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


MARRA, ROSEMARIE

v.

PAPANDREOU, VASO


99-7180a

D.C. Cir. 2000


*	*	*


Silberman, Circuit Judge: The district court dismissed  Rosemarie
Marra's breach of contract action against the  Greek government,
concluding that a forum-selection clause  in the contract compelled
her to sue in Greece. Marra  appeals, arguing that the Greek
government's actions official- ly "revoking" the contract as a whole
bar it from relying on  the forum-selection provision. We affirm.


I.


In 1994 the Greek Ministry of Tourism announced an  international
tender for licenses to operate ten casinos in  specified locations
throughout Greece. A group of investors,  including appellant, formed
a consortium that submitted a $44  million bid for a license to
operate a casino in Flisvos, a  location just outside of Athens. The
consortium submitted  the highest bid for the Flisvos site, and
then-Minister of  Tourism Dionyssis Livanos issued an official
resolution grant- ing the license to the consortium. The license gave
the  consortium the right to construct and operate a luxury casino 
complex in partnership with the Greek government, which  would receive
in exchange both an annual fee and a percent- age of the casino's
profits each year; after thirty years,  ownership of the complex would
pass from the consortium to  the Greek government. The license also
contained a forum- selection clause which (according to the
translation offered by  Marra and accepted by the district court)


[A]ny dispute or disagreement between the State or the  National
Tourism Organization and the [consortium] aris- ing from the
application of this license, the interpretation  or performance of its
terms, the extent of the rights and  obligations of the State and the
holder of the license, and in 


general any matter that may occur concerning a license,  shall be
settled by the Greek courts.


Marra v. Papandreou, 59 F. Supp. 2d 65, 76 (D.D.C. 1999)  ("Papandreou
II").


Shortly after the consortium secured the license, matters  began to go
awry. According to Marra, local political opposi- tion against the
construction of a casino at Flisvos developed,  prompting Minister
Livanos to resign and the Greek govern- ment to begin negotiations
with the consortium towards  relocating the planned casino complex to
a different site near  Athens. These political complexities were
compounded when  Prime Minister Andreas Papandreou resigned because of
 illness, and a new administration took office while relocation 
negotiations were underway. For reasons that are not en- tirely clear
from the record, the new administration was  unfavorably disposed to
the consortium's project, and began  exploring avenues for "recalling"
the license. These efforts  resulted in Minister Livanos's successor,
appellee Vaso Pa- pandreou, issuing a resolution identifying legal
defects in the  licensing process, and accordingly "revok[ing], from
the time  it came into effect" the Ministry of Tourism's earlier
action  granting the Flisvos license to Marra and her partners.


While most of the partners in the consortium began legal  proceedings
in Greece challenging the legality of the license  revocation,
Marra--who owned a nine percent interest in the  consortium--pursued a
different strategy. She sued in the  district court, seeking $1.6
billion in damages from Vaso  Papandreou and other Greek government
entities ("the Greek  government") for breach of contract and unlawful
expropria- tion of property. The Greek government moved to dismiss 
Marra's claim, arguing, among several alternative grounds for 
dismissal, that it was immune from suit under the Foreign  Sovereign
Immunities Act, 28 U.S.C. ss 1330, 1602-1611.  Marra responded that
the Greek government's attempts to  secure American investment in its
casinos brought it within  the "commercial activity" exception to the
FSIA. See id. at  s 1605(a)(2). The district court permitted Marra
limited  jurisdictional discovery--including the right to depose


Greek government officials--to determine whether the FSIA  exception
was applicable. The Greek government filed a  petition for a writ of
mandamus in this court, asking us to  vacate the district court's
discovery order.


We granted the Greek government's petition. See In re  Papandreou, 139
F.3d 247 (D.C. Cir. 1998) ("Papandreou I").  While we agreed with the
district court that the information  sought from the Greek officials
was potentially relevant to  determining the validity of the Greek
government's FSIA  defense, see id. at 252-53, we noted that a
"district court  authorizing discovery to determine whether [FSIA]
immunity  bars jurisdiction must proceed with circumspection, lest the
 evaluation of the immunity itself encroach unduly on the  benefits
the immunity was to ensure." Id. at 253. Since the  Greek government
had asserted several other defenses that  were either "jurisdictional
or ha[d] jurisdictional overtones,"  id. at 254, we directed the
district court to consider such  "alternative non-merits routes to
dismissal" before reaching  the FSIA issue. Id. at 256. We also
observed that, if the  district court were to dismiss Marra's suit on
forum non  conveniens grounds, any such dismissal "could not ... be 
subject to conditions, e.g., a condition that defendants promise  to
submit to the jurisdiction of another court." Id. at 256 n.6.


