Originally Published in Law360, August 27, 2021

By Victoria McKenzie
Law360 (August 27, 2021, 7:09 PM EDT) — A Jordanian company urged a federal judge in Washington, D.C., not to dismiss its petition to enforce a $53 million foreign judgment against the Iraqi government over a mineral contract, expressing exasperation with Iraq’s repeated and “improper” attempts to escape the suit.

In a 46-page reply brief filed Thursday, Mohammad Hilmi Nassif & Partners criticized Iraq’s latest claim that a federal magistrate judge erred in finding — for a second time — that the firm’s enforcement claim should proceed.

Nassif “filed this action nearly four years ago,” the firm said, and “defendants have filed a total of 7 legal memoranda in an effort to avoid the merits of this case, including two motions to dismiss.”

The suit seeks to affirm a 2015 Jordanian court decision awarding Nassif $53 million in damages after Iraq breached its agreement to provide 450,000 tons of sulfur and 100,000 tons of urea for resale to a buyer in New York. A Jordanian appeals court found the award unenforceable based on sovereign immunity in 2016, and Nassif then brought his case to the U.S.

Last month, U.S. Magistrate Judge G. Michael Harvey recommended that the court reject Iraq’s second motion to dismiss on the basis of sovereign immunity, finding that Nassif sufficiently alleged that the government had waived immunity when senior Iraqi government officials and its Ministry of Industry and Minerals assured the firm that it could sue to enforce a contract “anywhere in the world.”

“Taking the repeated statements of senior Iraqi officials at face value, while they do not use the words ‘waiver’ or ‘sovereign immunity,’ they quite clearly permit plaintiff to sue defendants in the United States to enforce the parties’ contract,” Judge Harvey said in July. The Foreign Sovereign Immunities Act requires only that a waiver be “expressed without ambiguity or vagueness; leaving no doubt.”

Iraq objected in August, arguing that the alleged statements of “certain former Iraqi government officials in power during the Saddam Hussein regime, many of whom are dead,” represent an oral implied waiver and do not give rise to jurisdiction. “The FSIA’s legislative history expressly limits “explicit waivers” to waivers found in treaties or in a contract with a private party.”

On Thursday, Nassif argued that Judge Harvey was correct to reject Iraq’s argument that an explicit waiver must be in writing, quoting his explanation that “the FSIA’s plain text contains no express requirement that explicit waivers be in writing or in the parties’ commercial contract.”

Nassif also defended Judge Harvey’s recommendation that the court reject Iraq’s efforts to dismiss the suit based on arguments that U.S. sanctions on Iraq made the deal unlawful and would have prevented Nassif’s plan to sell the materials to the New York buyer anyway.

The firm said that Iraq’s latest “improper” objections “consist of issues previously raised, briefed and considered” twice now in Judge Harvey’s reports and recommendations, and that the objections “repeatedly fail to cite legal authority for many of their contentions and, for others, fail to provide a basis for the objection.”

In his July 30 report, Judge Harvey also noted that he had already addressed “many of defendants’ arguments and plaintiff’s responses regarding dismissal” in his January 2020 recommendation against granting Iraq’s first bid to dismiss the case.

Representatives for the parties didn’t immediately respond to requests for comment.

Mohammad Hilmi Nassif & Partners is represented by Karnig S. Kerkonian, Elizabeth M. Al-Dajani and Gayane Khechoomian of Kerkonian Dajani LLC.
Iraq is represented by Creighton R. Magid and Juan C. Basombrio of Dorsey & Whitney LLP.

The case is Mohammad Hilmi Nassif & Partners v. Republic of Iraq et al., case number 1:17-cv- 02193, in the U.S. District Court for the District of Columbia.

–Editing by Rich Mills.