Tig Insurance Company , As Successor by Merger To International Insurance Company v. Republic of Argentina , As Successor To Caja Nacional De Ahorro Y Seguro

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 5, 2024 Decided July 30, 2024
No. 23-7064
TIG INSURANCE C OMPANY , AS SUCCESSOR BY MERGER TO
INTERNATIONAL INSURANCE C OMPANY AND INTERNATIONAL
S URPLUS LINE INSURANCE C OMPANY ,
APPELLANT
v.
R EPUBLIC OF ARGENTINA , AS SUCCESSOR TO C AJA NACIONAL
DE AHORRO Y S EGURO AND C AJA NACIONAL DE A HORRO Y
S EGURO,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-mc-00129)
Mark N. Bravin argued the cause for appellant. With him
on the briefs was Theresa B. Bowman.
Rathna J. Ramamurthi argued the cause for appellee
Republic of Argentina. With her on the brief were Carmine D.
Boccuzzi Jr. and Charles M. Asmar. Thomas R. Lynch entered
an appearance.

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Before: R AO , W ALKER , and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: This appeal involves an insurance
company’s efforts to enforce two judgments against the
Republic of Argentina. It implicates several questions
concerning the scope of the Foreign Sovereign Immunities Act
of 1976, 28 U.S.C. § 1602 et seq., which grants foreign states
immunity from the jurisdiction of federal and state courts in the
United States, subject to certain express exceptions. We
conclude that two of those exceptions—the arbitration and
waiver exceptions—may apply in this case, and remand to the
district court for further analysis and factfinding.
I
The following facts and procedural history are drawn from
undisputed facts and prior decisions involving the parties. See
TIG Ins. v. Republic of Argentina (“TIG I”), 2019 WL 3017618
(D.D.C. July 10, 2019), vacated and remanded, TIG Ins. v.
Republic of Argentina (“TIG II”), 967 F.3d 778 (D.C. Cir.
2020); Int’l Ins. v. Caja Nacional de Ahorro y Seguro, 293 F.3d
392 (7th Cir. 2002).
A
TIG Insurance Company (“TIG”) is a private insurance
company resulting from a series of mergers of other insurance
companies. For simplicity, we refer to TIG and its
predecessors as “TIG.” In 1979, TIG entered into two
reinsurance contracts with Caja Nacional de Ahorro y Seguros
(“Caja”), a state-owned Argentine company. Reinsurance, put
simply, is insurance for insurers. TIG agreed to pay Caja a
share of the premiums TIG received on underlying insurance
policies in exchange for Caja’s payment of a share of certain

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losses TIG became obligated to pay under those policies. TIG
alleges that Caja repeatedly failed to pay TIG as promised.
Beginning in the 1990s, the Republic of Argentina
(“Argentina”) issued a series of resolutions addressing Caja’s
corporate status and operations. In 1994, Argentina declared
Caja dissolved and placed it in the process of liquidation. In
1998, Argentina declared “transferred to the National Treasury
the liquidated liabilities and the contingent liabilities and
assets” of Caja “derived from the reinsurance businesses active
in the international private market.” J.A. 237.
In 2000, TIG initiated arbitral proceedings against Caja for
failing to pay under the reinsurance contracts. TIG won by
default. In 2001, TIG confirmed that arbitral award against
Caja in the Northern District of Illinois (the “2001 judgment”)
in default proceedings. The Seventh Circuit upheld the
judgment. See Int’l Ins., 293 F.3d at 401.
After the 2001 judgment, Argentina issued additional
resolutions about Caja’s status. In 2003, Argentina transferred
to its Legal Undersecretary responsibility for handling Caja’s
international docket of foreign court litigation and international
arbitrations “through . . . final conclusion” of each matter. J.A.
887. In 2005, Argentina transferred to itself Caja’s
“liquidated” and “contingent assets and liabilities.” J.A. 252.
In 2016, TIG initiated a second arbitral proceeding, again
alleging breach of the reinsurance contracts, but this time
against Argentina. TIG won by default, with the arbitral panel
accepting TIG’s position that Argentina was Caja’s successor-
in-interest and therefore subject to the arbitration provision in
the contracts. In 2018, TIG confirmed the second arbitral
award against Argentina, again in the Northern District of
Illinois, and again by default (the “2018 judgment”).

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Later in 2018, TIG learned that Argentina had listed real
estate for sale in the District of Columbia. Prompted by this
discovery, TIG registered the 2001 and 2018 judgments in the
District of Columbia under 28 U.S.C. § 1963. TIG
simultaneously filed an omnibus motion for emergency relief,
attachment-related relief, and a writ of execution on the
property. Soon after, Argentina pulled the real estate listing
from the market, despite pending offers to buy the property. In
the district court, Argentina opposed TIG’s omnibus motion,
relying on the Foreign Sovereign Immunities Act of 1976
(“FSIA”).
B
The FSIA “confers on foreign states two kinds of
immunity.” Republic of Argentina v. NML Cap., Ltd., 573 U.S.
134, 142 (2014). The first is jurisdictional immunity, pursuant
to which “a foreign state shall be immune from the jurisdiction
of the courts of the United States,” 28 U.S.C. § 1604, subject
to several enumerated exceptions, see id. §§ 1605–1607. The
second is execution immunity, which further protects foreign
sovereigns by ensuring that in the event of an adverse
judgment, the sovereign’s property in the United States “shall
be immune from attachment[,] arrest[,] and execution,” id. §
1609, again subject to several enumerated exceptions, see id.
§§ 1610–1611.
Because of the FSIA’s dual immunities, parties seeking
judicial enforcement of an award against a foreign state face
two hurdles: They must “establish both that the foreign state is
not immune from suit and that the property to be attached or
executed against is not immune” from execution. TIG II, 967
F.3d at 781.
In 2018, facing TIG’s omnibus motion, Argentina raised
execution immunity and prevailed. According to the district
court, Argentina’s property was immune from execution

