UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CREIGHTON LTD

v.

GOVT ST QATAR


98-7063a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: Creighton Limited, a Cayman  Islands
corporation with offices in Tennessee, contracted with  the Government
of the State of Qatar to build a hospital in  Doha, the Qatari
capital. Following a dispute over its perfor- mance, Creighton
obtained an arbitral award against Qatar  from the International
Chamber of Commerce in Paris.  Creighton now seeks to enforce the
award in the United  States District Court for the District of
Columbia. Qatar  claims the court lacks subject matter jurisdiction
over the  action pursuant to the Foreign Sovereign Immunities Act of 
1976, 28 U.S.C. ss 1330, 1602-1611, and lacks personal juris- diction
over Qatar pursuant to the Due Process Clause of the  Fifth Amendment
to the Constitution of the United States.  We hold that the district
court has subject matter jurisdiction  but affirm its dismissal of
Creighton's suit for lack of personal  jurisdiction.


I. Background


In the late 1970s the Government of Qatar decided to build  a new
hospital in Doha. Creighton obtained the necessary  Qatari sponsor,
submitted the low bid, and in 1982 contracted  with Qatar to build the
hospital. The contract required  Creighton to obtain a performance
bond from a Qatari issuer  and to maintain an office in Qatar, to
which notices under the  contract would be sent. Qatar was to pay
Creighton in Qatar,  and in fact all payments were made there in
Qatari riyals.  The contract provided that it was to be performed and 
interpreted under Qatari law and that all disputes were to "be 
finally settled under the Rules of Conciliation and Arbitration  of
the International Chamber of Commerce."


In 1986 Qatar expelled Creighton from the construction site  for
unsatisfactory performance. Creighton contested its ex- pulsion by
commencing arbitration before the ICC in 1987.  Because the contract
did not specify a place for arbitration,  the ICC decided to conduct
the arbitration in Paris. Qatar  willingly participated in the
arbitration, which resulted in an  order for Qatar to pay Creighton
damages, interest, and  attorney's fees totaling over $8 million.


court action in France to set aside the award as invalid under  French
law, which the Supreme Court of France ultimately  rejected.
Nonetheless, Creighton has been unable to enforce  the award in
France. It attempted to attach Qatari assets  located there but the
Superior Court of Paris held the  particular assets in question were
immune from attachment  under French law. Creighton's appeal of that
decision is now  pending before the Supreme Court of France.


Meanwhile, Creighton filed this action seeking enforcement  of the
award in the United States District Court for the  District of
Columbia; Qatar moved to dismiss on a number of  grounds. The district
court granted the motion on the  ground that it lacks personal
jurisdiction over Qatar because  Qatar does not have sufficient
contact with the United States  to make it amenable to suit here
consistent with the due  process requirement of the fifth amendment.


II. Analysis


Qatar claims the district court lacks both subject matter  jurisdiction
over this action, pursuant to the Foreign Sover- eign Immunities Act,
and personal jurisdiction over Qatar,  pursuant to the due process
clause. Under the FSIA, the  district court has subject matter
jurisdiction of a civil action  against a foreign state only if "the
foreign state is not entitled  to immunity either under [the immunity
provisions of the  FSIA itself, 28 U.S.C. ss 1605-1607] or under any
applicable  international agreement." 28 U.S.C. s 1330(a).


Creighton claims that by agreeing to arbitrate in France  Qatar
impliedly waived both its sovereign immunity, thereby  conferring
subject matter jurisdiction upon the court, see id.  s 1605(a)(1) &
(6), and its due process objection, thereby  conferring personal
jurisdiction upon the court. Alternative- ly, Creighton claims that
Qatar's agreement to arbitrate in  France confers subject matter
jurisdiction, see id.  s 1605(a)(6), and its contacts with the United
States are  sufficient to satisfy the constitutional requirements of
person- al jurisdiction. Although we hold below (in Part II.A.2.b)


the court has subject matter jurisdiction pursuant to  s 1605(a)(6), we
find it necessary also to discuss s 1605(a)(1)  because one of
Creighton's due process arguments (see Part  II.B.1) presupposes that
Qatar, by agreeing to arbitrate in  France, waived its immunity
pursuant to s 1605(a)(1). We  cannot resolve that due process argument
without addressing  the claim about s 1605(a)(1) upon which it is


A. Subject Matter Jurisdiction


There are two prerequisites to the district court having  subject
matter jurisdiction over this case. First, there must  be a basis upon
which a court in the United States may  enforce a foreign arbitral
award; and second, Qatar must not  enjoy sovereign immunity from such
an enforcement action.  We discuss each requirement separately.


