Explicit Waiver of Foreign Sovereign Immunity Under the FSIA: The “Any Court” Clause

Introduction

Williams v. Federal Government of Nigeria, decided April 9, 2025 by the United States Court of Appeals for the Second Circuit, presented a dispute over whether Nigeria and its Attorney General could invoke sovereign immunity to avoid enforcement in U.S. courts of a U.K. default judgment. Dr. Louis Emovbira Williams obtained a U.K. default judgment against the Federal Government of Nigeria and the Central Bank of Nigeria based on a 1993 instrument called the Fidelity Guarantee and Abiding Memorandum of Understanding of Assurance (“Fidelity Guarantee”). When he sought enforcement in New York state court, Nigeria removed the case to federal court under the Foreign Sovereign Immunities Act (FSIA) and moved to dismiss for lack of subject-matter jurisdiction. The district court denied dismissal, finding an explicit waiver of immunity; Nigeria appealed. This summary order affirms the district court, holding that the Fidelity Guarantee’s clear “any court” waiver satisfies the FSIA’s explicit-waiver exception.

Summary of the Judgment

The Second Circuit unanimously affirmed the district court’s denial of sovereign immunity. Examining the waiver provision in paragraph 21 of the Fidelity Guarantee—and reinforced by paragraphs 18 and 20—the court concluded that the Federal Government of Nigeria and the Central Bank of Nigeria had explicitly waived their immunity in “any court,” including U.S. state and federal courts. Under 28 U.S.C. § 1605(a)(1), an explicit waiver must be “clear and unambiguous,” and the language here met that standard. The court also rejected Nigeria’s collateral-estoppel argument based on the 2018 U.K. judgment because the issues decided in the U.K. proceedings—whether Nigeria had consented to U.K. jurisdiction as a contracting party—differed from the FSIA waiver question.

Analysis

Precedents Cited

Capital Ventures International v. Republic of Argentina (552 F.3d 289, 2d Cir. 2009): Held that a waiver in “any court” sufficed as an explicit waiver under § 1605(a)(1), without need to mention the United States.
Arch Trading Corp. v. Republic of Ecuador (839 F.3d 193, 2d Cir. 2016): Affirmed that courts may consider materials outside the pleadings when determining FSIA jurisdictional issues.
Kensington International Ltd. v. Itoua (505 F.3d 147, 2d Cir. 2007): Established that FSIA waiver provisions must be interpreted under ordinary contract principles, with clear and unambiguous terms.
Pablo Star Ltd. v. Welsh Government (961 F.3d 555, 2d Cir. 2020): Confirmed immediate appealability of denials of FSIA immunity under the collateral‐order doctrine.
Republic of Ecuador v. Chevron Corp. (638 F.3d 384, 2d Cir. 2011): Articulated the four-element test for issue preclusion under federal law.

Legal Reasoning

The court began with the FSIA’s general rule of immunity (28 U.S.C. § 1604) and its enumerated exceptions (§ 1605–1607). Section 1605(a)(1) provides that a foreign state is not immune if it has “waived its immunity either explicitly or by implication.” An “explicit” waiver must be “clear and unambiguous.” Reading the Fidelity Guarantee, the court emphasized:

“Dr. Williams may choose a forum, be it the UK or Nigeria or any other country,” and “[n]either the Nigerian State nor the Central Bank of Nigeria shall raise or invoke any … state immunities … waived without any equivocation.”

Under Capital Ventures, such broad language is decisive, even if the agreement does not name the United States. Paragraphs 18 and 20 further confirm that Nigeria agreed to forego any immunity, including execution immunity. The court thus held that the FSIA does not bar Williams’s suit.

On collateral estoppel, the court noted that preclusion requires identical issues in both proceedings. The U.K. court asked whether paragraph 21 constituted a jurisdictional submission by Nigeria in U.K. law; the Second Circuit asked whether the same language constituted an explicit waiver of immunity under U.S. law. These are distinct legal questions, so the U.K. ruling did not bar relitigation of the waiver issue in U.S. courts.

Impact

Williams v. Federal Government of Nigeria reinforces the principle that broad, forum-neutral waiver clauses—especially those referencing “any court” or “any jurisdiction”—will be enforced under the FSIA as explicit waivers. Parties negotiating with foreign states should be aware that waiver language need not mention the United States specifically. Future litigants will likely rely on this case to defeat immunity defenses when they can point to similarly clear, unambiguous waiver provisions. Moreover, the decision underscores that foreign-court judgments do not automatically preclude separate U.S. litigation on distinct jurisdictional or waiver questions.

Complex Concepts Simplified

FSIA (Foreign Sovereign Immunities Act): A federal statute that generally grants foreign states immunity from U.S. court jurisdiction, subject to specific exceptions.
Explicit Waiver: A clear, unmistakable agreement by a foreign state to submit to U.S. court jurisdiction, satisfying 28 U.S.C. § 1605(a)(1).
Collateral Order Doctrine: A legal principle allowing immediate appeal of certain non-final orders, including denials of sovereign immunity.
Issue Preclusion (Collateral Estoppel): Prevents relitigation of an issue already decided, but only when the same issue—under the same legal standard—is presented in both actions.

Conclusion

The Second Circuit’s decision in Williams v. Federal Government of Nigeria clarifies that an “any court” waiver in a sovereign’s contract constitutes an explicit waiver under the FSIA. By affirming jurisdiction and rejecting collateral estoppel based on differing questions in U.K. proceedings, the court strengthens the toolset available to private claimants seeking to enforce judgments against foreign states in the United States. This ruling will guide both drafters of sovereign agreements and litigants confronting immunity defenses in U.S. courts.