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because Argentina had taken the property off the market. This
meant that the property was not “used for a commercial
activity”—a prerequisite for certain of the FSIA’s execution
immunity exceptions—at the time the court’s writ would issue.
TIG I, 2019 WL 3017618, at *3–4; see 28 U.S.C. § 1610(a).
TIG appealed, and we vacated and remanded. We held
that whether a property is “used for a commercial activity”
depends on the “totality of the circumstances” at the time when
the motion for a writ of attachment is filed, not when the writ
would issue. TIG II, 967 F.3d at 785; see also Bainbridge Fund
Ltd. v. Republic of Argentina, 102 F.4th 464, 468–70 (D.C. Cir.
2024) (applying the “totality of circumstances” test to the same
Argentina-owned property in a suit involving a different
judgment creditor).
On remand, Argentina again moved to dismiss. It
continued to argue that the property was not used for
“commercial activity” and therefore immune from execution.
But Argentina also raised jurisdictional immunity under the
FSIA. In response, as relevant to this appeal, TIG argued that
two of the FSIA’s exceptions to jurisdictional immunity
applied: the arbitration exception, 28 U.S.C. § 1605(a)(6), and
the waiver exception, id. § 1605(a)(1).
TIG argued that two provisions in Caja’s reinsurance
contracts triggered those exceptions, and that Argentina now
stood in Caja’s shoes. First, Caja had agreed to submit disputes
under the contracts to arbitration in Chicago, Illinois (the
“arbitration provision”). J.A. 305, 325. Second, Caja had
agreed that “all matters arising hereunder shall be determined
in accordance with the law and practice” “of any court of
competent jurisdiction within the United States” (the “choice-
of-law provision”). J.A. 304, 324.
TIG argued that Argentina was bound by these contract
provisions just like Caja because of Argentina’s relationship to

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Caja. Relevant to this appeal, TIG offered two theories. The
first was that Argentina became Caja’s “successor-in-interest”
by issuing the official resolutions, under which Argentina
“expressly assumed all of Caja’s legal obligations, assets, and
liabilities” under the reinsurance contracts. Appellant’s Brief
50. TIG’s second theory was that Argentina used Caja as an
“alter ego.” Under the alter ego principle, a court can find that
an entity like Caja lacks a separate identity from another
controlling entity. See, e.g., First Nat’l City Bank v. Banco
Para El Comercio Exterior de Cuba (“Bancec”), 462 U.S. 611,
623–30 (1983).
The district court construed Argentina’s motion to dismiss
as a motion for relief from judgment pursuant to Federal Rule
of Civil Procedure 60(b)(4) and issued two decisions,
requesting supplemental briefing in between. The court sided
with Argentina on all issues. For the 2018 judgment, the
district court held that the Illinois district court lacked
jurisdiction over Argentina because none of TIG’s asserted
exceptions applied. The district court also rejected TIG’s
request for jurisdictional discovery. For the 2001 judgment,
the court held that TIG needed to amend the judgment back in
Illinois to name Argentina before seeking enforcement in
federal court here. Based on these rulings, the district court
concluded that it need not revisit the execution immunity
dispute.
TIG sought reconsideration on several issues, which the
district court denied. TIG then appealed.
II
We review a dismissal for lack of jurisdiction de novo with
respect to legal conclusions. Simon v. Republic of Hungary, 77
F.4th 1077, 1094 (D.C. Cir. 2023). We review a denial of
jurisdictional discovery for abuse of discretion. Urquhart-
Bradley v. Mobley, 964 F.3d 36, 43 (D.C. Cir. 2020). We

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likewise review a denial of a motion for reconsideration for
abuse of discretion. Cobell v. Jewell, 802 F.3d 12, 23 (D.C.
Cir. 2015).
III
TIG argues that two FSIA exceptions independently
provided the Illinois district court jurisdiction over Argentina
to enter the 2018 judgment. We start with the arbitration
exception. Contrary to the district court, we conclude that the
exception may apply subject to further analysis and factfinding
on remand.
A
The arbitration exception provides, in relevant part, that a
foreign state shall not be immune from the jurisdiction of a
United States court for an action
brought, either to enforce an agreement made by
the foreign state with or for the benefit of a
private party to submit to arbitration all or any
differences which have arisen or which may
arise between the parties with respect to a
defined legal relationship . . . or to confirm an
award made pursuant to such an agreement to
arbitrate.
28 U.S.C. § 1605(a)(6).
As the district court recognized, the parties’ dispute is
limited. See TIG Ins. v. Republic of Argentina (“TIG III, Part
One”), 2022 WL 1154749, at *6 (D.D.C. Apr. 18, 2022). The
parties agree that the reinsurance contracts are agreements that
call for the arbitration of “any differences.” And they agree
that the arbitral award confirmed in the 2018 judgment arises
from the reinsurance contracts. Their only disagreement is
whether the reinsurance contracts’ arbitration provision was

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“made by” Argentina because Caja, not Argentina, signed the
contracts with TIG. See Appellant’s Brief 42–50; Appellee’s
Brief 21–27.
In TIG’s view, a court should determine whether the
arbitration agreements were “made by” Argentina by deciding
whether Argentina, as a nonsignatory to the contract, is
nonetheless bound by the agreement under ordinary contract
law principles. See Appellant’s Brief 42–48. And here, TIG
says, Argentina is so bound. Id. at 48–50.
According to TIG, Argentina is Caja’s successor-in-
interest. Under successorship principles, when a nonsignatory
takes certain steps in relation to a contract (such as, in many
jurisdictions, assuming another entity’s liabilities under that
contract), the nonsignatory can be treated as bound to the
contract’s obligations, no different than the original party. See
BMG Monroe I, LLC v. Village of Monroe, 93 F.4th 595, 598
n.1 (2d Cir. 2024) (“Successors in interest stand in the shoes of
their predecessors . . . as if they were parties to the original
agreements and actions of their predecessors.” (cleaned up));
Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 700–
01 (2d Cir. 2009). TIG submits that Argentina’s official
resolutions expressly “assumed” Caja’s assets and liabilities
flowing from the reinsurance contracts, as well as future legal
obligations related to those contracts. After those resolutions,
in TIG’s view, Argentina cannot pick and choose which
provisions of the contracts it wishes to be bound by; it is bound
by all, including the arbitration provision. TIG points to cases
where courts have held that arbitration provisions specifically
may be enforced against the successors-in-interest of the
original signatories. See, e.g., Appellant’s Brief 26–27
(collecting cases); see also 21 R. Lord, Williston on Contracts
§ 57:19, p. 183 (4th ed. 2017) (“Under an assumption theory, a
party may be bound by an arbitration clause if its subsequent
conduct indicates that [it] is assuming the obligation to

