MTN Dismiss

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UNITED STATES DISTRICTCOURT

FOR THE DISTRICTOFCOLUMBIA

TURKCELL LETIIM HIZMETLERI A..AND EAST ASIAN CONSORTIUM B.V. ,

Plaintiffs,

v.

MTN GROUP, LTD. AND MTN

INTERNATIONAL (MAURITIUS) LTD.,

Defendants.

)

)

))

))

)

))

)

Civil Action No. 12-00479 (RBW)

Filed under Seal in Part

MOTION TODISMISS

COME NOW, Defendants MTN Group, Ltd. and MTN International (Mauritius)

Ltd., by and through their undersigned counsel of record, Freshfields Bruckhaus Deringer

US LLP, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6)

and move for dismissal of Plaintiffs Complaint with prejudice and for any other and

further relief that this Court deems just and proper. In support of this Motion, Defendants

direct the Court to the Declaration of Timothy J. Coleman with accompanying exhibits,

the Declaration of Justice Johann Christiaan Kriegler, and the Statement of Points and

Authorities attached hereto and incorporated herein by reference.

Dated: Washington, D.C.

July 2, 2012

FRESHFIELDS BRUCKHAUS DERINGER

US LLP

By: /s/ Timothy J. Coleman___________Timothy J. Coleman (#436415)

701 Pennsylvania Avenue, N.W., Suite 600Washington, D.C. 20004-2692

[email protected]

Attorneys for Defendants

Case 1:12-cv-00479-RBW Document 32 Filed 07/02/12 Page 1 of 59


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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

TURKCELL LETIIM HIZMETLERI A..AND EAST ASIAN CONSORTIUM B.V.,

Plaintiffs,

v.

MTN GROUP, LTD. AND MTN

INTERNATIONAL (MAURITIUS) LTD.,

Defendants.

)

)

))

))

)

))

)

Civil Action No. 12-00479 (RBW)

ORAL ARGUMENT REQUESTED

Filed under Seal in Part

STATEMENT OF POINTS AND AUTHORITIES

IN SUPPORT OF DEFENDANTS MOTION TO

DISMISS THE COMPLAINT OR FOR A STAY

FRESHFIELDS BRUCKHAUS

DERINGER US LLP

701 Pennsylvania Avenue, NW, Suite 600Washington, DC 20004-2692

Telephone: (202) 777-4500

Facsimile: (202) 777-4555Attorneys for Defendants



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i

TABLEOFCONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT .....................................................................................................1

THE COMPLAINT .........................................................................................................................4

PLAINTIFFS LOSE THE ICC ARBITRATION............................................................................6

ARGUMENT.................................................................................................................................10

I. THE COURT LACKS SUBJECT MATTER JURISDICTION UNDER

THE ALIEN TORT STATUTE.........................................................................................11

A. Plaintiffs Alien Tort Statute Claim Fails Because Plaintiffs Do Not Assert

a Violation of the Law of Nations..............................................................12

B. Plaintiffs Fail to State a Claim Based on a Treaty of the U.S....................17

C. Plaintiffs Fail to State a Claim that Defendants Aided and Abetted a

Treaty Violation .........................................................................................21

D. The Court Lacks Supplemental Jurisdiction over Plaintiffs State Law

Claims ........................................................................................................21

II. THE ICC ARBITRATION AWARD BARS PLAINTIFFS PRINCIPAL CLAIMS ......22

A. The Findings in the Award are Dispositive of Plaintiffs Principal

Claims ........................................................................................................22

B. The Award Bars Plaintiffs Principal Claims Under the Doctrine of

Res Judicata ...............................................................................................26

C. Plaintiffs Are Collaterally Estopped from Bringing the

Principal Claims.........................................................................................28

D. The Award Bars Plaintiffs Principal Claims Under the Doctrine of

Comity........................................................................................................30

III. THE COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS ..............30

A. The Court Lacks General Jurisdiction under D.C. and Federal Law.........31

1. Plaintiffs Cannot Rely on Alleged Contacts of MTN Groups

Subsidiaries....................................................................................31



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ii

2. MTNs Alleged Contacts Do Not Establish General Personal

Jurisdiction.....................................................................................32

3. Plaintiffs Have Not Alleged Personal Jurisdiction Over

MTNI .............................................................................................36

4. Exercising Jurisdiction Would Be Inconsistent with Due

Process ...........................................................................................36

B. The Court Lacks Specific Jurisdiction under D.C. Law............................37

IV. THE COURT SHOULD DECLINE TO EXERCISE JURISDICTION ...........................40

A. The Complaint Should Be Dismissed under the Doctrine of Forum

Non Conveniens.........................................................................................40

B. The Act of State Doctrine Bars This Action..............................................42

V. PLAINTIFFS PRINCIPAL NON-FEDERAL CLAIMS ARE TIME-BARRED............43

VI. THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT

OR DEFAMATION...........................................................................................................44

CONCLUSION..............................................................................................................................45



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iii

TABLE OF AUTHORITIES

Page(s)

CASES

* AGS Intl Servs. S.A. v. Newmont USA Ltd.,346 F. Supp. 2d 64 (D.D.C. 2004).........................................................................31, 32, 35, 38

Ali Shafi v. Palestinian Auth.,642 F.3d 1088 (D.C. Cir. 2011)...................................................................................12, 14, 22

Allen v. Russian Fedn,

522 F. Supp. 2d. 167 (D.D.C. 2007)............................................................................33, 34, 35

Am. Petroleum Inst. v. Johnson,

541 F. Supp. 2d 165 (D.D.C. 2008).........................................................................................12

Arndt v. UBS AG,342 F. Supp. 2d 132 (E.D.N.Y. 2004) .....................................................................................12

* Asahi Metal Indus. Co. v. Super. Ct. of Calif. v. Solano Cnty,

480 U.S. 102, 107 S. Ct. 1026 (1987)......................................................................................37

* Ashcroft v. Iqbal,556 U.S. 662, 129 S. Ct. 1937 (2009)................................................................................11, 44

Bancoult v. McNamara,214 F.R.D. 5 (D.D.C. 2003).....................................................................................................37

BBC Chartering & Logistic GmbH & Co.K.G. v. Siemens Wind Power A/S,546 F. Supp. 2d 437 (S.D. Tex. 2008).....................................................................................42

Bell Atl.v. Twombly.

550 U.S. 544, 127 S. Ct. 1955 (2007)......................................................................................17

Buesgens v. Brown,

567 F. Supp. 2d 26 (D.D.C. 2008)...............................................................................28, 30, 31

Burman v. Phoenix Worldwide Indus.,

437 F. Supp. 2d 142 (D.D.C. 2006).........................................................................................36

Burns v. Town of Lamoine,No. Civ. 00-89-B-S, 2000 WL 1612704 (D. Me. Sept. 21, 2000)...........................................28

Busby v. Capital One, N.A.,

772 F. Supp. 2d 268 (D.D.C. 2011).........................................................................................23



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iv

Busse v. Steele,

Case No. 2:10-CV-89-FtM-36TGW, 2010 U.S. Dist. LEXIS 104779 (M.D. Fl. Aug.18, 2010) ..................................................................................................................................28

* Camp v. Kollen,

567 F. Supp. 2d 170 (D.D.C. 2008).........................................................................................28

Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC,

569 F.3d 485 (D.C. Cir. 2009).................................................................................................26

City of Chicago v. Intl Coll. of Surgeons,

522 U.S. 156, 118 S. Ct. 523 (1997)........................................................................................22

Creighton Ltd. v. Govt of State of Qatar,181 F.3d 118 (D.C. Cir. 1999)...........................................................................................34, 36

Discon Inc. v. Nynex Corp.,

86 F. Supp. 2d 154 (W.D.N.Y. 2000)......................................................................................28

Doe v. Nestle, S.A.,

748 F. Supp. 2d 1057 (C.D. Cal. 2010) .............................................................................13, 14

Doe VIII v. Exxon Mobil Corp.,

654 F.3d 11 (D.C. Cir. 2011).......................................................................................12, 22, 41

Dtex, LLC v. BBVA Bancomer, S.A.,

512 F. Supp. 2d 1012 (S.D. Tex. 2007)...................................................................................42

Dubois v. Wash. Mut. Bank,

Civ. No. 09-2176 (RJL), 2010 WL 3463368 (D.D.C. Sept. 3, 2010)......................................43

El-Shifa Pharm. Indus. Co. v. United States,607 F.3d 836 (D.C. Cir. 2010).................................................................................................11

Ellsworth Assoc., Inc. v. U.S.,917 F. Supp. 841 (D.D.C. 1996)..................................................................................23, 24, 25

Estate of Thomson v. Toyota Motor Corp. Worldwide,

545 F.3d 357 (6th Cir. 2008) .............................................................................................41, 42

Evans v. First Mt. Vernon,786 F. Supp. 2d 347 (D.D.C. 2011)...........................................................................................4

