. But we expressly held that "[t]his aspect of prior American law has been overruled by the FSIA, and the definition of `commercial activity' has been concomitantly expanded to include such contracts." Id.; see also Weltover, 504 U.S. at 612-14, 112 S.Ct. 2160. It is eminently clear that the governmental purpose of the commercial activity does not immunize the ANPCT Account from attachment and execution, if it is "commercial activity" within the meaning of the FSIA.
We addressed the issue of profit motive in Weltover, Inc. v. Republic of Argentina, 941 F.2d 145, 149-50 (2d Cir.1991), aff'd Weltover, 504 U.S. 607, 112 S.Ct. 2160. In Weltover, we rejected the Seventh Circuit's characterization of Letelier as "requir[ing] a showing that the activities could be conducted by a private person and that the foreign sovereign has a profit motive." Id. (citing Rush-Presbyterian-St. Luke's Med. Ctr. v. Hellenic Republic, 877 F.2d 574, 578 n. 4 (7th Cir.1989)) (emphasis omitted). We observed that "[s]uch a requirement would eviscerate the `commercial activity' exception of the FSIA, because foreign sovereigns often act without a profit motive." Id. at 150. We accordingly held that "[w]hen a foreign sovereign engages in [conduct in which a
To reiterate, Argentina's asserted eleemosynary or governmental motives do not change the fact that the ANPCT Account is used to purchase scientific equipment. A "private party engage[d] in trade and traffic or commerce" can purchase scientific equipment. Weltover, 504 U.S. at 614, 112 S.Ct. 2160 (internal quotation marks omitted). "[I]t is irrelevant why Argentina" made the purchases "in the manner of a private actor; it matters only that it did so." Id. at 617, 112 S.Ct. 2160. The "commercial use" requirement of the FSIA is satisfied, and the Republic may not claim sovereign immunity as to the funds in the ANPCT Account.
For the foregoing reasons, the District Court's attachment and restraining orders are affirmed.