Following our decision in Papandreou I, the Greek govern- ment moved to
dismiss Marra's complaint on the grounds that  her suit was barred by
the license's forum-selection clause,  and that the District of
Columbia was a forum non conveniens  for Marra's action. Applying the
standard set forth in The  Bremen v. Zapata Off-Shore Oil Co., 407
U.S. 1 (1972), the  district court concluded that the forum-selection
provision  was enforceable, and that its terms compelled Marra to file
 her suit in Greece. See Papandreou II, 59 F. Supp. 2d at 77.  The
court also rejected Marra's argument that the Greek  government's
revocation of the Flisvos license "estopped" it  from relying on a
forum-selection clause within that license.  The district court
observed that Marra's position, if accepted,  would "put[ ] the cart
before the horse," requiring it to  adjudicate the merits of the Greek
government's substantive  defense in order to determine whether the


could rely on the forum-selection clause. Id. at 70. Accord- ingly, the
district court dismissed Marra's suit, but added two  conditions to
the dismissal to ensure that its decision did not  prejudice Marra's
ability to refile her suit in Greece: the  Greek government would have
to waive any applicable statute  of limitations if Marra filed suit in
Greece within six months  of the dismissal, and would have to appoint
an agent in the  United States to receive service of process in the
suit. See  id. at 77. Marra appeals the district court's dismissal of
her  case. The Greek government cross-appeals, arguing that the 
conditions imposed by the district court violated our mandate  in
Papandreou I.


II.


A.


We have a threshold question: did the district court have  jurisdiction
to dismiss the case based on the forum-selection  clause? In
Papandreou I we directed the district court to  consider alternative
defenses before adjudicating the Greek  government's FSIA defense. But
we recognized the district  court's discretion to do so was limited by
Steel Co. v. Citizens  for a Better Environment, 523 U.S. 83 (1998),
in which the  Supreme Court held that a federal court must establish
its  jurisdiction to hear a case before adjudicating its merits. We 
concluded that Steel Company compelled the district court to  address
only "non-merits routes to dismissal," Papandreou I,  139 F.3d at 256;
see also Ruhrgas AG v. Marathon Oil Co.,  526 U.S. 574, 585 (1999)
(courts have discretion to "choose  among threshold grounds for
denying audience to a case on  the merits"), and considered whether
four alternative defens- es advanced by the Greek government met that
definition.  We thought that three of these defenses--standing,
personal  jurisdiction, and forum non conveniens--were
"jurisdictional"  in the Steel Company sense, while the fourth--the
Act of  State doctrine--was not. See Papandreou I, 139 F.3d at 


So we now must decide whether the district court's disposi- tion of the
case on forum-selection clause grounds was such a  "non-merits route
to dismissal." To be sure, we did not state 


that the three threshold defenses discussed in Papandreou I  were the
only options available to the district court. But it  could be argued
that a forum-selection clause inquiry requires  a court to make "an
assumption of law-declaring power," id.  at 255, in a manner that, for
instance, a forum non conveniens  inquiry does not. For while the
validity of a forum-selection  clause can turn on factors
traditionally associated with forum  non conveniens--such as whether
the chosen forum is "seri- ously inconvenient for the trial of the
action," see The Bre- men, 407 U.S. at 16--a court must also address
issues that  would be conventionally understood as going to the
"merits"  of a contract dispute. Indeed, in the decision under review 
the district court examined whether Marra had entered into  the
license's forum-selection clause voluntarily.1 See Papan- dreou II, 59
F. Supp. 2d at 70-71; see also The Bremen, 407  U.S. at 15
(forum-selection clause is valid unless opposing  party can show "that
enforcement would be unreasonable and  unjust, or that the clause was
invalid for such reasons as  fraud or overreaching").


But there is considerable weight on the other side of the  scale as
well. A forum-selection clause is understood not  merely as a contract
provision, but as a distinct contract in  and of itself--that is, an
agreement between the parties to  settle disputes in a particular
forum--that is separate from  the obligations the parties owe to each
other under the  remainder of the contract. See Northwestern Nat'l
Ins. Co.  v. Donovan, 916 F.2d 372, 376 (7th Cir. 1990).2 Thus when a 
court determines that a forum-selection clause is enforceable,  it is
not making "an assumption of law-declaring power" vis-a-




__________

n 1 The district court concluded that Marra had voluntarily entered 
into the forum-selection provision, a conclusion that she does not 
challenge in this appeal.


