Crystallex International Corp v. Bolivarian Republic of Venezue , 932 F.3d 126 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 18-2797 & 18-3124
________________
CRYSTALLEX INTERNATIONAL CORPORATION
v.
BOLIVARIAN REPUBLIC OF VENEZUELA
PETROLEOS DE VENEZUELA, S.A. (Intervenor in D.C.),
Appellant
________________
Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-17-mc-00151)
District Judge: Honorable Leonard P. Stark
________________
No. 18-2889
________________
In re: PETROLEOS DE VENEZUELA, S.A.,
Petitioner
________________
On Petition for Writ of Mandamus
from the United States District Court
for the District of Delaware
(Related to D.C. Civil Action No. 1-17-mc-00151)
________________
Argued April 15, 2019
Before: AMBRO, GREENAWAY, JR.,
and SCIRICA, Circuit Judges
(Opinion filed: July 29, 2019)
Samuel Taylor Hirzel, II
Heyman Enerio Gattuso & Hirzel
300 Delaware Avenue, Suite 200
Wilmington, DE 19801
Kevin A. Meehan
Julia Mosse
Juan O. Perla
Joseph D. Pizzurro (Argued)
Curtis Mallet-Prevost Colt & Mosle
101 Park Avenue, 35th Floor
New York, NY 10178
Counsel for Intervenor-Appellant
Miguel A. Estrada (Argued)
Matthew S. Rozen
2
Lucas C. Townsend
Gibson Dunn & Crutcher
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Rahim Moloo
Jason W. Myatt
Robert L. Weigel
Gibson Dunn & Crutcher
200 Park Avenue, 47th Floor
New York, NY 10166
Travis S. Hunter
Jeffrey L. Moyer
Raymond J. DiCamillo
Richards Layton & Finger
920 North King Street
One Rodney Square
Wilmington, DE 19801
Counsel for Appellee
E. Whitney Debevoise, II
Stephen K. Wirth
Samuel F. Callahn
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Avenue, N.W.
Washington, DC 20001
Paul J. Fishman
Arnold & Porter Kaye Scholer LLP
One Gateway Center, Suite 1025
Newark, NJ 07102
3
Kent A. Yalowitz (Argued)
Arnold & Porter Kaye Scholer LLP
250 West 55th Street
New York, NY 10019
Counsel for Intervenor-Appellant
Bolivarian Republic of Venezuela
Amanda F. Davidoff (Argued)
Sullivan & Cromwell LLP
1700 New York Avenue, N.W., Suite 700
Washington, DC 20006
Sergio Galvis
Joseph E. Neuhaus
Andrew G. Ditderich
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Carl N. Kunz, III
Lewis H. Lazarus
Morris James LLP
500 Delaware Avenue, Suite 1500
Wilmington, DE 19801
Counsel for Amicus Appellants
Blackrock Financial Management Inc.;
Contrarian Capital Management LLC
4
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Crystallex International Corp., a Canadian gold mining
company, invested hundreds of millions of dollars to develop
gold deposits in the Bolivarian Republic of Venezuela. In
2011, Venezuela expropriated those deposits and transferred
them to its state-owned oil company, Petróleos de Venezuela,
S.A. (“PDVSA”). To seek redress, Crystallex invoked a
bilateral investment treaty between Canada and Venezuela to
file for arbitration before the International Centre for
Settlement of Investment Disputes. The arbitration took place
in Washington, D.C., and Crystallex won; the arbitration panel
awarded it $1.2 billion plus interest for Venezuela’s
expropriation of its investment. The United States District
Court for the District of Columbia confirmed that award and
issued a $1.4 billion federal judgment. Now Crystallex is
trying to collect.
Unable to identify Venezuelan-held commercial assets
in the United States that it can lawfully seize, Crystallex went
after U.S.-based assets of PDVSA. Specifically, it sought to
attach PDVSA’s shares in Petróleos de Venezuela Holding,
Inc. (“PDVH”), its wholly owned U.S. subsidiary. PDVH is
the holding company for CITGO Holding, Inc., which in turn
owns CITGO Petroleum Corp. (“CITGO”), a Delaware
Corporation headquartered in Texas (though best known for
the CITGO sign outside Fenway Park in Boston).
5
This attachment suit is governed by the Foreign
Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602–1611
(the “Sovereign Immunities Act”). Under federal common law
first recognized by the Supreme Court in First National City
Bank v. Banco Para El Comercio Exterior de Cuba
(“Bancec”), 462 U.S. 611 (1983), a judgment creditor of a
foreign sovereign may look to the sovereign’s instrumentality
for satisfaction when it is “so extensively controlled by its
owner that a relationship of principal and agent is created.” Id.
at 629.
Interpreting Bancec, the District Court, per Chief Judge
Stark, concluded that Venezuela’s control over PDVSA was
sufficient to allow Crystallex to attach PDVSA’s shares of
PDVH in satisfaction of its judgment against the country.
PDVSA and Venezuela, along with PDVSA’s third-party
bondholders as amici (the “Bondholders”), challenge this
ruling.
Venezuela and the Bondholders do not substantially
contest the District Court’s finding that it extensively
controlled PDVSA. Rather, they raise various jurisdictional
and equitable objections to the attachment. Likewise, PDVSA
primarily contends that its tangential role in the dispute
precludes execution against its assets under Bancec
irrespective of the control Venezuela exerts over it.
We affirm the District Court’s order granting the writ of
attachment and remand for further proceedings consistent with
this opinion.1
1
We also deny PDVSA’s petition for a writ of mandamus and
dismiss as moot its second appeal.
6
I. Background
Factual background
In 2002, Crystallex contracted with Corporación
Venezolana de Guayanaan, an organ of the Venezuelan
government, for the right to develop and extract exclusively for
20 years the gold deposits at Las Cristinas, Venezuela. See
Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela
(“D.C. Crystallex I”), 244 F. Supp. 3d 100, 105–06 (D.D.C.
2017). The deposits are among the world’s largest. Per the
contract, Crystallex spent hundreds of millions of dollars
developing the Las Cristinas site. Id. at 106. It also performed
various other obligations under the contract. Id.
In 2011, Venezuela nationalized its gold mines and
seized the Las Cristinas works without providing
compensation. As Crystallex asserts and PDVSA does not
dispute, Venezuela then gave the mining rights at Las Cristinas
to PDVSA for no consideration, and PDVSA subsequently
“sold to the Venezuelan Central Bank 40% of its shares in the
affiliate that was created to exercise those mining rights.” J.A.
1194.
Later that year, Crystallex filed for arbitration under a
bilateral investment treaty between Canada and Venezuela
before the International Centre for Settlement of Investment
Disputes. As noted earlier, the arbitration took place in
Washington, D.C., and Crystallex won an arbitration award of
$1.2 billion plus interest.
Crystallex had its award. Now it had to collect.
7
Crystallex’s collection efforts
Confirmation proceedings in the District
of Columbia
Crystallex filed an action to confirm its award in the
U.S. District Court for the District of Columbia. It properly
served Venezuela, who appeared to defend it. The Court
confirmed the award and entered a federal judgment in favor
of Crystallex. D.C. Crystallex I, 244 F. Supp. 3d at 122–23.
After Venezuela failed to satisfy the judgment within 30 days,
the Court ruled that Crystallex could execute on it. Crystallex
Int’l Corp. v. Bolivarian Republic of Venezuela, No. CV 16-
0661 (RC), 2017 WL 6349729, at *1 (D.D.C. June 9, 2017).
However, the Court expressly declined to address whether
Crystallex could attach assets held by PDVSA and its
subsidiaries. Id. at *2. Venezuela appealed the ruling, and the
D.C. Circuit affirmed it. Crystallex Int’l Corp. v. Bolivarian
Republic of Venezuela, No. 17-7068, 2019 WL 668270, at *2
(D.C. Cir. Feb. 14, 2019).
