FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 21 2000 THOMAS K. KAHN CLERK

* Honorable Harlington Wood, Jr., U.S. Circuit Judge for the Seventh Circuit, sitting by designation. [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

____________________ No. 99-10880

____________________ D.C. Docket No. 98-03141-CV-J-NW S & DAVIS INTERNATIONAL, INC., Plaintiff-Appellee,

versus YEMEN, THE REPUBLIC OF, MINISTRY OF SUPPLY AND TRADE, Defendant-Appellant.

___________________________ Appeal from the United States District Court for the Northern District of Alabama

___________________________ (July 21, 2000)

Before EDMONDSON, HULL and WOOD * , Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge:2 S & Davis International, In c. (“S & Davis”) filed suit in the Northern District of Alabama to enforce an arbitration aw ard against the General Corporation for Foreign Trade and Grains (“General Corpor ation”) of Yemen. The suit arose from a breach of contract dispute. S & Davis also named the Ministry of Supply & Trade (the “Ministry”) and The Republic of Yemen as defendants, asserting that the General Corporation was controlled by the government. The Ministry filed a motion to dismiss, claiming immunity under the Foreign Sovereign Immunities Act of 1976 (“FSIA”). The district court held there wa s sufficient subject matter jurisdiction and personal jurisdiction to proceed. The Mini stry appeals. The district court’s interlocutory order denying immunity is reviewable under 28 U.S.C. § 1291 and the “collateral order doctrine” established in Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541, 546 (1949). We affirm. Due to th e fact that the district court order did not contain any findings of fact and conclusi ons of law, we must include greater detail in our analysis for clarity on the issues.
I. FACTS On May 14, 1996, the General Corporati on, a Yemeni corporation, executed a contract with S & Davis, an Alabama cor poration, to purchase 300,000 metric tons of wheat at a price of $274.88 per ton. The contract was prepared “according to the instructions of the Ministry of Supply & Trade,” and “[a]ll aspects of the contract1 This description is taken directly from the c ontract. However, there is no recognized, accepted definition for the term “prime bank.”

2 Due to the fact that not all of the original doc uments have been included in the district court record, some of the specifics concerning the letter of credit are taken from Section 2, The Facts, of the GAFTA Appeal Award No. 3751, Award of Ar bitration No. 12109, June 5, 1998. While these facts were not contested by either party, we would remind both parties that it is always more reliable to include direct evidence to support any statements of fact. 3 were reportedly being discusse d with the Minister of Suppl y who appeared to [be] the principal in the transaction.” Affidavit of Roy David, president and CEO of S & Davis. In addition to the signatures of th e two named parties, A. M. Ali Othman, the Minister of Supply & Trade of Yemen, also signed the contract, indicating approval by the Ministry as required under Yemeni law. The contract specified U.S. wheat No. 2 or better with point of origin from the U.S., Canada, Australia, South Africa, or Ar gentina. The wheat was to be shipped from Portland, Oregon and deliv ered to Yemen, with frei ght charges calculated from Portland. The purchase price was to be paidwith a letter of credit issued by the Bank of Yemen with confirmation by a “U.S.A. prime bank.” 1 The contract was negotiated and signed in Yemen. However, the contract contained an arbitration agreement providing that any dispute was to be arbitrated by the Grain and Feed Trade Association (“GAFTA”) in London, England. On May 28, 1996, the General Corporati on requested the name of S & Davis’s appointed bank where the letter of credit was to be opened. 2 S & Davis named3 It is not clear from the record or the briefs whether S & Davis re fused or agreed to the discount.

