Amaplat Mauritius Ltd. and Amari Nickel Holdings Zimbabwe Ltd. v. Zimbabwe Mining Development Corporation , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2024 Decided July 15, 2025
No. 24-7030
AMAPLAT M AURITIUS LTD. AND A MARI NICKEL HOLDINGS
ZIMBABWE LTD.,
APPELLEES
v.
ZIMBABWE M INING DEVELOPMENT CORPORATION , ET AL .,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-00058)
Rodney Q. Smith II argued the cause for appellants. With
him on the briefs was Katherine A. Sanoja. Bethel Kassa
entered an appearance.
Steven K. Davidson argued the cause for appellees. With
him on the brief were Robert W. Mockler and Joseph M.
Sanderson.
Before: KATSAS and CHILDS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge CHILDS .
CHILDS , Circuit Judge: Two Mauritian mining companies
bring this action against the Republic of Zimbabwe, the
Zimbabwe Mining Development Corporation (ZMDC), and
Zimbabwe’s Chief Mining Commissioner, asking us to
recognize and enforce a judgment of the High Court of Zambia
that confirmed an arbitral award issued in Zambia. Plaintiffs
argue we have subject matter jurisdiction because Defendants
waived their immunity under the Foreign Sovereign
Immunities Act (FSIA), which sets out narrow exceptions to a
sovereign’s immunity from suit in U.S. courts.
Plaintiffs contend that the FSIA’s arbitration exception,
which waives immunity from an action to “confirm an award,”
also waives immunity from an action to recognize a foreign
court judgment that confirmed an award. Plaintiffs also rely on
the FSIA’s implied waiver exception for jurisdiction. They
argue that a foreign sovereign waives its immunity from an
action to recognize a foreign court judgment that confirmed an
arbitral award when the sovereign signs a treaty governing the
recognition and enforcement of arbitral awards and agrees to
arbitrate in a jurisdiction that has done the same.
Applying either exception here would require us to
conflate two distinct concepts — arbitral awards and foreign
court judgments. We cannot fit a judgment recognition action
into a provision that mentions only award confirmation. Nor
can we conclude that Defendants intended to waive their
immunity by signing a treaty that governs only the recognition
and enforcement of arbitral awards, not the court judgments
confirming such awards. Because neither exception applies,
we lack subject matter jurisdiction over this action.

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I.
A.
The FSIA grants foreign sovereigns and their political
subdivisions, agencies, and instrumentalities immunity from
the jurisdiction of U.S. courts unless a specifically enumerated
exception to immunity applies. See 28 U.S.C. §§ 1603, 1604.
The FSIA has an “express goal of codifying the restrictive
theory of sovereign immunity” — under which a sovereign has
immunity for its “public but not its private acts” — and “[m]ost
of the FSIA’s exceptions . . . comport with th[at] overarching
framework.” Fed. Republic of Germany v. Philipp, 592 U.S.
169, 182–83 (2021).
Two FSIA exceptions are relevant to this appeal. The first
is the arbitration exception, which provides:
A foreign state shall not be immune from the jurisdiction
of courts of the United States or of the States in any case
. . . in which the action is brought[] either to enforce an
agreement made by the foreign state with or for the benefit
of a private party to submit to arbitration . . . or to confirm
an award made pursuant to such an agreement to arbitrate,
if . . . the agreement or award is or may be governed by a
treaty . . . in force for the United States calling for the
recognition and enforcement of arbitral awards.
28 U.S.C. § 1605(a)(6).
The second is the implied waiver exception. The implied
waiver exception states: “A foreign state shall not be immune
from the jurisdiction of courts of the United States or of the
States in any case . . . in which the foreign state has waived its
immunity . . . by implication . . . .” 28 U.S.C. § 1605(a)(1).