Delaware Uniform Fraudulent Transfer
Act proceedings
While arbitration was pending and then after the award
was announced, Crystallex brought suits against CITGO,
CITGO Holding, PDVH, and PDVSA in the Delaware District
Court. See Crystallex Int’l Corp. v. PDV Holding, Inc. (1:15-
CV-1082); Crystallex Int’l Corp. v. PDV Holding, Inc. (1:16-
CV-1007). It claimed that Venezuela refused to pay its
arbitration award and “thwart[ed] enforcement” by transferring
its assets among several entities—PDVSA, PDVH, and
CITGO— allegedly in violation of the Delaware Uniform
Fraudulent Transfer Act, 6 Del. C. §§ 1301–11. Crystallex
Int’l Corp. v. Petróleos de Venezuela, S.A., 879 F.3d 79, 82 (3d
Cir. 2018). The Court denied PDVH’s motion to dismiss, but
8
we reversed and held that a transfer from a non-debtor could
not be a “fraudulent transfer” under the Act. Id. at 81 (“While
we do not condone the debtor’s and the transferor’s actions, we
must conclude that Crystallex has failed to state a claim under
[the Act].”). That panel noted explicitly but reserved judgment
on the question now before us—whether PDVSA could be
liable for the arbitration award as an “alter ego” of Venezuela.
Id. at 84 n.7.
Proceedings in this appeal
While the award-confirmation appeal was pending in
the D.C. Circuit, Crystallex followed up its judgment by filing
an attachment action against Venezuela in the Delaware
District Court. Under Federal Rule of Civil Procedure 69(a),
Crystallex attempted to attach PDVH shares owned by
PDVSA. That rule provides: “A money judgment is enforced
by a writ of execution, unless the court directs otherwise. The
procedure on execution—and in proceedings supplementary to
and in aid of judgment or execution—must accord with the
procedure of the state where the court is located,” here
Delaware, “but a federal statute governs to the extent it
applies.” Delaware law permits a judgment creditor to obtain
a writ of attachment (known by its Latin name, fieri facias, or
simply fi. fa.) over various forms of property belonging to the
debtor, including its shares in a Delaware corporation. See 10
Del. C. § 5031; 8 Del. C. § 324(a).
Though not named in the attachment proceeding,
PDVSA intervened in the District Court. It moved to dismiss
the proceeding on the ground of sovereign immunity under the
Sovereign Immunities Act.
After several rounds of briefing and hearings, the
District Court concluded that PDVSA was Venezuela’s “alter
ego” under Bancec. Crystallex Int’l Corp. v. Bolivarian
9
Republic of Venezuela (“Del. Crystallex”), 333 F. Supp. 3d
380, 414 (D. Del. 2018). The Court held (1) it had jurisdiction
to order attachment against PDVSA’s U.S.-based commercial
assets, and (2) Crystallex could attach PDVSA’s shares of
PDVH to satisfy the judgment against Venezuela. A follow-
up order, dated August 23, 2018, directed the Clerk to issue the
writ and have it served in furtherance of an execution through
a public sale of PDVH stock. PDVSA appealed both of these
orders (docketed in our Court as Nos. 18-2797 & 18-3124), and
also filed a petition for a writ of mandamus (No. 18-2889) to
prevent completion of the sale during this appeal. We
consolidated all three appeals for oral argument and resolution.
While they were pending before us, Venezuela moved
to intervene and to stay these appeals for 120 days so that it
could further evaluate its legal position. By order dated March
20, 2019, we granted Venezuela’s motion to intervene and
participate in oral argument. We also permitted it to file
supplemental briefing. We did not rule on its motion to stay
but stated we would consider that motion at oral argument. At
that argument, Venezuela chose to forgo further pursuit of a
stay. Oral Arg. Tr. at 180:1–7 (Apr. 15, 2019).
Relationship between Venezuela and PDVSA
The District Court’s primary ruling was that PDVSA is
Venezuela’s “alter ego” under Bancec. Numerous facts are
relevant to that determination, as discussed in more detail
below. In general, it is undisputed the relationship between
PDVSA and Venezuela has tightened significantly since 2002,
when then-President Hugo Chávez fired roughly 40% of the
PDVSA workforce for protesting increased Venezuelan
control over the company. Since then PDVSA’s presidents
have generally been senior members of the Venezuelan
president’s cabinet, including members of the Venezuelan
military. Venezuela has also passed various laws that require
10
PDVSA to fund both government initiatives and discretionary
government funds. Venezuela controls PDVSA’s domestic oil
production, sales, and pricing. It also requires that PDVSA
supply Venezuela and its strategic allies with oil at below-
market rates.
The Bondholders’ interests
Also relevant to this appeal are the various bonds that
PDVSA has issued over the past decade or so. Several holders
of PDVSA bonds due to mature in 2020 moved to intervene as
amici in this appeal. They include BlackRock Financial
Management, Inc. and Contrarian Capital Management, LLC.
Their bonds have an outstanding face value of approximately
$1.684 billion and are secured by a 50.1% collateral interest in
PDVH’s shares of Citgo Holding, Inc. as security for the
bonds. According to the Bondholders, PDVSA has also issued
roughly $25 billion in bonds to U.S. and non-U.S. capital
markets investors.
U.S. policy towards Venezuela and PDVSA
President Nicolas Maduro became the President of
Venezuela in 2013. This year Juan Guaidó, Venezuelan’s
opposition leader and president of the National Assembly, has
made efforts to oust Maduro and take control of the
Venezuelan government. The United States Government
recognized Guaidó as the rightful leader of Venezuela on
January 23, 2019.2
2
As a practical matter, there is reason to believe that Guaidó’s
regime does not have meaningful control over Venezuela or its
principal instrumentalities such as PDVSA. Nonetheless,
under Guaranty Trust Co. v. United States, 304 U.S. 126, 138
11
Five days later, as part of a broader effort to convince
the Maduro regime to cede power, the Office of Foreign Assets
Control of the U.S. Department of the Treasury (“OFAC”)
imposed new sanctions against PDVSA by adding it to the List
of Specially Designated Nationals and Blocked Persons. As
discussed further below, the U.S. Government has also
promulgated several executive orders limiting transfer of
Venezuelan or PDVSA-controlled assets in the United States.
II. Jurisdiction and standard of review
The parties dispute whether the District Court had
jurisdiction to attach PDVSA’s property to satisfy the
judgment against Venezuela. The Court held that it had both
ancillary jurisdiction to enforce the judgment and an
independent basis for jurisdiction per 28 U.S.C. § 1330 and 28
U.S.C. § 1605(a)(6) because PDVSA was Venezuela’s alter
ego. Section 1330 grants federal-court jurisdiction over “any
nonjury civil action” against a foreign sovereign, so long as the
sovereign is properly served under 28 U.S.C. § 1608 and is not
entitled to sovereign immunity. See 28 U.S.C. § 1330(a)–(b).
Under 28 U.S.C. § 1604, foreign sovereigns and their
instrumentalities are entitled to sovereign immunity in U.S.
courts except as provided in 28 U.S.C. §§ 1605–1607. Section
1605(a)(6), the immunity exception applied by the District
Court in this case, provides an exception to immunity for
actions seeking to compel arbitration pursuant to an agreement
or to enforce arbitration awards that meet certain criteria.
We have jurisdiction to review the District Court’s
denial of PDVSA’s motion to dismiss as an immune sovereign
(1938), we recognize Guaidó’s regime as authorized to speak
and act on behalf of Venezuela in these appeals.
12
and the grant of Crystallex’s motion for a writ of attachment
under Federal Rule of Civil Procedure 69. We have
jurisdiction to review the former under the collateral order
doctrine. See Fed. Ins. Co. v. Richard I. Rubin & Co., 12 F.3d
1270, 1279–82 (3d Cir. 1993).3 Our jurisdiction exists for the
latter because it amounted to a final judgment under 28 U.S.C.
§ 1291 by leaving the District Court “nothing left to do but
execute[.]” Bryan v. Erie Cnty. Office of Children and Youth,
752 F.3d 316, 321 (3d Cir. 2014).
We review questions of law de novo and findings of fact
for clear error, and we review de novo the ultimate
determination whether to treat PDVSA as Venezuela’s alter
ego. See Clientron Corp. v. Devon IT, Inc., 894 F.3d 568, 575
(3d Cir. 2018).
III. Analysis
The parties raise a host of issues. We group them into
three core inquiries: (A) whether the Bancec “alter ego”
doctrine determines the District Court’s jurisdiction to attach
PDVSA’s assets (it does), (B) the scope of the Bancec inquiry
and whether its factors are satisfied here (they are), and (C)
3
The collateral order doctrine allows us to exercise jurisdiction
over interlocutory appeals, such as this one, when the order
“conclusively determines the disputed question, resolves an
important issue completely separate from the merits of the
action, and is effectively unreviewable on appeal from a final
judgment.” Fed. Ins. Co., 12 F.3d at 1279–80 (brackets and
internal quotation marks omitted); see also Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 545–47 (1949)
(articulating the doctrine).
