    United States Court of Appeals
            FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 15, 2015                        Decided May 31, 2016

                              No. 14-7142

                          DIAG HUMAN, S.E.,
                             APPELLANT

                                     v.

            CZECH REPUBLIC — MINISTRY OF HEALTH
                         APPELLEE


     On Appeal from the United States District Court for the
                     District of Columbia
                     (No. 1:13-cv-00355)


     Hyman L. Schaffer argued the cause for petitioner and
filed the briefs for appellant.

    Alana E. Fortna, argued the cause for respondents. With
her on the brief was Leonard Fornella. Dean A. Calland
entered an appearance.

   Before: TATEL ∗ AND BROWN, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

∗
  Judge Tatel was drawn to replace Chief Judge Garland, who originally
heard argument in this case but did not participate in the opinion. Judge
Tatel has read the briefs, reviewed the record, and listened to the recording
of the oral argument.
                                 2

Opinion filed for the Court by Circuit Judge BROWN.
Dissenting opinion filed by Senior Circuit Judge SENTELLE.

BROWN, Circuit Judge: A medical technologies company,
embroiled in a dispute with the Czech Republic Ministry of
Health, appeals the district court’s decision to dismiss, sua
sponte, its claim for enforcement of a foreign arbitral award
for lack of subject matter jurisdiction. We reverse.

                                 I

     Soviet rule, as the playwright and dissident Václav Havel
said, left “a legacy of countless dead, an infinite spectrum of
human suffering, profound economic decline, and above all
enormous human humiliation.” President Václav Havel,
Address Before a Joint Session of the U.S. Congress (Feb. 21,
1990). Eastern Europe’s transition from Communist rule to
democracy has not been easy. Centralized political systems
were slow to respond to new or emerging needs, including in
health care. For example, after the fall of its communist
government, Czechoslovakia 1 faced a state-run health care
system on the verge of collapse, stagnated health status
indicators, and critical shortages of blood plasma. See Eur.
Observatory on Health Care Systems, Health Care Systems in
Transition: Czech Republic (2000), available at http://
www.euro.who.int/__data/assets/pdf_file/0019/75151/E70931
.pdf.

     The government had little in the way of hard currency
reserves, next to no access to credit, and numerous demands

1
 Czechoslovakia existed as a sovereign state from October 1918
until its peaceful dissolution into the sovereign states of the Czech
Republic and Slovakia on January 1, 1993.
                                3
on its limited resources. See, e.g., Anders Åslund, BUILDING
CAPITALISM: THE TRANSFORMATION OF THE FORMER SOVIET
BLOC (2002). The government was in no position to fund the
nationwide infrastructure required to provide the country with
adequate supplies of blood plasma. The Czech Ministry of
Health needed to provide for blood plasma requirements
without expending large amounts of money up front. Diag
Human offered a creative solution. 2

     Thus in 1990, the Ministry of Health entered into an
agreement with Diag Human, a blood plasma technologies
and production company. Under the “Framework Agreement”
crafted by the parties, the Ministry contracted to purchase the
necessary technical equipment and to provide training for
medical personnel to ensure fractionated blood products
would be safely transported and made available to transfusion
wards throughout the Czech Republic. In lieu of monetary
compensation for its performance under the Framework
Agreement, Diag Human agreed to accept a share of the total
volume of fractionated plasma produced. This alternative
funding arrangement made it possible for the Ministry to
provide the necessary infrastructure despite the country’s
depleted coffers.

     By all accounts, Diag Human performed competently
under the Framework Agreement. The company quickly
established cooperation agreements with twenty state-owned
hospitals and outfitted fourteen transfusion stations with
equipment for plasma collection. The plasma was delivered
to Novo Nordisk, a company that fractionated the plasma
2
  The precise corporate names and identities varied throughout the
facts of this case, but these distinctions are not material to the
present dispute. For simplicity’s sake, we will refer to Diag Human
and its related entities as “Diag Human” throughout.
                             4
outside the Czech Republic, and imported it back into the
country. As agreed, Diag Human offset the cost of these
modernization efforts and sustained a profitable business
model by retaining a portion of the fractionated plasma.