2 This notion of "severability," first endorsed by the Supreme  Court
in the arbitration clause context, see Prima Paint Corp. v.  Flood &
Conklin Mfg. Co., 388 U.S. 395 (1967), was extended to 
forum-selection provisions in Scherk v. Alberto-Culver Co., 417 U.S. 
506, 519 n.14 (1974). See also Haynsworth v. The Corporation, 121 
F.3d 956, 963 (5th Cir. 1997).


vis other provisions of the contract. While this does not  resolve the
Steel Company inquiry--it could still be said that  a court exercising
a law-declaring power with respect to the  forum-selection provision
is problematic--it focuses the ques- tion on the clause itself,
removing any implication that the  district court in assessing the
forum-selection clause neces- sarily also is reaching the "merits" of
the parties' substantive  claims about the Flisvos license as a whole.
Moreover, while  the forum-selection clause defense is a creature that
has  evaded precise classification,3 most courts and commentators 
have characterized it as a venue objection analogous to a  forum non
conveniens motion or motion for transfer of venue  under 28 U.S.C. s
1404(a). See 15 Wright, Miller & Cooper,  Federal Practice and
Procedure s 3803.1 (2d ed. 1986); cf.  Stewart Organization, Inc. v.
Ricoh Corp., 487 U.S. 22 (1988)  (forum-selection clause considered as
a factor in a section  1404(a) motion); Commerce Consultants Int'l,
Inc. v. Vetrerie  Riunite S.p.A., 867 F.2d 697 (D.C. Cir. 1989)
(affirming  district court's dismissal of a case for improper venue
under  Fed. R. Civ. P. 12(b)(3) after defendants raised forum-
selection clause defense). This analogy to venue is sensible  enough;
as Judge Posner has observed, a forum-selection  clause is best
understood as a potential defendant's ex ante  agreement to waive
venue objections to a particular forum.  See Donovan, 916 F.2d at
375-76. Accordingly while the  district court's inquiry into the
enforceability of the license's  forum-selection clause resembled in




__________

n 3 Indeed, there is some doubt concerning the appropriate proce- dural
vehicle for giving effect to a forum-selection provision. See,  e.g.,
Haynsworth, 121 F.3d at 961 (noting the "enigmatic question of 
whether motions to dismiss on the basis of forum-selection clauses 
are properly brought as motions under Fed. R. Civ. P. 12(b)(1), 
12(b)(3), or 12(b)(6), or 28 U.S.C. s 1406(a)"); Frietsch v. Refco, 
Inc., 56 F.3d 825, 830-31 (7th Cir. 1995); Leandra Lederman, Note, 
Viva Zapata! Toward a Rational System of Forum-Selection  Clause
Enforcement in Diversity Cases, 66 N.Y.U. L. Rev. 422,  432-35 (1991)
(observing that defendants "invoke an assortment of  rules and
concepts"--including subject matter jurisdiction, personal 
jurisdiction, and venue--to transfer or dismiss cases on forum-


its" determination of the sort proscribed by Steel Company,  there are
sound reasons for taking the contrary view.


We need not resolve this question, however, because of the  Greek
government's clarification of its position at oral argu- ment. Counsel
explained that the Greek government's reli- ance on the
forum-selection clause in the district court should  properly be
understood as a waiver of its FSIA defense with  respect to the
clause. We agree, and reject Marra's descrip- tion of this as an
impermissible "selective waiver" of the  Greek government's sovereign
immunity prerogatives. If the  Greek government were sued by Marra for
breach of two  different contracts, it certainly would have the
prerogative to  waive a sovereign immunity defense with respect to one
of  the contracts and invoke that defense for the other. As we 
discussed above, a similar situation is presented here, since a 
forum-selection clause, properly understood, is a separate  contract
in which the parties agree to venue; we therefore  see no reason why
the Greek government should not be able  to waive its FSIA defense
with respect to the forum-selection  clause, but retain that immunity
with respect to the remain- der of the license. Therefore the district
court had jurisdic- tion to address the Greek government's


B.