13
whether PDVSA’s shares of PDVH are immune from
attachment under the Sovereign Immunities Act (they are not).
Bancec controls the jurisdictional inquiry here.
The District Court had jurisdiction over
Venezuela.
As noted, Crystallex confirmed its arbitration award
against Venezuela in the U.S. District Court for the District of
Columbia, which yielded a federal judgment. It then registered
that judgment for enforcement in the Delaware District Court
under 28 U.S.C. § 1963. That section provides that a judgment
so registered “shall have the same effect as a judgment of the
district court of the district where registered and may be
enforced in like manner.” Id. After registering the judgment,
Crystallex moved to enforce it by attaching assets under
Federal Rule of Civil Procedure 69(a).
As a threshold question, we consider whether the
District Court in Delaware had jurisdiction over Venezuela, the
only party named as a defendant here. It is undisputed that the
D.C. District Court had jurisdiction over Venezuela under the
Sovereign Immunity Act’s arbitration exception, 28 U.S.C. §
1605(a)(6). It is well established that federal courts have
ancillary jurisdiction to enforce their judgments. See IFC
Interconsult, AG v. Safeguard Int’l Partners, LLC, 438 F.3d
298, 311 (3d Cir. 2006). That jurisdiction applies to “a broad
range of supplementary proceedings involving third parties to
assist in the protection and enforcement of federal
judgments—including attachment . . . [and] garnishment.”
Peacock v. Thomas, 516 U.S. 349, 356, 359 & n.7 (1996).
Furthermore, ancillary enforcement jurisdiction—or its
functional equivalent—has been routinely applied to post-
judgment enforcement proceedings against a foreign
sovereign. See First City, Texas Houston, N.A. v. Rafidain
14
Bank, 281 F.3d 48, 53–54 (2d Cir. 2002); Peterson v. Islamic
Republic of Iran, 627 F.3d 1117, 1123 (9th Cir. 2010);
Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148,
150 (D.C. Cir. 1994). In other words, when a party establishes
that an exception to sovereign immunity applies in a merits
action that results in a federal judgment—here, the exception
for confirming arbitration awards, 28 U.S.C. § 1605(a)(6)—
that party does not need to establish yet another exception
when it registers the judgment in another district court under
28 U.S.C. § 1963 and seeks enforcement in that court. Rather,
the exception in the merits action “sustain[s] the court’s
jurisdiction through proceedings to aid collection of a money
judgment rendered in the case . . . .” First City, 281 F.3d at
53–54.
According to Venezuela, we should forbid Crystallex
from using the § 1963 procedure in this case, as that procedure
for registering a judgment cannot be applied to a foreign
sovereign at all because it is “preempted by [the Sovereign
Immunities Act].” (Venezuela Br. at 9–16.)4 Venezuela
presents this position as a two-pronged jurisdictional
argument. First, it contends that § 1963 does not confer
personal jurisdiction over it because the only method for
establishing jurisdiction is by making proper service under the
Sovereign Immunities Act’s service provisions, 28 U.S.C.
§ 1608. (Venezuela Br. at 9–12.) We disagree: § 1608 applies
only to the “summons and complaint,” id., whereas “[s]ervice
of post-judgment motions is not required.” Peterson, 627 F.3d
at 1130.
Second, Venezuela asserts that § 1963 does not create
subject matter jurisdiction over foreign sovereigns and cannot
4
We note that, as a doctrinal matter, “preemption” generally
refers to the effect of a federal statute on state law rather than
on other federal statutes.
15
be used to “piggyback” on the subject-matter jurisdiction of the
court that rendered the judgment being enforced. (Venezuela
Br. at 12–16.) Regardless whether § 1963 separately confers
subject-matter jurisdiction over foreign sovereigns, a district
court has jurisdiction to enforce a federal judgment against a
foreign sovereign when it is registered under § 1963. This is
so, as noted, because the jurisdictional basis from the action
resulting in the judgment carries over to the post-judgment
enforcement proceeding in a manner akin to the ordinary
operation of a district court’s enforcement jurisdiction over
post-judgment proceedings. See First City, 281 F.3d at 53–54;
Peterson, 627 F.3d at 1123; Transaero, 30 F.3d at 150.
A recent decision by the Supreme Court reinforces our
rejection of Venezuela’s novel § 1963 argument. See Republic
of Sudan v. Harrison, 139 S. Ct. 1048, 1054 (2019). It involved
a § 1963 proceeding against the instrumentalities of a foreign
sovereign—the same procedural posture we have here. The
Court resolved that case on a ground not relevant here, but,
notably, it expressed no concern about the use of a § 1963
proceeding against a foreign sovereign. If Venezuela’s view
of § 1963 were correct, Harrison would presumably have said
so.5
In short, before the Delaware District Court and us is a
continuation of the action in the D.C. District Court. As the
latter had jurisdiction over Venezuela—by virtue of the
Sovereign Immunities Act’s arbitration exception, 28 U.S.C.
§ 1605(a)(6)—both Courts that follow, the Delaware District
Court and our Court, also have jurisdiction.
5
Indeed, Justice Thomas would have affirmed the Second
Circuit’s exercise of jurisdiction—implicitly concluding there
was no § 1963 jurisdictional problem. Id. at 1066 (Thomas, J.,
dissenting).
16
The District Court properly used Bancec
to extend its jurisdiction to assets held
nominally by PDVSA.
Taking a different tack, PDVSA concedes the District
Court had jurisdiction over Venezuela but believes that Bancec
cannot be used to extend that jurisdiction to reach the assets of
PDVSA, a non-party to the merits action. We part company
again.
To reach this conclusion, we first consider our decision
in Federal Insurance, 12 F.3d at 1287. There we joined other
circuits in holding that, although the Bancec doctrine came in
a case involving the shifting of substantive liability, it also
applied to extend a district court’s jurisdiction over a foreign
sovereign to reach an extensively controlled instrumentality.
See id. (collecting cases). On a straightforward application of
Federal Insurance, the District Court’s jurisdiction over
Venezuela would extend to PDVSA so long as it is
Venezuela’s alter ego under Bancec. See De Letelier v.
Republic of Chile, 748 F.2d 790, 795 (2d Cir. 1984) (applying
Bancec in post-judgment enforcement proceeding); Alejandre
v. Telefonica Larga Distancia de Puerto Rico, Inc., 183 F.3d
1277, 1288 (11th Cir. 1999) (same).
That potential application of Federal Insurance
deserves a closer look. The decision was in the context of a
merits action—it did not address the post-judgment
enforcement setting we have here. 12 F.3d at 1287. According
to PDVSA, that distinction makes all the difference. It claims
that a district court cannot exercise post-judgment enforcement
jurisdiction over a party other than the judgment debtor based
17
on a theory of “alter ego” or “veil piercing”6 unless it has an
“independent basis” for jurisdiction over the third party.
(PDVSA Br. at 24–27.) For that proposition, PDVSA cites
Peacock, 516 U.S. at 357, in which a plaintiff who had
obtained a federal judgment against his employer under the
Employee Retirement Income Security Act of 1974 (“ERISA”)
filed a new action in a federal court against a shareholder of the
employer seeking to hold him liable by “piercing the corporate
veil.” Id. at 353. The Court ruled that action was not within
the district court’s ancillary enforcement jurisdiction because
it does not extend to “a subsequent lawsuit to impose an
obligation to pay an existing federal judgment on a person not
already liable for that judgment.” Id. at 357.
According to PDVSA, Peacock precludes the District
Court from exercising ancillary enforcement jurisdiction over
this action because it seeks to “shift liability for payment of an
existing judgment to a third party that is not otherwise liable
on the judgment.” (PDVSA Br. at 24 (citing Peacock).) That
reading of Peacock misfires. It was not a case involving
foreign sovereigns or the Sovereign Immunities Act. The Act
is a specialized jurisdictional statute designed to address a
specific problem—the extent to which foreign sovereigns and
their instrumentalities are immune from suit and attachment in
our courts. And the Bancec doctrine—the applicability of
which is the core question here—is a federal common-law
outgrowth of that specialized statute. It (the doctrine) exists
specifically to enable federal courts, in certain circumstances,
to disregard the corporate separateness of foreign sovereigns to
6
These terms in legal context mean that if an entity’s separate
form (typically as a subsidiary corporation) is so disregarded
by the one who controls it (the “parent”), the “corporate veil”
can be “pierced,” that is, separateness is ignored.
18
avoid the unfair results from a rote application of the immunity
provisions provided by the Sovereign Immunities Act.