4 A company working with the government in anunofficial capacity. Random House Dictionary of the English Language 1409 (2 d ed. 1987). 4 Citizen’s Bank in New York. On June 6, the General Corporation faxed S & Davis stating that because prices in the in ternational wheat market had declined substantially, this had caused a delay in opening the letter of credit. The fax also asked S & Davis to discount the price by $10.00 per ton “in order to go ahead with final steps for start of implementation of the Contract.” 3 On June 18, the Central Bank of Yemen requested a bank reference for S & Davis in order to issue the letter of credit. On June 19, the Central Bank acknowledged receipt of a positive refere nce from Citizen’s Bank and instructed sellers to send a copy to th e General Corporation’s U.S. bank, the Arab American Bank in New York. On July 2, 1996, in response to inquiries by S & Davis, the United States Embassy in Yemen advised th e company that the General Corporation was a government parastatal 4 which is required to finance its activities through the Central Bank of Yemen. S & Davis provided a copy of a letter fro m A. M. Ali Othman, the Minister of Supply & Trade of the Republic of Yemen (the same Minister who had signed the contract), addressed to the General Corpor ation, dated July, 10, 1996, advising the company that the Minister had receive d information that S & Davis was “not5 internationally famous and, as such, it is difficult to have confidence in it.” The letter stated, “We have previously directed you to terminate the contract . . .” and again repeated, “we gave our instruction to terminate the contract . . . .” On September 14, the Embassy notified S & Davis that efforts to convince the Governor of the Central Bank of Yemen to open a letter of credit had failed. The General Corporation admits it was not able to obtain a letter of credit as required in the contract. After additional attempts through various political and diplomatic channels to open a letter of credit, on January 2, 1997, S & Davis declared the General Corporation had breached the contract and initiated GAFTA arbitration in London. Both parties agree that S & Davis had ne ver purchased any wheat under the contract. S & Davis sought damages against both the General Corporation and the Ministry of Trade, asserting that the General Corporation wa s not an independent organization with authority to contract. S & Davis maintains that the Ministry of Supply & Trade was a principal in the trans action, that it was the alter ego of the General Corporation, that it was in priv ity with the General Corporation and that through its interference it caused the breachof contract. S & Davis submitted an affidavit from a Yemeni solicitor, “by educati on, training and profession, . . . an expert in the laws of the Republic of Yemen,” who stated, “[t]he Public Corporations established under the caption law bear no semb lance to western business corporations.6 All the Yemeni Corporations, including the Public Corporation for Foreign Trade and Grains, are wholly owned by the Government of Yemen.” As further evidence, S & Davis asserts that the General Corporation is under the Ministry’s control according to the Pre sidential Decree Issuing Act No. 35 for the Year 1991 concerning the Public Authorities, Establishments and Companies. S & Davis maintains that the General Corpora tion is a “public establishment” which provides services that are related to the production of goods and is completely owned by the State as indicated in the Decree. The Ministry maintains that the General Corporation is a “public company” whic h, under Decree No. 35, is owned by two or more public entities. However, neither party provided any evidence as to the specific type of company the General Corporation is or papers of incorporation indicating the exact status of the General Corporation. The original GAFTA panel held that the General Corporation breached the contract by failing to open a letter of cr edit but concluded th at S & Davis had not shown entitlement to any damages. It also held that the Gene ral Corporation was a separate entity from that of the Ministry, a nd, therefore, the Ministry was not liable. The appellate arbitration panel affirmed the finding of a breach of contract but awarded S & Davis approximately $17 m illion in damages against the General Corporation. The amount was based on the difference between the contract price of7 $274.88 per ton and the value at the time of the breach, $217.18 per ton, estimating the cost of freight from Portland to Yemen, financing costs, and other costs for seller’s performance and subtracting those to tal costs from the contract price. On December 18, 1998, S & Davis filed th is suit in federal district court to enforce the arbitration award, in additi on to a claim for breach of contract and enforcement of the arbitration award agains t the Republic of Yeme n asserting that the General Corporation is a political subdivision of the Republic, and an alternative claim for tortious interference with contractual relations against the Ministry of Supply & Trade for the amount of the arbitration award. The Ministry filed a motion to dismiss under Fed.R.Civ.Proc. 12(b)(1), lack of subj ect matter jurisdiction, 12(b)(2), lack of personal jurisdiction, and 12(b)(5), insufficient service of process. The Ministry claimed immunity under the FSIA, as a political subdivision of The Republic of
Yemen. S & Davis asserted that subject matte r jurisdiction was allowed under the FSIA and the Convention on the Recognition and Enforcement of Foreign Arbitration Awards, 9 U.S.C. § 201 et seq . The district court held an oral hearing and on April 22, 1999, denied the Ministry’s motion on all grounds. The Ministry timely filed a notice of appeal.