It is clear to us that the forum-selection clause, if enforce- able,
requires Marra to file her suit in Greece. The clause is  broadly
written, encompassing (even according to Marra's  translation) "any
dispute or disagreement" between the par- ties "arising from the
application of this license, the interpre- tation or performance of
its terms ... and in general any  matter that may occur concerning a
license." Marra points to  language later in the clause stating that
the licensee agrees to  "submit himself to the jurisdiction of the
Greek courts," and  argues that this sentence "indicates that the
parties anticipat- ed the forum-selection clause to apply to actions
brought by  the Greek State against the licensee for breach of the
terms of  the license," and not to suits by Marra against the Greek 


government. We simply cannot accept that interpretation;  nothing in
this sentence in any way modifies the broad  language that precedes
it.4


This brings us to the more difficult issue of the clause's 
enforceability. In The Bremen, the Supreme Court an- nounced that
forum-selection provisions are presumptively  enforceable, jettisoning
the longstanding American judicial  hostility to forum-selection
clauses as founded in the "parochi- al concept that all disputes must
be resolved under our laws  and in our courts." 407 U.S. at 9; see
also Vimar Seguros y  Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S.
528, 537-38  (1995). Marra does not point to factors typically relied
on by  litigants seeking to avoid enforcement of forum-selection 
clauses-for instance, that the clause is the product of fraud or  that
its enforcement would contravene a strong public policy  of the forum
in which suit is brought, see The Bremen 407  U.S. at 10, 15-19-to
overcome The Bremen's presumption of  validity. Rather, she argues
that the Greek government  should be estopped from availing itself of
a forum-selection  clause that is part of a contract that it professes


Each party's position produces an anomaly. Marra notes  that the Greek
government's resolution revoking the Flisvos  license was retroactive
in effect, legally "extinguishing" the  license as of the date it
issued; if that is so, she asks, how can  the Greek government now
seek refuge in a provision of a  nonexistent license? The Greek
government responds that it 




__________

n 4 As noted above, Marra's suit also includes an expropriation  count.
This count, however, simply realleges and incorporates the  paragraphs
of her complaint pertaining to her breach of contract  claim, and adds
the following sentence: "By means of their arbi- trary, capricious,
unjustified and unlawful revocation of plaintiff's  license,
defendants have expropriated plaintiffs' valuable property  rights
without providing prompt, adequate or effective compensa- tion and
therefore in violation of international law." Since Marra's 
expropriation claim is wholly derivative of the Greek government's 
alleged breach of the Flisvos license, it certainly presents a dispute
 "concerning a license" that is covered by the forum-selection provi-


is no less illogical to allow someone to sue under a contract  while at
the same time claiming not to be bound by a  provision within that
contract. Moreover, in the Greek gov- ernment's view, Marra is trapped
in a lose-lose situation in  her attempt to pursue litigation in the
United States: either  the license was indeed lawfully revoked and she
has no cause  of action, or the license is valid and she is bound by
the  license's terms to pursue her case in the Greek courts.


While there is no entirely satisfactory answer to this conun- drum, we
think that the Greek government has the stronger  position. Marra
relies heavily on the implications that flow,  under well-settled
principles of contract law, from a party's  "repudiation" of a
contract. Such a repudiation relieves the  other party from performing
its obligations under that con- tract, see 13 Williston, Contracts s
39:37 (4th ed. 2000); to  put it another way (and in the way preferred
by Marra), once  a party repudiates a contract, it has no right to
demand  performance from the non-repudiating party. This rule, in 
Marra's view, precludes the Greek government from "revok- ing" the
Flisvos license--and repudiating its obligations to  Marra--at the
same time that it avails itself of the forum- selection clause.


The "repudiation" shoe does not quite fit here, for two  reasons.
Adherence to the forum-selection clause is not an  obligation owed by
Marra to the Greek government, but a  condition precedent to suit
under the contract, binding equal- ly on both parties. This is a
distinction with a difference,  since the "rationale behind the rule
that a repudiation of a  contract by one party will excuse the other
party from the  duty to perform contractual obligations and
conditions, is the  prevention of economic waste, in the sense that,
following a  clear repudiation, the other party should not be required
to  perform the formal, economically wasteful, and useless act of 
further performing." Id. This purpose of preventing "waste- ful" and
"useless" acts of performance is not served in any  way by excusing
Marra from compliance with the forum- selection provision. Moreover,
the rule urged by Marra is  contrary to the conceptual understanding,
noted above, of a  forum-selection clause as severable from the


it is contained. Therefore while the Greek government's  denial of its
contractual obligations to Marra relieves her of  her duty to perform
her side of the contract's terms (for  instance, she is no longer
obligated to pay her annual license  fee), that action does not work a
repudiation of the forum- selection clause unless it is specifically
directed at the clause  itself. Were this not the case, as the Greek
government  correctly points out, the value of a forum-selection
clause  would be significantly diminished, since it will often be the 
case that a plaintiff can plausibly allege that the defendant's 
nonperformance constitutes a "repudiation" of its contractual 
obligations precluding it from recourse to the clause.