FC Inv. Grp. LLC v. IFX Mkts., Ltd.,

529 F.3d 1087 (D.C. Cir. 2008)...............................................................................................34

Fernandez v. Jones,

653 F. Supp. 2d 22 (D.D.C. 2009)...........................................................................................21



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v

Flores v. S. Peru Copper Corp.,

414 F.3d 233 (2d Cir. 2003)...............................................................................................12, 15

Freiman v. Lazur,925 F. Supp. 14 (D.D.C. 1996)................................................................................................39

Hamid v. Price Waterhouse,

51 F.3d 1411 (9th Cir. 1995) ...................................................................................................12

Helms v. Secretary of the Treasury,

21 F. Supp. 1354 (D.D.C. 1989)..............................................................................................19

IIT v. Vencap, Ltd.,

519 F.2d 1001 (2d Cir. 1975)...................................................................................................12

In re Intl Bechtel Co.,

300 F. Supp. 2d 112 (D.D.C. 2005).........................................................................................30

Irwin v. World Wildlife Fund, Inc.,448 F. Supp. 2d 29 (D.D.C. 2006).....................................................................................41, 42

Jennings v. Exelrod,Civ. No. 11-1708 (RWR), 2012 WL 1357554 (D.D.C. Apr. 19, 2012) ..................................44

Jenson v. Huerta,

828 F. Supp. 2d 174 (D.D.C. 2011).........................................................................................27

Jogi v. Voges,

480 F.3d 822 (7th Cir. 2007) ...................................................................................................20

JS Serv. Ctr. Corp. v. Gen. Elec. Tech. Servs. Co.,

937 F. Supp. 216 (S.D.N.Y. 1996) ..........................................................................................15

Kaempe v. Myers,

367 F.3d 958 (D.C. Cir. 2004).................................................................................................24

Khatib v. Alliance Bankshares Corp.,Civ. Action No. 12-00056 (CKK), 2012 WL 668594 (D.D.C. Mar. 1, 2012).........................31

* Kiobel v. Royal Dutch Petroleum Co,

___ U.S. ___, 132 S. Ct. 1738 (2012)......................................................................................12

Kline v. Williams,

Civil Action 05-01102 (HHK), 2012 WL 1431377 (D.D.C. Mar. 23, 2006) ..........................39

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994).................................................................................................................11



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vi

Kroger v. Legalbill.com LLC,

Civ. No. 04-2189 (ESH), 2005 WL 4908968 (D.D.C. Apr. 7, 2005)................................39, 40

Lamb v. Phillip Morris, Inc.,915 F.2d 1024 (6th Cir. 1990) .................................................................................................15

Lapointe v. Note,

Civ. Action No. 03-2128 (RBW), 2004 U.S. Dist. LEXIS 27691 (D.D.C. Nov. 9,

2004) ..................................................................................................................................38, 39

Levermore v. Smith,

Civ. A. No. 87-2158-OG, 1988 WL 110607 (D.D.C. Oct. 12, 1988) .....................................44

Martin v. Dept of Justice,488 F.3d 446 (D.C. Cir. 2007)...........................................................................................28, 29

Maugein v. Newmont Mining Corp.,

298 F. Supp. 2d 1124 (D. Colo. 2004).....................................................................................14

Mazza v. Verizon Wash. D.C., Inc.,

Case No. 11-719 (EGS), 2012 U.S. District LEXIS 43314 (D.D.C. Mar. 29, 2012) ........32, 33

MBI Grp., Inc. v. Credit Foncier du Cameroun,

558 F. Supp. 2d 21 (D.D.C. 2008), affd, 616 F.3d 568 (D.C. Cir. 2010).........................40, 42

McFarlane v. Esq. Magazine,

74 F.3d 1296 (D.C. Cir. 1996).................................................................................................39

McLaughlin v. Bradlee,

599 F. Supp. 839 (D.D.C. 1984)..............................................................................................28

Medellin v. Texas,552 U.S. 491, 128 S. Ct. 1346 (2008)......................................................................................18

Mendonca v. Tidewater, Inc.,159 F. Supp. 2d 299 (E.D. La. 2001), affd, 33 F. Appx 705 (5th Cir. 2002)........................13

Mitchell v. Bannum Place of Wash.,

532 F. Supp. 2d 104 (D.D.C. 2008)...................................................................................27, 28

Moore v. Motz,437 F. Supp. 2d 88 (D.D.C. 2006)...........................................................................................30

Natl Football League Players Assn v. Office & Profl Emps. Intl Union, Local 2,

947 F. Supp. 540 (D.D.C. 1996), affd, 96-7245, 1997 WL 362761 (D.C. Cir. May 6,1997) ........................................................................................................................................24



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vii

Natl Resident Matching Program v. Elec. Residency LLC,

720 F. Supp. 2d 92 (D.D.C. 2010)...........................................................................................38

Natural Res. Def. Council v. EPA,513 F.3d 257 (D.C. Cir. 2008)...........................................................................................26, 27

New Comm Wireless Servs., Inc. v. SprintCom Inc.,

287 F.3d 1 (1st Cir. 2002)........................................................................................................33

Novak v. World Bank,

703 F. 2d 1305 (D.C. Cir. 1983)..............................................................................................28

OAO Alfa Bank v. Center for Public Integrity,

387 F. Supp. 2d 20 (D.C. Cir. 2005)..................................................................................44, 45

Omollo v. Citibank, N.A.,

No. 07 Civ. 9259 (SAS), 2008 WL 1966721 (S.D.N.Y. May 6, 2008).............................41, 42

Orellana v. Croplife Intl,740 F. Supp. 2d 33 (D.D.C. 2010).....................................................................................30, 36

Palmer v. Kawaguchi Iron Works, Ltd.,644 F. Supp. 327 (N.D. Ill. 1986) ............................................................................................35

Parisi v. Sinclair,

Civ. No. 10-897 (RJL), 2012 WL 639280 (D.D.C. Feb. 28, 2012).........................................45

Patton Boggs LLP v. Chevron Corp.,

791 F. Supp. 2d 13 (D.D.C. 2011).....................................................................................23, 25

Roane v. Gonzales,

Civil Action No. 05-2337 (RWR), 2006 U.S. Dist. LEXIS 31781 (D.D.C. Feb. 27,2006) ........................................................................................................................................12

RSM Prod. Corp. v. Fridman,643 F. Supp. 2d 382 (S.D.N.Y. 2009), affd387 F. Appx 72 (2d Cir. 2010)...................14, 19

Rush v. Savchuk,

444 U.S. 320, 100 S. Ct. 517 (1980)........................................................................................36

S.K. Innovation, Inc. v. Finpol,Civ. Action No. 10-138 (JEB), 2012 WL 1259108 (D.D.C. Apr. 16, 2012)...........................11

Sanders v. Wash. Metro. Area Transit Auth.,

819 F.2d 1151 (D.C. Cir. 1987)...............................................................................................28

Sarei v. Rio Tinto PLC,

550 F.3d 822 (9th Cir. 2008) (en banc) ...................................................................................41



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viii

Sarei v. Rio Tinto, PLC,

671 F.3d 736 (9th Cir. 2011) .............................................................................................13, 43

Schattner v. Girard, Inc.,668 F.2d 1366 (D.C. Cir. 1981)...............................................................................................28

Scientific Drilling Intl, Inc v. Gyrodata Corp.,

215 F.3d 1351, 1999 WL 674511 (Fed. Cir. 1999) .................................................................14

Siam Kraft Paper Co. v. Parsons & Whittemore, Inc.,

400 F. Supp. 810 (D.D.C. 1975)..............................................................................................34

Sinochem Intl Co. v. Malay. Intl Shipping Corp.,

549 U.S. 422, 127 S. Ct. 1184 (2007)......................................................................................42

Son v. Kim,

Civil Action No. 04-2318 (JR), 2007 U.S. Dist. LEXIS 22403 (D.D.C. March 28,

2007) ..................................................................................................................................32, 37

* Sosa v. Alvarez-Machain,

542 U.S. 692, 124 S. Ct. 2739 (2004).............................................................................. passim

Tech. Patents, LLC v. Deutsche Telekom AG,

573 F. Supp. 2d 903 (D. Md. 2008).........................................................................................33

Telcordia Techs. Inc. v. Telkom SA, Ltd. No. 02-1990(JR),

2003 U.S. Dist. LEXIS 23726 (D.D.C. July 20,2003).............................................................35

Thomas v. Centennial Commcns Corp.,

No. 05-0495, 2006 U.S. Dist. LEXIS 92555 (W.D.N.C. Dec. 19, 2006)................................33

United States ex. rel. Lujan v. Gengler,510 F.2d 62 (2d Cir. 1975).......................................................................................................18

United States v. Phillip Morris Inc.,116 F. Supp. 2d 116 (D.C. 2000).......................................................................................31, 37

United States v. Zabaneh,

837 F.2d 1249 (5th Cir. 1988) .................................................................................................18