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arbitrate, despite being a nonsignatory.”). According to TIG,
because Argentina is Caja’s successor-in-interest to the
reinsurance contracts, it is bound by the arbitration provision,
and the reinsurance contracts are “made by” Argentina for the
purposes of the arbitration exception.
Argentina offers a different approach. Rather than
assessing whether the sovereign is bound by the arbitration
provision, Argentina argues that a court should simply ask
whether the sovereign (or its alter ego) originally signed the
contract containing the provision. Under Argentina’s proposed
inquiry, it is irrelevant whether Argentina assumed Caja’s
assets and liabilities under the reinsurance contracts (which
Argentina disputes). Because only Caja signed the reinsurance
contracts, Argentina says, the reinsurance contracts were not
“made by” Argentina. See Appellee’s Brief 42–49.
The district court agreed with Argentina. It held that an
arbitration agreement is only “made by” the parties who signed
the contract “at the time of formation.” TIG III, Part One, 2022
WL 1154749, at *7. So “even if Argentina is Caja’s successor-
in-interest” and “assumed Caja’s contractual liabilities,” “the
arbitration agreements were nonetheless not ‘made by’
Argentina so as to waive sovereign immunity.” Id. at *8. The
district court therefore did not analyze whether Argentina is
successor-in-interest to Caja under the reinsurance contracts.
See id.
B
On appeal, TIG again urges that if Argentina adopted the
arbitration agreement under successorship principles, then the
agreement qualifies as one “made by the foreign state . . . to
submit to arbitration” under the FSIA’s arbitration exception.
28 U.S.C. § 1605(a)(6). We agree with TIG and conclude that
an agreement is “made by” a sovereign if it legally binds that
sovereign to arbitrate with the party opposing the sovereign’s

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sovereign immunity. That question is answered by resort to
ordinary principles of contract law, which may include
successorship and assumption if the governing law recognizes
them. We reject the contrary view, under which an arbitration
agreement can only be “made by” a sovereign that was an
original party to it.
Our analysis begins with the statute’s text. We must read
the statutory text as a whole and assess the words in the context
in which they are used. See, e.g., Textron Lycoming
Reciprocating Engine Div., AVCO Corp. v. UAW, 523 U.S.
653, 657 (1998) (“It is not the meaning of ‘for’ we are seeking
here, but the meaning of ‘suits for violation of contracts.’”
(alteration omitted)); Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997). The key phrase here is “an agreement made by the
foreign state . . . to submit to arbitration.” 28 U.S.C.
§ 1605(a)(6). That phrase supports TIG’s position that an
arbitration agreement is “made by” a sovereign that later adopts
the agreement just as much as a sovereign who was a party to
the agreement when it was initially made.
To “make” in the context of making a contract or
agreement is commonly understood to include later adoption of
that agreement. For example, both TIG and the district court
cite the then-current version of Black’s Law Dictionary, which
defined to “make a contract” as “[t]o agree upon, and conclude
or adopt, a contract.” Make a Contract, Black’s Law
Dictionary (5th ed. 1979) (emphasis added). This
understanding of to “make”—as TIG urges—encompasses a
nonoriginal signatory who later adopts an agreement to
arbitrate.
Moreover, the word “agreement” as it appears in the
statutory phrase is best understood as an act that has the legal
consequence of requiring the sovereign to arbitrate. See
Agreement, Black’s Law Dictionary (5th ed. 1979) (“In law, a

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concord of understanding and intention between two or more
parties with respect to the effect upon their relative rights and
duties, of certain past or future facts or performances.”); see
also Contract, Black’s Law Dictionary (5th ed. 1979) (“An
agreement between two or more persons which creates an
obligation to do or not to do a particular thing.”). If the
sovereign is not an original signatory but takes actions that
cause it to adopt and become subject to the agreement, nothing
in the ordinary meaning of the statutory text suggests the
sovereign does not qualify as having “made” the “agreement.”
Argentina’s original-parties-only argument would perhaps
gain some force if we instead looked at the words “made by”
in isolation. After all, “make”—the word stem of “made”—
can mean “[t]o cause to exist”; “[t]o form, fashion or produce”;
or “[t]o do, perform, or execute.” Make, Black’s Law
Dictionary (5th ed. 1979). Zooming in on just those words, as
Argentina would have us do, one could conclude that Argentina
could only “make” an agreement that it participated in drafting.
But, as already explained, that is not how we interpret statutes.
We must read the statutory text as a whole and in context; doing
so here supports TIG’s view, not Argentina’s.
In adopting Argentina’s reading, the district court found it
important that “made by” is a “past participial phrase.” TIG
III, Part One, 2022 WL 1154749, at *7. The court then
concluded that “made by” refers only to the parties present at
“the time of formation.” Id. The use of a verb tense can be
significant in construing statutes. See, e.g., United States v.
Wilson, 503 U.S. 329, 333 (1992); Gwaltney of Smithfield, Ltd.
v. Chesapeake Bay Found., Inc., 484 U.S. 49, 63 n.4 (1987).
But here it is not obvious that any tense applies to the phrase
“made by.” Cf. TIG II, 967 F.3d at 782–83 (declining to
associate any tense with “used” in the phrase “used for a
commercial activity”). Moreover, even accepting the view that
the phrase is past tense would do nothing to support

