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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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COMMISSIONS IMPORT EXPORT S.A., : 

 : 

 Plaintiff, : 

 : 

 -against- : No. 11 Civ. 6176 (JFK) 

 : Opinion & Order 

THE REPUBLIC OF THE CONGO and : 

CAISSE CONGOLAISE D’AMORTISSEMENT, : 

 : 

 Defendants. : 

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APPEARANCES: 

 For Plaintiff: 

 Owen C. Pell, Esq. 

 Peter E. Wilhelm, Esq. 

 WHITE & CASE LLP 

 For Defendants: 

 Boaz S. Morag, Esq. 

 CLEARY GOTTLIEB STEEN & HAMILTON LLP 

JOHN F. KEENAN, United States District Judge: 

 Before the Court is the Republic of the Congo (“the Congo”) 

and Caisse Congolaise D’Amortissement’s (“CCA”) motion to 

dismiss pursuant to Rule 12(b)(3) of the Federal Rules of Civil 

Procedure for lack of venue or, in the alternative, to transfer 

this case to the United States District Court for the District 

of Columbia. For the reasons that follow, the motion to 

transfer is granted. 

I. Background 

Plaintiff Commissions Import Export S.A. (“Commisimpex” or 

“Plaintiff”) is a company organized under the laws of the Congo. 
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(Compl. ¶ 4). The Congo is a sovereign state, and CCA is a 

department of the Congo’s Ministry of Economy, Finance, and 

Planning that is tasked with managing the country’s debts. (Id.

¶ 5). In a complaint dated September 2, 2011, Commisimpex seeks 

recognition of a 2009 default money judgment rendered against 

the Congo and CCA (collectively, “Defendants”) by the High Court 

of Justice, Queens Bench Division, Commercial Court in London 

(the “English judgment”). (Id. ¶ 1). 

The facts giving rise to the English judgment are 

straightforward. In the early 1990s, the Congo and CCA issued a 

series of promissory notes to Commisimpex for certain work and 

supply contracts. (Id. ¶ 8; Ex. A § I.1). These promissory 

notes were executed by the parties in Brazzaville, the Congo, 

(Compl. Ex. A § I.1), and contained an arbitration clause 

specifying that any dispute arising in connection with the notes 

be arbitrated in the International Court of Arbitration of the 

International Chamber of Commerce (“ICC”) in Paris, France in 

accordance with French law. (Id. § I.2). When the Congo and 

CCA failed to repay the promissory notes, Commisimpex sought 

arbitration in the ICC, as provided in the parties’ agreement. 

(Id.). In December 2000, the ICC issued a final arbitral award 

against the Congo and CCA holding them jointly and severally 

liable to Commisimpex for €4,094,531, £18,903,708, $31,184,837, 

and 1,731,267,415 Communauté Financière Africaine Francs, plus 
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penalty interest and arbitration costs. (Compl. ¶¶ 9-11; Ex. 

A). Commisimpex alleges that the Congo and CCA failed to pay 

the amount due and owing under the ICC arbitral award. (Compl. 

¶ 12). 

Eight and one half years later, Commisimpex commenced a 

proceeding in the High Court of Justice, Queens Bench Division, 

Commercial Court in London against the Congo and CCA for 

nonpayment of the ICC award. (Id. ¶ 13). The Congo and CCA 

failed to appear in the nonpayment proceeding, and in July 2009, 

the English Court issued a default judgment in favor of 

Commisimpex for €4,094,531, £18,903,708, $31,184,837, and 

1,731,267,415 Communauté Financière Africaine Francs, plus 

penalty interest, arbitration costs, and court costs. (Id. ¶ 

15; Ex. B). Again, Commisimpex alleges that the Congo and CCA 

failed to pay the English judgment. (Compl. ¶ 18). Commisimpex 

now seeks recognition of the English judgment in this Court 

pursuant to the Foreign Sovereign Immunities Act and the New 

York Uniform Foreign Country Money Judgments Recognition Act 

(the “Recognition Act”). 

II. Discussion 

A. Venue 

As this is a civil action against two Congolese state 

Defendants, the applicable venue provision is 28 U.S.C. § 
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1391(f), which provides in relevant part that venue will lie “in 

any judicial district in which a substantial part of the events 

or omissions giving rise to the claim occurred, or a substantial 

part of property that is the subject of the action is situated” 

or in the United States District Court for the District of 

Columbia. 28 U.S.C. § 1391(f)(1), (4). The sole venue 

allegation in the complaint is that “[v]enue is proper under 28 

U.S.C. § 1391(f) as Defendants owe debts subject to attachment 

in this District.” (Compl. ¶ 7). However, in its opposition 

brief, Plaintiff notes that it is a “matter of public record 

that the Congo does owe money here, is using a bank in this 

District to service dollar-denominated bonds [due in 2029 and 

unrelated to the 1990 promissory notes], and the bond prospectus 

makes clear that deposits will be maintained in this District.” 