Nothing in Peacock leads us to believe the Supreme Court
expected or intended its decision in that case to restrain the
application of Bancec in post-judgment proceedings.
Moreover, in Rubin v. Islamic Republic of Iran, 138 S.
Ct. 816, 823 (2018), the Supreme Court all but confirmed that
Bancec can indeed be used to reach the assets of a foreign
sovereign’s extensively controlled instrumentality through
post-judgment attachment proceedings. The Court examined
28 U.S.C. § 1610(g), a provision of the Sovereign Immunities
Act related to attachments of assets held by agencies and
instrumentalities of states that have sponsored terrorism. Id. It
observed that § 1610(g)(1), which was added to the Sovereign
Immunities Act by congressional amendment in 2008,
“incorporate[s] almost verbatim the five Bancec factors [they
are noted below], leaving no dispute that, at a minimum, §
1610(g) serves to abrogate Bancec with respect to the liability
of agencies and instrumentalities of a foreign state where a
[terrorism-related-judgment] holder seeks to satisfy a
judgment held against the foreign state.” Id. We take from this
the implication that in ordinary FSIA attachment
proceedings—i.e., those that do not involve judgments based
on state-sponsored terrorism—the judgment holder may reach
the assets of the foreign judgment debtor by satisfying the
Bancec factors. See id. Indeed, the Court expressly stated that,
where 28 U.S.C. § 1610(g) does not apply, a plaintiff with a
judgment against the sovereign would need to satisfy the
Bancec factors if it sought, for example, “to collect against
assets located in the United States of a state-owned
telecommunications company.” Id. at 23–24 (citing Alejandre,
183 F.3d 1277) (emphasis added).
These analyses confirm the relevance of Bancec here:
so long as PDVSA is Venezuela’s alter ego under Bancec, the
19
District Court had the power to issue a writ of attachment on
that entity’s non-immune assets to satisfy the judgment against
the country. See Hercaire Int’l, Inc. v. Argentina, 821 F.2d
559, 563–65 (11th Cir. 1987) (looking to the Sovereign
Immunities Act and Bancec to determine “whether the assets
of a foreign state’s wholly-owned national airline are subject
to execution to satisfy a judgment obtained against the foreign
state, where the airline was neither a party to the litigation nor
was in any way connected with the underlying transaction
giving rise to the suit”); Arriba Ltd. v. Petroleos Mexicanos,
962 F.2d 528, 532–38 (5th Cir. 1992) (doing the same to
determine whether the district court had jurisdiction to conduct
a garnishment proceeding against a foreign instrumentality,
where the purported basis for jurisdiction was solely the
actions of the instrumentality’s agents).
Whether Venezuela is PDVSA’s alter ego under
Bancec
“Due respect for the actions taken by foreign sovereigns
and for principles of comity between nations” caused the
Supreme Court to conclude in Bancec that “government
instrumentalities established as juridical entities distinct and
independent from their sovereign should normally be treated
as such.” 462 U.S. at 626–27. Recognizing the respect due to
foreign sovereigns, the Court adopted a “presumption of
independent status” for instrumentalities. Id. at 627. PDVSA,
as an instrumentality of Venezuela separately formed in 1976,
is accorded that presumption. It is not to be taken lightly, as
the District Court noted. Del. Crystallex, 333 F. Supp. 3d at
396 (D. Del. 2018) (citing Arch Trading Corp. v. Republic of
Ecuador, 839 F.3d 193, 201 (2d Cir. 2016)); see also De
Letelier, 748 F.2d at 795 (“[B]oth Bancec and the [Sovereign
Immunities Act’s] legislative history caution against too easily
overcoming the presumption of separateness.”).
20
Extensive control standard under Bancec
In Bancec the Supreme Court allowed a U.S. bank to
recover assets from a Cuban instrumentality to satisfy a debt
owed by the Republic of Cuba. Bancec, 462 U.S. at 613. It
held that while there exists a strong presumption that
government instrumentalities have a separate legal identity
(along with limited liability) from their “parent” governments,
this presumption can be overcome in certain situations—for
example, “where a corporate entity is so extensively controlled
by its owner that a relationship of principal and agent is
created, we have held that one may be held liable for the
actions of the other.” Bancec, 462 U.S. at 629 (citing NLRB v.
Deena Artware, Inc., 361 U.S. 398, 402–404 (1960)). “In
addition,” it recognized “the broader equitable principle that
the doctrine of corporate entity, recognized generally and for
most purposes, will not be regarded when to do so would work
fraud or injustice.” Id. (quoting Taylor v. Standard Gas Co.,
306 U.S. 307, 322 (1939)). Thus we recognize Bancec
establishes a disjunctive test for when the separate identities of
sovereign and instrumentality should be disregarded: when
there is “extensive[] control,” and when not disregarding
separate identities would work a “fraud or injustice.” Rubin,
138 S. Ct. at 823.
Bancec did not develop a “mechanical formula” for
determining when these exceptions should apply, however,
which left “lower courts with the task of assessing the
availability of exceptions on a case-by-case basis.” Rubin, 138
S. Ct. at 823. In ensuing decades district and circuit courts
applied the Bancec extensive-control test in various contexts.
Several multi-factor tests emerged in that period—the Second
Circuit, for example, had a non-exhaustive five-factor test, see
EM Ltd. v. Banco Cent. De La Republica Argentina, 800 F.3d
21
78, 91 (2d Cir. 2015), which the District Court applied here.7
By and large the multi-factor tests for extensive control
percolating through the federal courts covered similar ground,
see, e.g., Walter Fuller Aircraft Sales, Inc. v. Republic of
Philippines, 965 F.2d 1375, 1380 n.7, 1381 (5th Cir. 1992)
(identifying five extensive-control factors), though at least one
court has piled on the factors, see Bridas S.A.P.I.C. v. Gov’t of
Turkmenistan, 447 F.3d 411, 418 (5th Cir. 2006) (recognizing
21 factors relevant to extensive control);
In Rubin, the Supreme Court recently provided a further
gloss on the Bancec factors, which we believe clarifies the
analysis of the extensive-control prong here. The plaintiffs
there held a § 1605A-judgment against the Islamic Republic of
Iran and attempted to attach and execute against certain Iranian
artifacts on loan to the University of Chicago. Rubin, 138 S.
Ct. at 820. In the course of addressing whether that attachment
7
These factors include:
whether the sovereign nation: (1) uses the
instrumentality’s property as its own; (2) ignores
the instrumentality’s separate status or ordinary
corporate formalities; (3) deprives the
instrumentality of the independence from close
political control that is generally enjoyed by
government agencies; (4) requires the
instrumentality to obtain approvals for ordinary
business decisions from a political actor; and (5)
issues policies or directives that cause the
instrumentality to act directly on behalf of the
sovereign state.
EM Ltd., 800 F.3d at 91; Del. Crystallex, 333 F. Supp. 3d at
401.
22
was proper (it was not), the Court identified five “Bancec
factors” to aid circuit courts in their analysis:
(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.
Id. at 823 (quoting Walter Fuller Aircraft Sales, Inc., 965 F.2d
at 1380 n.7). We use these factors identified in Rubin to
structure our analysis here. At the same time, we recognize
that they, like the other extensive control tests our sister circuits
have adopted,8 are meant to aid case-by-case analysis rather
8
We follow Crystallex’s suggestion to apply the Rubin factors,
and neither Venezuela nor PDVSA indicates a preference
between them and those the District Court applied. Either
inquiry compels the same result. See generally Del. Crystallex,
333 F. Supp. 3d at 406–14. But an unresolved point of
ambiguity remains: whether the Rubin factors apply only to the
extensive-control inquiry (as in Walter Fuller) or to both
disjunctive tests. The parties do not address this issue, and so
we leave it for a future panel.
23
than establish a “mechanical formula” for identifying extensive
control. Bancec, 462 U.S. at 633.
Bancec’s scope
PDVSA and the Bondholders raise together six
challenges to the District Court’s inquiry under Bancec: that (i)
a sovereign’s extensive control, alone, cannot allow courts to
ignore the separateness of a corporation from the country it is
in, (ii) Crystallex must show PDVSA acted as Venezuela’s
agent against Crystallex, (iii) we must consider the third-party
interests of PDVSA’s bondholders, (iv) extensive control must
be shown by clear and convincing evidence, (v) the Bancec
inquiry must be examined in light of current circumstances,
particularly the limited control of the Guaidó regime over
PDVSA; and (vi) Bancec requires that courts also balance
equities when they consider whether to discard an
instrumentality’s presumption of separateness. We address
each argument in turn.
i. Bancec’s extensive control prong does
not require a nexus between the
plaintiff’s injury and the
instrumentality.