It is therefore understandable that Marra can point to no  authority
extending this general principle of contract law to  preclude a party
from relying on a forum-selection clause in a  contract. On the
contrary, the Second Circuit has rejected  this argument in the
closely analogous context of a challenge  to the enforcement of an
arbitration clause in its oft-cited  decision in Kulukundis Shipping
Co. v. Amtorg Trading  Corp., 126 F.2d 978 (2d Cir. 1942) (Frank,
C.J.). See also Sky  Reefer, 515 U.S. at 534 (noting that "foreign
arbitration  clauses are but a subset of foreign forum selection
clauses in  general"). In Kulukundis, a defendant in a contract action
 sought to stay the suit pending arbitration pursuant to an 
arbitration clause in the contract. The plaintiff--like Marra 
here--responded that the defendant's denial of the contract's 
existence barred it from recourse to the arbitration clause  therein.
The Second Circuit rejected the plaintiff's estoppel  theory, drawing
on a principle of contract law that is echoed  before us by the Greek


As Williston remarks: "A person who repudiates a contract  wrongfully
cannot sue upon it himself, but if he is sued  upon it, he can be held
liable only according to the terms of  the contract. If, therefore, an
arbitration clause amounts  to a condition precedent ... the defendant
can be held  liable only if that condition is performed, prevented or 
waived."


Arbitration under the [contract] here was a condition pre- cedent.


Kulukundis, 126 F.2d. at 988 (citing 6 Williston, Contracts  s 1921
(rev. ed. 1938)) (ellipsis added). So too here; under  the terms of
the Flisvos license, Marra was obliged to sue in  the Greek courts in
order to recover for breach of the license.  The Greek government
wins, in our view, the battle of dueling  absurdities.


We might have reached a different conclusion had there  been a dispute
as to whether the Flisvos license had been  voluntarily agreed to by
the parties. Then it could be  argued--even if one accepts, as we do,
the position that a  forum-selection clause is severable from the
contract contain- ing it--that if the parties never entered into a
contract in the  first place, they by definition did not agree to the
forum- selection clause, either. Cf. Kulukundis, 126 F.2d at 986, 
988-89 (rejecting estoppel theory, but holding that district  court
must adjudicate the issue of whether parties entered  into an
agreement at all before submitting case to arbitrator).  But the
district court determined, and Marra does not chal- lenge on appeal,
that she freely entered into a broadly  worded forum-selection
agreement; to borrow a formulation  from the arbitration clause
context, Marra offers no challenge  to the "making of the agreement"
between the parties to  adjudicate their disputes in Greece. Prima
Paint, 388 U.S.  at 404. To the contrary, the event that supposedly
renders  the Flisvos license void ab initio took place after the
making  of this agreement. If we were to hold that the validity of a 
contract and that of a forum-selection clause contained within  it are
unavoidably linked in this situation, then two parties  can never
agree to a binding provision in a contract, designat- ing a forum for
the resolution of disputes that might arise  from supervening events
calling into question that contract's  validity. That outcome could
not be squared with the strong  presumption in favor of the
enforcement of forum-selection  clauses established by The Bremen and


III.


We now turn, briefly, to the Greek government's cross- appeal. The
district court attached two conditions to its  dismissal of Marra's
suit, both of which were designed to  protect her ability to pursue a
remedy in Greece; the dis- missal required the Greek government both
to waive any  applicable statute of limitations defense should Marra
refile  her suit in Greece within six months of the dismissal, and to 
appoint an agent to receive process in the United States.  The Greek
government argues that these conditions run afoul  of our decision in
Papandreou I, where we noted that a  subsequent district court
dismissal of the suit on non-FSIA  grounds could not be accompanied by
conditions on the Greek  government. See 139 F.3d at 256 n.6.


Unlike Marra's appeal, this cross-appeal presents no onto- logical
dilemmas. Indeed, as it turns out, it does not present  a question at
all. Marra did not file a suit in Greece within  the six-month period
following dismissal set forth by the  district court, and at oral
argument she (understandably,  since she has not filed suit) disavowed
any interest in serving  process on the Greek government in the United
States. The  questions raised by the cross-appeal are therefore


* * * *


For the foregoing reasons, the judgment of the district  court is
affirmed, and the cross-appeal is dismissed.


So ordered.