II. ANALYSIS8 A. Appellate Jurisdiction This court has jurisdiction over inte rlocutory orders denying claims of sovereign immunity under the FSIA. Honduras Aircraft Registry v. Government of Honduras , 129 F.3 d 543, 545 (11 thCir. 1997) (citation omitted). The denial of a motion to dismiss for l ack of personal jurisdiction is not, in itself, immediately appealable under the “collateral order doctrine” established in Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541, 546 (1949). See Van Cauwenberghe v. Biard , 486 U.S. 517, 526-27 (1988); Rein v. Socialist People’s Libyan Arab Jamahiriya , 162 F.3d 748, 756 (2d Cir. 1998). We may, however, elect to exercise our “pendent a ppellate jurisdiction” if the personal jurisdiction issue is “inextricably intertwined” with an issu e that is properly before this Court on interlocutory appeal. Swint v. Chambers County Comm’n , 514 U.S. 35, 51 (1995). This interlocutory appeal i nvolves the denial of sove reign immunity based on the “commercial activity exception” to soverei gn immunity which has a “direct effects” component. See 28 U.S.C. § 1605(a)(2). The “direct effects” component of the commercial activity exception to sovereign i mmunity is inextricably intertwined with the “minimum contacts” component of the personal jurisdiction issue making “pendent appellate jurisdicti on” proper in this case. See Rein , 162 F.3d at 760 (discussing Hanil Bank v. PT. Bank Negara Indonesia, (Persero) , 148 F.3d 127 (2d9 1998), and stating “[t]he finding of subjectmatter jurisdiction under the commercial activities exception also entailed a finding of minimum contacts, . . . [and] the issues of subject matter jurisdiction and pe rsonal jurisdiction were inextricably intertwined”); see also Junquist v. Sheikh Sultan Bin Khalifa Al Nahyan , 115 F.3d 1020 (D.C. Cir. 1997) (exercising penden t appellate jurisd iction over personal jurisdiction issue on interlocutory review of denial of immunity under the FSIA). Because we find the Ministry is not en titled to sovereign immunity and that there is both subject matter and personal jurisdiction under the FSIA, we need not address the pendent jurisdiction issue con cerning the alternative claim of tortious interference.
B. Standard of Review On appeal from the district court’s denial of a motion to dismiss, we construe the complaint in the light most favorable to plaintiffs. Honduras Aircraft , 129 F.3 d at 545. “We will accept as true the complain t’s well pleaded facts, even if disputed, but not its conclusions.” Id. (citing Saudi Arabia v. Nelson , 507 U.S. 349, 351 (1993) and Hishon v. King & Spalding , 467 U.S. 69, 73 (1984)). We review the denial of appellant’s motion to dismiss de novo as to the law, Mutual Assurance Inc. v. United States , 56 F.3 d 1353 (11 thCir. 1995), but we apply10 the clear error standard to any findings of fact. Honduras Aircraft , 129 F.3 d at 546 (citing Brown v. Valmet-Appleton , 77 F.3 d 860 (5 thCir. 1996)). C. Legal Status of the General Corporation The General Corporation has admitted that it “is an ‘agency or instrumentality’ of The Republic of Yemen.” The General Corporation for Foreign Trade and Grains’ Motion to Dismiss, May 10, 1999, at 12. Th e Ministry now denies this relationship. There exists an “intramural” dispute about th e status of the General Corporation. For the purposes of this case, based on all the other evidence in the record, it would seem the General Corporation was correct in dete rmining its own status. What those two parties may now internally decide among themselves about their relationship is irrelevant to this case. However, because this admission comes from the General Corporation’s motion to dismiss (not the Ministry’s motion to dismiss) and because “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such,” First Nat’l City B ank v. Banco Para El Comercio Exterior de Cuba , 462 U.S. 611, 626-27 (1983) (“ Bancec ”), we delve further to determine whether the General Co rporation is an agency of the Ministry, which is admittedly a political subdivis ion of The Republic of Yemen. The presumption of separate legal status may be overcome in two ways, (1) “where a11 corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created,” id. at 629 (citation omitted), or (2) where recognition of the instrumentality as an entity separate from the state “would work fraud or injustice.” Id. (citation omitted). S & Davis argue s the Ministry (and therefore The Republic, as the Ministry is a political s ubdivision of The Republic) is amenable to suit under both exceptions. “Where jurisdiction depends on an allegation that the particular defendant was an agent of the sovereign, the plaintiff b ears the burden of proving this relationship.” Arriba Ltd. v. Petroleos Mexicanos , 962 F.2 d 528, 533-34 (5 thCir. 1992) (citations omitted). In applying the agency exception to the rule of sovereign immunity, how much control the sovereign exercised over the instrumentality is reviewed. Transamerica Leasing, Inc. v. La Republica de Venezuela , 200 F.3 d 843, 848 (D.C. Cir. 2000) (citation omitted). “[C]ontrol is relevant when the sovereign exercises its control in such a way as to make the inst rumentality its agent; in that case control renders the sovereign amendable to suit under ordinary agency principles.” Id. at 849. “[A] sovereign need not ex ercise complete dominion ove r an instrumentality–to the point of stripping it of any meaningful se parate identity–in or der to establish a relationship of principal and agent.” Id.12 Particularly helpful in this instance is the basic criteria to determine a principal/agency relati onship discussed in Transamerica

