Clarity Requirement for Explicit Waiver of Sovereign Immunity under the FSIA

Introduction

In Williams v. Federal Government of Nigeria, No. 24-2329 (2d Cir. Apr. 9, 2025), Dr. Louis Emovbira Williams (Plaintiff-Appellee) sought to enforce a 2018 United Kingdom default judgment against the Federal Government of Nigeria and the Attorney General of the Federal Government of Nigeria (Defendants-Appellants) in New York state court, later removed to federal court under the Foreign Sovereign Immunities Act (“FSIA”). The Defendants argued they were immune from suit under the FSIA; Williams countered that they had explicitly waived immunity in a 1993 instrument called the Fidelity Guarantee and Abiding Memorandum of Understanding of Assurance (“Fidelity Guarantee”). The Southern District of New York denied the motion to dismiss for lack of subject-matter jurisdiction, and the Second Circuit affirmed.

Key issues:

• Whether the Fidelity Guarantee contains a clear and unambiguous waiver of sovereign immunity under 28 U.S.C. § 1605(a)(1).
• Whether the 2018 UK judgment precludes the U.S. courts from adjudicating waiver under collateral estoppel.

Parties:

• Plaintiff-Appellee: Dr. Louis Emovbira Williams
• Defendants-Appellants: Federal Government of Nigeria; Attorney General of the Federal Government of Nigeria; Central Bank of Nigeria; JPMorgan Chase & Co.; John Does 1–10

Summary of the Judgment

The Second Circuit held (by summary order) that:

1. The Fidelity Guarantee’s forum-selection and waiver clauses—permitting Williams to sue “in the UK or Nigeria or any other country” and expressly waiving defenses including “state immunities”—constitute an “explicit” waiver of sovereign immunity under FSIA § 1605(a)(1).
2. The district court correctly considered extrinsic evidence to interpret the waiver and denied dismissal for lack of subject-matter jurisdiction.
3. The UK court’s ruling that the Federal Government of Nigeria was not a party to the waiver provision does not preclude U.S. courts from determining waiver under a different legal standard; collateral estoppel fails because the issues are not identical.

The order denying the motion to dismiss on sovereign immunity grounds was affirmed.

Analysis

Precedents Cited

• Foreign Sovereign Immunities Act (28 U.S.C. §§ 1602–1611): Establishes that foreign states are generally immune from U.S. courts except where an exception—such as an explicit waiver of immunity—applies.
• Capitol Ventures International v. Republic of Argentina, 552 F.3d 289 (2d Cir. 2009): Held that language waiving immunity in “any court” is sufficiently explicit to meet § 1605(a)(1), even without naming the United States.
• Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193 (2d Cir. 2016): Confirmed that courts may consider extrinsic materials to decide FSIA jurisdictional questions.
• Kensington International Ltd. v. Itoua, 505 F.3d 147 (2d Cir. 2007): Reinforced the use of extrinsic evidence in interpreting foreign sovereign contracts for waiver analysis.
• Pablo Star Ltd. v. Welsh Gov., 961 F.3d 555 (2d Cir. 2020): Explained that denials of immunity are immediately appealable under the collateral order doctrine.
• Republic of Ecuador v. Chevron Corp., 638 F.3d 384 (2d Cir. 2011): Articulated the four-part test for issue preclusion under federal law.

Legal Reasoning

1. Explicit Waiver under FSIA § 1605(a)(1)
The court emphasized that FSIA immunity can be waived “explicitly,” meaning in “clear and unambiguous” language. The Fidelity Guarantee’s Paragraph 21(1) grants Williams the right to sue “in the UK or Nigeria or any other country.” Paragraph 21(3) then strips the Nigerian State and the Central Bank of defenses including “state immunities and the like,” waived “without any equivocation or doubt whatsoever.” Taken together, these provisions mirror the “any court” language the Second Circuit approved in Capital Ventures.

2. Extrinsic Evidence Permissible
Citing Arch Trading and Kensington, the court confirmed that a FSIA immunity waiver analysis is not confined to the four corners of the complaint or contract; extrinsic materials—such as certified translations or contemporaneous instruments—may inform whether waiver language is sufficiently explicit.

3. Collateral Estoppel Does Not Apply
The 2018 UK judgment held that Nigeria was not a party to Paragraph 21, thus it did not submit to UK jurisdiction under that clause. But the U.S. question is whether immunity defenses—and the FSIA—have been waived, irrespective of contractual privity. Because the UK court and the U.S. district court addressed legally distinct questions, the Second Circuit found the identical-issue requirement for issue preclusion unmet.

Impact

• Reinforces that sovereign entities must draft waiver clauses with unambiguous, broad language if they intend to subject themselves to U.S. jurisdiction.
• Confirms U.S. courts’ willingness to consider extraneous evidence when interpreting foreign‐state contracts under the FSIA.
• Limits the reach of foreign judgments raising sovereignty defenses, clarifying that collateral estoppel requires identity of issues, not merely overlapping contractual text.
• Guides litigants in asset-recovery and international enforcement actions: explicit waiver can unlock subject-matter jurisdiction in U.S. courts even absent a separate U.S. forum‐selection agreement.

Complex Concepts Simplified

• Foreign Sovereign Immunities Act (FSIA): Federal law that generally protects foreign governments from being sued in U.S. courts, subject to specific exceptions.
• Explicit Waiver: A clear and unambiguous statement by a foreign state agreeing to be sued, which must be expressed directly in a contract or treaty.
• Collateral Order Doctrine: A rule allowing immediate appeal of certain orders (like denial of sovereign immunity) that resolve important rights independent of the merits and are effectively unreviewable if delayed.
• Issue Preclusion (Collateral Estoppel): Prevents relitigation of an identical issue already decided in a prior case, provided the issue was actually litigated and essential to the earlier judgment.
• Subject-Matter Jurisdiction: A court’s power to hear the type of case presented, here tested under the FSIA waiver exception rather than under general federal‐question statutes.

Conclusion

Williams v. Federal Government of Nigeria underscores that under the FSIA, waiver of sovereign immunity must be made in unmistakable terms—language such as “any court” or “any jurisdiction” satisfies the “explicit waiver” requirement. The decision affirms U.S. courts’ broad latitude to examine relevant extrinsic materials and confirms that foreign judgments do not necessarily bind U.S. courts on distinct legal questions. This precedent will shape how sovereign entities draft dispute‐resolution clauses and how courts evaluate jurisdictional grants in international agreements.