1. The New York Convention


Both France and the United States, but not Qatar, are  parties to the
so-called New York Convention, a multilateral  treaty providing for
"the recognition and enforcement of  arbitral awards made in the
territory of a State other than  the State where the recognition and
enforcement of such  awards are sought." Convention on the Recognition
and  Enforcement of Foreign Arbitral Awards, opened for signa- ture
June 10, 1958, art. I.1, 21 U.S.T. 2517, reprinted in 9  U.S.C.A. s
201 (historical and statutory note). The U.S.  legislation
implementing the Convention declares that


[a]n action or proceeding falling under the Convention  shall be deemed
to arise under the laws and treaties of  the United States. The
district courts of the United  States ... shall have original
jurisdiction over such an  action or proceeding, regardless of the
amount in contro- versy.


9 U.S.C. s 203.


That the New York Convention applies to the arbitral  award Creighton
obtained against Qatar in France, and that  the award is therefore
enforceable in United States courts, is  undisputed. See Restatement
(Third) of Foreign Relations  Law s 487 comment b (1987) ("the
critical element is the 


place of the award: if that place is in the territory of a party  to
the Convention, all other Convention states are required to  recognize
and enforce the award, regardless of the citizenship  or domicile of
the parties to the arbitration"). If Qatar were  a private party, then
there could be no doubt about the  subject matter jurisdiction of the
district court; because it is  a foreign state, however, we must
consider the effect of the  FSIA upon the court's power to hear this


2. Sovereign Immunity


The FSIA is "the sole basis for obtaining jurisdiction over a  foreign
state in our courts." Argentine Republic v. Amerada  Hess Shipping
Corp., 488 U.S. 428, 434 (1989). A foreign  state is "presumptively
immune from the jurisdiction of Unit- ed States courts," Saudi Arabia
v. Nelson, 507 U.S. 349, 355  (1993), that is, the state is immune
unless the particular  lawsuit comes within an exception in the FSIA.
See 28  U.S.C. s 1604. Creighton claims that the exceptions for an 
implied waiver and for arbitration, see id. s 1605(a)(1), (6),  apply
to this case.


a. Implied Waiver


The former exception provides:


(a) A foreign state shall not be immune from the  jurisdiction of
courts of the United States or of the  States in any case--


(1) in which the foreign state has waived its immuni- ty ... by
implication.


Id. s 1605(a)(1). Creighton claims that Qatar, by agreeing to 
arbitrate in France, implicitly waived its sovereign immunity  in the
United States for, by virtue of the New York Conven- tion, Qatar was
"on notice" that an arbitral award rendered in  France would be
enforceable in this country. Qatar responds  that "the FSIA and
decisions applying it make clear that a  sovereign's agreement to
arbitrate in a New York Convention  state is not a waiver of immunity
to suit in the U.S. unless the  foreign sovereign is also party to the


The FSIA does not define an implied waiver. We have,  however, followed
the "virtually unanimous" precedents con-


struing the implied waiver provision narrowly. Shapiro v.  Republic of
Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991). In  particular, we have
held that implicit in s 1605(a)(1) is the  requirement that the
foreign state have intended to waive its  sovereign immunity. See
Princz v. Federal Republic of Ger- many, 26 F.3d 1166, 1174 (1994)
("[A]n implied waiver de- pends upon the foreign government's having
at some point  indicated its amenability to suit"); Foremost-McKesson,
Inc.  v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C. Cir.  1990)
("courts rarely find that a nation has waived its sover- eign immunity
... without strong evidence that this is what  the foreign state


The closest Creighton comes to arguing that Qatar intend- ed to waive
its sovereign immunity is in pointing to this  statement in the House
Report accompanying the FSIA: "the  courts have found [implicit]
waivers in cases where a foreign  state has agreed to arbitration in
another country." H.R.  Rep. No. 94-1487, at 18 (1976), reprinted in
1976  U.S.C.C.A.N. 6604, 6617. Creighton claims Qatar's agree- ment to
arbitrate in France should be deemed an implicit  waiver of its
sovereign immunity in U.S. courts. Cf. id.  (explaining courts have
also found such waivers "where a  foreign state has agreed that the
law of a particular country  should govern a contract").