. At a minimum, however, we canconfidently state that the relationship of principal and agent does not obtain unless the parent has manifested its de sire for the subsidiary to act upon the parent’s behalf, the s ubsidiary has consented so to act, the parent has the right to exercise control over the subsidiary with respect to matters entrusted to the subsidiary, and the parent exer cises its control in a manner more direct than by voting a ma jority of the stock in the subsidiary or making appointments to the subsidiary’s Board of Directors.

200 F.3 d at 849 (citation omitted). Here the General Corporation presents its elf as having the authority to purchase a government subsidized commodity. The Ministry provided a declaration which stated that it “oversees the social and economic developmen t of Yemen . . . regulating and monitoring domestic and foreign trade.” S & Davis presented evidence that the Ministry, by and through the same minister who signed approving the contract, gave direct orders to terminate the contract. S & Davis also provided an affidavit from a Yemeni corporate lawyer stating the Gene ral Corporation was “wholly owned by the5 Presidential Decree Issuing Act No. 35 does indicate that the government has more than a mere regulatory role in the affairs of public authorities, public establishments, and public companies. In addition, although the Republican Resolution No. 77 of 1996, which S & Davis submitted with its brief, presented evidence that the General Corporation came under the direct control of the Minister of Supply & Trade, it may not be considered as it was not part of the district court’s record. See Wilson v. Apfel , 179 F.3 d 1276, 1278 (11 thCir. 1999) (“new evidence is not properly before the [appellate] court [when] it is merely attached as an appendix to [appellant]’s brief”); see also Cherry v. Heckler , 760 F.2 d 1186, 1193-94 (11 thCir. 1985) (holding that court’s review is limited to the certified record). 13 Government of Yemen.” 5 Ultimately, the General Co rporation failed to perform its part of the contract, that of opening the letter of credit, and breached the contract. The Ministry, while asserting the Gene ral Corporation’s autonomy, fails to provide any evidence of an independent entity , such as papers of incorporation and corporate structure, whether there is a boardof directors or stock ownership, whether or not all employees are public servants, wh ether the corporation maintains financial accounts in its own name, or whether it owns any assets inits own name–all allegations in the complaint which S & Davis states do not exist, therefore rendering the General Corporation a mere instrumentality of the Ministry. By issuing direct orders to terminate the contract, the s overeign became more of a managing partner over its “agency or instrumentality.” See Alfred Dunhill of London, Inc. v. Republic of Cuba , 425 U.S. 682, 695-96 (1976) (citing Bank of United States v. Planters’ Bank of Georgia , 22 U.S. 904, 907 (1824)) (“when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company,6 28 U.S.C. § 1603(a), (b)(1), (b)(2) provide: (a) A “foreign state” . . . includes a politi cal subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An “agency or instrumentality of a foreign state” means any entity- (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership intere st is owned by a foreign state or political subdivision thereof . . . . 14 of its sovereign character, and takes th at of a private citizen. Instead of communicating to the company its privilege s and its prerogatives , it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.”) The Ministry has not sufficiently rebutted S & Davis’s proof to pe rsuade us that the General Corporation is a separate, independent entity. Theref ore, we need not address the “fraud or injustice” exception nor the alter ego theory argued by S & Davis. D. Subject Matter Jurisdiction To establish subject matter jurisdiction under the FSIA, a plaintiff must overcome the presumption that the foreign state is immune from suit in the United
States’ courts. See 28 U.S.C. § 1604 (1988); Argentine Republic v. Amerada Hess Shipping Corp. , 488 U.S. 428, 443 (1989). The FSIA includes agents or instrumentalities of a foreign state within the definition of “foreign state.” 6 In order to overcome the presumption of immunity, a plaintiff must prove that the conduct which forms the basis of its comp laint falls within one of the statutorily7 The Ministry argues that the arbitration ex ception under § 1605(a)(6)(B) was not presented to the district court and therefore may not be c onsidered on appeal. Although S & Davis failed to specifically cite to § 1605(a)(6)(B), it clearly stat es jurisdiction is pursuant to the FSIA, 28 U.S.C. § 1602 et seq. , and the Convention on the Recognition and Enforcement of Foreign Arbitration Awards, 9 U.S.C. § 201 et seq., in both the original complaint and its response to the motion to dismiss.