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Argentina’s position. Relative to the time when an “action is
brought” to “enforce” an arbitration agreement, 28 U.S.C.
§ 1605(a)(6), both the moment an agreement is first created and
the moment a nonsignatory adopts the agreement would be in
the past. The facts of this case illustrate the point: If
Argentina’s actions in the 1990s and 2000s caused it to adopt
the arbitration agreement, then it can be said to have “made”
the agreement at that past time.
The district court also stated—and Argentina repeats on
appeal—that “if Congress had intended the arbitration
exception to” apply here, it could have said the exception
applies to “agreements that ‘bound’ or ‘governed’ foreign
states, as opposed to agreements that those states ‘made.’” TIG
III, Part One, 2022 WL 1154749, at *7; see Appellee’s Brief
41. True enough. But Congress also could have specified that
an agreement be “signed by” or “originated by” the foreign
state if it intended the contrary reading. That the statute could
have been more specific in either direction “does not aid our
inquiry.” Robinson, 519 U.S. at 341.
The district court also found its original-signatories-only
reading supported by the fact that the arbitration exception
exists at least in part to implement the Inter-American
Convention on International Commercial Arbitration, a
multilateral treaty commonly known as the Panama
Convention. TIG III, Part One, 2022 WL 1154749, at *7
(citing An Act to Implement the Inter–American Convention
on International Commercial Arbitration, Pub. L. No. 100-669,
102 Stat. 3969 (1988)). That convention applies to “parties”
who have “undertake[n] to submit to arbitral decision any
differences that may arise or have arisen between them” in an
“agreement.” Inter-American Convention on International
Commercial Arbitration art. 1, Jan. 30, 1975, T.I.A.S. 90-1027,
1438 U.N.T.S. 245. Neither that language nor any other aspect
of the convention that we can identify, however, speaks to

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whether a sovereign that takes steps to assume or adopt a
contract is covered. The convention therefore does not assist
our analysis.1
Our understanding of the exception is reinforced by the
FSIA’s broader context. Congress enacted the FSIA with the
“express goal of codifying the restrictive theory of sovereign
immunity.” Federal Republic of Germany v. Philipp, 592 U.S.
169, 182 (2021). Under the restrictive theory, in contrast to
“the absolute or classical theory of sovereign immunity,”
“immunity extends to a sovereign’s public but not its private
acts.” Id. “Most of the FSIA’s exceptions” give effect to “the
overarching framework of the restrictive theory” by targeting
situations where a sovereign has engaged in private acts. Id. at
182–83. And here, Argentina is alleged to have entered the
private insurance industry through its assumption of Caja’s
business, including its assets and liabilities. A rule under which
a sovereign is free to take over another entity’s obligations
under a contract with an arbitration provision yet escape the
immunity-waiving effect of the arbitration agreement would
seem to frustrate the FSIA’s basic aim. Cf. Aguas Lenders, 585
F.3d at 701 (“Successorship doctrine prevents parties to
contracts from using evasive, formalistic means lacking
economic substance to escape contractual obligations.”).
1 The district court’s brief discussion of the exception’s purpose
cited a Second Circuit decision that expressed skepticism in dicta
towards the “applicability” of an “equitable doctrine” like “benefits
estoppel” as a basis to “abrogate a state’s immunity under” the
arbitration exception. Gater Assets Ltd. v. AO Moldovagaz, 2 F.4th
42, 67 (2d Cir. 2021). In support, the Second Circuit noted that the
exception’s purpose was to “implement” the Panama Convention.
Id. at 68 n.28 (quotation omitted). Gater Assets does not explain how
the Panama Convention supports an original-signatories-only
reading of the exception, nor does the decision engage in the broader
statutory interpretation we must here.

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Finally, Argentina contends that an interpretation focusing
on whether the agreement binds the sovereign is improper
because the FSIA “replac[ed] the old executive-driven, factor-
intensive, loosely common-law-based immunity regime.”
NML Cap., Ltd., 573 U.S. at 141. It is true that the FSIA
embodies Congress’s effort to replace a body of common law
addressing sovereign immunity that lent itself to “inconsistent
application” by the Department of State, which then enjoyed
“primary responsibility” for deciding immunity claims.
Samantar v. Yousuf, 560 U.S. 305, 313 (2010). The question
posed here, though, is not whether the FSIA displaced the
common law of sovereign immunity—which it surely does—
but rather whether Congress intended the FSIA to displace the
substance of common law on other subjects, such as contract
law, that would inform the meaning of the FSIA’s immunity
exceptions. Cf. id. at 320 (asking “whether Congress intended
the FSIA to supersede the common law” on the specific subject
at issue).
There is no indication that Congress intended the FSIA to
displace common-law contract principles that inform our
understanding of what constitutes the “making” of an
“agreement.” As we have noted, many sources of law “allow
a contract to be enforced by or against nonparties to the contract
through assumption, piercing the corporate veil, alter ego,
incorporation by reference, third-party beneficiary theories,
waiver[,] and estoppel.” Arthur Andersen LLP v. Carlisle, 556
U.S. 624, 631 (2009) (cleaned up). For example, when
Congress added the FSIA arbitration exception in 1988, the
common law in at least some jurisdictions had already
developed to recognize that “[o]rdinary contract principles
determine who is bound” to an agreement, and “the mere fact
that a party did not sign an arbitration agreement does not mean
that it cannot be held bound by it.” Interocean Shipping Co. v.
Nat’l Shipping & Trading Corp., 523 F.2d 527, 539 (2d Cir.
1975); see Kamakazi Music Corp. v. Robbins Music Corp., 684