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“[W]e have long held that implicit in § 1605(a)(1) is the
requirement that the foreign state have intended to waive its
sovereign immunity.” Wye Oak Tech., Inc. v. Republic of Iraq,
24 F.4th 686, 691 (D.C. Cir. 2022) (quotations omitted).
Because the FSIA governs the waiver of a sovereign’s
immunity in courts beyond its borders, we construe these
exceptions narrowly, cognizant of the consequences for
international relations and the risk of reciprocal expansions of
liability over the U.S. government in courts abroad. See
NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112
F.4th 1088, 1099, 1108 (D.C. Cir. 2024).
B.
Although the FSIA determines subject matter jurisdiction,
it creates no independent cause of action here. See McKesson
Corp. v. Islamic Republic of Iran, 672 F.3d 1066, 1075 (D.C.
Cir. 2012). The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1,
et seq., provides a cause of action to confirm and enforce
arbitral awards made pursuant to the New York Convention, a
multilateral treaty governing the “recognition and enforcement
of arbitral awards.” Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, Art. I(1), June 10,
1958, 21 U.S.T. 2517 (New York Convention). Zimbabwe,
Zambia, and the United States are all signatories to the New
York Convention.1
This case, however, is not brought under the FAA, which
has a three-year statute of limitations. See 9 U.S.C. § 207.
1 See Participant: Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, United Nations Treaty Collection (last
visited June 30, 2025), https://treaties.un.org/Pages/showDetails.as
px?objid=080000028002a36b&clang=_en [https://perma.cc/U5HY-
DXN9].

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Instead, this case is brought under the District of Columbia
Uniform Foreign-Country Money Judgments Recognition Act
(the D.C. Judgments Recognition Act). The D.C. Judgments
Recognition Act provides a cause of action to recognize and
enforce a foreign court judgment that “[g]rants or denies
recovery of a sum of money” and is “final,” “conclusive,” and
“enforceable” under the law of the country where it was
rendered. D.C. Code § 15-363. Within fifteen years of a
foreign judgment’s issuance, a party may bring an action under
the D.C. Judgments Recognition Act to turn the foreign
judgment into a domestic judgment, rendering it enforceable in
the United States. See id. §§ 15-367, 15-369.
II.
A.
This action under the D.C. Judgments Recognition Act
originates with a contract dispute in Zimbabwe.2 In the late
2000s, two Mauritian mining companies, Amaplat Mauritius
Ltd. (Amaplat) and Amari Nickel Holdings Zimbabwe Ltd.
(Amari), decided to develop nickel and platinum mines in
Zimbabwe. To do so, they entered into memoranda of
understanding (MOUs) to form joint ventures with ZMDC —
a corporation established by Zimbabwean law to engage in
activities in the development of mining industry. See
Zimbabwe Mining Dev. Corp. Act, ch. 21:08, § 22.26 (1990)
(Zim.). The MOUs contained provisions requiring any dispute
to be resolved before the International Chamber of
Commerce’s International Court of Arbitration (ICC).
2 As the issues we reach concern only the legal sufficiency of the
jurisdictional allegations, we assume the following facts to be true
on our review. See Doe v. Fed. Democratic Republic of Ethiopia,
851 F.3d 7, 8 n.1 (D.C. Cir. 2017) (citing Phoenix Consulting Inc. v.
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)).

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After a brief period of mining development, ZMDC tried
to terminate the MOUs. Relying on the arbitration provisions,
Amaplat and Amari initiated arbitration before the ICC,
naming as respondents ZMDC and the Chief Mining
Commissioner of Zimbabwe’s Ministry of Mines. The ICC
selected Zambia as the seat of the arbitration. ZMDC and the
Commissioner initially agreed to participate in the arbitration,
but eventually withdrew from the proceedings.
In 2014, the arbitral panel issued a final award finding
ZMDC liable for breach in the amount of $42.9 million to
Amaplat and $3.9 million to Amari, with 5% annual interest.
The award also directed the respondents to pay the costs and
expenses of the arbitration. Amaplat and Amari did not receive
the amount due under the award.
Several years later, Amaplat and Amari sought and
obtained a judgment from the Registrar of the High Court of
Zambia registering the award pursuant to the New York
Convention. The judgment empowers Amaplat and Amari to
enforce the award “in the same manner as a judgment or order”
of the High Court.
B.
In 2022, Amaplat and Amari filed this civil action in the
District Court for the District of Columbia against ZMDC, the
Commissioner, and — for the first time — the Republic of
Zimbabwe itself. The Complaint sets forth one count to
recognize and enforce the judgment of the High Court of
Zambia pursuant to the D.C. Judgments Recognition Act. The
Complaint also states that Defendants waived immunity from
suit under the FSIA because this action falls within the
arbitration and implied waiver exceptions to sovereign