PDVSA contends that there must be some connection
between the sovereign’s abuse of its instrumentality’s
corporate form and the plaintiff’s injury. Indeed PDVSA
declined our numerous invitations at oral argument to argue
that any of the extensive control factors cut against Crystallex’s
position. It reiterated its position that each is irrelevant here
because Crystallex also needed to show that PDVSA did
something to cause the plaintiff’s injury. Oral Arg. Tr. at
97:22–104:12 (Apr. 15, 2019). We differ.
24
First, though Bancec involved the “fraud or injustice”
prong rather than the “extensive control” prong, no nexus
existed between the dominated instrumentality and the
plaintiff’s injury. Cuba had established in 1960 Banco Para El
Comercio Exterior de Cuba (Bancec), “[a]n official
autonomous credit institution for foreign trade . . . with full
juridical capacity . . . of its own . . . .” Bancec, 462 U.S. at 613.
Bancec was a creditor of Citibank and sued the bank to collect
on a letter of credit. Days later, the Cuban government seized
all of Citibank’s Cuba-based assets. Id. It also dissolved
Bancec after that proceeding began, and the remainder of its
case was handled by the Cuban Ministry of Foreign Trade. Id.
at 615. Despite no link between Bancec and Cuba’s seizure of
Citibank’s assets, the Supreme Court held Citibank could
offset its debt to Bancec with the value of the expropriated
assets. “Giving effect to Bancec’s separate juridical status in
these circumstances” would cause an injustice. Id. at 632. In
recounting the case’s history, the Court also expressly noted
that the Second Circuit, from where the case came, had applied
a nexus requirement and then did not adopt one itself. See id.
at 619 (quoting the Second Circuit as saying the presumption
of separate identities may be overcome only “when the subject
matter of the counterclaim assertible against the state is state
conduct in which the instrumentality had a key role”).
Like Bancec, not a single factor recognized in Rubin
suggests any link between the dominated instrumentality and
the injury to the plaintiff. The Rubin Court’s brief discussion
of the hypothetical plaintiff seeking to collect against “the
assets located in the United States of a state-owned
telecommunications company,” and citation to Alejandre
(which in turn involved no connection between the
telecommunications agency and the plaintiff’s injury), likewise
suggest no tying requirement. Rubin, 138 S. Ct. at 824.
Similarly, the vast majority of circuits have required no link
between the abuse of the corporate form and the plaintiff’s
25
injury under the first Bancec path for veil-piercing. See, e.g.,
EM Ltd. v. Republic of Argentina, 473 F.3d 463, 478 (2d Cir.
2007); Flatow v. Islamic Republic of Iran, 308 F.3d 1065,
1071–73 (9th Cir. 2002); Transamerica Leasing, Inc. v. La
Republica de Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000);
Hercaire Int’l, Inc. v. Argentina, 821 F.2d 559, 565 (11th Cir.
1987).9
Second, as Crystallex observes, requiring an
independent nexus requirement would likely read the Bancec
extensive-control test out of the doctrine. When pressed at oral
argument to identify the circumstances where Bancec could be
applied, PDVSA offered two: under Bancec’s “fraud or
injustice” prong (i.e., where a sovereign uses its
instrumentality’s separate status to perpetuate a fraud or
injustice) or where the instrumentality was itself “responsible
on the arbitration award as a participant in the events.” Oral
Arg. Tr. at 91: 7–18. But if the instrumentality were directly
liable for the award, there would be no need to invoke Bancec
at all. PDVSA thus tries to read the extensive control prong
out of Bancec. We cannot.
The District Court concluded correctly that Bancec does
not require a connection between a sovereign’s extensive
control of its instrumentality and the plaintiff’s injury. Control
9
One panel of the Fifth Circuit has suggested that Bancec’s
alter ego standards are the same as common state-law
requirements, many of which include a nexus requirement. See
Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 447 F.3d 411, 416
(5th Cir. 2006). But see First Inv. Corp. of Marshall Islands v.
Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 752–53 (5th
Cir. 2012), as revised (Jan. 17, 2013).
26
alone, if sufficiently extensive, is an adequate basis to
disregard an instrumentality’s separate status.10
ii. Bancec does not require a principal-
agent relationship.
PDVSA also argues that the requirement in Bancec of
extensive control such “that a relationship of principal and
10
At oral argument, PDVSA stressed that Bancec clearly
assumed for “extensive control” a connection between the
abused form and the plaintiff’s injury when it cited to the 1974
edition of W.M. Fletcher, Cyclopedia of the Law of Private
Corporations. Oral Arg. Tr. at 77: 9–11 (“Fletcher says
domination and control [are] not enough. You need to have an
abuse of the form that results in an injury to the plaintiff.”).
But the excerpt Bancec quotes squarely contradicts such a
narrow view: “[A] corporation will be looked upon as a legal
entity as a general rule, and until sufficient reason to the
contrary appears; but, when the notion of legal entity is used to
defeat public convenience, justify wrong, protect fraud, or
defend crime, the law will regard the corporation as an
association of persons.” Bancec, 462 U.S. 611, 630 n.19
(quoting 1 W.M. Fletcher, Cyclopedia of the Law of Private
Corporations § 41 (rev. perm. ed. 1974)). Further, Bancec
does not even cite to Fletcher to support the proposition that
extensive control can be sufficient to disregard corporate
formalities. For this, it cited to N.L.R.B. v. Deena Artware,
Inc., 361 U.S. 398, 402 (1960), where the Court held that the
National Labor Relations Board was entitled to seek discovery
on an alternative theory of liability—“that these separate
corporations are not what they appear to be, that in truth they
are but divisions or departments of a ‘single enterprise.’” Id.
at 402.
27
agent is created” requires the instrumentality to act as the
sovereign’s agent with respect to the events in dispute. Bancec,
462 U.S. at 629. Before Rubin, courts struggled with how to
give meaning to Bancec’s apparent reference to a principal–
agent relationship. See, e.g., Doe v. Holy See, 557 F.3d 1066,
1080 (9th Cir. 2009). The most persuasive interpretation of the
various approaches is by the D.C. Circuit, which recognized
that “[c]ontrol by the sovereign is relevant in two distinct
contexts[.]” Transamerica Leasing, 200 F.3d at 848. “First, .
. . when it significantly exceeds the normal supervisory control
exercised by any corporate parent over its subsidiary and,
indeed, amounts to complete domination of the subsidiary.”
Id. “Second, . . . when the sovereign exercises its control in
such a way as to make the instrumentality its agent; in that case
control renders the sovereign amenable to suit under ordinary
agency principles.” Id. at 849. These examples of control are
disjunctive. Only one method of domination needs to be
shown, and Crystallex opts to pursue the former. Thus further
discussion of a principal-agent relationship is not necessary.
iii. Bancec does not require consideration
of the third-party bondholders.
Amici bondholders of PDVSA contend Bancec’s
extensive-control analysis requires consideration of the
interests of other creditors of the judgment debtor’s alleged
alter ego, both as a matter of doctrine and of equity. That
argument, plausible on its face, does not prevail here. As a
doctrinal matter, the overarching framework of the extensive-
control test tells us that third-party creditors’ interest is a
reason for—not a separate criterion of—the analysis. Bancec
explained that those creditors’ interests are part of the reason
the presumption of separate juridical status is so difficult to
overcome: “Freely ignoring the separate status of government
instrumentalities would result in a substantial uncertainty over
whether an instrumentality’s assets would be diverted to satisfy
28
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.” 462
U.S. at 626. For that reason (among others), Bancec counsels
courts not to ignore separate status. See also De Letelier v.
Republic of Chile, 748 F.2d 790, 795 n.1 (2d Cir. 1984) (noting
that abuse of the corporate form of the type identified in
Bancec “must be clearly demonstrated to justify holding the
‘subsidiary’ liable for the debts of its sovereign ‘parent,’
particularly where, as here, LAN apparently has non-party
private bank creditors”). To add to this analysis an additional
unspecific consideration of third-party interests would double-
count the creditors’ concern in an arena of many competing
concerns.
