The case of the day is Global Voice Group S.A. v. Republic of Guinea (D.D.C. 2025). GVG had a contract to “provide and install control tools to enable Guinea to view and tax all international telecommunications traffic.” The contract identified the other party as the Postal and Telecommunications Regulatory Authority of Guinea. It had an arbitration agreement. Payment disputes arose, and GVG requested arbitration at the ICC in Paris against the PTRA and against the Republic of Guinea itself. While the PTRA had signed the contract, another Guinean governmental official outside the PTRA had also signed the contract. Guinea participated in the arbitration but objected to the tribunal’s jurisdiction. The tribunal disagreed, though, finding, under French law, that Guinea was a party to the agreement. It awarded damages to GVG. Guinea and the PTRA sought annulment in the Paris Court of Appeal. That court ruled in Global Voice’s favor, too.

GVG sought recognition and enforcement in Washington, but only against Guinea, not the PTRA. GVG sought entry of default one day after the deadline for Guinea to answer,¹ and the clerk entered the default. Guinea moved to set the default aside, and GVG moved for entry of default judgment. There was a service of process issue in the motions, but the court didn’t discuss it. The main issue was Guinea’s argument that the court lacked jurisdiction because it was not a party to the agreement to arbitrate.

This issue is interesting to me because it reminds me of an issue in my case from a couple of years ago against the government of Nigeria. In that case, there was no question that the Nigerian government was a party to the agreement. But in the arbitration, the claimants were the counterparty to the contract and its owner. Nigeria did not challenge the tribunal’s jurisdiction over his claim during the arbitration, and the award issued in favor of the business and the owner. But when we sought confirmation in Washington, Nigeria argued the court lacked jurisdiction, because the owner was not a party to the agreement. The court held, correctly, that that was a merits question (is there an exception to the rule of the New York Convention requiring confirmation where the owner did not sign the agreement in his individual capacity?) with a jurisdiction question (does the FSIA’s arbitration exception to foreign sovereign immunity apply in this situation?)

But is that also the rule when it’s the foreign state, not the private party, whose status as a party to the agreement to arbitrate is in question? No, it’s not, as the court held in today’s case. The FSIA’s exception applies to cases

in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit [the dispute] to arbitration …

The court doesn’t put it this way, but the best reading of the statute, in my view, is that it does require that the foreign state be a party to the agreement but does not require that the private party be a party (or intended third-party beneficiary) of the contract. It says “a” private party, not “the” private party. If you’ll indulge me, here is how I put it in the DC Circuit brief (the case settled before oral argument):

The FSIA requires “an agreement made by the foreign state with or for the benefit of a private party.” 28 U.S.C. § 1605(a)(6). It does not require an agreement made by the foreign state with or for the benefit of the claimant, or with or for the benefit of the award creditor, or even with or for the benefit of the private party. It requires an agreement made by the foreign state with a private party.

The indefinite article, “a” or “an,” is used when “referring to something not specifically identified … but [instead] treated as one of a class: one, some, any.” Citizens for Responsibility & Ethics in Wash. v. FEC, 971 F.3d 340, 354 (D.C. Cir. 2020) (citation omitted). See also Black’s Law Dictionary 77 (5th ed. 1979) (the indefinite article is “equivalent to ‘one’ or ‘any’”).

So when the statute refers to an agreement “with … a private party,” it cannot be read to refer to the agreement with a particular private party, for example the private party petitioning for confirmation. See Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 2018) (holding that the court had jurisdiction over a petition brought by the assignee of an award rather than by the original award creditor). All the statute requires is that the award be made under an agreement with some private party. The definite article “the” appears earlier in the same sentence, strengthening the case. The agreement under which the award is made must be between the foreign state, that is, the foreign state against whom the petition is brought, and a private party.

This construction accords with the cases discussed above. In particular, it accords with cases such as First Investment [Corp. v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742 (5th Cir. 2012)] and Gater [Assets Ltd. v. AO Moldovagaz, 2 F.4th 42 (2d Cir. 2021)], since in those cases the problem was that an instrumentality of the foreign state had signed an agreement to arbitrate but the foreign state itself had not. The arbitration exception applies when the award was made under a written agreement between the foreign state and a private party; questions about whether the dispute was one the foreign state had agreed to arbitrate are merits questions, not jurisdictional questions. Only if the petitioner cannot show that the award was made under a written agreement between the foreign state and some private party does the district court lack subject-matter jurisdiction.

In short, the court was right to say that when a foreign state says it is not a party to the agreement under which the award against it was rendered, its challenge is to jurisdiction and not to the merits, in light of the plain language of the FSIA.

1. In my opinion that is bad karma, unless there was correspondence not reflected in the decision showing that Guinea had no intention of answering. ↩︎