In Triple A International, Inc. v. The Democratic Republic of the Congo, the Sixth Circuit held that the Republic of the Congo was immune from suit under the Foreign Sovereign Immunities Act.  Triple A, a Michigan corporation, sold over $14 million worth of military equipment to Zaire, which is now known as the Democratic Republic of the Congo.  At Triple A’s request, a South Korean manufacturer shipped the equipment directly to Zaire.  Despite 17 years of collection efforts, Triple A never recovered payment.  In 2010, Triple A sued for breach of contract.  The Congo moved to dismiss for subject matter jurisdiction, believing it was immune under the Foreign Sovereign Immunities Act.

Although the Foreign Sovereign Immunities Act generally immunizes foreign states from suit in U.S. courts, it contains exceptions.  These include actions based upon (1) commercial activity carried on in the U.S. by the foreign state, (2) upon an act performed in the U.S. in connection with a commercial activity of the foreign state elsewhere; or (3) upon an act outside the territory of the U.S. in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the U.S.  Triple A argued that the first exception applied here based upon the definitional section of the Act, § 1603(e).  Section 1603(e) defined the language used in exception (1) as “commercial activity carried on by such state and having substantial contact with the United States.”

The Sixth Circuit noted that § 1603(e) is “far from clear,” but under no interpretation could it eliminate the requirement of commercial activity in the U.S.  Otherwise, the Court reasoned, it would make nonsense of the exception itself, and simultaneously render the remaining two exceptions superfluous.  Because the Sixth Circuit held that Triple A’s allegations—that Zaire ordered goods from Triple A, and that those goods were sent directly from South Korea to Zaire at Triple A’s direction—did not “describe commercial activity that Zaire or the Congo conducted in the United States,” it affirmed dismissal.