(Pl. Mem. at 4). 

With respect to the first prong of § 1391(f)(1), which 

provides for venue anywhere “a substantial part of the events or 

omissions giving rise to the claim occurred,” the Second Circuit 

has explained that “for venue to be proper, significant events 

or omissions material to the plaintiff’s claim must have 

occurred in the district in question.” Gulf Ins. Co. v. 

Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005) (emphasis in 

original) (interpreting 28 U.S.C. § 1391(b)(2), which is 

textually identical to § 1391(f)(1)). Using what can only be 
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intentionally simplistic reasoning, Plaintiff maintains that 

since this is an action ultimately seeking to enforce a money 

judgment, the “claim” is for Congolese property to satisfy the 

English judgment and the “event” giving rise to that claim is 

the existence of Congolese property in this District. However, 

at oral argument, counsel acknowledged that Plaintiff’s claim is 

brought pursuant to the Recognition Act and is appropriately 

characterized as a judgment recognition action since Plaintiff 

is seeking, but has not yet obtained, a U.S. judgment to enforce 

against any Congolese assets in this District. At this stage, 

Plaintiff’s claim is for recognition of the English judgment, 

and the events giving rise to that judgment are: (1) the 

execution of promissory notes between a Congolese company and 

the Congolese government, which occurred in the Congo; (2) the 

arbitration award, which was entered in Paris; and (3) the 

English judgment itself, which was entered in London. None of 

the events “giving rise” to Plaintiff’s judgment recognition 

claim, much less significant events material to Plaintiff’s 

claim, occurred in the United States, and certainly not in this 

District. 

The second prong of § 1391(f)(1) provides for venue 

anywhere “a substantial part of property that is the subject of 

the action is situated.” Neither party cites any caselaw 

directly interpreting this part of the venue statute, much less 
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in the context of judgment recognition and enforcement. 

Instead, Plaintiff argues that venue will lie because its effort 

to enforce the English judgment against Congolese debt in this 

District is an action seeking adjudication of the rightful 

ownership of Congolese property, thus any Congolese property in 

this District is the subject of the lawsuit. This position is 

both legally and factually untenable. Plaintiff advocates an 

extremely broad construction of § 1391(f)(1) whereby the statute 

would confer venue anywhere any asset of a defendant, even a 

fungible asset such as cash, is located. However, the statute 

is clear that the property establishing venue must be “the 

subject of the action.” To give § 1391(f)(1) Plaintiff’s 

interpretation would be to write this crucial modifying phrase 

out of the statute. A more reasonable interpretation would be 

that the property prong of § 1391(f)(1) governs venue in in rem

actions concerning a specific and identifiable piece of 

property. 

Indeed, even those cases Plaintiff does cite in support of 

its position support the Court’s more measured statutory 

construction. In Detroit International Bridge Company v. 

Government of Canada, 787 F. Supp. 2d 47 (D.D.C. 2011), the 

plaintiff owners of a bridge spanning from Michigan to Canada 

filed suit against the government of Canada and U.S. defendants 

for their purported frustration of the plaintiffs’ attempts to 
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expand the bridge. Id. at 49-50. Defendants made a motion to 

transfer venue to the Eastern District of Michigan, the U.S. 

location of the bridge; the court denied the motion to transfer, 

noting that “Plaintiffs’ claims against Canada allege violations 

of treaty, statute, and contract . . . . [T]he claims do not 

seek to adjudicate title, obtain possession of a particular 

piece of property, or vindicate interests in real property in a 

manner that would make the Eastern District of Michigan a proper 

venue for suit against Canada under [the property prong of] 28 

U.S.C. § 1391(f)(1).” Id. at 50. In Kalamazoo Spice Extraction 

Co. v. Provisional Military Government of Socialist Ethiopia, 

616 F. Supp. 660 (W.D. Mich. 1985), the plaintiff brought an 

action for damages against the government of Ethiopia in 

relation to its expropriation of a portion of Kalamazoo’s 

ownership interest in the Ethiopian Spice Extraction Share 

Company (“ESESC”). This action was characterized as effectively 

a counterclaim to a prior action filed by ESESC against 

Kalamazoo to collect on accounts receivable owed to it by 

Kalamazoo in Michigan. Id. at 661-62. The court found venue in 

Michigan to be proper based on the presence of the accounts 

receivable – the subject of the original ESESC claim – in the 

district. Thus, unlike the unrelated bond debt Plaintiff seeks 

to attach in this case, the accounts receivable in Kalamazoo

were: (1) assets; and (2) the same assets that formed the basis 
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of the plaintiff’s claim. Cf. Isbrandtsen Marine Servs., Inc. 