The difficulty of overcoming the Bancec presumption is
also practical comfort: where there is extensive control, we can
expect reasonable third parties to recognize the risks of
extending credit. Here, for example, Venezuela’s relationship
to PDVSA was clearly disclosed to any prospective holder of
the latter’s bonds in the offering circular for that issuance: “We
are controlled by the Venezuelan government”; obligations
imposed by the government “may affect our . . . commercial
affairs”; and “we cannot assure you that the Venezuelan
government will not, in the future, impose further material
commitments upon us or intervene in our commercial affairs.”
JA-608. Perhaps recognizing that risk, the Bondholders
protected their extension of credit to PDVSA by obtaining as
collateral a 50.1% security interest in PDVH’s shares of Citgo
Holding, Inc., which, of course, will not be impaired by the
District Court’s writ of attachment.
29
iv. Timeframe: What is the appropriate
point of reference for the extensive-
control analysis?
Venezuela argues that the relevant time for a Bancec
analysis of the relationship between a sovereign and its
instrumentality is the moment the writ is issued. But it points
to no authority for that proposition, and it does not explain why
our review of the District Court’s Bancec analysis would be
any different than in the normal course, where we render our
decision based on the record before the district court and “do[]
not purport to deal with possible later events.” Standard Oil
Co. v. United States, 429 U.S. 17, 18 (1976) (per curiam);
Rubin, 12 F.3d at 1284; Fassett v. Delta Kappa Epsilon (New
York), 807 F.2d 1150, 1165 (3d Cir. 1986). We follow the
standard practice. On remand, Venezuela may direct to the
District Court credible arguments to expand the record with
later events.
v. The burden of proof is preponderance
of the evidence.
PDVSA contends that the District Court erred by
reviewing the parties’ evidence under a “preponderance of the
evidence” rather than a “clear and convincing” burden of
proof. We disagree, but also note that our decision as to the
burden of proof has no effect on the outcome of our Bancec
analysis; indeed, the implications of this question matter little
to this appeal. PDVSA conceded as much at oral argument that
our decision as to burden of proof has no effect on the outcome
of our Bancec analysis. Oral Arg. Tr. at 95–96: 20–14 (Apr.
15, 2019).
PDVSA points to our ruling in Trustees of Nat. Elevator
Indus. Pension, Health Benefit & Educ. Funds v. Lutyk, 332
F.3d 188, 194 (3d Cir. 2003), an ERISA veil-piercing case,
30
where at summary judgment we re-affirmed that “evidence
justifying piercing the corporate veil must be ‘clear and
convincing.’” Id. (quoting Kaplan v. First Options of Chicago,
Inc., 19 F.3d 1503, 1522 (3d Cir. 1994), aff’d, 514 U.S. 938
(1995)). Should this federal common law be applied here? We
think not.
The Sovereign Immunities Act is the exclusive basis for
finding jurisdiction in suits involving foreign sovereigns and
instrumentalities, and Bancec is binding federal common law
for disputes under the Act. Neither indicates that plaintiffs
must show clear and convincing evidence, while many courts
have applied a preponderance-of-the evidence standard to
inquiries under it. See, e.g., Owens v. Republic of Sudan, 864
F.3d 751, 784 (D.C. Cir. 2017); Sachs v. Republic of Austria,
737 F.3d 584, 589 (9th Cir. 2013), rev’d on other grounds sub
nom. OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390
(2015); S & Davis Int’l, Inc. v. The Republic of Yemen, 218
F.3d 1292, 1300 (11th Cir. 2000); Kirschenbaum v. 650 Fifth
Ave., 257 F. Supp. 3d 463, 472 (S.D.N.Y. 2017) (requiring
preponderance of the evidence for Bancec inquiries); First Inv.
Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding,
Ltd. of People’s Republic of China, 858 F. Supp. 2d 658, 668
n.54 (E.D. La. 2012) (also conducting a Bancec extensive
control inquiry), aff’d 703 F.3d 742 (5th Cir. 2012); In re 650
Fifth Ave. & Related Properties, 881 F. Supp. 2d 533, 544
(S.D.N.Y. 2012) (same); Kensington Int’l Ltd. v. Republic of
Congo, No. 03 CIV. 4578 LAP, 2007 WL 1032269, at *5
(S.D.N.Y. Mar. 30, 2007) (same). Further, no case cited by the
parties suggests that the Bancec extensive-control inquiry
requires clear and convincing evidence.
Lutyk drew from our Court’s existing precedent holding
that, where a plaintiff relies on a fraud theory for alter ego, it
must be shown by clear and convincing evidence. See Kaplan,
19 F.3d at 1522. But here Crystallex does not attempt, nor
31
need, to satisfy an element of fraud.11 Further distinguishing
Lutyk or Kaplan, it here seeks to survive a factual challenge
under Rule 12(b)(1), which generally requires the plaintiff to
establish jurisdiction by a preponderance of the evidence. See,
e.g., Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000).
We also see scant policy reason to depart from existing
caselaw and require plaintiffs to make a clear and convincing
showing. The difficulties of marshaling evidence sufficient to
show a Bancec relationship present “a substantial obstacle to
[Sovereign Immunities Act] plaintiffs’ attempts to satisfy
judgment.” Estate of Heiser v. Islamic Republic of Iran, 885
F. Supp. 2d 429, 435 (D.D.C. 2012), aff’d 735 F.3d 934 (D.C.
Cir. 2013). In addition to the initial information imbalance
between the judgment creditor and the foreign sovereign, the
creditor must gather evidence related to events, witnesses, and
relationships between a foreign sovereign and its own
instrumentality, the bulk of which is often within the territorial
control of the sovereign itself, making discovery a particularly
onerous task. Given the difficulties inherent in this evidence
gathering,12 the preponderance standard is “the measure of
respect due foreign sovereigns.” Bank of New York v.
Yugoimport, 745 F.3d 599, 614 (2d Cir. 2014). A more
onerous requirement would tip the balance too far in favor of
11
Even if it did, as the Supreme Court has observed, the
traditional state-law presumption in favor of clear and
convincing evidence for fraud claims has not always extended
to Congress, which frequently has required preponderance of
the evidence for federal fraud claims. See Grogan v. Garner,
498 U.S. 279, 288–89 (1991).
12
The parties here rely chiefly on expert affidavits, publicly
available corporate documents, and news articles.
32
the foreign sovereign at the expense of Bancec’s other core
concern—ensuring that foreign states not dodge their
obligations under international law. Thus we conclude that
preponderance of the evidence is the appropriate burden of
proof under Bancec.
vi. Is there an equitable component to the
“extensive control” prong of Bancec?
PDVSA proposes that an “equitable basis” is required
“to rebut the presumption of separateness” under Bancec’s
extensive-control prong. The District Court observed that even
though Bancec’s two prongs are disjunctive, the extensive-
control inquiry “inherently assumes that some element of
unfairness would result if the Court fails to treat one entity as
the alter ego of the other.” Del. Crystallex, 333 F. Supp. 3d at
397 n.15. We need not determine whether this is an
independent or necessary factor in an extensive-control
inquiry. The test discussed in Rubin appears to treat it as such,
and, as discussed below, it is easily satisfied here.
Extensive control determination under Bancec
Having clarified the contours of the Bancec extensive-
control inquiry, our applying that analysis here is
straightforward. Though the factors the District Court applied
differ slightly from those in Rubin, they are similar enough that
its factual findings, which we review for clear error, direct the
same result under either approach to the Bancec inquiry. While
PDVSA effectively conceded that Crystallex satisfied each
factor under Rubin at oral argument, we summarize the
evidence for the sake of clarity, as the facts are paramount in
determining when control is so extensive that entity
separateness fades away as a legal distinction.
33
Factor 1: the level of economic control by
the government
Venezuela wields extensive economic control over
PDVSA. Venezuela’s bondholder disclosures in 2011 and
2016 stated: “[G]iven that we are controlled by the Venezuelan
government, we cannot assure you that [it] will not, in the
future, impose further material commitments upon us or
intervene in our commercial affairs in a manner that will
adversely affect our operations, cash flow and financial
results.” JA-645; 1921. They leave no doubt Venezuela has
the power to intervene and mandate PDVSA’s economic
policies. In 2011 PDVSA disclosed that “the Venezuelan
government required us to acquire several electricity
generation and distribution companies, as well as certain food
companies . . . [,] and required . . . us to acquire the assets of
[another Venezuelan company] at a price to be determined in
the future.” JA-608–09. The District Court found that
Venezuela requires PDVSA to fund
Venezuelan programs that have nothing to do
with its business, causing PDVSA to take on
additional debt. Such programs include PDVSA
Agricola S.A., which subsidizes Venezuela’s
agriculture, industrial infrastructure, and
produce sectors, and PDVSA Desarrollos
Urbanos S.A., which subsidizes Venezuela’s
housing projects. . . . PDVSA’s total
contributions to the Venezuelan budget between
2010 and 2016 were in excess of $119 billion.