8 Congress added the following exception to the FSIA in 1988: A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case– (6) in which the action is brought . . . to confirm an award made pursuant to such an agreement to arbitrate, if . . . (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards . . . . 28 U.S.C. § 1605(a)(6).

9 The relevant portions of section 1605(a) are as follows: A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case– . . . 15 defined exceptions. Republic of Argentina v. Weltover, Inc. , 504 U.S. 607, 610-11 (1992); 28 U.S.C. § 1604. Once a party o ffers evidence that an FSIA exception to immunity applies, the party claiming i mmunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc. , 179 F.3 d 1279, 1290 (11 thCir. 1999) (citations omitted). S & Davis claims that the Ministry is subject to jurisdiction pursuant to exceptions set forth in § 1605 of the FSI A; the waiver exception, 28 U.S.C. § 1605(a)(1), the arbitration exception 7 under § 1605(a)(6)(B), 8 and the commercial activity exception, 28 U.S.C. § 1605(a)(2). 9(1) in which the foreign state has waived its immunity either explicitly or by implication . . .; (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of th e foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign states elsewhere and that act cau ses a direct effect in the United States .

. . . 16 1. Waiver Exception A waiver of immunity may be explicit or by implication. S & Davis asserts that by agreeing to arbitrate pursuant to the rules of GAFTA in London, the Ministry, through the General Corporation, impliedl y waived its sovereign immunity. S & Davis points to the legislative history of § 1605(a)(1), which states, “with respect to implicit waivers, the courts have found such waivers in cases where a foreign state has agreed to arbitration in another country or where a foreign state has agreed that the law of a particular country should govern a contract.” H.R. Rep. No. 1487, 94 th
C ONG ., 2 D SESS . at 18 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6617. As provided for in the contract, the parties submitted their dispute to arbitration before GAFTA. S & Davis now seeks to have the arbitral award issued by GAFTA recognized and enforced in the courts of the United States, pursuant to the Convention on the Recognition and Enforcement of Arb itral Awards (the “Convention”), opened for signature June 10, 1958, Art. I.1, 21 U.S .T. 2517, reprinted in 9 U.S.C. § 201. The Convention provides that “it sh all apply to the recognition and enforcement of arbitral17 awards made in the territory of a State other than the State wh ere the recognition and enforcement of such awards are sought,” 9 U.S.C.§ 201, Art. I, and that “[e]ach Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon
. . . .” Id. Art. III. Therefore, when a countrybecomes a signatory to the Convention, by the provisions of the Convention, the signatory State must have contemplated enforcement actions in other signatory states. Most courts have determined that th e implied waiver provision of § 1605(a)(1) must be construed narrowly. Shapiro v. Republic of Bolivia , 930 F.2 d 1013, 1017 (2 d Cir. 1991) (listing cases). Interpreting § 1605(a)(1), the Supreme Court held “we [do not] see how a foreign state can waive its immunity under § 1605(a)(1) by signing an international agreement that contains no me ntion of a waiver of immunity to suit in United States courts or even the availabilityof a cause of action in the United States.” Weltover , 488 U.S. at 442-43. In this case, although the United States and England are signatories to the Convention, The Republic of Yemen is not. The Ministry argues that a sovereign’s agreement to arbitrate in a Convention State is not a waiver of immunity to suit in the U.S. unless the foreign sovereign is also a party to the Convention.18 A similar situation is found in Creighton Ltd. v. Government of the State of Qatar , 181 F.3 d 118 (D.C. Cir. 1999). Creighton, a Cayman Islands’ corporation with offices in Tennessee, contracted with th e government of Qatar to build a hospital in Qatar. Id. at 120. Following a dispute over its performance, Creighton obtained an arbitral award against Qatar from the Intern ational Chamber of Commerce in Paris and then sought to enforce the awar d in the district court for the District of Columbia. Id. Due to the fact that Qatar was not a signa tory to the Convention, the D.C. Circuit rejected a broad reading of the implicit waiv er section that would allow waiver where the defendant sovereign is not a signatory to the Convention, finding that Qatar’s “agreement to arbitrate in a signatory count ry, without more, [did not] demonstrate[] the requisite intent to waive its sovere ign immunity in the United States.” Id. at 123. We agree that there was no wa iver of sovereign immunity. 2. Arbitration Exception However, the court in Creighton found jurisdiction under the arbitration exception in 28 U.S.C. § 1605(a)(6)(B), sta ting that “the New York Convention is exactly the sort of treaty Congress intende d to include in the arbitration exception.”