Whiteman v. Fed. Republic of Austria,No. 00 Civ. 8006 (SWK), 2002 WL 31368236 (S.D.N.Y. Oct. 21, 2002)..............................35

World Wide Minerals, Ltd. v. Republic of Kazakhstan,

296 F.3d 1154 (D.C. Cir. 2002)...............................................................................................43

Xuncax v. Gramajo,

886 F. Supp. 162 (D. Mass. 1995) ...........................................................................................21



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ix

Zibiz Corp. v. FCN Tech. Solutions,

777 F. Supp. 2d 408 (E.D.N.Y. 2011) .....................................................................................35

RULES

Fed. R. Civ. P. 4.................................................................................................................31, 32, 37

* Fed. R. Civ. P. 12..............................................................................................................1, 11, 22

Article 1484 of the French Code of Civil Procedure ..................................................................................26

STATUTES

15 U.S.C. 78dd-1 ......................................................................................................................16

15 U.S.C. 78dd-2 ........................................................................................................................16

* 28 U.S.C. 1350.............................................................................................................12, 20, 21

28 U.S.C. 1367(a) .......................................................................................................................21

28 U.S.C. 1367(c) .......................................................................................................................22

D.C. Code 13-334 ........................................................................................................................31

D.C. Code 13-423 ......................................................................................................37, 38, 39, 40

OTHER AUTHORITIES

Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons,1996 I.C.J. 226.........................................................................................................................17

African Union Convention on Preventing and Combating Corruption, July 11, 2003, 43

I.L.M. 5 ....................................................................................................................................20

Council of Europe Criminal Law Convention on Corruption, Jan. 29, 1999, Europe

C.E.T.S. No. 173......................................................................................................................20

Country reports on the implementation of the OECD Anti-Bribery Convention,http://www.oecd.org/document/24/0,3746,en_2649_37447_1933144_1_1_1_37447,0

0.html (last visited May 22, 2012)...........................................................................................16

Devon Maylie, MTN Probes Bribery Claims, Wall St. J., Feb. 4, 2012........................................45

G.A. Res. 58/4, U.N. Doc. A/RES/58/4 (Oct. 21, 2003) ...............................................................17

G.A. Res. 61/89, U.N. Doc. A/RES/61/89 (Dec. 18, 2006)...........................................................17



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* Kiobel v. Royal Dutch Petroleum Co.,

No. 10-1491, 2012 WL 2161290 (June 11, 2012)...................................................................40

Organization of American States, Inter-American Convention against Corruption, Mar.29, 1996, S. Treaty Doc. No. 105-39, O.A.S.T.S. No. B-58, 35 I.L.M. 724 (1996),

http://www.oas.org/juridico/english/Sigs/b-58.html (last visited June 4, 2012) .....................16

Organisation for Economic Co-operation and Development Convention on Combating

Bribery of Foreign Public Officials in International Business Transactions, Nov. 21,

1997, S. Treaty Doc. No. 105-43, 37 I.L.M. 1 (1998).. ...........................................................14

OECD Working Group on Bribery Annual Report 2010, 11.,http://www.oecd.org/dataoecd/7/15/47628703.pdf .................................................................16

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES .......................13, 14

S. EXEC. REP. NO. 109-18 ........................................................................................................17, 18

S. REP. NO. 105-277 (1998) ...........................................................................................................16

Strengthening Governance, Tackling Corruption: The World Banks Updated Strategy

and Implementation Plan (World Bank Group Engagement on Governance andAnticorruption Jan. 17, 2012) available at:

http://siteresources.worldbank.org/PUBLICSECTORANDGOVERNANCE/Resource

s/285741-132681618754/Strengthening..................................................................................21

UN Convention, Art. 15; United Nations Convention against Transnational OrganizedCrime, Art. 8, Nov. 15, 2000, T.I.A.S. 13127, S. Treaty Doc. No. 108-16, 209

U.N.T.S. 2225 ..........................................................................................................................20

United Nations Global Compact, Principle 10 (June 24, 2004), available at:

http://unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle10.html (some

of which are not treaties)..........................................................................................................22



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1

Defendants respectfully submit this statement of points and authorities in support of their

motion to dismiss the Complaint pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the

Federal Rules of Civil Procedure (the Federal Rules).1

PRELIMINARY STATEMENT

This case is nothing more than a commercial dispute between a Turkish company and a

South African company arising from the parties competition for a cellular telephone license in

Iran. It does not belong in this Court because Plaintiffs hollow invocation of the Alien Tort

Statute (ATS)a statute that concerns torts that violate the law of nations or a treaty of the

U.S.does not vest the Court with subject matter jurisdiction to hear this dispute. Nor should it.

This is not a case about grave issues of universal international concern that the ATS addresses

such as piracy and genocide. This case is about one thing: Turkcell trying to get paid by a non-

state actor for an Iranian cellular telephone license that it claims it lost unfairly. We respectfully

submit that a U.S. district court has no business deciding this dispute.

Because the core of Plaintiffs Complaint has no conceivable connection to the U.S., it

should come as no surprise that this Court is not the first to hear Plaintiffs plea for

compensation. It is the fourth. In 2005, Plaintiffs initiated an injunction action in an Iranian

court and later, in 2008, instituted a bilateral investment treaty arbitration against Iran. Plaintiffs

did not stop there. In April 2008, EAC initiated yet another arbitration (the ICC Arbitration),

this one against Iran Electronic Development Company (IEDC), claiming that IEDC violated a

shareholders agreement and seeking compensation for damages for EACs exclusion from a

consortium of investors who were to be awarded the Iranian cellular telephone license. On April

1Defendants MTN Group Ltd. and MTN International (Mauritius) Ltd. (respectively, MTN Group and MTNI)

are referred to collectively herein as Defendants. Plaintiffs Turkcell letiim Hizmetleri A.. and East AsianConsortium B.V. (respectively, Turkcell and EAC) are referred to collectively herein as Plaintiffs. Plaintiffs

complaint in this action is referred to herein as the Complaint and cited as Compl. The Declaration of Timothy J.

Coleman, dated July 2, 2012, is cited as Coleman Decl.



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2

17, 2012, the arbitration panel in the ICC Arbitration (the Tribunal) issued an award (the

Award) in which all of EACs claims were rejected on the merits.

Having failed to obtain relief elsewhere, Plaintiffs have filed yet another complaint,

which does not state a cognizable cause of action and is not properly before this Court. The

Complaint should be dismissed for at least four reasons.

First, the Court lacks subject matter jurisdiction under the ATS, which is the only

purported basis for subject matter jurisdiction in this Court. In its first two Counts, which

purportedly concern violations of the law of nations and U.S. treaties, the Complaint alleges

what amounts to claims for tortious interference with a contract or prospective economic

advantage. See Compl. 205, 212 (alleging that MTN Group tortiously interfere[d] with

Turkcells receipt of the GSM License). Plaintiffs admit as much by asserting common law

claims for tortious interference and conversion arising from the same facts (Counts III through

VI) and asserting only economic damages stemming from a lost business opportunity. The

allegation that the alleged interference took the form of bribery or trading in influence does not

transform this case into a matter of international law or concern.

The ATS is not meant to right alleged business torts. The ATS creates no new causes of

action but simply grants jurisdiction to hear tort claims by aliens in a narrow set of common law

actions that are derived from the law of nations. See Sosa v. Alvarez-Machain, 542 U.S. 692,

724, 124 S. Ct. 2739, 2761 (2004). Plaintiffs would have this Court recognize a new cause of

actiontortious interference with contract through briberybut their Complaint fails to clear

the high bar set by the Supreme Court for doing so under the ATS. Id. at 727, 124 S. Ct. at

2763. This Court should exercise the great caution the Supreme Court requires when



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3

considering whether to extend the ATS (id. at 728, 124 S.Ct. at 2764) and decline Plaintiffs

invitation to recognize a new federal tort for purely commercial claims.

Second, Plaintiffs are barred by res judicata and collateral estoppel from asserting many

of the allegations in their Complaint by the Award.

The Award,

therefore, precludes each of Plaintiffs claims in Counts I through VI (the Principal Claims).

Third, the Court lacks personal jurisdiction over Defendants. MTN Group and MTNI are

each foreign companies, with their principal places of business in South Africa and Mauritius,

respectively. Plaintiffs Principal Claims do not arise out of conduct that occurred in or had an

effect in this District, and Defendants lack the significant contacts with the United States that are

necessary for this Courts exercise of general personal jurisdiction. Calling foreign defendants

with no presence in the U.S. to answer allegations in this Court, regarding events that allegedly

took place in South Africa and Iran, would hardly comport with the traditional notions of fair

play and substantial justice required by due process.