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F.2d 228, 231 (2d Cir. 1982); Lumbard v. Maglia, Inc., 621 F.
Supp. 1529, 1534–35 (S.D.N.Y. 1985).
We see nothing in the FSIA’s arbitration exception that
“purports to alter” otherwise applicable “background
principles” concerning who is bound by arbitration agreements.
Arthur Andersen LLP, 556 U.S. at 630. Instead, the FSIA
provides no guidance on how covered agreements can be made,
and thus necessarily requires courts to look to other sources of
law to make those determinations. The Supreme Court reached
a similar conclusion in construing the Federal Arbitration Act,
explaining that the Act does not “alter background principles
of state contract law regarding the scope of agreements
(including the question of who is bound by them).” Id. Instead,
that Act requires looking to an “external body of law” to
resolve those questions. Id. So too here.
Indeed, both the district court and Argentina accept that at
least one external, common-law principle already bears on
what qualifies as an arbitration “agreement made by a foreign
state.” See TIG III, Part One, 2022 WL 1154749, at *8–10;
Appellee’s Brief 15. This is the “alter ego” principle. Under
that principle, a court can find that one entity lacks a separate
identity from another controlling entity. The actions of the first
entity can then be imputed to the sovereign for the purposes of
waiving sovereign immunity. See Bancec, 462 U.S. at 629–30.
And specific to the arbitration exception, in line with
Argentina’s and the district court’s view, we have assumed that
when a sovereign’s “alter ego” enters into an agreement, that
agreement is “made by” the sovereign. See GSS Grp. Ltd. v.
Nat’l Port Auth. of Liberia, 822 F.3d 598, 605 (D.C. Cir. 2016).
In this case, TIG argues that Caja was Argentina’s alter ego,
which we address in Section V. But the key point for present
purposes is that Argentina does not dispute that if Caja were
Argentina’s “alter ego,” then the reinsurance contracts’

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arbitration agreements are properly said to be “made by”
Argentina.
Reconciling Argentina’s position with our precedent
would therefore require us to declare that the FSIA recognizes
the alter ego principle as the one and only external, common-
law method of binding a nonparty to an arbitration agreement.
We can identify no basis in the FSIA or logic for that
conclusion. See 21 Williston § 57:19, p. 183 (listing both “alter
ego” and “assumption” as examples of several grounds on
which “a party, despite being a nonsignatory to an arbitration
agreement, may be equitably bound to arbitrate under
traditional principles of contract and agency law”).
C
In sum, we hold that under the FSIA’s arbitration
exception, an agreement can be “made by” sovereigns other
than original signatories. We further hold that because the
FSIA provides no law to guide the determination whether an
enforceable arbitration agreement exists, that question must be
answered based on external sources of law.
On remand, the district court must first consider what
source of law governs the question of enforcement of the
arbitration provision. That is because the precise legal test for
whether (and how) a successorship theory can compel
arbitration against a nonsignatory can be different from one
jurisdiction to another. This is generally a question of state
law. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
944 (1995) (“When deciding whether the parties agreed to
arbitrate a certain matter . . . , courts generally . . . should apply
ordinary state-law principles that govern the formation of
contracts.”). But there may be arguments that federal common
law or another source of law governs. Cf. Bancec, 462 U.S. at
623 (declining to decide whether international law or federal
common law governs the question of a state instrumentality’s

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separate juridical status). The parties have not briefed this
choice-of-law issue; the district court must consider it on
remand.
The district court must then determine whether, under that
law, Argentina is subject to the arbitration provision. This will
likely involve factfinding on the existence of a successorship
relationship, if any, between Argentina and Caja. Indeed, there
appears to be at minimum a dispute of fact over whether
Argentina assumed liabilities under the reinsurance contracts.
Compare J.A. 220 (TIG affidavit stating that annex to one
Argentine resolution specifies liabilities to TIG), with
Appellee’s Brief 6 (citing declarations and claiming that the
liabilities were not active when Argentina began issuing its
resolutions). The district court must resolve this dispute and
any others that may bear on the analysis required by the source
of law governing the question of enforcement of the arbitration
provision against Argentina.
IV
We turn now to the second exception TIG contends
provided the Illinois district court jurisdiction over Argentina
to enter the 2018 judgment: the waiver exception. Again,
contrary to the district court here, we conclude that the
exception may apply subject to further analysis and factfinding
on remand.
A
The FSIA’s waiver exception “recognizes two species of
waiver”: explicit and implicit. Wye Oak Tech., Inc. v. Republic
of Iraq, 24 F.4th 686, 691 (D.C. Cir. 2022). This case concerns
the latter, which provides that a United States court has
jurisdiction for an action “in which the foreign state has waived
its immunity . . . by implication.” 28 U.S.C. § 1605(a)(1). We
“constru[e] the implied waiver provision narrowly.” Creighton

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Ltd. v. Gov’t of State of Qatar, 181 F.3d 118, 122 (D.C. Cir.
1999).
The FSIA does not define what constitutes waiver by
implication. Our court has identified “only three
circumstances” in which a sovereign will be treated as having
impliedly waived its immunity. Khochinsky v. Republic of
Poland, 1 F.4th 1, 8 (D.C. Cir. 2021) (quotation omitted). They
are the sovereign’s: (1) “executing a contract containing a
choice-of-law clause designating the laws of the United States
as applicable”; (2) “filing a responsive pleading without
asserting sovereign immunity”; or (3) “agreeing to submit a
dispute to arbitration in the United States.” Id. at 8–9 (internal
quotation marks omitted). “The legislative history of the FSIA
provides only” these “three examples of implicit waivers by a
foreign state, and courts” including ours “have been reluctant
to recognize an implicit waiver of sovereign immunity in other
circumstances.” Wye Oak Tech., Inc., 24 F.4th at 691 (citation
omitted); see H.R. Rep. No. 94-1487, at 18 (1976); S. Rep. No.
94-1310, at 17–18 (1976).
TIG argues all three scenarios here. The district court
found none of them applicable. TIG III, Part One, 2022 WL
1154749, at *10–11; TIG Ins. v. Republic of Argentina (“TIG
III, Part Two”), 2022 WL 3594601, at *5–7 (D.D.C. Aug. 23,
2022). We address the arbitration and choice-of-law scenarios
together before addressing the responsive-pleading scenario.
B
For the arbitration and choice-of-law scenarios, TIG relies
on the same basic theory it raised for the arbitration exception:
Because Argentina took affirmative steps that render it Caja’s
successor-in-interest, Argentina has agreed to the contracts’
arbitration and choice-of-law provisions, and it has therefore
impliedly waived immunity. Appellant’s Brief 23–41.
Argentina responds that what matters for implied waiver is not