We follow the Second Circuit in rejecting such a broad  reading of the
"implicit waiver" exception.


[I]f the language of the legislative history [were] applied  literally,
a foreign government would be subject to the  United States's
jurisdiction simply because it agreed to  have the contract governed
by another country's laws, or  agreed to arbitrate in a country other
than itself, even  though the agreement made no reference to the
United  States. Such an interpretation of s 1605(a)(1)'s "implicit 
waiver" exception would vastly increase the jurisdiction  of the
federal courts over matters involving sensitive  foreign relations.


Seetransport Wiking Trader v. Navimpex Centrala, 989 F.2d  572, 577 (2d
Cir. 1993); see also Frolova v. Union of Soviet 


Socialist Republics, 761 F.2d 370, 377 (7th Cir. 1985) ("[M]ost  courts
have refused to find an implicit waiver of immunity to  suit in
American courts from a contract clause providing for  arbitration in a
country other than the United States");  Maritime Int'l Nominees
Estab. v. Republic of Guinea, 693  F.2d 1094, 1102 n.13 (D.C. Cir.
1982) (courts "have generally  assumed ... that Congress did not
endorse the literal word- ing of the House Report"). Indeed, the
intentionality "re- quirement is also reflected in the examples of
implied waiver  set forth in the legislative history of s 1605(a)(1),
all of which  arise either from the foreign state's agreement (to
arbitration  or to a particular choice of law) or from its filing a
responsive  pleading without raising the defense of sovereign
immunity."  Princz, 26 F.3d at 1174; see also Shapiro, 930 F.2d at
1017  (explaining that legislative history lists examples of implicit 
waiver "in which the waiver was unmistakable, and courts  have been
reluctant to find an implied waiver where the  circumstances were not
similarly unambiguous"); Maritime  Int'l, 693 F.2d at 1103 ("A key
reason why pre-FSIA cases  [referred to in the legislative history]
found that an agree- ment to arbitrate in the United States waived
immunity from  suit was that such agreements could only be effective
if  deemed to contemplate a role for United States courts").


The Supreme Court has also read s 1605(a)(1) to require  an intention
to waive immunity in the United States, though  concededly upon facts
rather different from those present  here. Argentina was sued in the
United States for allegedly  sinking a Liberian tanker owned by U.S.
interests during the  war between Great Britain and Argentina over the
Falkland  Islands. Although Argentina had signed international trea-
ties setting forth substantive rules of conduct and stating that 
compensation would be paid for certain wrongs, the Court  held "we [do
not] see how a foreign state can waive its  immunity under s
1605(a)(1) by signing an international  agreement that contains no
mention of a waiver of immunity  to suit in United States courts or
even the availability of a  cause of action in the United States."
Argentine Republic,  488 U.S. at 442-43.


Creighton seeks support in three cases in which the court  found an
implied waiver where a foreign government had  agreed (like Qatar) to
arbitrate in the territory of a state that  had signed the New York
Convention. See Seetransport, 989  F.2d at 578-79; M.B.L. Int'l
Contractors v. Republic of  Trinidad & Tobago, 725 F. Supp. 52, 54-55
(D.D.C. 1989);  Ipitrade Int'l S.A. v. Federal Republic of Nigeria,
465  F. Supp. 824, 826 (D.D.C. 1978). In each of these cases, 
however, the defendant sovereign was (unlike Qatar) a signa- tory to
the Convention. In Seetransport the Second Circuit  reasoned,
correctly we think, that "when a country becomes a  signatory to the
Convention, by the very provisions of the  Convention, the signatory
state must have contemplated en- forcement actions in other signatory


Qatar not having signed the Convention, we do not think  that its
agreement to arbitrate in a signatory country, without  more,
demonstrates the requisite intent to waive its sovereign  immunity in
the United States. As Creighton directs us to no  other evidence of
such an intent, we hold that s 1605(a)(1)  does not confer subject
matter jurisdiction upon the district  court.


b. Arbitration


The Congress added the following exception to the FSIA in  1988:


A foreign state shall not be immune from the jurisdic- tion of courts
of the United States or of the States in any  case ... in which the
action is brought ... to confirm an  award made pursuant to ... an
agreement to arbitrate,  if ... 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. s 1605(a)(6). Qatar does not contest Creighton's  assertion
that because the New York Convention calls for  enforcement of any
arbitral award rendered within the juris- diction of a signatory
country, the quoted exception applies by  its terms to this action.
Indeed, it has been said with  authority that the New York Convention
"is exactly the sort 


of treaty Congress intended to include in the arbitration  exception."
Cargill Int'l S.A. v. M/T Pavel Dybenko, 991  F.2d 1012, 1018 (2d Cir.
1993); see also Chromalloy Aeroser- vices v. Arab Republic of Egypt,
939 F. Supp. 907, 909  (D.D.C. 1996).


Qatar's sole defense is that application of the arbitral  exception
here would be impermissibly retroactive because it  was added to the
statute after the contract was signed, indeed  after the Paris
arbitration was commenced. In reply, Creigh- ton suggests that because
the FSIA is a jurisdictional statute,  its application to events that
occurred before it was enacted  would not be retroactive, for the FSIA
speaks not to the  primary conduct of the parties but rather to the
question of  which tribunal may enforce the arbitral award.


As the Supreme Court has pointed out, it


regularly applie[s] intervening statutes conferring or  ousting
jurisdiction, whether or not jurisdiction lay when  the underlying
conduct occurred or when the suit was  filed. ... Application of a new
jurisdictional rule usual- ly takes away no substantive right but
simply changes  the tribunal that is to hear the case. Present law 
normally governs in such situations because jurisdictional  statutes
speak to the power of the court rather than to  the rights or
obligations of the parties.


Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994). So it  is in
this case, for s 1605(a)(6) does not affect the contractual  right of
the parties to arbitration but only the tribunal that  may hear a
dispute concerning the enforcement of an arbitral  award. See McGee v.
International Life Ins. Co., 355 U.S.  220, 224 (1957) (holding
long-arm statute enacted after parties  entered into contract "did
nothing more than to provide  petitioner with a California forum to
enforce whatever sub- stantive rights she might have against
respondent"). Under  established principles, therefore, application of
s 1605(a)(6) is  not retroactive, let alone impermissibly retroactive,
and Qatar  does not claim that a different result should obtain simply
 because a foreign state is affected by the change in a jurisdic-
tional statute. See Princz, 26 F.3d at 1171 (postulating, 


though not deciding, that application of 1976 version of FSIA  to acts
committed before 1952 would not be retroactive  because it "would not
alter Germany's liability under the  applicable substantive law in
force at the time, i.e. it would  just remove the bar of sovereign
immunity to the plaintiff's  vindicating his rights under that law").
Accordingly, we hold  that the district court has subject matter
jurisdiction over this  case pursuant to the arbitration exception in
s 1605(a)(6).


B. Personal Jurisdiction


Not long ago we determined that the requirements of the  FSIA for
personal jurisdiction, see 28 U.S.C. s 1330(b),* "do  not affect the
constitutional in personam jurisdiction require- ment [of] the due
process clause of the Fifth Amendment."  Foremost-McKesson, 905 F.2d
at 442 n.10; see also Maritime  Int'l, 693 F.2d at 1105 n.18 ("Of
course, a finding of FSIA  personal jurisdiction, which would rest in
part on a finding of  non-immunity, must comport with the demands of
due pro- cess, and Congress intended that the Act satisfy those de-
mands"); Gilson v. Republic of Ireland, 682 F.2d 1022, 1028  (D.C.
Cir. 1982) ("a statute cannot grant personal jurisdiction  where the
Constitution forbids it"). More recently, however,  the Supreme Court
questioned whether the personal jurisdic- tion requirement of the due
process clause applies at all to  foreign states, citing its prior
holding that a State of the  Union is not a "person" for purposes of
that clause. See  Republic of Argentina v. Weltover, Inc., 504 U.S.
607, 619  (1992) (citing South Carolina v. Katzenbach, 383 U.S. 301, 
323-24 (1966)). And the district court in turn has held that  the
requirement of personal jurisdiction does not apply to a  foreign
state. See Flatova v. Islamic Republic of Iran, 999  F. Supp. 1, 19-21