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immunity. In response, Defendants filed motions to dismiss,
arguing, as relevant to this appeal, that the two FSIA exceptions
are inapplicable.
The district court ruled on the scope of both exceptions to
immunity. It determined that the arbitration exception does not
apply to waive Defendants’ immunity because the exception
covers actions to confirm arbitral awards, not actions to
recognize and enforce foreign court judgments. The district
court, however, held that the implied waiver exception does
apply. In doing so, the district court considered the Second
Circuit’s decision in Seetransport Wiking Trader
Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v.
Navimpex Centrala Navala, 989 F.2d 572 (2d Cir. 1993)
(Seetransport). Seetransport held that a foreign sovereign
waived its immunity under the implied waiver exception from
a claim to confirm an arbitral award and from a claim to
recognize a foreign court judgment confirming the arbitral
award because the sovereign both (1) signed the New York
Convention and (2) agreed to arbitrate in a jurisdiction that had
done the same. See id. at 578–79. Determining that
Seetransport provided the best framework for this case, the
district court reasoned that signing the New York Convention
and agreeing to arbitrate in Zambia waived immunity from this
action to recognize a foreign court judgment. After the district
court determined that Defendants waived their immunity from
suit and accordingly denied their motions to dismiss,
Defendants filed this appeal.
III.
We have jurisdiction to review the denial of a foreign
sovereign’s assertion of sovereign immunity under the
collateral-order doctrine. EIG Energy Fund XIV, L.P. v.
Petroleo Brasileiro, S.A., 104 F.4th 287, 292–93 (D.C. Cir.

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2024). We review the district court’s denial of Defendants’
motions to dismiss de novo. Zhongshan Fucheng Indus. Inv.
Co. v. Fed. Republic of Nigeria, 112 F.4th 1054, 1061 (D.C.
Cir. 2024) (citing Transamerica Leasing, Inc. v. La Republica
de Venezuela, 200 F.3d 843, 847 (D.C. Cir. 2000)). “When a
plaintiff asserts jurisdiction under the FSIA, the defendant
foreign state bears the burden of proving that the plaintiff’s
asserted statutory exception to immunity does not apply.” Id.
(citing Belize Soc. Dev. Ltd. v. Gov’t of Belize, 794 F.3d 99,
102 (D.C. Cir. 2015)).
IV.
We begin with the arbitration exception.3 We agree with
the district court that the arbitration exception is inapplicable:
there is a basic distinction between actions to confirm foreign
arbitral awards and actions to domesticate foreign judicial
judgments. The arbitration exception by its plain terms applies
to the former, not the latter.
To fall within the arbitration exception, “the action” must
be “brought[] either to enforce an agreement . . . to submit to
arbitration . . . or to confirm an award made pursuant to such
an agreement to arbitrate.” 28 U.S.C. § 1605(a)(6). Plaintiffs
do not argue that this is an action to enforce an agreement to
arbitrate, as the MOUs’ arbitration provisions were enforced
when the arbitration took place. But this also is not an action
3 Defendants argue that the arbitration exception is not properly
before us on appeal because the district court rejected the argument
below and Plaintiffs did not cross-appeal. But “[p]arties who win in
the district court may advance alternative bases for affirmance that
are properly raised and supported by the record without filing a
cross-appeal, even if the district court rejected the argument.”
Shatsky v. Palestine Liberation Org., 955 F.3d 1016, 1028 (D.C. Cir.
2020) (quotations omitted).