181 F.3 d at 123 (internal quotati ons and citations omitted); see also Matter of Chromalloy Aeroservices (Arab Republic) , 939 F. Supp. 907 (D.D.C. 1996). As the court in Creighton noted, “[Section] 1605(a)(6) does not affect the contractual right10 Neither party disputes the fact that the petition for enforcement was filed within the three year period after an award is made, as required by 9 U.S.C. § 207. Nor does the Ministry contest the validity of the award or argue to vacate the award under 9 U.S.C. § 10. 19 of the parties to arbitration but only the tribunal that may hear a dispute concerning the enforcement of an ar bitral award.” 181 F.3 d at 124 (citing McGee v. International Life Ins. Co. , 355 U.S. 220, 224 (1957)). The Ministry contends that because it wa s not a party to the contract, it is not subject to the arbitration agreement or award. While it is true that in Creighton Qatar was a direct party to the contract, given our determination that there was sufficient evidence to show the General Corporation is an agency or instrumentality under the control of the Ministry, we find that the di strict court has subject matter jurisdiction pursuant to the arbitration exception under § 1605(a)(6)(B), where a foreign state has no immunity from a proceeding to confirm an award that “may be governed by a treaty . . . calling for the recognition and en forcement of arbitral awards.” 28 U.S.C. § 1605 (a)(6)(B). 10 3. Commercial Activity Exception While we need not establish juri sdiction under the commercial activities exception, it is clear from a r eading of the legislative history of the FSIA that the activity here was commercial under 28 U.S.C. § 1605(a)(2). At hearings prior to the11 Section 1603 “Definitions” states that: (d) A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. Th e commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. 20 passage of the FSIA, regarding § 1605(d), 11 which defines commercial activity, one of the drafters of the FSIA stated that, “T his would mean, for example, that a foreign state’s purchase of grain from a private dealer woul d always be regarded as commercial.” Hearings on H.R. 11315 Befor e the Subcommittee on Administrative Law and Governmental Relations of th e House Committee on the Judiciary, 94 th Cong., 2 d Sess. 27 (1976) (testimony of Monroe Le igh, Legal Advise r, Department of State); see also H.R. Rep. 94-1487 at 16, reprinted in 1976 U.S.C.C.A.N. at 6615 (stating “import-export transactions involvi ng sales to, or purchases from, concerns in the United States” are incl uded within the conduct of the first clause of § 1605(a)(2) and defining commercial activ ity under §1603(d) to include “a single contract, if of the same character as a contract which might be made by a private person”). In determining that a letter of credit was a suffi ciently direct effect in the United States, this circuit held that a “letter of cred it arrangement–which was structured according to the wishes of the appellants–extends in to [the United States], and the appellants’ demands thus have significant, foreseeab le financial consequences here.” Harris Corp. v. National Iranian Radio & Television , 691 F.2 d 1344, 1351 (11 thCir. 1982);21 see also Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala , 989 F.2 d 572, 580 (2 d Cir. 1993) (finding subject matter and personal jurisdiction under FSIA where contract was never performed). We are not persuaded by the Ministry’s argument that this case is the same as MOL, Inc. v. Peoples Republic of Bangladesh , 736 F.2 d 1326 (9 thCir. 1984), where the Bangladesh Ministry of Agriculture gran ted a ten-year license to MOL, an Oregon corporation, to export rhesus monkeys. Th e Ninth Circuit found this license “was not just a contract for trade of monkeys.” Id. at 1329. Unlike MOL , the contract between S & Davis and the General Corporation was just a contract and the Ministry was more involved than a mere regulator, whose di rectives, not based upon regulatory reasons, controlled the General Corporation’s ac tions. This was a commercial activity exception.
E. Personal Jurisdiction In reviewing whether or not the districtcourt has personal jurisdiction over the defendant, we are guided by the following standard as was the Second Circuit in Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala , 989 F.2 d 572, 580 (2 d Cir. 1993).22 The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the bases of affidavits and other written materials, the plaintiff need only make a prima facie showing. The allegations in the complaint mu st be taken as true to the extent they are uncontroverted by the defendant’s affidavits. If the parties present conflicting affidavits, all factual disputes are resolved inthe plaintiff’s favor, and the plaintiff’s prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. Taylor v. Phelan , 912 F.2 d 429, 431 (10 thCir. 1990) (per curiam) (citation omitted).