Fourth, even if this Court had jurisdiction to hear this matter (and it does not) and

Plaintiffs Principal Claims were not precluded by the Award (and they are), the Court should

decline to exercise jurisdiction because abstention doctrines including forum non conveniens, the

act of state doctrine, and exhaustion of remedies all counsel against it. Under the doctrine of

forum non conveniens, this action should not be heard in a U.S. court. It should be heard, if

anywhere, in South Africa, which has an actual nexus to the allegations of the Complaint and



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4

provides an adequate alternative forum. The relevant private and public factors, including the

location of all the evidence and witnesses, the administrative burden in hearing the claims here,

and South Africas overriding interest in deciding a lawsuit alleging bribery at the highest levels

of its government, all strongly favor having the case decided there. Further, the allegations of

the Complaintthat a South African telephone company convinced the government of Iran to

award a cellular telephone license to one party and not another, and thereby breached a treaty

with the U.S.raise foreign policy concerns that implicate the act of state doctrine. The Court

should also decline supplemental jurisdiction over Plaintiffs non-federal claims, all but two of

which are precluded by the Award and are time-barred.

For all of these reasons, all of Plaintiffs claims should be dismissed. 2

THE COMPLAINT3

Plaintiffs Complaint concerns an international tender for the development of a mobile

telephone network in Iran. Compl. 1. The Iranian Ministry of Communication and

Information Technology (MCIT) held the tender in 2003, offering the winner a 15-year license

to operate a mobile phone network in Iran (the License). See id 55-56.

Plaintiff Turkcell, a Turkish telecommunications company, participated in the tender

through its wholly-owned subsidiary, Plaintiff EAC. Plaintiffs joined in a consortium bid with

two Iranian companies, IEDC and Parman Ertebat (collectively, the Irancell Consortium). See

id. 17. MTN Group, a South African company, separately formed its own consortium that

2Plaintiffs claims for breach of contract and defamation (Counts VII and VIII) should be dismissed for the

additional reason that they fail to state a claim. Plaintiffs fail to allege, for instance, damages for the alleged breach

or that the allegedly defamatory statement was made with actual malice. See Section VI, infra.

3This summary is drawn from the Complaint, except as otherwise noted. On a motion to dismiss, the Court may

appropriately consider materials outside the pleadings that are either central to the plaintiffs claims, and are thus

incorporated into the Complaint, or are appropriate for the Courts consideration in determining its jurisdiction.

See Evans v. First Mt. Vernon, 786 F. Supp. 2d 347, 352 (D.D.C. 2011). Defendants in no way concede the

accuracy of Plaintiffs allegations.



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included Defendant MTNI (a Mauritius company) and several other Iranian entities. See id.

Nowhere do Plaintiffs allege that any of the participants in the tender were American companies

or that any of the acts relating to the tender or occurring after the tender was complete occurred

in the United States. See id. 55-191.

Ultimately, in February 2004, MCIT announced that the Irancell Consortium had won the

bid and was the provisional winner of the License. See id. 60; id. at Exh. C. As the provisional

winner, the Irancell Consortium (including Plaintiffs) had to complete several contractual

agreements with the Iranian government and clear certain regulatory requirements. Id. 61.

Plaintiffs failed to meet those requirements and did not obtain the License. See id.

The Complaints allegations concerning events prior to February 2004 are

However,

the Complaint glosses over the critical period between the

announcement in February 2004 that the Irancell Consortium provisionally won the License and

MTNIs replacement of EAC in the Irancell Consortium in November 2005. Plaintiffs avoid the

details of this time period, referring vaguely to their difficulties with certain regulatory

requirements imposed by the Iranian government. See id. 61.

Instead, Plaintiffs allege that Defendants took Turkcells position in the Irancell

Consortium by using their high-level political influence within the South African government

to promise Iran: (1) support for the Iranian development of nuclear weapons; and (2) the

procurement of high-tech defense equipment in return for allowing Defendants to participate in

the second mobile telephone network. Id. 4, 64, 68. Defendants allegedly furthered [that



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purported] scheme by bribing and trading in influence with government officials in both Iran and

South Africa in exchange for the License. Id. 4.

Notably, the Complaint does not actually allege that the South African government

supported Iranian nuclear weapons development, that the South African government changed

its position with regards to Irans nuclear policy, or that any high-tech defense equipment was

ever sold. Instead, it alleges that South Africa abstained from one vote in the International

Atomic Energy Agency (IAEA) (see id 153) and later voted againstIran during a 2007 vote

at the U.N. Security Council. Id. 187 (emphasis added). Similarly, the Complaint alleges that

MTNs alleged promise to deliver military equipment remained unfulfilled as of March 2007.

Id. 184-85. And, nowhere does the Complaint allege that Defendants engaged in the sorts of

behavior the ATS traditionally addressessuch as piracy, genocide, or torture.

PLAINTIFFS LOSE THE ICC ARBITRATION

After failing to meet the legal requirements to participate in the Irancell Consortium,

Turkcell and EAC began to seek through litigation and arbitration that which they could not get

through negotiationa share of the income from the License.

First, in September 2005, EAC brought a commercial proceeding in the Tehran Public

Court, which it ultimately lost, seeking an injunction against the MCIT in an attempt to prevent

the issuance of the License to a consortium including MTNI rather than EAC. Coleman Decl.,

Exh. B (Turkcell 2010 Annual Report).4

In the wake of

this initial Turkcell lawsuit, Defendant MTNI entered into an indemnity agreement with IEDC

(the Indemnity Agreement) regarding claims by Turkcell against IEDC. See Declaration of

Sylvia Noury, dated May 24, 2012 [Dkt No. 17] (hereinafter Noury Decl.) 3-5, Exh. A.



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Second, in January 2008, Turkcell initiated a bilateral investment treaty arbitration

against Iran (the BIT Arbitration). Coleman Decl., Exh. E

(Turkcells 2012 First Quarter Report).

That arbitration is pending. Coleman Decl., Exh. E.

Third, in April 2008, Plaintiff EAC initiated the ICC Arbitration,



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ARGUMENT

Defendants move to dismiss the Complaint for lack of subject matter and personal

jurisdiction and for failure to state a claim. Although the Court must accept Plaintiffs



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allegations as true for purposes of this motion,5

see El-Shifa Pharm. Indus. Co. v. United States,

607 F.3d 836, 839 (D.C. Cir. 2010) (en banc), pleadings that . . . are no more than conclusions,

are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct.

1937, 1950 (2009). Only well-pleaded factual allegations should be considered to determine

whether they plausibly give rise to an entitlement to relief. See id.

Defendants submit that the Complaint must be dismissed in its entirety. All of Plaintiffs

claims should be dismissed because the Complaint does not contain sufficient factual matter,

accepted as true, to allow this Court to draw the reasonable inference that Defendants are liable

for the misconduct alleged. See id. at 1949. Plaintiffs only federal law claims (Counts One and

Two) must be dismissed for lack of subject matter jurisdiction and for failure to state a claim,

and the Court should decline to exercise supplemental jurisdiction over the other claims. Counts

Three through Six are time-barred as a matter of law. Plaintiffs other two claims (Counts Seven

and Eight) also fail to state a cognizable claim for relief. Moreover, all of Plaintiffs Principal

Claims must be dismissed for the separate and independent reason that they are precluded by the

findings and judgments of the tribunal in the ICC Arbitration. Finally, the Court should abstain

from exercising jurisdiction in this case, based on the forum non conveniens and act of state

doctrines, inter alia, and because the Court lacks personal jurisdiction over Defendants.

I. THE COURT LACKS SUBJECT MATTER JURISDICTION UNDER THE ALIEN

TORT STATUTE

Plaintiffs have not established that this action falls within the Courts limited subject

matter jurisdiction, Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), which

is especially narrow here because Plaintiffs sole basis for invoking jurisdiction is the ATS, see

5To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear[] the burden of proving that the Court has

subject-matter jurisdiction to hear their claims. S.K. Innovation, Inc. v. Finpol, Civ. Action No. 10-138 (JEB),

2012 WL 1259108, at *4 (D.D.C. Apr. 16, 2012). Because the Complaint fails to state a claim under the ATS,

Counts I and II should also be dismissed pursuant to Federal Rule 12(b)(6).



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Compl. 23. The ATS requires Plaintiffs to allege a tort . . . committed in violation of the law

of nations or a treaty of the United States, 28 U.S.C. 1350, but does not, by itself, create any

causes of action. See Sosa, 542 U.S. at 724, 124 S. Ct. at 2761; Ali Shafi v. Palestinian Auth.,

642 F.3d 1088, 1091 (D.C. Cir. 2011). In determining what offenses are cognizable under the

ATS, courts must proceed with extraordinary care and restraint. Flores v. S. Peru Copper

Corp., 414 F.3d 233, 248 (2d Cir. 2003). Because the Complaint fails to allege a cognizable tort

under the ATS, the Court lacks subject matter jurisdiction, and the Complaint must be dismissed.