     Nevertheless, when the arrangement was only a few
months old, the Ministry opened a bid tender seeking
cooperation for the production of fractionated blood plasma—
essentially    looking    to    replace     the    Framework
Agreement. Diag Human and two other companies submitted
bids. But shortly after receiving those bids, the Ministry
suspended the tender entirely—allegedly based on
information received from the Czech Federal Police accusing
Diag Human of illegally exporting drugs from the
country. Although Diag Human won the bidding process and
was ultimately cleared of any wrongdoing by the criminal
investigation, the Ministry did not award the new tender to
Diag Human. In the meantime, Diag Human continued to
perform under the existing Framework Agreement.

     In 1991, the Ministry opened a second tender to
supersede the first tender, again seeking cooperation for the
production of fractionated blood plasma. Diag Human again
submitted a bid. But the Ministry rejected the company’s bid
because it relied on a third party (Novo Nordisk) for
fractionation.

     While the second tender was pending, Diag Human
alleges the Ministry sent a letter to Novo Nordisk that has
become the focal point of this dispute. The letter informed
Novo Nordisk that Diag Human had not received the contract
because of the Ministry’s concerns over the company’s
business ethics. Diag Human says that this letter caused
Novo Nordisk to discontinue its business relationship with
Diag Human, Pl.’s Opp. at 7; Def.’s Mem. at 29, which led
                             5
directly to the collapse of Diag Human’s business in the
Czech Republic. Compl. ¶ 9; Pl.’s Opp. at 8; Def.’s Mem. at
2. According to Diag Human, “[t]he clear intention of the
letter was to cripple Diag Human’s ability to perform its
obligations with the Czech Republic by having Novo Nordisk
cease doing business with Diag Human.” Diag Br. at 17. As
a result, Diag Human could no longer perform under the
Framework Agreement, which freed the Ministry to pursue
other options for obtaining fractionated blood.

     In 1996, Diag Human sued the Ministry in the Prague
Commercial Court over the events outlined above, and the
parties agreed to resolve their dispute in arbitration. The
arbitration ended in 2008, with the tribunal concluding that
the Czech Republic and the Ministry had breached their duties
to Diag Human, resulting in commercial losses. The tribunal
awarded damages and interest totaling more than $325 million
to Diag Human.

     Diag Human then filed suit in the district court for the
District of Columbia, seeking to enforce the 2008 arbitration
award against the Czech Republic. Diag Human invoked the
Federal Arbitration Act, 9 U.S.C. § 201, which, among other
things, codifies the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
(the “New York Convention”).

     The district court, however, dismissed the case sua
sponte for lack of subject matter jurisdiction. The district
court concluded that the relationship between Diag Human
and the Ministry was not “commercial” in nature, and
therefore the New          York     Convention    did   not
apply. Additionally, the district court concluded the Czech
Republic had not waived its sovereign immunity under the
                               6
terms of the Foreign Sovereign Immunity Act, 28 U.S.C. §
1605(a)(1).

                               II

     We review a district court’s dismissal of a case for lack
of subject matter jurisdiction de novo. Fisher-Cal Industries,
Inc. v. United States, 747 F.3d 899, 902 (D.C. Cir.
2014). Where jurisdiction is sought over a foreign sovereign
for the enforcement of an arbitral award, we have held two
conditions must be satisfied: “First, there must be a basis
upon which a court in the United States may enforce a foreign
arbitral award; and second, [the foreign sovereign] must not
enjoy sovereign immunity from such an enforcement
action.” Creighton Ltd. v. Gov’t of the State of Qatar, 181
F.3d 118, 121 (D.C. Cir. 1999). Here, we find these two
conditions satisfied. For reasons that will be apparent, we
will proceed in reverse order.