Nonetheless, Creighton does not argue the point. Rather,  Creighton
claims that Qatar's entitlement to due process is 




__________

n * "Personal jurisdiction over a foreign state shall exist as to every
 claim for relief over which the district courts have jurisdiction
under  subsection (a) where service has been made under section 1608
of  this title."


satisfied because Qatar waived its objections to personal  jurisdiction
by agreeing to arbitrate in France or, in the  alternative, because
Qatar has the requisite minimum con- tacts with the United States. We
take the dispute as the  parties frame it, of course. See United
Transp. Union- Illinois Legis. Bd. v. STB, 175 F.3d 163, 1999 WL
279754, at  *4 (D.C. Cir. May 7, 1999); cf. Afram Export Corp. v. 
Metallurgiki Halyps, S.A., 772 F.2d 1358, 1362 (7th Cir. 1985) 
("Countless cases assume that foreign companies have all the  rights
of U.S. citizens to object to extraterritorial assertions  of personal
jurisdiction. The assumption has never to our  knowledge actually been
examined"). Accordingly, we pro- ceed upon the unchallenged assumption
that Qatar must be  afforded the protection it claims under the due


1. Waiver


For a court to assert personal jurisdiction over a defendant  not
physically present in the forum, the defendant normally  must "have
certain minimum contacts with [the forum] such  that the maintenance
of the suit does not offend traditional  notions of fair play and
substantial justice." International  Shoe Co. v. Washington, 326 U.S.
310, 316 (1945). Because  this "personal jurisdiction requirement
recognizes and pro- tects an individual liberty interest," however,
like other indi- vidual rights it may be waived--for example, if the
defendant  agrees "to submit to the jurisdiction of a given court."
In- surance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites,  456
U.S. 694, 702, 704 (1982).


Relying upon the legislative history of the FSIA, Creighton  claims
that we need not engage in a separate due process  analysis of Qatar's
contacts with the United States because  the Congress designed all the
exceptions to sovereign immu- nity in the FSIA to comport with due
process. The House  Report explains:


The requirements of minimum jurisdictional contacts and  adequate
notice are embodied in the provision [namely,  28 U.S.C. s
1605(a)(1)-(5)]. Cf. International Shoe Co. v.  Washington, 326 U.S.
310 (1945), and McGee v. Interna- tional Life Insurance Co., 355 U.S.
220, 223 (1957). ... 


Significantly, each of the immunity provisions in the bill  ...
requires some connection between the lawsuit and  the United States,
or an express or implied waiver by the  foreign state of its immunity
from jurisdiction. These  immunity provisions, therefore, prescribe
the necessary  contacts which must exist before our courts can
exercise  personal jurisdiction.


H.R. Rep. No. 94-1487, at 13, reprinted in 1976 U.S.C.C.A.N.  at 6612.
Creighton reasons that because Qatar impliedly  waived its sovereign
immunity under s 1605(a)(1), and alter- natively because subject
matter jurisdiction is proper under  what it terms the "arbitral
waiver" provision of s 1605(a)(6),  Qatar has necessarily waived its
objection to personal juris- diction. The predicate for the first of
these arguments we  rejected when we held (in Part II.A.2.a) that
Qatar did not  impliedly waive its sovereign immunity under s
1605(a)(1).  We now consider the second argument.


The House Report upon which Creighton relies accompa- nied the original
1976 legislation. As noted above,  s 1605(a)(6) was added to the FSIA
only in 1988. The 1976  legislative history, whatever it might be
worth as a guide to  the original Act, has little if any bearing upon
the later  amendment. Cf. Rein v. Socialist People's Libyan Arab 
Jamahiriya, 162 F.3d 748, 761 (2d Cir. 1998) ("The elements  of s
1605(a)(7) [enacted in 1996], unlike those of the commer- cial
activities exception [in s 1605(a)(2), which was enacted in  1976], do
not entail any finding of minimum contacts").