A. Plaintiffs Alien Tort Statute Claim Fails Because Plaintiffs Do Not Assert a

Violation of the Law of Nations

Plaintiffs ask this Court to recognize an entirely new federal common law tort which

would allow foreign corporations to sue foreign competitors in a U.S. federal district court for

tortiously interfering with foreign contractual relations through alleged acts of bribery and

trading in influence that took place solely in a foreign country.6

No federal court has recognized

such a claim. Nor has any decision held that the ATS may be used to recover for the type of

purely business injuries that Plaintiffs allege. To the contrary, ordinary commercial claims are

not considered to violate the law of nations. See, e.g., Hamid v. Price Waterhouse, 51 F.3d 1411,

1418 (9th Cir. 1995); IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975); Arndt v. UBS AG,

342 F. Supp. 2d 132, 139 (E.D.N.Y. 2004).

6At the very least, this Court should stay this case pending the outcome of the Supreme Courts decision in Kiobel v.

Royal Dutch Petroleum Company. In Kiobel, the Supreme Court has been asked to consider [w]hether and under

what circumstances the Alien Tort Statute, 28 U.S.C. 1350, allows courts to recognize a cause of action for

violations of the law of nations occurring within the territory of a sovereign other than the United States. Kiobel v.Royal Dutch Petroleum Co, ___ U.S. ___, 132 S. Ct. 1738 (2012). The Supreme Courts resolution of this question

could amend the current law in this Circuit that the ATS confers jurisdiction to hear alien tort claims based on

human rights violations that occurred outside the United States. See Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 26

(D.C. Cir. 2011). Indeed, this Court has demonstrated its authority to stay cases where the Supreme Court is

simultaneously considering issues relevant to their outcome, and it should do so in this case. See, e.g., Am.

Petroleum Inst. v. Johnson, 541 F. Supp. 2d 165, 171 (D.D.C. 2008) (noting decision to stay case pending Supreme

Courts decision in unrelated case involving issues of considerable significance to current case); Roane v.

Gonzales, Civil Action No. 05-2337 (RWR), 2006 U.S. Dist. LEXIS 31781, at * 2 (D.D.C. Feb. 27, 2006) (staying

case pending Supreme Court decision on separate case).



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That no court has ever recognized the sort of ATS claim Plaintiffs bring is no surprise;

none of the acts Plaintiffs allege rise to the high standard set by the Supreme Court in Sosa for a

violation of the law of nations under the ATS. See Sosa, 542 U.S. at 732, 124 S. Ct. at 2765. In

Sosa, the Supreme Court held that courts should require any claim based on the present-day law

of nations to rest on a norm of international character accepted by the civilized world and defined

with a specificity comparable to the features of the 18th-century paradigms previously

recognized by the Supreme Court, including violation of safe conducts, infringement of the

rights of ambassadors, and piracy. Id. at 724-25, 124 S. Ct. at 2765. The Complaint does not

begin to satisfy that exacting standard. Stripped of rhetoric and sensationalism, the Complaint

presents nothing more than a commercial dispute, in which Defendants are alleged to have

interfered with Plaintiffs efforts to invest in a telephone businessnot atrocities that violate the

law of nations. See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED

STATES (the Restatement), 702 (listing genocide and slavery as violations of customary

international law); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 769 (9th Cir. 2011) (holding genocide

and war crimes violates customary international law); Doe v. Nestle, S.A., 748 F. Supp. 2d 1057,

1074-75 (C.D. Cal. 2010) (holding forced labor violates customary international law).

In addition to rejecting commercial torts categorically as ATS claims, courts have

consistently denied ATS claims on bribery. For example, in Mendonca v. Tidewater, Inc., the

District Court for the Eastern District of Louisiana dismissed an ATS claim in which the plaintiff

alleged he was forced to pay bribes by his employer. 159 F. Supp. 2d 299, 301 (E.D. La. 2001),

affd, 33 F. Appx 705 (5th Cir. 2002). The plaintiff based his claim in part on the OECD7

7The Organisation for Economic Co-operation and Development is referred to herein as the OECD.



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Convention regarding bribery of foreign officials,8

one of the international conventions relied

upon by Plaintiffs. See id.; Compl. 198(D). The court rejected the argument that the OECD

Convention enjoyed the universal acceptance in the international community necessary to

satisfy the high ATS standard and dismissed the case. See Mendonca, 159 F. Supp. 2d at 302;

see also RSM Prod. Corp. v. Fridman, 643 F. Supp. 2d 382, 398 (S.D.N.Y. 2009), affd387 F.

Appx 72 (2d Cir. 2010) (questioning whether the OECD Convention, ratified by only 37

countries sufficiently demonstrates that bribery of a foreign public official is a violation of

international law within the meaning of the [ATS]); Maugein v. Newmont Mining Corp., 298 F.

Supp. 2d 1124, 1130 (D. Colo. 2004) (rejecting ATS claim based on allegations that defendant

bribed Peruvian judges). Given that, in this Circuit, not even torture committed by a private

actor falls within the jurisdictional ambit of the ATS, Ali Shafi v. Palestinian Auth., 642 F.3d

1088, 1096 (D.C. Cir. 2011), Plaintiffs bribery claims do not establish jurisdiction.

More broadly, recognized authorities have not contended that bribery, corruption,

influence peddling and other similar claims give rise to actionable claims under customary

international law, or under U.S. domestic law. For instance, the Restatement identifies certain

customary international law violations of human rights, such as genocide, slavery, torture, and

prolonged arbitrary detention, because the prohibitions against them are universally accepted and

their scope and content are generally agreed upon. See 702 and cmt. (a). By contrast, the

Restatement does not refer to corruption, use of influence, or manipulation and only mentions

bribery in a single comment referring to the Foreign Corrupt Practices Act (the FCPA), which

does not include a private right of action. See 414 note 5; Scientific Drilling Intl, Inc v.

Gyrodata Corp., 215 F.3d 1351, 1999 WL 674511, at *3 (Fed. Cir. 1999) (The district court

8Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public

Officials in International Business Transactions, Nov. 21, 1997, S. Treaty Doc. No. 105-43, 37 I.L.M. 1 (1998).



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properly dismissed Gyrodatas FCPA counterclaim because there is no implied private right of

action under the FCPA.); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1027-30 (6th Cir. 1990)

(affirming dismissal of claim on the basis that no private right of action is available under the

[FCPA]); JS Serv. Ctr. Corp. v. Gen. Elec. Tech. Servs. Co., 937 F. Supp. 216, 227 (S.D.N.Y.

1996) (we conclude, as has every other court that has addressed this issue, that no private right

of action exists under the FCPA.). Indeed, even the OECD, which sponsored the OECD

Convention and inspired certain portions of the FCPA, acknowledges that [n]ot long ago,

paying bribes . . . was just a part of business as usual and that many countries gave corporate

tax deductions for these bribe payments. OECD Working Group on Bribery Annual Report

2010, 11, http://www.oecd.org/dataoecd/7/15/47628703.pdf (last visited May 22, 2012).

These repeated refusals to recognize claims similar to those raised by Plaintiffs are

consistent with the Supreme Courts warnings against using judicial creativity to seek out and

define new and debatable violations of the law of nations. See Sosa, 542 U.S. at 728, 124 S. Ct.

at 2763. This warning is particularly apropos in this case, where the hodgepodge of materials

cited by Plaintiffs hardly reflects a universal consensus of a defined rule of law:

None of the authorities cited have an historic lineage comparable to the 18th-century paradigms identified in Sosa; instead, all but one of them were adoptedrecently, within the past 18 years. See Compl. 198.

The treaties and conventions on which Plaintiffs rely are aspirational andconsequently cannot form the basis of an ATS claim. See Sosa, 542 U.S. at 738,124 S. Ct. at 2769 ([c]reating a private cause of action to further that aspiration

would go beyond [the Supreme Courts] residual common law discretion). At

least one federal court, for instance, has held that the four U.N. documents onwhich Plaintiffs rely (see Compl. 198(A, K, L, M)) are not proper sources of

customary international law because [these documents] are merely aspirational

and were never intended to be binding on member States of the United Nations.Flores v. S. Peru Copper Corp., 414 F.3d 233, 259 (2d Cir. 2003).

Plaintiffs cited authorities are not universally or consistently enforced andtherefore do not reflect universal norms of the law of nations. See Flores, 414



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F.3d at 256 (a treaty will only constitute sufficient proofof a norm of customary

international law if an overwhelming majority of States have ratified the treaty,andthose States uniformly and consistently act in accordance with its

principles.) (emphases in original). For instance, the OECD reported that almost

half of countries which signed the OECD Convention have failed to implement

and enforce its prohibitions, including Turkey, Plaintiffs home country.