v. Shanghai Hai Xing Shipping Co., Ltd., No. 90 Civ. 1237, 1991 

WL 211293, at *3 (D. Or. Apr. 1, 1991) (noting that although 

none of the events or omissions giving rise to plaintiff’s 

maritime lien claim occurred in Oregon, venue for the claim, 

which “proceeds as if it were an action in rem” would lie under 

28 U.S.C. § 1391(f)(1) because of the vessel’s presence in the 

District of Oregon). 

Even if any Congolese assets could constitute “a 

substantial part of property that is the subject of the action,” 

Plaintiff has not sufficiently alleged that such assets exist in 

the Southern District of New York. Theodore Ikemo, the Director 

General of CCA, affirms that neither the Congo nor CCA maintain 

any bank accounts in New York for the purpose of making payments 

on its bond debt or for other commercial transactions. 

(Corrected Ikemo Decl. ¶ 7). Instead, in order to service its 

debt, the Congo 

periodically transfers the funds which are then used 

to make scheduled interest and principal payments to 

the Bondholders to HSBC UK, but the accountholder of 

the account at HSBC UK is in fact HSBC USA as the 

trustee paying agent. . . . [T]he transfer of funds 

from the Republic to an account of HSBC USA at HSBC UK 

occurs outside the United States from assets of the 

Republic that do not originate from, are not located 

in, and are not remitted by the Republic to an account 

of HSBC USA in the United States. All such funds 

transferred from the Republic to HSBC USA as the 

trustee paying agent are held in trust by it for the 

benefit of the Bondholders. The Republic has no legal 
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interest in such funds once they have been transferred 

to the trustee paying agent. HSBC USA is the 

fiduciary of the Bondholders and is not the agent of 

the Republic. 

(Id. ¶ 5). In response, Plaintiff references an Information 

Memorandum for certain dollar-denominated bonds due in 2029 

which provides that any funds “unclaimed [by the Congo’s 

bondholders] for five years after the date upon which such 

principal or interest shall have become due and payable shall be 

repaid to the Republic.” (Wilhelm Aff., Ex. A at A-7). 

Plaintiff additionally relies on EM Ltd. v. Republic of 

Argentina, No. 03 Civ. 2507, 2009 WL 2568433 (S.D.N.Y. Aug. 18, 

2009) for the proposition that funds used to service the 2029 

bonds are attachable assets. However, the Information 

Memorandum itself makes clear that the existence of any 

Congolese property in the Southern District of New York is 

purely speculative. Thus, even if the Court accepted that 

unclaimed payments exist and could form the basis of venue under 

§ 1391(f)(1), those payments in no event would revert back to 

the Congo before 2012 – five years after the bonds were issued 

in 2007. Plaintiff’s complaint was filed in September 2011, at 

which point in time there could not have been any unclaimed bond 

payments to attach. Moreover, Mr. Ikemo states that Defendants 

have “never requested that any unclaimed funds be returned to it 

in the United States and has no plans to request to receive 
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unclaimed funds, if any, in the United States.” (Corrected 

Ikemo Decl. ¶ 6). Plaintiff cannot assert venue on the property 

prong of § 1391(f)(1). 

Separate and apart from the bases for venue laid out in § 

1391(f), Plaintiff argues that the Congo engages in unrelated 

conduct which should submit Defendants to venue in this 

District. First, citing Kensington International Limited v. 

Société Nationale Des Pétroles Du Congo, No. 05 Civ. 5101, 2006 

WL 846351, at *1 (S.D.N.Y. Mar. 31, 2006), Plaintiff points out 

that the Congo engages in financial transactions in the Southern 

District of New York relating to its national oil business. 

However, there is no indication that the promissory notes, 

arbitration award, or English judgment at the heart of this 

dispute relate to the Congo’s national oil business or the U.S. 

financial transactions at issue in Kensington. Plaintiff seems 

to be conflating the venue requirements of § 1391(f) with due 

process minimum contacts requirements, but the two are not the 

same. Indeed, “[i]t would be error . . . to treat the venue 

statute’s ‘substantial part’ test as mirroring the minimum 

contacts test employed in personal jurisdiction inquiries.” 