In any event, Creighton's argument proceeds from a mis- taken premise,
for unlike s 1605(a)(1), s 1605(a)(6) deals not  with waiver but with
forfeiture. Cf. United States v. Olano,  507 U.S. 725, 733 (1993)
("Waiver is different from forfeiture.  Whereas forfeiture is the
failure to make the timely assertion  of a right, waiver is the
intentional relinquishment or aban- donment of a known right").
Section 1605(a)(6) reflects the  decision of the Congress to deny a
foreign state immunity  from suit in the United States if that state
has agreed to  arbitrate in any country that is party to a treaty
(such as the  New York Convention) calling for the enforcement of an


arbitral award. Unlike subsection (a)(1), subsection (a)(6)  contains
no intentionality requirement. Therefore, although  subsection (a)(6)
confers subject matter jurisdiction upon the  court, it does not
follow that Qatar waived its objection to  personal jurisdiction.


Although we have held that Qatar did not, by agreeing to  arbitrate in
France, waive its sovereign immunity under  s 1605(a)(1), it is
conceivable (though as we shall see, unlike- ly) that a different
conclusion could follow with regard to  whether Qatar waived its
objection to personal jurisdiction  under the due process clause.
Creighton, however, has not  cited, nor are we aware of, any authority
for the proposition  that an agreement to arbitrate in one forum
constitutes a  waiver of the right to challenge personal jurisdiction
in anoth- er. On the contrary, the decisions of which we are aware 
have held that an implicit waiver of personal jurisdiction in a 
defendant's agreement to litigate or to arbitrate in a particu- lar
jurisdiction is applicable only within that jurisdiction. See  Victory
Transport Inc. v. Comisaria General de Abasteci- mientos y
Transportes, 336 F.2d 354, 363 (2d Cir. 1964) ("By  agreeing to
arbitrate in New York, where the United States  Arbitration Act makes
such agreements specifically enforce- able, the [government of Spain]
must be deemed to have  consented to the jurisdiction of the court
that could compel  the arbitration proceeding in New York. To hold
otherwise  would be to render the arbitration clause a nullity");
Microfi- bres, Inc. v. McDevitt-Askew, 20 F. Supp. 2d 316, 322 (D.R.I.
 1998) (holding agreement to litigate contractual disputes in  Rhode
Island implicitly waived right to challenge personal  jurisdiction
there); Inso Corp. v. Dekotec Handelsges, 999  F. Supp. 165, 167 (D.
Mass. 1998) (holding "contractual  stipulation to a particular forum


While the analogy is imperfect, we think it instructive to  compare the
New York Convention to the Full Faith and  Credit Clause of the United
States Constitution: "Full Faith  and Credit shall be given in each
State to the ... judicial  Proceedings of every other State." Art. IV,
s 1; see also 28  U.S.C. s 1738. It is implausible that a defendant in
Connect-


icut who had agreed to arbitrate all disputes in New York,  and thereby
implicitly waived any objection to personal juris- diction in a suit
brought in New York to enforce the resulting  arbitral award, also
waived its objection to personal jurisdic- tion in such an action
brought in California merely because  the full faith and credit clause
would make a valid New York  judgment enforceable in the courts of
California. Indeed, to  accept such a bootstrap argument, under which
the courts in  every state would have personal jurisdiction over a
defendant  who had waived its objection in any one state, would in
this  context eviscerate an important limitation upon the principle 
of full faith and credit--that "a judgment need not be hon- ored if it
was entered by a court that lacked personal ...  jurisdiction." 18
Charles A. Wright et al., Federal Practice  and Procedure s 4467, at
634 (2d ed. 1981); see also Baker v.  General Motors Corp., 522 U.S.
222, 233 (1998); Pennoyer v.  Neff, 95 U.S. 714, 729-33 (1877); D'Arcy
v. Ketchum, 52 U.S.  (11 How.) 165, 175-76 (1850). It seems to us
likewise implau- sible that Qatar, by agreeing to arbitrate in France,
a signa- tory to a treaty containing a similar reciprocal "recognition
 and enforcement" clause, should be deemed thereby to have  waived its
right to challenge personal jurisdiction in the  United States.


For these reasons we hold that Qatar did not waive its  objection to
personal jurisdiction in the United States by  agreeing to arbitrate
in France.