Del. Crystallex, 333 F. Supp. 3d at 409. In 2014 and 2015,
PDVSA was required to contribute U.S. $974 million and U.S.
$3.3 billion, respectively, to social programs and projects. Id.
34
As its 2011 offering circular to prospective bondholders
explains, PDVSA’s legal obligations stem in part from the
Venezuelan constitution, which endows the State with
significant control over PDVSA and the oil industry in the
country. Article 12 provides hydrocarbon deposits within the
territory of the state are the property of the Republic, JA-1722,
and Article 302 reiterates “the State reserves to itself, through
the pertinent organic law, and for reasons of national
convenience, petroleum activity,” id. at 1558. Article 303
addresses the state’s control over PDVSA specifically: “For
reasons of economic and political sovereignty and national
strategy, the State shall retain all shares in Petroleos de
Venezeula, S.A.” E.g., JA-350; 386. In addition, as PDVSA
disclosed to bondholders, under Article 5 of the Organic
Hydrocarbons Law, its revenues “are required to be used to
finance health and education, to create funds for
macroeconomic stabilization and to make productive
investments, all in favor of the Venezuelan people. Those
social commitments may affect our ability to place additional
funds in reserve for future uses and, indirectly, our commercial
affairs.” Id. at 608.
The District Court also found that Venezuela exercises
its economic control over PDVSA by dictating to whom
PDVSA must sell oil to and at what price. The 2011 circular
explains that “[t]he Venezuelan government, rather than the
international market, determines the price of products . . . sold
by us through our affiliates in the domestic market.” Id. at 643.
Thus Venezuela “dictates the severely discounted price at
which PDVSA must sell its product to Venezuelan citizens”
and “forces PDVSA to ‘sell’ oil to third parties for no, or de
minimis, consideration.” Del. Crystallex, 333 F. Supp. 3d at
408 (internal quotation marks and citations omitted). Per
Venezuela’s “Petrocaribe” agreements with its allies, PDVSA
must provide oil to member states at a steep discount on price,
along with a two-year grace period for payments, on a payment
35
schedule up to 25 years in length with interest rates as low as
1% (with the option, on Venezuela’s part, to accept deferred
payments directly in the form of goods and services). JA-928.
Under the agreement, Venezuela “may acquire at preferential
prices . . . sugar, bananas, or other goods or services to be
determined, which are adversely affected by trade policies of
rich countries.” Id. In other words, as the District Court found,
PDVSA provides oil while Venezuela maintains the right to
accept payment. PDVSA’s financial reports show that, from
2010 to 2016, it contributed approximately USD $ 77 billion
under the Petrocaribe agreements. Id. at 1178.
The District Court wasn’t finished: “Venezuela
manipulates PDVSA’s conversion of U.S. Dollars to
Venezuelan Bolivars to leverage PDVSA’s revenues. . . .
PDVSA is required to convert foreign currency into
Venezuelan Bolivars at an artificially low U.S. Dollar to
Bolivar exchange rate (which is approximately 1/500th of the
market rate).” Del. Crystallex, 333 F. Supp. 3d at 410 (internal
quotation marks omitted).
Finally, Venezuela controls PDVSA’s debt structure.
Dr. Roberto Rigobon’s supplemental declaration states that in
November 2017 President Maduro decreed that Venezuela
would restructure the external debt of both Venezuela and
PDVSA. JA-2013. He also provided evidence that Venezuela
made a $1.2 billion payment on a 2017 PDVSA bond. Id. at
2014.
Factor 2: whether the entity’s profits go to
the government
As PDVSA’s lone shareholder, all profit ultimately runs
to the Venezuelan government. In addition, PDVSA pays
Venezuela taxes and royalties on the oil it produces. The
Rigobon Declaration contends that PDVSA pays
36
“extraordinary taxes,” i.e., taxes at an artificial rate designed to
collect more of PDVSA’s revenues. Id. at 1172.
Factor 3: the degree to which government
officials manage the entity or otherwise
have a hand in its daily affairs
The Venezuelan government exercises direct and
extensive control over PDVSA. President Maduro appoints
PDVSA’s president, directors, vice-presidents, and members
of its shareholder council. Del. Crystallex, 333 F. Supp. 3d at
407–08. Crystallex introduced a declaration from Jose Ignacio
Hernandez, a Venezuelan legal academic, which notes that it
has been “commonplace” since 2002 for PDVSA’s president
also to serve as Venezuela’s oil minister. JA-1195. “This
arrangement allowed the Government to control the daily
operations of PDVSA.” Id. PDVSA and Venezuela’s Ministry
of Petroleum and Mining share physical office space for its
headquarters. Id. at 1196 & n.51. In a 2014 speech discussing
the state of Venezuelan control over PDVSA since this
reorganization, then-PDVSA President Rafael Ramirez
Carreño, and the country’s Vice Minister for Petroleum, stated
that “we are one of the few oil producing countries in the world
that has a strict and tight control over the sovereign
management of its natural resources.” Id. at 594.
The military increasingly exercises control over
PDVSA. In November 2017, President Maduro appointed
Major General Manuel Quevedo as Petroleum Minister and
PDVSA president. Id. at 2018. Earlier that year, he also
created a new post—Executive Vice-President of PDVSA—
and appointed Vice-Admiral Maribel del Carmen Parra de
Mestre to the position. Id. at 1198.
Venezuela has also wielded substantial influence over
PDVSA’s employees through a series of politically motivated
37
firings. The highest profile of these occurred in 2002, when
President Chávez fired roughly 40% of the PDVSA workforce
in response to a strike protesting his regime. Id. at 1054.
Employees continue to face pressure from the state today. The
District Court found that, “[a]s recently as July 2017,
Venezuela continued to threaten to terminate PDVSA
employees who were opposed to the governing regime.” Del.
Crystallex, 333 F. Supp. 3d at 407. Employees face pressure
to attend Socialist Party rallies and have been threatened with
termination unless they voted in elections. Id. at 408.
Factor 4: whether the government is the
real beneficiary of the entity’s conduct
The District Court found that PDVSA’s cheap oil to
Venezuela’s strategic allies also creates a mechanism whereby
Venezuela extracts value from PDVSA’s oil without paying
the company. “Venezuela also uses PDVSA to achieve its
foreign policy goals by committing PDVSA to sell oil to
certain Caribbean and Latin American nations at substantial
discounts, without PDVSA’s consent. . . . Even when those oil
debts are repaid, the money is given to Venezuela, not PDVSA.
. . .” Id. at 410.
PDVSA’s actions with respect to this litigation also
show how Venezuela is the real beneficiary of PDVSA’s
conduct. For example, “it is undisputed that PDVSA paid the
administrative fees Venezuela incurred in connection with the
arbitration with Crystallex, which amounted to around
$249,000.” Id. And, when Venezuela expropriated the La
Cristinas mines, it gave to PDVSA for no consideration a
number of mining rights, including rights in Las Cristinas that
it had expropriated from Crystallex. JA-1194. This seamless
transfer of value between PDVSA and Venezuela also suggests
an alter ego relationship.
38
Factor 5: whether adherence to separate
identities would entitle the foreign state to
benefits in United States courts while
avoiding its obligations
Venezuela owes Crystallex from a judgment that has
been affirmed in our courts. Any outcome where Crystallex is
not paid means that Venezuela has avoided its obligations. It
is likewise clear from the record that PDVSA, and by extension
Venezuela, derives significant benefits from the U.S. judicial
system. Its 2020 bonds are backed by the common stock and
underlying assets of U.S.-based corporations, and hence
disputes stemming from default will be subject to U.S. laws
and presumably be resolved through the U.S. legal system.13
See, e.g., Bayrock Exhibit 6 at 131–32, Crystallex Int’l Corp.
v. Bolivarian Republic of Venezuela, F. Supp. 3d 380 (D. Del.