Gulf Ins. Co., 417 F.3d at 357. 

Next, Plaintiff argues that venue in the Southern District 

of New York is proper because the Congo has implicitly consented 

to venue in this District in unrelated cases. Defendants point 
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out that in prior cases, the Congo either consented in an 

underlying loan agreement to jurisdiction and venue in the 

courts of the City of New York or had no basis to challenge 

venue. See, e.g., Kensington Int’l Ltd. v. Republic of Congo, 

No. 03 Civ. 4578, 2007 WL 1032269, at *1 (S.D.N.Y. Mar. 30, 

2007) (written consent to venue); Gray v. Permanent Mission of 

People’s Republic of the Congo to the United Nations, 443 F. 

Supp. 816, 817 (S.D.N.Y. 1978) (venue was proper where plaintiff 

asserted claim against the Congo’s mission to the United 

Nations, which is located in New York, in relation to real 

property in New York). Neither of those factors is present in 

this case. More importantly, however, prior consent to venue is 

irrelevant to the § 1391(f)(1) analysis in the case at bar and 

in no way demonstrates that the events giving rise to the 

instant action occurred in the Southern District or that the 

property involved in the instant action can be found in the 

Southern District. 

B. Venue Transfer 

Under 28 U.S.C. § 1406(a), where a case is filed in an 

improper district, the district court “shall dismiss, or if it 

be in the interest of justice, transfer such case to any 

district or division in which it could have been brought.” 

“Courts enjoy considerable discretion in deciding whether to 

transfer a case in the interest of justice.” Daniel v. Am. Bd. 
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of Emergency Med., 428 F.3d 408, 435 (2d Cir. 2005). While “[a] 

‘compelling reason’ for transfer is generally acknowledged when 

a plaintiff’s case, if dismissed, would be time-barred on 

refiling in the proper forum,” id., other factors may weigh in 

favor of transfer. For example, courts have considered the 

merit and gravity of plaintiff’s claims, see Henneghan v. Smith, 

No. 09 Civ. 7381, 2011 WL 609875, at *4 (S.D.N.Y. Feb. 17, 

2011), as well as “the ultimate goal of the ‘expeditious and 

orderly adjudication of cases and controversies on their 

merits’” when deciding to transfer venue in lieu of dismissal. 

Morath v. Metro. Recovery Servs., Inc., No. 07 Civ. 11081, 2008 

WL 954154, at *1 (S.D.N.Y. Apr. 8, 2008) (quoting Goldlawr, Inc. 

v. Heinman, 369 U.S. 463, 466-67 (1962)). 

Defendants acknowledge that venue is proper in the District 

of Columbia, but weakly protest that Plaintiff should be forced 

to forfeit the effort and expense spent filing and serving this 

complaint and start anew. Although there appears to be no 

statute of limitations bar preventing Plaintiff from refiling, 

the Court cannot ignore the fact that Defendants have defaulted 

on an enormous debt and have forced Plaintiff to chase them all 

over the world in an increasingly desperate attempt to collect. 

Moreover, “the Congo is an oil-rich nation with more than 

sufficient assets to pay its debts but one of the world’s most 

notorious debtors,” a country that “has repeatedly refused to 
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honor court judgments, not only the judgments entered in London, 

but judgments entered in New York courts as well.” Kensington 

Int’l Ltd. v. Republic of Congo, No. 03 Civ. 4578, 2005 WL 

646086, at *2 (S.D.N.Y. Mar. 21, 2005). Dismissing the 

complaint and requiring Plaintiff to refile and re-serve an 

identical complaint achieves nothing but delay. Therefore, the 

Court finds that the interest of justice is best served by 

transferring this case to the United States District Court for 

the District of Columbia. 

C. Waiver of Sovereign Immunity

Plaintiff additionally argues that Defendants have 

explicitly and implicitly waived any applicable sovereign 

immunity defense by moving to dismiss pursuant to Rule 12(b)(3) 

without raising the issue and by failing to reserve its right to 

assert the defense in a stipulation extending time to answer or 

otherwise move against the complaint. As the Southern District 

of New York is not the proper forum for this case, the Court 

declines to reach the question of a waiver of sovereign 

immunity, and entrusts it to the sound judgment of the Court in 

the District of Columbia that proceeds with the case on the 

merits. 
III. Conclusion 

The Clerk of Court is directed to transfer this action to 

the United States District Court for the District of Columbia. 

SO ORDERED. 

Dated: New York, New York 

April 27, 2012 

�oh!-/f: 

United States District Judge 

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