Absence of sovereign immunity. The Foreign Sovereign
Immunities Act “provides the sole basis for obtaining
jurisdiction over a foreign state in the courts of this country.”
Argentine Republic v. Amerada Hess Shipping Co., 488 U.S.
428, 443 (1988). It “bars federal and state courts from
exercising jurisdiction when a foreign state is entitled to
immunity, and … confers jurisdiction on district courts to
hear suits … when a foreign state is not entitled to
immunity.” Id. at 434 (emphasis in original). As relevant
here, the FSIA’s arbitration exception to sovereign immunity
provides that

    [a] foreign state shall not be immune from the
    jurisdiction of courts of the United States … in any
    case … in which the action is brought … to enforce
    an agreement made by the foreign state with or for
                              7
    the benefit of a private party to submit to arbitration
    any or all differences which have arisen or which
    may arise between the parties with respect to a
    defined legal relationship, whether contractual or
    not, … if … the agreement or award is or may be
    governed by a treaty or other international agreement
    in force for the United States calling for the
    recognition and enforcement of arbitral awards.

28 U.S.C. § 1605(a)(6).

     Two aspects of that standard are in dispute here:
(1) whether Diag Human shared with the Czech Republic “a
defined legal relationship, whether contractual or not” and (2)
whether the arbitration award “is or may be governed by a
treaty or other international agreement in force for the United
States.” Id. We answer both of these questions in favor of
Diag Human and conclude that the arbitration exception of
the FSIA is satisfied here.

     First, the 1990 Framework Agreement defined a legal
relationship with the Czech Republic beginning in 1990 with
the Framework Agreement. The agreement set out the
purposes of the cooperative arrangement between Diag
Human and the Czech Republic as “ensur[ing] fractionation
products from frozen human plasma for the needs of
Czechoslovak health care system” and “equip[ping]
cooperating transfusion wards with necessary technical
equipment to increase plasma production possibilities.” JA at
A765. It listed both of the parties to the arrangement and the
“[l]egal conditions of the cooperation,” which included two
Czech statutes. Id. The agreement also detailed the
obligations of each side. For the Czech Republic, this
included organizing and examining donors and freezing and
storing plasma. For Diag Human, it included supplying
                               8
necessary equipment; collecting, storing, and transporting
plasma; training staff at Czech transfusion wards; and
ensuring plasma fractionation in foreign countries. Id. at
A766.    And the agreement made clear that “[t]he
technological equipment supplied to transfusion wards will be
paid for with a share, determined in advance, of the total
volume of plasma prepared for fractionation until the
equipment is repaid.” Id.

     For purposes of the FSIA’s arbitration exception, we
need not determine if the Framework Agreement constituted a
contract. We need only determine that the Framework
Agreement created “a defined legal relationship, whether
contractual or not,” 28 U.S.C. § 1605(a)(6), and we conclude
it did. The agreement explicitly contemplated which parties it
would obligate, the extent of the obligations, the remuneration
exchanged for meeting the obligations, and the legal
framework to govern the arrangement. In this way, the
agreement defined a relationship between the parties, and
given the subject matter of reciprocal obligations and
responsibilities, we have no trouble concluding the
relationship was legal in nature. Whether the agreement was
lacking in other typical contract forms is of no relevance here;
the FSIA explicitly contemplates that some legal relationships
will qualify under § 1605(a)(6) despite not rising to the
formality of a contractual arrangement. The relatively
informal arrangement of the Framework Agreement, then, is
enough to establish a “legal relationship” of the kind
necessary for the FSIA’s arbitration exception to apply.

    The Czech Republic contends any legal relationship it
shared with Diag Human had ended by the time this dispute
arose and that its “interest in developing cooperation . . . to
ensure [the availability of] fractionation products . . . never
came to fruition.” Response Br. at 21. Yet this contention
                                9
rings hollow since by all accounts Diag Human did supply the
necessary training, technology, and coordination required for
modernizing the Czech Republic’s plasma system. That
kind of performance is hardly consistent with a fruitless
arrangement. And Diag Human also “possessed all of the
necessary administrative permits of the [Czech Republic] to
buy plasma” and “was treated as a priority on the Czech
market,” which further indicates that the Czech government
knew of and supported Diag Human’s efforts to meet its
obligations under the Framework Agreement. JA at
A112. Moreover, since the agreement was open-ended, we
cannot conclude that it ended at any time prior to the 1992
letter that is the subject of this dispute. Thus, we conclude
that Diag Human and the Czech Republic shared a legal
relationship at the time of the events giving rise to this case.