9

Finally, Congress refusal to create a private right of action for bribery counsels against

inferring a private right of action in ATS cases where Congress has refused to do so in domestic

legislation. See Sosa, 542 U.S. at 727, 124 S. Ct. at 2763 ([E]ven when Congress has made it

clear by statute that a rule applies to purely domestic conduct, we are reluctant to infer intent to

provide a private cause of action where the statute does not supply one expressly. While the

absence of congressional action addressing private rights of action under an international norm is

more equivocal than its failure to provide such a right when it creates a statute, the possible

collateral consequences of making international rules privately actionable argue for judicial

caution.). Congress has repeatedly refused, for instance, to include a private right of action for

bribery in the FCPA both when enacting the FCPA in 1977 and again when amending the FCPA

in 1998 to implement portions of the OECD Convention, which Plaintiffs rely upon here. See

Compl. 198(D); 15 U.S.C. 78dd-1, 78dd-2; S. REP. NO. 105-277 (1998). When the U.S.

ratified the OAS Convention in 2000 (Compl. 198(E)),10 Congress again did not create a

private cause of action, noting that [t]here is an extensive network of laws already in place in

the United States that criminalize a wide range of corrupt acts. Accordingly, the United States

does not intend to enact new legislation. When the U.S. ratified the UN Convention six years

9See Country reports on the implementation of the OECD Anti-Bribery Convention,

http://www.oecd.org/document/24/0,3746,en_2649_37447_1933144_1_1_1_37447,00.html(last visited May 22,

2012).

10Organization of American States, Inter-American Convention against Corruption, Mar. 29, 1996, S. Treaty Doc.

No. 105-39, O.A.S.T.S. No. B-58, 35 I.L.M. 724 (1996).



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later (Compl. 198(A)),11

it did so with the express reservation that [n]one of the provisions of

the Convention creates a private right of action. See S. EXEC. REP. NO. 109-18, at 10.

With respect to Plaintiffs other claims based on corruption, trading in influence, and

manipulation, these claims are merely restatements of Plaintiffs bribery claim. Plaintiffs have

made no effort to distinguish the acts underlying these claims from bribery, and rightly so,

because there is no indication that they implicate any established norms of customary

international law: no state or federal court has ever entertained a claim for a breach of customary

international law based on any of these acts. To recognize these claims as a basis for ATS

jurisdiction would be unprecedented and would unquestionably exceed the boundaries of the

narrow class of international norms today. Sosa, 542 U.S. at 729, 124 S. Ct. at 2764.12

B. Plaintiffs Fail to State a Claim Based on a Treaty of the U.S.

Plaintiffs also attempt to satisfy the ATS by basing jurisdiction on Defendants alleged

violation of a U.S. treaty. Plaintiffs have attempted to make this argument by listing 17

documents, many of which are not treaties, that Defendants allegedly violated. See Compl.

198. None of these documents, however, can form the basis of Plaintiffs claims because

Defendants are not parties to any of these treaties. Moreover, the treaties (i) are not self-

executing and have not been implemented by U.S. legislation creating a private right of action,

11United Nations Convention against Corruption, G.A. Res. 58/4, U.N. Doc. A/RES/58/4 (Oct. 21, 2003).

12MTN does not understand Plaintiffs to be claiming that they were harmed by illicit trafficking of defense

equipment and nuclear proliferation, Compl. 198, because these are not recognized claims under the ATS.

[I]llicit trafficking of defense equipment cannot be a basis for an ATS Claim because of the absence of common

international standards on the import, export and transfer of conventional arms. Towards an Arms Trade Treaty:

Establishing Common International Standards for the Import, Export and Transfer of Conventional Arms, G.A. Res.

61/89, U.N. Doc. A/RES/61/89 at 1 (Dec. 18, 2006). The same is true for nuclear proliferation. See Advisory

Opinion on the Legality of the Threat of Use of Nuclear Weapons, 1996 I.C.J. 226 (holding that [t]here is in neither

customary nor conventional international law any comprehensive and universal prohibition of the threat or use of

nuclear weapons.). Moreover, Plaintiffs allegation that MTN affected Iranian nuclear development by

convincing South Africa to abstain from a single vote of the IAEA is utterly implausible and cannot give rise to

subject matter jurisdiction under Bell Atl.v. Twombly. 550 U.S. 544, 547, 127 S. Ct. 1955, 1960 (2007) (dismissing

complaint because plaintiffs did not nudge[] their claims across the line from conceivable to plausible).



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(ii) do not outlaw any of the acts alleged by Plaintiffs, (iii) in many cases, are not treaties of the

U.S., and (iv) do not establish civil tort claims among private parties.

First, the treaties listed by Plaintiffs cannot serve as a jurisdictional basis for Plaintiffs

claims because they are non-self-executing and do not establish a private right of action absent

implementing legislation. See Sosa, 542 U.S. at 734-35, 124 S. Ct. at 2767 (non-self-executing

treaties do not create private rights of action). Plaintiffs, therefore, lack standing to assert tort

claims under these treaties because treaties are generally designed to protect the sovereign

interests of nations, and it is up to the offended nations to determine whether a violation . . .

occurred and requires redress. United States v. Zabaneh, 837 F.2d 1249, 1261 (5th Cir. 1988).

13

None of the treaties listed by Plaintiffs creates a private right of action. Indeed, two of

them expressly decline to do so. Thus, when the U.S. ratified the UN Convention (see Compl.

165(A)), it expressly declare[d] that the provisions of the Convention . . . are non-self-

executing. None of the provisions . . . creates a private right of action. S. EXEC. REP. NO. 109-

18, at 10. Moreover, the Agreement Concerning Cooperation on Defense and Trade Controls

(see Compl. 198(Q)) explicitly states that THIS AGREEMENT IS NOT INTENDED TO

CREATE, NOR DOES IT CREATE, ANY RIGHTS FOR . . . ANY OTHER THIRD

PARTIES. See Agreement Concerning Cooperation on Defense and Trade Controls, U.S.-

South Africa, Art. III, dated January 24, 1997, T.I.A.S. 12825 (capital letters in original).

Moreover, none of the treaties cited by Plaintiffs have been implemented by legislation

establishing a private right of action. In fact, quite the opposite is true. Plaintiffs point, for

instance, to the OECD Convention and the FCPA, but, as discussed above, Congress repeatedly

13Plaintiffs would lack standing based on these treaties even if they were to argue that a particular treaty intended to

convey benefits to them, because individual rights are only derivative through the states parties to the treaty. See,

e.g., United States ex. rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir. 1975). ([i]nternational agreements, even those

directly benefiting private persons, generally do not create private rights or provide for a private cause of action in

domestic courts.); Medellin v. Texas, 552 U.S. 491, 506 n.3, 128 S. Ct. 1346, 1357 n.3 (2008).



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refused to include a private right of action in the FCPA when effecting it in 1977, again when

amending it in 1988 to implement portions of the OECD Convention, and again when the U.S.

ratified the U.N. Convention in 2006. See pages 15-16, infra.14

Because Congress has refused

to provide a private right of action for bribery, corruption, manipulation, or trading in influence

under these treaties, establishing a judicially created private right of action under the OECD

Convention would contradict Congress intent and would have the perverse result of giving

aliens a remedy for bribery that is unavailable to American citizens under domestic legislation.

Second, even if Plaintiffs could bring a claim under one or more of the treaties, their

failure to identify any specific treaty provision that allegedly confers a private right of action is

fatal to their claim. For example, in Helms v. Secretary of the Treasury, this Court affirmed

dismissal of a claim for breach of the U.N. Charter in part because the plaintiffs in that action

failed to allege that any clause of the U.N. Charter established a private right action. See 721 F.

Supp. 1354, 1359 (D.D.C. 1989). Plaintiffs in this case do no better. Rather than identify a

single clause in any of the treaties or other documents listed in the Complaint as giving rise to a

private right of action, Plaintiffs merely rely on the length of their list of materials to imply that

they have a valid claim.

Plaintiffs do not cite any provision of the treaties or other materials that MTN allegedly

breached because they cannot: rather than outlaw bribery or the other acts enumerated by

Plaintiffs, the treaties and other materials at most create obligations for State Parties to effect

domestic legislation outlawing certain conduct. See RSM, 643 F. Supp. 2d at 398 (denying ATS

claim alleging violation of OECD Convention because it merely required State Parties to pass

criminal legislation). For example, Article 15 of the United Nations Protocol against the Illicit

14B-58 Inter-American Convention Against Corruption, http://www.oas.org/juridico/english/Sigs/b-58.html(last

visited June 4, 2012).



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Manufacturing of and Trafficking in Firearms (the UNFP) (see Compl. 198(M)) requires

each State Party to adopt such legislative and other measures as may be necessary to make

firearms trafficking a criminal offense. Similarly, the conventions dealing with corruption do not

outlaw bribery themselves, but require State Parties to adopt legislation outlawing bribery. See

UN Convention, Art. 15; United Nations Convention against Transnational Organized Crime,

Art. 8, Nov. 15, 2000, T.I.A.S. 13127, S. Treaty Doc. No. 108-16, 209 U.N.T.S. 2225 (requiring

criminalization of corruption); African Union Convention on Preventing and Combating

Corruption, July 11, 2003, 43 I.L.M. 5 (the AUC), Art. 5; Southern African Development

Community Protocol Against Corruption (Aug. 14, 2001) (the SADCP), Art. 4.