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whether Argentina is bound by the provisions, but rather
whether there is evidence that it subjectively intended to
withdraw its sovereign immunity. Appellee’s Brief 27–38.
Here, it says, TIG points to none. Id.
We do not read the implied waiver provision to require
evidence of subjective intent to waive sovereign immunity. As
explained, this court has already endorsed three scenarios,
drawn from the statute’s legislative history, in which an
implied waiver will be found. See supra pp. 18 (collecting
cases). Those examples depend on the sovereign taking
specific steps which “the courts” have held indicate a
willingness to submit to litigation in this country. H.R. Rep.
No. 94-1487, at 18 (1976); S. Rep. No. 94-1310, at 17–18
(1976). The nature of the examples necessarily entails an
objective, rather than subjective, assessment of intent. As the
Second Circuit has put it, these “three examples are persuasive
evidence that Congress primarily expected courts to hold a
foreign state to an implied waiver of sovereign immunity by
the state’s actions in relation to the conduct of litigation.”
Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d
239, 243–44 (2d Cir. 1996).
When a sovereign takes the specified acts, nothing in our
cases nor the FSIA’s legislative history they draw on indicates
that there must be a further inquiry into whether the sovereign
affirmatively believed it was waiving immunity. There is, for
example, no suggestion in the statute or our precedent that if a
sovereign “fil[ed] a responsive pleading without asserting
sovereign immunity” or “agree[d] to submit a dispute to
arbitration in the United States,” Khochinsky, 1 F.4th at 9
(quotation omitted), there would nevertheless be a further
inquiry into whether the sovereign subjectively intended to
waive its sovereign immunity by doing so. The FSIA instead
deems the sovereign to have the requisite intent when it takes
the specified steps because they “indicate[] its amenability to

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suit” in this country. Princz v. Fed. Republic of Germany, 26
F.3d 1166, 1174 (D.C. Cir. 1994). The Sixth Circuit has
similarly concluded that if a sovereign is the successor-in-
interest to a contract containing an agreement to arbitrate in the
United States, it may be found to have impliedly waived its
sovereign immunity under Section 1605(a)(1). Gen. Star Nat’l
Ins. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 440
(6th Cir. 2002).
We emphasize again, however, that beyond the three
examples we have endorsed where it is appropriate to find
implied waiver, the provision must be applied “narrowly.”
Creighton Ltd., 181 F.3d at 122.
The district court correctly framed the analysis at the
outset as whether Argentina “agreed to” the provisions at issue.
TIG III, Part Two, 2022 WL 3594601, at *5–6. It then
embarked on a different inquiry into Argentina’s subjective
intent, rather than analyzing whether Argentina is properly
treated as agreeing to the provisions and therefore as having
implicitly waived its sovereign immunity. Id. at *7. Implied
waiver thus requires the same conceptual inquiry described
above for the arbitration exception: If Argentina’s conduct
renders it subject to those provisions as a matter of law, it has
impliedly waived its sovereign immunity.
On remand, because TIG contends here that Argentina’s
succession to both the choice-of-law and arbitration provisions
are bases for implied waiver, the district court must analyze
enforcement of the arbitration provision, per the inquiry we set
out for the arbitration exception, but it must also analyze
whether, under the applicable source of law, TIG can enforce
the choice-of-law provision against Argentina on a
successorship theory.

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C
As mentioned, the other scenario for implied waiver is
when a sovereign files “a responsive pleading without asserting
sovereign immunity.” Ivanenko v. Yanukovich, 995 F.3d 232,
239 (D.C. Cir. 2021). We will not find a waiver on this ground
“absent a conscious decision to take part in the litigation and a
failure to raise sovereign immunity despite the opportunity to
do so.” Foremost-McKesson, Inc. v. Islamic Republic of Iran,
905 F.2d 438, 444 (D.C. Cir. 1990) (quotation omitted).
Here, TIG emphasizes that when Argentina opposed TIG’s
motion for emergency relief in 2018 and 2019, it argued only
execution immunity defenses, not jurisdictional immunity
defenses. Argentina’s decision to wait, TIG says, is akin to
filing a responsive motion without asserting sovereign
immunity.
As the district court explained, TIG’s argument fails for
the simple reason that Argentina has not filed a responsive
pleading in this case. Argentina entered a special appearance
in the case to contest jurisdiction and subsequently filed
motions seeking dismissal by asserting the court’s lack of
jurisdiction on various grounds. See TIG III, Part One, 2022
WL 1154749 at *3–4, *10. “[A] motion to dismiss . . . is not
considered a responsive pleading.” Bowden v. United States,
176 F.3d 552, 555 (D.C. Cir. 1999); see also Adkins v. Safeway,
Inc., 985 F.2d 1101, 1102 (D.C. Cir. 1993) (“Only complaints,
answers, replies to counterclaims, and third-party complaints
and third-party answers are ‘pleadings.’” (quoting Fed. R. Civ.
P. 7(a))). Because Argentina has not filed a responsive
pleading, the third scenario of implied waiver is not present
here.