The FSIA provides that “district courts shall have original jurisdiction . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title . . . .” 28 U.S.C. § 1330(a). Also under the FSIA, “Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district c ourts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.” Id. at § 1330(b). The 1976 House Report concerning the passage of th e FSIA states that “this bill would for the first time in U.S. law, provide a statutory procedure for making service upon, and obtaining in personam jurisdiction over, a foreign state.” H.R. Rep. 94-1487 at 13-14, reprinted in 1976 U.S.C.C.A.N. at 6611-12. There is no language in the House Report, either expressly or impliedly, wh ich would grant a liberty interest for the purposes of substantive due process analysis. In addition, particularly applicable to12 According to the Ministry’s counsel at the time of oral argument, service had also been effected on both The Republic of Yemen and the General Corpor ation. This is confirmed by the district court docket. 23 this case, the House Report states that th e FSIA was specifically meant “to provide the judgment creditor some remedy if, after a reasonable period, a foreign state or its enterprise failed to satisfy a fina l judgment.” H.R. Rep. 94-1487 at 14, reprinted at 1976 U.S.C.C.A.N. at 6612. Both parties agr ee that proper service has been made. 12 The parties agreed to arbitration, a fina l award was determined , and the defendants have failed to satisfy that award. Therefore, under the FSIA, personal jurisdiction exists. The Ministry argues that personal juri sdiction here does not satisfy the due process clause of the Fifth Amendm ent. S & Davis asserts that under Weltover , a foreign state, or its instrumentality, is nota person for the purposes of a constitutional due process analysis. Weltover , 504 U.S. at 619 (“[a]ssuming, without deciding, that a foreign state is a ‘person’ for purposes of the Due Process Clause,” but citing South Carolina v. Katzenbach , 383 U.S. 301, 323-24 (finding States of the Union are not “persons” for purposes of the Due Process Clause)). We do not need to determine the precise constitutional status of a forei gn sovereign because we find that the due process requirements have been met in this case. See Hanil Bank v. PT. Bank Negara Indonesia , (Persero) , 148 F.3d 127, 134 (2d Cir. 1998).24 To determine whether the exercise of in personam jurisdiction is consistent with due process, the defendant normally must have “certain minimum contacts with [the forum] such that the mainte nance of the suit does not offe nd traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington , 326 U.S. 310, 316 (1945) (internal quotations and citations omitted). However, the Court rejected a rigid formula for determining the contact s necessary to satisfy due process. Id. In general, the majority of cases brought under the FSIA involve commercial activity, which requires an evaluation of th e activity’s effects in the United States, see 28 U.S.C. § 1605(a)(2), simila r to a “minimum contacts” analysis. The “direct effects” language of § 1605(a)(2) closely resembles the “minimum contacts” language of constitutional due process and thes e two analyses have overlapped. See Weltover , 504 U.S. at 619-20; Vermeulen , 985 F.2 d at 1545. In determ ining what constitutes a direct effect, the Court in Weltover stated that an effect is direct if it occurs “as an immediate consequence of the defendant ’s activity.” 504 U.S. at 618 (internal quotations and citation omitted). Under the facts in Weltover , the Court held that “money that was supposed to have been delivered to a New York bank for deposit [which] was not forthcoming,” constituted a direct effect. Id. at 619. See also Hanil Bank v. PT. Bank Negara Indonesia, (Persero) , 148 F.3 d 127, 133 (2 d Cir. 1998) (“The failure of money to reach plaintiff’s New York bank account was an immediate25 consequence of defendant BN I’s actions in Indonesia.”); Voest-Alpine Trading USA Corp. v. Bank of China , 142 F. 3 d 887, 896 (5 thCir. 