Third, Plaintiffs cannot base their claim on the treaties they cite to which the United

States is not a party. See 28 U.S.C. 1350 (granting subject matter jurisdiction over claims

based on a treaty of the United States). Indeed, Plaintiffs claims find no support in many of

the treaties they cite because the United States is not a party to them.15

Fourth, even where a treaty is self-executing and confers individual rights, Plaintiffs have

still not established that a violation of any of the treaties listed in their Complaint constitutes a

tort, as required by the ATS. At least one other Circuit Court of Appeals has held that when the

tortious nature of an ATS claim is in doubt, the ATS cannot support jurisdiction. See Jogi v.

15These non-U.S. treaties include: the AUC, the SADCP, the Council of Europe Civil Law Convention on

Corruption, Nov. 4, 1999, C.E.T.S. No. 174 (the European Civil Law Convention), the Council of Europe

Criminal Law Convention on Corruption, Jan. 29, 1999, Europ. C.E.T.S. No. 173 (signed but not ratified by theU.S.), Anti-Corruption Action Plan (Asian Development Bank and Organization for Economic Co-operation and

Development), Nov. 30, 2001, available at: www.oecd.org/dataoecd/38/24/35021642.pdf, the Strengthening

Governance, Tackling Corruption: The World Banks Updated Strategy and Implementation Plan, (World Bank

Group Engagement on Governance and Anticorruption Jan. 17, 2012) available at:

siteresources.worldbank.org/PUBLICSECTORANDGOVERNANCE/ Resources/285741-

132681618754/Strengthening GovTacklingCorruption1-17-12.pdf, or the United Nations Global Compact, Principle

10 (June 24, 2004), available at: http://unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle10.html (some

of which are not treaties).



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Voges, 480 F.3d 822, 824 (7th Cir. 2007) (denying ATS jurisdiction for a claim under a self-

executing treaty since it is unclear whether the treaty violation . . . amounts to a tort.).

Because Plaintiffs have failed to identify any treaty that was actually violated, this Court

lacks subject matter jurisdiction under the ATS, and this case should be dismissed.

C. Plaintiffs Fail to State a Claim that Defendants Aided and Abetted a Treaty

Violation

Plaintiffs aiding and abetting claim alleging violations by South Africa and Iran of

various treaties, Compl. 207-08, also fails. For the reasons stated in Section I.B above,

Plaintiffs fail to show that Defendants violated a U.S. treaty or that Defendants aided and abetted

any such violation by another. Moreover, Plaintiffs claim that Defendants tortiously

interfere[d] with Plaintiffs receipt of the License falls far short of alleging, as they must under

the ATS, that Defendants committed a tort in violation of . . . a treaty of the United States. 28.

U.S.C. 1350; see also Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) ([O]nly those

treaty provisions that would actually give rise to a tort action by reason of their violation are

implicated by the ATS). Indeed, Plaintiffs have not pointed to a single provision of any treaty

addressing tortious interference with contract. Therefore, Count II must be dismissed.

D. The Court Lacks Supplemental Jurisdiction over Plaintiffs State Law Claims

Because Plaintiffs have failed to establish that the ATSPlaintiffs sole basis for federal

jurisdictionallows this Court to entertain their federal claims, their state claims should be

dismissed as well. Fernandez v. Jones, 653 F. Supp. 2d 22, 32 (D.D.C. 2009) (internal citation

omitted) (dismissing state law claims where federal claims supporting supplemental jurisdiction

are dismissed before trial); see also 28 U.S.C. 1367(a). Thus, this Court lacks jurisdiction over

Plaintiffs non-federal claims, and Counts III through VIII should be dismissed.



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Even if this Court could exercise supplemental jurisdiction over Plaintiffs non-federal

claims, it should decline to do so in its discretion. See City of Chicago v. Intl College of

Surgeons, 522 U.S. 156, 172, 118 S. Ct. 523, 533 (1997) (noting that supplemental jurisdiction

is a doctrine of discretion, not of plaintiffs right.). Plaintiffs non-federal claims present novel

and complex issues of foreign law16 and are based on events that allegedly occurred outside of

the U.S. with no connection to D.C. See 28 U.S.C. 1367(c) (district courts may decline to

exercise supplemental jurisdiction over a claim if, inter alia, the claim raises a novel or

complex issue of State law or for other compelling reasons); see also Ali Shafi, 642 F.3d at

1097 (district court did not abuse discretion by declining to hear claims that arose from events

in another nation where [a]ll parties are citizens of other nations and have no connection with

the United States or specifically, with the District of Columbia). Accordingly, this Court should

decline to exercise supplemental jurisdiction over all of Plaintiffs non-federal claims.

II. THE ICC ARBITRATION AWARD BARS PLAINTIFFS PRINCIPAL CLAIMS

Plaintiffs have already tried this case and lost. They cannot do so again. The Principal

Claims must be dismissed on the basis of res judicata and collateral estoppel because the Award

has resolved the factual and legal issues that are dispositive of the Principal Claims.17

A. The Findings in the Award are Dispositive of Plaintiffs Principal Claims

16South African or Iranian law would most likely apply to the claims in Counts III through VI. See Fed. R. Civ. P.

44.1; Doe VIII v. Exxon Mobil Corp, 654 F.3d at 70 (holding, in an ATS case, that Indonesian law would apply to

the plaintiffs non-federal tort claims because all conduct causing injury occurred in Indonesia).



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B. The Award Bars Plaintiffs Principal Claims Under the Doctrine of Res Judicata



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C. Plaintiffs Are Collaterally Estopped from Bringing the Principal Claims



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D. The Award Bars Plaintiffs Principal Claims Under the Doctrine of Comity

III. THE COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS

The Court lacks personal jurisdiction over Defendants MTN Group, a South African

corporation based in Johannesburg (Compl. 18), and MTNI, a corporation organized under the

laws of Mauritius, an island nation in the Indian Ocean (id. 21), because Plaintiffs failed to

plead facts sufficient to demonstrate that jurisdiction over Defendants is proper under the

applicable local long-arm statute or federal law and that jurisdiction accord[s] with the

demands of due process. Orellana v. Croplife Intl, 740 F. Supp. 2d 33, 38 (D.D.C. 2010); see

also Moore v. Motz, 437 F. Supp. 2d 88, 92 (D.D.C. 2006) (basing personal jurisdiction over

foreign defendants on the D.C. long-arm statute in federal question cases). Although Plaintiffs

claim that the D.C. long-arm statute permits this Court to exercise both specific and general

jurisdiction over Defendants, see Orellana, 740 F. Supp. 2d at 38 (D.C. law applies specific and

general jurisdiction to non-resident defendants), they have failed to allege specific facts on

which personal jurisdiction is based. Buesgens v. Brown, 567 F. Supp. 2d 26, 31 (D.D.C.



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2008). Instead, they have relied on conclusory allegations that cannot support jurisdiction. See

id.; United States v. Phillip Morris Inc., 116 F. Supp. 2d 116, 121 (D.C. 2000) (plaintiffs must

make a prima facie showing of pertinent jurisdictional facts) (emphasis added). Accordingly,

because this Court lacks personal jurisdiction over Defendants under D.C. lawand

consequently under Federal Rule 4(k)(1) and (2)this case should be dismissed.

A. The Court Lacks General Jurisdiction under D.C. and Federal Law

This Court may not exercise jurisdiction over Defendants pursuant to D.C. Code 13-

334(a) (the General Jurisdiction Statute) or Federal Rule 4(k)(1)(A) (see Compl. 26) because

Defendants are not doing business in D.C.and Plaintiffs do not allege otherwise. AGS Intl

Servs. S.A. v. Newmont USA Ltd., 346 F. Supp. 2d 64, 74 (D.D.C. 2004). The doing business

test is coextensive with the due process requirements of the Constitution and requires an

examination of the frequency and volume of the [defendants] transactions with [D.C.]

residents. Id. Plaintiffs misguidedly attempt to meet this test by improperly relying noton

Defendants contacts with D.C., but on those of MTN Groups subsidiaries to imply that MTN

Group and MTNI are doing business in D.C. See Compl. 33-34. These contacts, however,

not only belong to the wrong parties but also are so insignificant that they cannot demonstrate

that Defendants sustained a continuing corporate presence in [D.C.] with the aim of

advancing [their] objectives (Khatib v. Alliance Bankshares Corp., Civ. Action No. 12-00056

(CKK), 2012 WL 668594, at*6 (D.D.C. Mar. 1, 2012), quoting AMF Intl Corp. v. Ralston

Purina Co., 482 A.2d 849, 851 (D.C. 1981)) or that the exercise of personal jurisdiction would

comply with due process.