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V
TIG also argues, as a separate theory relevant to multiple
FSIA exceptions, that Argentina used Caja as its alter ego. The
district court rejected TIG’s argument, and we agree.
A
Under the FSIA, the “instrumentality” of a sovereign is
afforded both sovereign immunity and a presumption of
separateness from the sovereign. Bancec, 462 U.S. at 627.
That presumption “applies to jurisdictional issues.” Foremost-
McKesson, Inc., 905 F.2d at 446. This means that actions taken
by the instrumentality that waive its own immunity will not
necessarily be imputed to the sovereign to waive its immunity.
See Transamerica Leasing, Inc. v. La Republica de Venezuela,
200 F.3d 843, 847 (D.C. Cir. 2000). TIG has not disputed,
either in the district court or on appeal, that Caja is an
instrumentality of Argentina for the purposes of alter ego
analysis, and therefore that a presumption of separateness
applies for purposes of that analysis. See TIG III, Part One,
2022 WL 1154749, at *9.
“That presumption can be overcome,” however, if the
instrumentality is the sovereign’s alter ego. Transamerica
Leasing, Inc., 200 F.3d at 847. An alter ego relationship exists
in either of two situations: (1) the “corporate entity is so
extensively controlled by its owner that a relationship of
principal and agent is created” or (2) “recognition of the
instrumentality as an entity apart from the state ‘would work
fraud or injustice.’” Id. at 848 (quoting Bancec, 462 U.S. at
629). Under either scenario, the actions of the alter ego
corporation can be imputed to a sovereign to work a waiver of
sovereign immunity. See, e.g., Foremost-McKesson, Inc., 905
F.2d at 446.

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As the parties agree, see Appellant’s Brief 54; Appellee’s
Brief 47, TIG bore “the burden of asserting facts sufficient to
withstand a motion to dismiss regarding the . . . relationship,”
Foremost-McKesson, Inc., 905 F.2d at 447; see GSS Grp. Ltd.,
822 F.3d at 605 n.9.2 TIG’s lackluster effort to present its alter
ego theory below fails under that standard.
TIG’s procedural opportunity to assert facts supporting its
alter ego theory came in its opposition to Argentina’s motion
to dismiss after our remand. Yet in that submission TIG
sketched its alter ego theory in only the most skeletal way and
failed to allege any relevant facts or put forward any relevant
evidence. See J.A. 634–35. TIG does not dispute that Caja was
initially established in 1915 as an independent entity. See
Appellant’s Brief 59. The only facts TIG identified as showing
that Caja was Argentina’s alter ego at the time Caja entered the
reinsurance contracts in 1979 were Argentina’s liquidation
resolutions in the 1990s and 2000s. See J.A. 634–35. TIG
claimed without elaboration that the resolutions “confirm that
Caja existed under Argentina’s complete control” and “was in
some stage of significant undercapitalization,” which are
2 The district court stated that TIG bore the burden of proof on
this issue. TIG III, Part One, 2022 WL 1154749, at *8. TIG
challenges that conclusion, pointing to our cases applying the FSIA
exceptions generally, which instead set out a burden-shifting
approach under which the plaintiff bears a burden of production, but
then the sovereign must prove that the immunity exception at issue
does not apply. Appellant’s Brief 54–58. At the same time, we have
suggested that a plaintiff does in fact bear the burden of proof on the
specific question of whether a nominally independent entity was a
sovereign’s alter ego. See Foremost-McKesson, Inc., 905 F.2d at
447. As explained, however, the parties in this case agree that at the
motion-to-dismiss stage a plaintiff bears the burden of asserting
plausible facts sufficient to withstand a motion to dismiss. We
therefore need not resolve the parties’ dispute over who bears the
burden of proof later in the suit.

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“‘critical’ factors in determining whether an entity is an ‘alter
ego’ of the sovereign.” J.A. 634 (quoting Bridas S.A.P.I.C. v.
Gov’t of Turkmenistan, 447 F.3d 411, 420 (5th Cir. 2006)).
The key questions, however, are whether Argentina
exerted “complete domination” over Caja, Transamerica
Leasing, Inc., 200 F.3d at 848, or whether Caja was effectively
Argentina’s “agent,” id. at 849, when Caja entered the
reinsurance contracts with TIG in 1979. On their face, the far-
later-in-time resolutions do not speak to those questions at all.
And aside from citing the resolutions, TIG made no argument
about why the resolutions supported its alter ego claim. Again,
TIG stated only that the resolutions “confirm” a controlling
relationship and vaguely asserted—without specific
connection even to the resolutions—that Caja was
undercapitalized. J.A. 634–35. This is plainly insufficient to
survive Argentina’s motion to dismiss.
For similar reasons, TIG also failed to meet its burden on
the alternative alter ego theory that treating Argentina and Caja
as separate would work “fraud or injustice.” Bancec, 462 U.S.
at 629 (quoting Taylor v. Standard Gas & Elec. Co., 306 U.S.
307, 322 (1939)). TIG’s opposition memorandum was devoid
of any argument directed to this theory. The district court thus
correctly concluded, on the record before it, that TIG had
“proffered no evidence that Argentina manipulated Caja when
the insurance contracts were signed so that Argentina could
benefit from them without risk.” TIG III, Part One, 2022 WL
1154749, at *10. Nor had it put forth “evidence that Argentina
used Caja ‘to defeat any statutory policy of either [Argentina]
or the United States.’” Id. (quoting Transamerica Leasing Inc.,
200 F.3d at 854) (alteration in original). Nor did it offer
“evidence that Argentina is trying to reap the benefits of
American courts while avoiding potential downside.” Id.
TIG’s evidence suggested “simply a run of the mill alleged

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contractual breach,” not fraud or injustice. Id. (quoting GSS
Grp. Ltd., 822 F.3d at 608).
Finally, TIG argues in its reply brief that the district court
should have considered whether Argentina and Caja were alter
egos at some later time, such as after Argentina issued the
official resolutions. See Reply Brief 27. But because TIG did
not raise this argument in its opening brief, it is forfeited. See
Herron v. Fannie Mae, 861 F.3d 160, 165 (D.C. Cir. 2017).
In sum, we agree with the district court’s conclusion that
TIG failed to meet its burden of asserting facts to demonstrate
that Caja and Argentina were alter egos as a basis to impute
Caja’s actions to Argentina and to thus form a basis for
Argentina’s waiver of sovereign immunity.
B
TIG also argues that the district court abused its discretion
by denying its request for jurisdictional discovery and a later
motion for reconsideration on the alter ego issue. Both
arguments fail.
TIG first contends that the district court abused its
discretion in denying TIG jurisdictional discovery.
Appellant’s Brief 57–60. We have said that “in order to get
jurisdictional discovery,” the party seeking discovery “must
have at least a good faith belief that such discovery will enable
it to show that the court has . . . jurisdiction over the
defendant.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless
PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). We have also
explained that jurisdictional discovery in a case like this one
involving a claim of sovereign immunity “should be carefully
controlled and limited.” Phx. Consulting Inc. v. Republic of
Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). “A district court has
broad discretion in its resolution of discovery problems that