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to confirm an arbitral award. Plaintiffs filed such an action in
Zambia and obtained confirmation of the award from the
Zambian High Court. They did not file any such action in the
United States within the three-year limitations period imposed
by the FAA. See 9 U.S.C. § 207. Rather, this is an action to
recognize and enforce a foreign court judgment.
Nowhere does the arbitration exception mention foreign
court judgments. And reading foreign court judgments into
statutory text that references only award confirmation would
require collapsing two concepts that we consistently have
understood to be distinct. As we previously explained, we
“have long recognized the conceptual difference between
arbitral awards and foreign court judgments on arbitral
awards.” Comm’ns Imp. Exp. S.A. v. Republic of the Congo,
757 F.3d 321, 330 (D.C. Cir. 2014) (Comimpex). An arbitral
award typically arises from a contract, while a court judgment
is an act of a sovereign. In accordance with these distinct
factual predicates, “[a]s a matter of U.S. law, the mechanism
for” recognizing and enforcing an arbitral award is different
from the mechanism for recognizing and enforcing a foreign
court judgment. Id. (quoting Amicus United States Br. 14).
“Confirmation is the process by which an arbitration award is
converted to a legal judgment,” LLC SPC Stileks v. Republic of
Moldova, 985 F.3d 871, 875 (D.C. Cir. 2021), involving review
of the arbitral award and arbitral process. By contrast,
judgment recognition converts a foreign court judgment into a
domestic court judgment, involving review of the foreign court
order and judicial process. See D.C. Code § 15–367. In
conducting these separate inquiries, courts apply federal law to
award confirmation actions, see, e.g., 9 U.S.C. §§ 1, et seq., but
state law to judgment recognition actions, see, e.g., D.C. Code
§§ 15–361, et seq.

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Despite these well-established distinctions between award
confirmation and judgment recognition, Plaintiffs propose two
ways to interpret “confirm an award” in the arbitration
exception that they contend would cover this judgment
recognition action. First, they argue that the phrase should be
defined by “[t]he relief sought,” namely “turning an award into
a judgment.” Appellee Br. 46. But here Plaintiffs do not seek
to turn an award into a judgment; they seek to turn a foreign
judgment into a domestic judgment. Second, Plaintiffs define
“confirm” as “give . . . approval to,” and argue that the function
of this action is in effect to give approval to the underlying
award. See Confirm, Black’s Law Dictionary (5th ed. 1979).
But this action ultimately asks us to review a foreign court
judgment, not an arbitral award.
We therefore decline Plaintiffs’ invitation to expand the
reach of the arbitration exception beyond its plain terms.
V.
We next turn to the implied waiver exception. For similar
reasons, the implied waiver exception also does not apply here.
Plaintiffs argue that a foreign sovereign waives its immunity
from an action to recognize a foreign court judgment that
confirmed an arbitral award when the sovereign signs the New
York Convention and agrees to arbitrate in a signatory state.
We construe this exception narrowly and look for strong
evidence of the sovereign’s intent to waive immunity. The
New York Convention governs the recognition and
enforcement of arbitral awards, not of foreign judgments.
Signing the New York Convention thus is insufficient to show
Defendants’ intent to waive immunity from judgment
recognition actions.

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A.
The implied waiver exception provides subject matter
jurisdiction “in any case . . . in which [a] foreign state has
waived its immunity . . . by implication.” 28 U.S.C.
§ 1605(a)(1). “The FSIA does not specifically define what will
constitute a waiver by implication, but our circuit has followed
the virtually unanimous precedent construing the implied
waiver provision narrowly.” Khochinsky v. Republic of
Poland, 1 F.4th 1, 8 (D.C. Cir. 2021) (quotations omitted). To
waive immunity by implication, a foreign sovereign must have
“at some point indicated its amenability to suit.” Princz v. Fed.
Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994).
For that reason, we have “consistently concluded that what
matters . . . is the foreign sovereign’s actual intent,” Wye Oak
Tech., Inc., 24 F.4th at 697, and accordingly “rarely” find
waiver “without strong evidence that this is what the foreign
state intended,” Khochinksy, 1 F.4th at 8 (quoting Foremost-
McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 444
(D.C. Cir. 1990)).
B.
Plaintiffs urge us to follow the Second Circuit’s decision
in Seetransport to conclude that the implied waiver exception
applies. As described above, Seetransport applied the implied
waiver exception both to a cause of action to confirm an award
and a cause of action to recognize a foreign court judgment
confirming an award. See 989 F.2d at 578–79. As the basis for
the first waiver, the Second Circuit looked to the text of the
New York Convention, emphasizing that it “expressly permits
recognition and enforcement” of arbitral awards in signatory
states. Id. at 578. Accordingly, the Second Circuit reasoned
that if a state that had signed the Convention later entered into
an agreement consenting to arbitration in a jurisdiction that had