1998) (“Voest-Alpine, an American corporation, incurred a nontrivial financial loss in the United States as a direct result of the Bank of China’s failure to pay on a letter of credit it issued.”); Texas Trading & Milling Corp. v. Federal Republic of Nigeria , 647 F.2 d 300 (2 d Cir. 1981) (holding that financial loss to an American corporati on from problem with single shipment of rice to Nigeria suffici ently “direct” to support jurisdiction). In addition to the direct effect cont act, other evidence supports the sufficiency of minimum contacts. The contract speci fied that S & Davis was to designate a United States bank to receive the letter of credit. See Weltover , 504 U.S. at 619. S & Davis named Citizen’s Bank in New Yo rk. The Central Bank in Yemen was instructed to send of copy of S & Davis’s bank reference to the General Corporation’s bank, the Arab American Bank in New York . Although the contract stated that the origin of the wheat could have been th e U. S., Canada, Australia, South Africa, or Argentina, it allowed S & Davis to designate the point of departure for shipping to Yemen and S & Davis selected Portland, Oregon. See Hanil Bank, 148 F.3 d at 134. Analysis of the due process requirementalso focuses on the evaluation of fair play and substantial justice. International Shoe , 326 U.S. at 316. The defendants contractually agreed to arbitration, there by binding themselves to the outcome of that26 arbitration. An arbitration award was issued but no performance was forthcoming on the defendant’s part. It is not unreasonable that a United States corporation, following a foreign defendant’s failure to open a letter of credit in the U.S., and after nonpayment of an arbitration award, should seek enforcement of the judgment in a United States’ court. In fact, it is only “f air and just” to seek enforcement of the outcome of a good faith agreement to arbitr ate. This comports with the minimum contacts determination that the defendant “should reasonably anticipate being haled into court” in the forum’s jurisdiction. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297 (1980); but see Creighton , 181 F.3 d at 127 (citing Burger King v. Rudzewicz , 471 U.S. at 478, “If the question is wh ether an individual’s contract with an out-of-state party alone can automatically establis h sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot.” (emphasis in original)). In Creighton , the district court for the District of Columbia, held that Qatar was not subject to pers onal jurisdiction under a minimum contacts and purposeful availment analysis, because th e contract “was offered, accepted, and performed in Qatar pursuant to a sponsor ship arrangement between Creighton and a Qatari contractor.” Id. at 127-28. In addition, the contract specified that it was subject to the laws of Qatar, payment was made in Qatari riyals to Creighton’s bank account in Qatar, and the alleged breach occurred in Qatar. Id . at 128.27 The Ministry misstates the situation by arguing that finding personal jurisdiction violates the notions of “fair play and substantial justice” because the Ministry was involved in only one regulator y act, that of approving the contract to import wheat, concerning a contract which was “negotiated, executed, and performable in Yemen.” We disagree. Having determined that the Ministry was involved in more than “one regulatory act,” the contract itself anticipates further contacts between the two nations. One of th e parties to this contract was a United States corporation who was required to provi de “U.S. wheat No. 2 or better” (none of which is grown in Yemen) to be imported to Yemen. Performance logically required contact and interaction with the United Stat es, as discussed in the contract (such as designating a U.S. bank for payment and a poi nt of departure for shipping). Unlike the facts of Creighton , the contract did not state it wa s subject to the laws of Yemen, there were direct dealings be tween parties of both countries, see Francosteel , 19 F.3 d at 628, and the direct effect occurred with the defendants’ failure to open the letter of credit at the New York bank. “When minimu m contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placedon the alien defendant.” Asahi Metal Industry Co. v. Superior Court of California , 480 U.S. 102, 114 (1987).28 For the foregoing reasons, we find that th e Ministry is not entitled to sovereign immunity under the FSIA because the arbitr ation exception, § 1605( a)(6)(B), and the commercial activity exception, § 1605(a)(2), apply under the factual circumstances alleged at this juncture. Furthermore, the district court does have personal jurisdiction over the Ministry. Therefore, the districtcourt’s order denying the Ministry’s motion to dismiss is AFFIRMED.