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arise in cases pending before it.” In re Multi-Piece Rim Prods.
Liab. Litig., 653 F.2d 671, 679 (D.C. Cir. 1981).
Here, TIG did not offer the district court any explanation
of what relevant facts it believed jurisdictional discovery would
uncover. TIG’s opposition to Argentina’s motion to dismiss
included two sentences on the subject that effectively
attempted to reserve its right to conduct discovery on the alter
ego issue if the district court ruled against it on its other
theories. See J.A. 635. We have rejected similar efforts. See
GSS Grp. Ltd., 680 F.3d at 812. TIG needed to, at a minimum,
explain in its opposition “what facts additional discovery could
produce that would affect [the court’s] jurisdictional analysis.”
Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147
(D.C. Cir. 1994). Because TIG failed to develop and support
its request, the district court did not abuse its discretion in
denying jurisdictional discovery.
TIG’s challenge to the district court’s denial of its motion
for reconsideration under Federal Rule of Civil Procedure
54(b) also lacks merit. See Appellant’s Brief 61–67. With its
motion for reconsideration, TIG submitted to the court a
supplemental record that included a new declaration from its
legal expert and translated versions of Argentinian laws and
records which TIG contended bore on Argentina and Caja’s
relationship. The district court denied TIG’s motion on the
ground that TIG’s “new” evidence was “previously available.”
J.A. 1113 (quoting Parker v. John Moriarty & Assocs., 221 F.
Supp. 3d 1, 2 (D.D.C. 2016)). TIG fails to show the district
court abused its discretion. A “district court should not grant a
motion for reconsideration unless the moving party shows new
facts or clear errors of law which compel the court to change
its prior position.” Nat’l Ctr. for Mfg. Scis. v. Dep’t of Def.,
199 F.3d 507, 511 (D.C. Cir. 2000). On appeal, TIG argues
that much of its evidence in the supplemental record was
“decades old and difficult to find,” Appellant’s Brief 62, but

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makes no claim that the evidence was unavailable before the
district court ruled on its alter ego theory. We therefore reject
TIG’s efforts to rely on its supplemental evidence, and the
district court thus did not abuse its discretion when it denied
TIG’s motion for reconsideration on its alter ego theory.
VI
We turn last to the 2001 judgment. Unlike the 2018
judgment naming Argentina, the 2001 judgment names Caja.
But TIG also seeks to enforce the 2001 judgment against
Argentina. Before the district court, Argentina raised two
defenses. First, it argued that TIG needed to seek amendment
of the 2001 judgment to substitute Argentina as the judgment
debtor before TIG could rely on that judgment to attach
Argentina’s property. Second and independently, Argentina
invoked its sovereign immunity and denied applicability of any
of the FSIA exceptions for many of the same reasons already
discussed.
The district court agreed with Argentina on the first
argument and did not address the immunity defenses. See TIG
III, Part Two, 2022 WL 3594601, at *7. The district court
concluded that TIG was required to “go before the Northern
District of Illinois to amend or alter the judgment before it can
serve as a basis for an enforcement action against Argentina.”
Id. The court also stated that this was true even “to the extent
that Argentina is the successor-in-interest to Caja and this
successorship is sufficient to enforce the 2001 judgment
against Argentina.” Id.
That conclusion was incorrect. Under 28 U.S.C. § 1963, a
registered judgment “shall have the same effect as a judgment
of the district court of the district where registered and may be
enforced in like manner.” This means that once, as here, a
judgment is registered in another federal district court, “the
judgment may be enforced there in accordance with the law of

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that state as though originally rendered by that court.” 12
Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure § 3012 (3d ed. 2014). Federal
Rule of Civil Procedure 69(a)(1) is to the same effect and
provides that the procedure on execution—and in proceedings
supplementary to and in aid of judgment or execution—
generally follows the procedure of the state where the federal
court is located. Based on Section 1963 and Rule 69(a)(1), we
see no basis for a conclusion that the Northern District of
Illinois must first determine whether a judgment it issued can
be amended or otherwise enforced in the District of Columbia
against an entity not named in the judgment. Cf. RMA Ventures
Cal. v. SunAmerica Life Ins., 576 F.3d 1070, 1074 (10th Cir.
2009).
The district court here thus erred by requiring TIG to first
return to the Northern District of Illinois before seeking
enforcement against Argentina here. On remand, the district
court must determine whether the 2001 judgment, having now
been registered in D.C., may under D.C. law be enforced
against Argentina on a successorship theory. Argentina
remains free to raise its sovereign immunity defenses apart
from this question.
VII
For the foregoing reasons, we affirm the denial of TIG’s
request for jurisdictional discovery and vacate the district
court’s decisions granting Argentina relief from the judgment.3
Because we find that the arbitration exception and the
implied waiver exception may permit TIG’s claims, we vacate
the dismissal of TIG’s claims relating to the 2018 judgment.
3 Because we vacate the orders granting relief from the 2018
judgment, we need not separately resolve the appeal from the denial
of TIG’s motion to reconsider those orders.

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We also vacate the district court’s decision that TIG cannot
enforce against Argentina the 2001 judgment until TIG seeks
amendment in Illinois. We remand to the district court for
further analysis and to conduct any necessary factfinding on
these issues, consistent with the instructions we have provided
in this decision.
However, because the district court’s decisions properly
resolved several issues, on remand, TIG is precluded from
advancing an alter ego theory to establish jurisdiction over
Argentina under the FSIA. It is also precluded from arguing
that Argentina failed to raise its immunity in a responsive
pleading as a basis to apply the implied waiver exception.
So ordered.

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