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done the same, it “logically . . . had to have contemplated the
involvement of the courts of any of the Contracting States in an
action to enforce the award.” Id. at 579. Yet in extending this
waiver a step further to also encompass the claim for judgment
recognition, the Second Circuit did not rely on the text or scope
of the New York Convention. Instead, it reasoned that the
waiver extended merely because “the cause of action [to
enforce a foreign judgment] is so closely related to the claim
for enforcement of the arbitral award.” Id. at 583.
Even assuming arguendo that a foreign sovereign intends
to waive its immunity from actions to confirm arbitral awards
when it signs the New York Convention and agrees to arbitrate,
such conduct does not demonstrate an intent to waive immunity
from judgment recognition actions. The New York
Convention governs only the recognition and enforcement of
arbitral awards. Its text makes clear that “[t]his Convention
shall apply to the recognition and enforcement of arbitral
awards made in the territory of a State other than the State
where the recognition and enforcement of such awards are
sought.” New York Convention, Art. I(1) (emphasis added).
The Convention says nothing about recognizing foreign court
judgments after having sought recognition and enforcement of
the award. Likewise, the FAA, as the statute that codifies the
Convention in U.S. law, mentions only the confirmation and
enforcement of awards. See Comimpex, 757 F.3d at 327
(“Neither section 207 nor any other provision of Chapter 2
mentions foreign court judgments. Nor is there a reference to
foreign court judgments in FAA Chapter 1, which has residual
application.”).
Plaintiffs contend that the Convention “expressly
preserves . . . arbitral parties’ right to rely upon domestic laws
that are more favorable to award enforcement than are the
terms of the Convention,” id. at 328, which would include,

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Plaintiffs argue, the D.C. Judgments Recognition Act. But,
here, signing the Convention is the purported expression of
Defendants’ intent to waive immunity by implication. The
possibility of actions beyond the Convention’s scope does not
provide clear evidence of what the sovereign intended by
signing the Convention.
Indeed, there are other international treaties that do govern
the recognition and enforcement of foreign court judgments.
See, e.g., Convention on the Recognition and Enforcement of
Foreign Judgments in Civil or Commercial Matters, July 2,
2019, No. 58036. At least one explicitly covers both judgments
and awards, unlike the New York Convention. See
Interamerican Convention on Territorial Effectiveness of
Foreign Arbitration Awards, Art. 1, June 14, 1980, OAS T.S.
51 (“This Convention shall apply to judgments and arbitral
awards . . . .” (emphasis added)). Zimbabwe, Zambia, and the
United States have not signed those treaties.4
In light of the scope of the New York Convention, asking
only whether foreign court judgments are “closely related” to
arbitral awards is too insubstantial a connection to establish
strong evidence of a sovereign’s intent to waive its immunity.
Even when we have recognized that “an arbitral award and a
court judgment enforcing an arbitral award are closely related,”
we have reaffirmed that “they are nonetheless distinct from one
4 See Participant: Convention on the Recognition and Enforcement
of Foreign Judgments in Civil or Commercial Matters, United
Nations Treaty Collection (last visited June 30, 2025),
https://treaties.un.org/Pages/showDetails.aspx?objid=08000002806
26108&clang=_en [https://perma.cc/77N9-7CEP]; Signatory
Countries: Interamerican Convention on Territorial Effectiveness of
Foreign Arbitration Awards, O.A.S. (last visited June 30, 2025),
http://www.sice.oas.org/dispute/comarb/intl_conv/caicmoe.asp
[https://perma.cc/N9DC-B2TA].