2. Minimum Contacts


As noted above, when lack of personal jurisdiction is raised  as a
defense, due process requires that for the case to go  forward the
absent defendant must "have [had] certain mini- mum contacts with [the
forum] such that the maintenance of  the suit does not offend
traditional notions of fair play and  substantial justice."
International Shoe, 326 U.S. at 316.  The defendant's contacts with
the forum must be of a quality  that it "should reasonably anticipate
being haled into court"  there. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S.  286, 297 (1980). It is "essential in each case that
there be  some act by which the defendant purposefully avails itself


the privilege of conducting activities within the forum State,  thus
invoking the benefits and protections of its laws." Han- son v.
Denckla, 357 U.S. 235, 253 (1958).*


Creighton claims that Qatar has the requisite minimum  contacts mainly
because Qatar entered into a contract with a  company based in the
United States. Because that contract  provided for ICC arbitration of
all disputes and (according to  Creighton) Qatari law does not
recognize or enforce arbitral  awards, "it was certainly foreseeable
that Creighton would  seek to enforce any award in its favor ... in
the United  States." In addition Creighton asserts that Qatar
contacted  Creighton in Tennessee during the negotiations leading to
the  contract in order to clarify an apparent error in Creighton's 
bid, Creighton signed a modification to the contract in Ten- nessee,
and during construction Qatar telexed weekly status  reports to
Creighton's offices in Tennessee.


These contacts, however, do not demonstrate that Qatar  purposefully
availed itself of the laws of the United States  and hence should
reasonably have anticipated the risk of  being haled into court here.
Creighton's reliance upon the  mere fact that Qatar contracted with a
United States compa- ny (and the concomitant foreseeability that the
company  might try to bring suit in the United States) is misplaced,
for  the Supreme Court has squarely rejected the proposition that  "an
individual's contract with an out-of-state party alone can 
automatically establish sufficient minimum contacts in the  other
party's home forum." Burger King v. Rudzewicz, 471  U.S. 462, 478
(1985) (emphasis in original).


Our doubt about the adequacy of Qatar's contacts with the  United
States is increased when we consider "prior negotia- tions and
contemplated future consequences, along with the  terms of the
contract and the parties' actual course of deal- ing." Id. at 479. As
Qatar notes, the contract was offered, 




__________

n * We note that Qatar does not argue that due process requires  that a
foreign state have contacts with the forum state as opposed  to the
United States in general. See SEC v. Vision Communica- tions, Inc., 74
F.3d 287, 289 (D.C. Cir. 1996) (suggesting the latter).


accepted, and performed in Qatar pursuant to a sponsorship  arrangement
between Creighton and a Qatari contractor.  The contract was made
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.


Overall, it seems Qatar's contacts with Creighton in Ten- nessee were
necessitated by Creighton's decision to base  itself there, and are
not instances of Qatar purposefully  availing itself of the benefits
of the laws of Tennessee or of  the United States. See id. at 475
("Th[e] purposeful avail- ment requirement ensures that a defendant
will not be haled  into a jurisdiction solely as a result of random,
fortuitous, or  attenuated contacts, or of the unilateral activity of
another  party or a third person"). As we explained in an analogous--
indeed, controlling--case, Creighton


seems to confuse a distant purchaser "reaching out" to a  seller in the
forum state with a seller "reaching out" to a  distant state in order
to do business there. At least if it  circulates its wares there, the
seller purposefully avails  itself of forum state law. By contrast, a
purchaser who  selects an out-of-state seller's goods or services
based on  their economic merit does not thereby purposefully avail 
itself of the seller's state law, and does not merely by  purchasing
from the seller submit to the laws of the  jurisdiction in which the
seller is located or from which it  ships merchandise. Of course, a
seller suing in its home  state might argue that an out-of-state buyer
has availed  itself of that forum's laws in the sense that the buyer 
typically could have sued the seller in the forum state for  breach of
contract had the need arisen. In light of  Burger King, however, this
contingent type of "contact"  is plainly not enough, as it would alone
and automatically  extend personal jurisdiction over all buyers in
interstate  contract actions, without regard to the parties' actual 
course of dealing and its relation to the forum.


Health Communications, Inc. v. Mariner Corp., 860 F.2d  460, 464-65
(D.C. Cir. 1988). We therefore conclude that  Qatar lacks the minimum
contacts with the United States that 


would make it amenable to suit here consistent with due  process.


III. Conclusion


For the foregoing reasons, we hold that the district court  had subject
matter jurisdiction over this suit but lacked  personal jurisdiction
over Qatar. The judgment of the dis- trict court is therefore


Affirmed.