1. Plaintiffs Cannot Rely on Alleged Contacts of MTN Groups Subsidiaries

The Complaint improperly groups MTN Group with all of its worldwide subsidiaries

(only one of which is a named defendant) as MTN and alleges that the jurisdictional contacts



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of each MTN company should be attributed to MTN Group and the MTN organization as a

whole. Compl. 34. However, Plaintiffs cannot rely on these contacts because they have not

show[n] that [the] subsidiaries are the alter ego of [MTN Group]. AGS, 346 F. Supp. 2d at 84.

Plaintiffs also cannot rely on their alter ego theory because they have not alleged (1) a unity of

interest and ownership between MTN Group and its subsidiaries and (2) that treating the

subsidiarys wrongful acts as those of the subsidiary alone would be inequitable. See Mazza v.

Verizon Wash. D.C., Inc., Case No. 11-719 (EGS), 2012 U.S. District LEXIS 43314, at *32-33

(D.D.C. Mar. 29, 2012) (listing elements of alter ego test). Instead, Plaintiffs merely parrot the

test, declaring that the MTN companieshave unity of ownership and interest and are alter-

egos of one another. Compl. 33. Such conclusory allegations cannot form a basis for

personal jurisdiction.28

See Mazza, 2012 U.S. Dist. LEXIS 43314 at *34 (conclusory statements

do not demonstrate . . . active and substantial control over the other [affiliated party]

defendants). Likewise, Plaintiffs have also failed to plead any facts that show that respecting

the boundaries between MTN Group and its affiliates would sanction fraud or promote

injustice. Id. at 33.

2. MTNs Alleged Contacts Do Not Establish General Personal Jurisdiction

Plaintiffs have failed to plead facts from which this Court could infer that MTN Group

had sufficient contacts with D.C. to be doing business.29 In fact, what Plaintiffs fail to plead is

28For example, Plaintiffs offer no specific allegations concerning the nature of the corporate ownership and

control; failure to maintain corporate minutes or records; failure to maintain corporate formalities; commingling of

funds and assets; diversion of one corporations funds to the others uses; and use of the same office or businesslocation. AGS, 346 F. Supp. 2d at 90. Instead, Plaintiffs have effectively asked this Court to assume that corporate

subsidiaries are automatically alter egos of their parents (see Compl. 27), which this Court has already refused to

do in other circumstances. See AGS, 346 F. Supp. 2d. at 92.

29Plaintiffs alternative argument that this Court may exercise personal jurisdiction over MTN based on its

aggregate contacts with the [U.S.] as a whole pursuant to [Federal Rule] 4(k)(2) also fails because the exercise of

jurisdiction over MTN would not comply with due process. See infra at Section III.A.4; Son v. Kim, Civil Action

No. 04-2318 (JR), 2007 U.S. Dist. LEXIS 22403,at*7 (D.D.C. March 28, 2007) (The due process analysis is no

different under Rule 4(k)(2) than under the D.C. long-arm statute.).



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more enlightening than what they do plead: Plaintiffs do not plead that Defendants have offices,

assets, personnel, or physical business presence in D.C. In other words, Defendants are in no

sense at home in the forum. See id. at *34 n. 13. Instead, Plaintiffs plead four inconsequential

contacts with D.C.: (i) MTN offers top-up services at 7-Eleven stores (including in D.C.); (ii)

customers can bring airtime vouchers to U.S. locations (including D.C.); (iii) MTN contracts

with a company with administrative headquarters in D.C.; and (iv) an MTN director resided in

D.C. See Compl. 43-44, 50, and 52.

To overcome their inability to plead facts showing that Defendants were doing business

in D.C., Plaintiffs improperly allege a series of contacts between MTN Groups subsidiaries and

the U.S. generally. None of these allegations, however, are sufficient to confer jurisdiction.

a. Agreements with U.S. Companies Do Not Create General Jurisdiction

Plaintiffs allegations that (i) two MTN subsidiaries have roaming agreements with U.S.

service providers; (ii) MTN does business with U.S. companies; and (iii) MTN receives

financing from U.S. lenders do not establish general jurisdiction. See Compl. 35-40, 48-51.

First, a roaming agreement with a U.S. carrier30 cannot establish general jurisdiction,

even where additional jurisdictional facts are alleged. See Tech. Patents, LLC v. Deutsche

Telekom AG, 573 F. Supp. 2d 903, 913-14 (D. Md. 2008) (basing jurisdiction on roaming

agreements is inconsistent with due process); see also Thomas v. Centennial Commcns Corp.,

No. 05-0495, 2006 U.S. Dist. LEXIS 92555, at *10 (W.D.N.C. Dec. 19, 2006).

Second, MTNs alleged contracts with U.S. companies do not establish general

jurisdiction because the contracts concerned services outside of the U.S. and most of the U.S.

companies were not in D.C. See Allen v. Russian Fedn, 522 F. Supp. 2d. 167, 196 (D.D.C.

30Although roaming agreements allow customers of foreign telecommunications service providers to use their

phones on the domestic providers network, they do not establish that the foreign provider has any U.S. presence.

See New Comm Wireless Servs., Inc. v. SprintCom Inc., 287 F.3d 1, 4 (1st Cir. 2002).



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2007) (denying jurisdiction where agreements do not relate to U.S.). Indeed, the location of the

contracting parties is less important than where the prior negotiations and contemplated future

consequences of the contract take placein this case, abroad. See Creighton Ltd. v. Govt of

State of Qatar, 181 F.3d 118, 127-28 (D.C. Cir. 1999) (citation omitted) (no jurisdiction where

contacts with forum were necessitated by [plaintiffs] decision to base itself there).

Third, financing arrangements with U.S. lenders do not establish general jurisdiction.

See, e.g., Allen, 522 F. Supp. 2d at 195-96 (Russian company issuing bonds through U.S. bank

lacked continuous and systematic contacts); Siam Kraft Paper Co. v. Parsons & Whittemore,

Inc., 400 F. Supp. 810, 812 (D.D.C. 1975) (securing a loan does not confer jurisdiction on the

local courts). Notably, Plaintiffs do not allege where the negotiations took place, where the

loans were serviced, which MTN entities entered into the arrangements, or any other facts to

show contacts with D.C. See Creighton Ltd., 181 F.3d at 127-28 (considering prior negotiations

and contemplated future consequences, along with the terms of the contract and the parties

actual course of dealing in jurisdictional analysis).

b. Maintenance of Website Does Not Create General Jurisdiction

Plaintiffs allegation that Defendants maintained a website accessible in the U.S. does not

confer general jurisdiction because Plaintiffs fail to allege that people in the U.S. use the website

in a continuous and systematic way. See Compl. 41; FC Inv. Grp. LLC v. IFX Mkts., Ltd.,

529 F.3d 1087, 1092-93 (D.C. Cir. 2008) (focusing on whether D.C. residents actually use

website, rather than simply have access to it). Plaintiffs have made no allegations whatsoever

regarding the use of the website by D.C. residents.

c. U.S. Sales Do Not Create General Jurisdiction

Plaintiffs allegations that MTN offers top-up services, permitting customers in the

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confer general jurisdiction. Plaintiffs fail to provide any detail concerning the MTN entities

engaged in these sales, the volume of sales, and the quantity of contacts with D.C. residents, as

required for the exercise of general jurisdiction. See AGS, 346 F. Supp. 2d at 74 (test for general

jurisdiction requires an examination of the frequency and volume of the [defendants]

transactions with [D.C.] residents) (citations omitted); see also Allen, 522 F. Supp. 2d. at 195

(mere shipment of products to the [U.S.] is not a substantial contact with the forum).

d. MTN Groups Sale of ADRs Does Not Create Jurisdiction

Offering American Depository Receipts (ADRs) to U.S. investors (Compl. 47)

cannot, by itself, establish general jurisdiction. See Allen, 522 F. Supp. 2d at 195 (holding that

ADRs alone cannot establish jurisdiction, but may be considered with other contacts). Many

courts have refused to consider ADRs in their jurisdictional analysis, and some have flatly

rejected the notion that ADRs constitute doing business within the U.S. See Whiteman v. Fed.

Republic of Austria, No. 00 Civ. 8006 (SWK), 2002 WL 31368236, at *6 (S.D.N.Y. Oct. 21,

2002); see also Telcordia Techs. Inc. v. Telkom SA, Ltd. No. 02-1990(JR), 2003 U.S. Dist.

LEXIS 23726, at *11-12 (D.D.C. July 20,2003) (listing stock on U.S. exchange does not

establish jurisdiction).

e. U.S. Residency of Directors Does Create Jurisdiction

Finally, Plaintiffs allegations that MTN directors reside in or near D.C. (Compl. 52-

53) do not show the continuous and systematic contacts required for general jurisdiction. See

Palmer v. Kawaguchi Iron Works, Ltd., 644 F. Supp. 327, 331 (N.D. Ill. 1986) (citing cases). To

the contrary, the mere presence of an employee within the forum state [is] insufficient to confer

general personal jurisdiction over an out-of-state corporate defendant. Zibiz Corp. v. FCN

Tech. Solutions, 777 F. Supp. 2d 408

Documents

MTN Dismiss