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another . . . and that distinction has long been recognized.”
Comimpex, 757 F.3d at 330 (quotations omitted). We do not
see the necessary evidence of intent to waive immunity by
signing a treaty that governs arbitral awards, not foreign court
judgments.
C.
Plaintiffs nevertheless argue that we should follow
Seetransport based on two prior cases in which we referenced
the decision. First, in 1999, we noted that the Second Circuit,
“correctly we think,” reasoned that a sovereign “must have
contemplated” award-enforcement actions in other signatory
states when it signed the New York Convention and agreed to
arbitrate in another signatory state. Creighton Ltd. v. Gov’t of
the State of Qatar, 181 F.3d 118, 123 (D.C. Cir. 1999). We
concluded, however, that a sovereign agreeing to arbitrate in a
New York Convention jurisdiction was insufficient to show
that it intended to waive immunity from award actions if the
sovereign itself had not also signed the Convention. See id. In
a subsequent unpublished judgment, we relied on Creighton for
the proposition that “a sovereign, by signing the New York
Convention, waives its immunity from arbitration-enforcement
actions in other signatory states.” Tatneft v. Ukraine, 771 F.
App’x 9, 10 (D.C. Cir. 2019) (unpublished).
Neither case concerned a foreign court judgment; they
both dealt with arbitral awards. And we have made clear that,
even after Creighton and Tatneft, we have not yet “formally
adopted” Seetransport’s conclusion that signing the New York
Convention and agreeing to arbitrate is even sufficient to waive
immunity from award actions. Process & Indus. Devs. Ltd. v.
Fed. Republic of Nigeria, 27 F.4th 771, 774 (D.C. Cir. 2022);
NextEra, 112 F.4th at 1100 (quoting id.). We once again leave
that question “for another day.” NextEra, 112 F.4th at 1100.

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But we resolve that such conduct is insufficient to establish the
requisite intent to waive immunity from foreign judgment
actions that are not governed by the Convention.
VI.
Because we conclude that neither the arbitration exception
nor the implied waiver exception applies to waive Defendants’
immunity, we need not reach the remaining issues presented on
appeal.
The parties dispute whether ZMDC and Zimbabwe have
an alter ego relationship and thus whether ZMDC’s agreement
to arbitrate can be attributed to Zimbabwe for purposes of a
waiver of immunity. See TIG Ins. Co. v. Republic of Argentina,
110 F.4th 221, 229 (D.C. Cir. 2024) (analyzing alter ego status
to determine whether instrumentality’s arbitration agreement
binds foreign state for purposes of immunity waiver). We need
not resolve this question because, even assuming ZMDC and
Zimbabwe have an alter ego relationship, neither exception
would apply to waive their immunity for the reasons described
above.
The parties also dispute whether the Commissioner is sued
as a state entity subject to the FSIA or as an individual subject
to diplomatic immunity. See Samantar v. Yousuf, 560 U.S.
305, 315 (2010) (concluding that FSIA does not govern
immunity of foreign officials). Again, even assuming Plaintiffs
prevail in showing that the Commissioner is sued as a state
entity, the Commissioner would be subject to our same analysis
under the FSIA exceptions and thus immune from suit.
Finally, Defendants’ contentions of inadequate service of
process are outside the scope of this collateral appeal and, in
any event, are superseded by the lack of subject matter

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jurisdiction. See La Reunion Aerienne v. Socialist People’s
Libyan Arab Jamahiriya, 533 F.3d 837, 840 (D.C. Cir. 2008).
VII.
For the foregoing reasons, neither the arbitration exception
nor the implied waiver exception applies to waive Defendants’
immunity from this action. Accordingly, we reverse the district
court’s determination that it has subject matter jurisdiction,
vacate the remainder of the district court’s orders addressing
the issues we do not reach in this appeal, and remand this case
with instructions to dismiss for lack of jurisdiction.
So ordered.

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