2018), ECF No. 99-1. Indeed, it is probable the U.S. legal
13
Crystallex has not identified any Venezuelan commercial
assets in Delaware or the District of Columbia and may be
unable to find satisfaction if attachment of PDVSA property is
impermissible. See Crystallex Int’l Corp. v. Bolivarian
Republic of Venezuela, No. CV 16-0661 (RC), 2017 WL
6349729, at *2 (D.D.C. June 9, 2017) (“Petitioner has been
unable to identify any commercial assets belonging to
[Respondent] in the District of Columbia but believes that
Respondent possesses assets elsewhere in the United States,
including in Delaware. . . . The assets Petitioner identifies are
connected to Respondent through a variety of corporate
structures . . .[,] in particular [Respondent’s] indirect
subsidiaries, PDVH, CITGO Holding, and CITGO Petroleum
. . . .”) (citations and internal quotations omitted).
39
system is the backstop that gives substantial assurance to
investors who buy PDVSA’s debt.
Nor does ignoring separate identities run against the
equities here. PDVSA profited directly from Crystallex’s
injury: Venezuela transferred the rights to the expropriated
mines to PDVSA for no consideration. Hence this factor too
is satisfied.
PDVSA’s Shares of PDVH are attachable under
the Sovereign Immunities Act.
Crystallex must also show that the particular property at
issue in the attachment action—the PDVH stock—is not
immune from attachment under the Sovereign Immunities Act.
It provides that “the property in the United States of a foreign
state shall be immune from attachment arrest and execution”
unless one of the Act’s statutory exceptions is met. 28 U.S.C.
§ 1609. The exception Crystallex invokes states that the
“property in the United States of a foreign state . . ., used for a
commercial activity in the United States, shall not be immune
from attachment in aid of execution, or from execution, upon a
judgment entered by a court of the United States” based on an
order confirming an arbitral award rendered against the foreign
state. 28 U.S.C. § 1610(a)(6) (emphasis added).14
The Act defines “commercial activity” as “either a
regular course of commercial conduct or a particular
commercial transaction or act. The commercial character of an
14
Section 1610(b) governs execution of a foreign
instrumentality’s property, but only section 1610(a) is relevant
because the jurisdictional immunity is overcome for
Venezuela, not PDVSA, who only enters the picture as
Venezuela’s alter ego.
40
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.” 28 U.S.C. § 1603(d). The
Supreme Court in Republic of Argentina v. Weltover, Inc., 504
U.S. 607, 613 (1992), stated that the phrase “commercial
activity” captures the “distinction between state sovereign acts,
on the one hand, and state commercial and private acts, on the
other.” Id. “[W]hen a foreign government acts, not as a
regulator of a market, but in the manner of a private player
within it, the foreign sovereign’s actions are ‘commercial’
within the meaning of the [Sovereign Immunities Act].” Id. at
614. Commercial actions include those that “(whatever the
motive behind them) are the type of actions by which a private
party engages in ‘trade and traffic or commerce.’” Id. (quoting
Black’s Law Dictionary) (emphasis in original).15
PDVSA contends that the commercial activity
exception requires current commercial use (i.e., at the moment
the writ is executed), which PDVSA contends is impeded by
the current U.S. sanctions regime. There is some support for
PDVSA’s interpretation. See Aurelius Capital Partners v.
Republic of Argentina, 584 F.3d 120, 130 (2d Cir. 2009)
(“[T]he property that is subject to attachment and execution
must . . . have been ‘used for a commercial activity’ at the time
the writ of attachment or execution is issued.”) (emphasis in
original). But narrowing the temporal inquiry to the day the
writ is executed unnecessarily leaves room for manipulation,
as any jurisdictional determination under the Sovereign
Immunities Act is immediately appealable for interlocutory
review, and courts (like the District Court here) may elect not
to issue the writ alongside analysis of the jurisdictional and
15
Weltover involved the commercial-activity exception to
jurisdictional immunity, 28 U.S.C. § 1605(a), but its
interpretation of “commercial” would apply equally here.
41
execution immunity. A strict day-of-writ inquiry could allow
parties to avoid execution by freezing assets or otherwise
ceasing commercial use when the appeal decision is handed
down. Instead, a totality-of-the-circumstances inquiry seems
more appropriate, as the Fifth Circuit aptly described: “This
analysis should include an examination of the uses of the
property in the past as well as all facts related to its present use,
with an eye toward determining whether the commercial use of
the property, if any, is so exceptional that it is ‘an out of
character’ use for that particular property.” Af-Cap Inc. v.
Republic of Congo, 383 F.3d 361, 369 (5th Cir. 2004). And “it
would be appropriate for a court to consider whether the use of
the property in question was being manipulated by a sovereign
nation to avoid being subject to garnishment under [the
Sovereign Immunities Act].” Id. at 369 n.8.
But whether we apply the date the writ was issued—
August 23, 2018—or the date of the August 9 opinion, PDVH
shares are not immune from attachment. PDVSA argues that
the shares cannot be used in commerce because they are subject
of sanctions contained in two Executive Orders. See Exec.
Order. No. 13835, 83 Fed. Reg. 24,001 (May 21, 2018) (“E.O.
13835”); Exec. Order No. 13808, 82 Fed. Reg. 41, 155 (Aug.
24, 2017) (“E.O. 13808”).
This argument fails because the sanctions regime
prohibits only some commercial uses of the shares; other
commercial uses continue to be exercised by Venezuela.
Section 1(a)(iv) of E.O. 13808 bars PDVH from paying
dividends or other distribution of profits to the Government of
Venezuela,16 and section 1(b) prohibits the “purchase, directly
16
The Executive Orders of our Government define “the
Government of Venezuela” as specifically including PDVSA.
42
or indirectly, by a United States person or within the United
States, of securities from the Government of Venezuela.” In
addition, Section 1(a)(iii) of E.O. 13835 precludes United
States persons or those within the United States from engaging
in any transactions, provisions of financing, and other dealings
related to “the sale, transfer, assignment, or pledging as
collateral by the Government of Venezuela of any equity
interest in any entity in which [it] has a 50 percent or greater
ownership interest.”
However, the shares can still be used by PDVSA to run
its business as an owner, to appoint directors, approve
contracts, and to pledge PDVH’s debts for its own short-term
debt. Venezuela illustrates its continued use of this power,
noting that President Guaidó in February 2019 appointed an ad
hoc administrative board to represent PDVSA in its capacity as
sole shareholder of PDVH for appointing a new board of
directors of that entity. These actions are available to the sole
shareholder of a company, and so the shares continue to be
used in commerce.
This is not to say that the sanctions of PDVSA assets
play no role in whether Crystallex ultimately recovers.
According to a Treasury Department Frequently Asked
Question, any attachment and execution against PDVSA’s
shares of PDVH would likely need to be authorized by the
Treasury Department. See Del. Crystallex, 333 F. Supp. 3d at
420–21. In a case like this, “[Treasury’s Office of Foreign
Asset Control, called by its acronym OFAC] would consider
license applications seeking to attach and execute against such
E.O. 13808, 82 Fed. Reg. 41156 (“[T]he term . . . means the
Government of Venezuela, any political subdivision, agency or
instrumentality thereof, including . . . [PDVSA] . . .”); E.O.
13835, 83 Fed. Reg. 24001–02 (same).
43
equity interests on a case-by-case basis.” Id. at 421. Whether
that FAQ is legally binding, Crystallex has committed that it
“will seek clarification of the current license . . . and/or the
issuance of an additional license to cover the eventual
execution sale of the shares of PDVH once the [attachment
w]rit has issued.” Id. at 421 n.40 (internal quotation marks
omitted) (ellipsis in original).
Though the U.S. State Department has not sought to
provide a statement of interest, it is nonetheless conceivable
that short- or long-term U.S. foreign policy interests may be
affected by attachment and execution of PDVSA’s assets. The
Treasury sanctions provide an explicit mechanism to account
for these. Whether the Treasury Department permits execution
in this case, it is clear that the sanctions do not make the PDVH
shares immune from attachment under the Sovereign
Immunities Act.
IV. Conclusion
Under the Foreign Sovereign Immunities Act, there is a
strong presumption that a foreign sovereign and its
instrumentalities are separate legal entities. But the Supreme
Court made clear in Bancec and Rubin that in extraordinary
circumstances—including where a foreign sovereign exerts
dominion over the instrumentality so extensive as to be beyond
normal supervisory control—equity requires that we ignore the
formal separateness of the two entities. This clears that bar
easily. Indeed, if the relationship between Venezuela and
PDVSA cannot satisfy the Supreme Court’s extensive-control
requirement, we know nothing that can.
The District Court acted within its jurisdiction when it
issued a writ of attachment on PDVSA’s shares of PDVH to
satisfy Crystallex’s judgment against Venezuela, and the
44
PDVH shares are not immune from attachment. Thus we
affirm.
45