     Second, Diag Human has amply demonstrated that its
arbitration award “may be governed by a treaty or other
international agreement,” namely, the New York
Convention. 28 U.S.C. § 1605(a)(6). The New York
Convention is a multilateral treaty providing for “the
recognition and enforcement of arbitral awards” across
international borders. Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (“New York
Convention”), Art. I(1), 21 U.S.T. 2517 (1970). Both the
Czech Republic and the United States are signatories. In the
United States, Congress has codified the Convention in the
Federal Arbitration Act, 9 U.S.C. §§ 202 et seq., which
provides that any “action or proceeding falling under the
Convention shall be deemed to arise under the laws and
treaties of the United States” and that the “district courts of
the United States . . . shall have original jurisdiction over such
an action or proceeding, regardless of the amount in
controversy.” Id. § 203. In the United States, an arbitral
award falls under the Convention when it “aris[es] out of a
                              10
legal relationship, whether contractual or not, which is
considered as commercial.” Id. § 201. The “commercial”
aspect of this standard is optional—chosen (or not) by each
individual signatory. The United States has adopted this
commercial restriction.

     Here, we conclude Diag Human has satisfied its burden
of showing that its arbitration award “may be governed” by
the New York Convention because, as explained above, Diag
Human had a legal relationship with the Czech Republic, and
additionally, that relationship was commercial in nature. We
have previously noted that the Convention does not define the
word “commercial,” and so we have given that word its
established meaning as a term of art in its field. Belize Soc.
Dev. Ltd. v. Belize, 794 F.3d 99, 103−04 (D.C. Cir. 2015). In
the field of international arbitration, “commercial” refers to
“‘matters or relationships, whether contractual or not, that
arise out of or in connection with commerce.’” Id. at 104
(quoting Restatement (Third) of U.S. Law of Int’l Comm.
Arbitration § 1-1 (2012)). Accordingly, a matter may be
commercial even if not contractual, “so long as it has a
connection with commerce.” Id.

     Diag Human’s legal relationship with the Czech Republic
through the Framework Agreement was commercial in
nature. The provision of healthcare technology and medical
services has an obvious connection to commerce. Deane
Waldman, Is Health Care ‘Commerce’?, THE AMERICAN
THINKER (Apr. 15, 2012), http://www.americanthinker.com
/articles/2012/04/is_health_care_commerce.html.         Indeed,
health care, including medical devices and medical care
services, accounts for a significant portion of the global
economy, totaling nearly $6.5 trillion in expenditures last year
alone. Spending on Health: A Global Overview, WORLD
                              11
HEALTH ORGANIZATION (Apr. 2012) http://www.who.int
/mediacentre/factsheet/fs319/en/.

     Under the Framework Agreement, Diag Human agreed to
supply commercial goods to the Czech Republic in the form
of blood plasma technologies and equipment. The fact that
the Czech Republic agreed to fund Diag Human’s investment
in blood plasma technologies through a percentage of blood
plasma collected rather than through an up-front payment
does not change the commercial nature of the relationship,
which turned in large part on the transmission of valuable
commodities from one party to the other. While other
services were also exchanged under the Agreement, it is
enough that some commodities were exchanged as
well. “Commercial” merely means “matters which have a
connection to commerce,” and the Framework Agreement is
clearly connected to commerce. Any “argument to the
contrary will not sell.” Belize Soc. Dev. Ltd., 794 F.3d at 105.

     Thus, we find for Diag Human on both of the contested
FSIA issues here: Diag Human and the Czech Republic
shared a legal relationship, and their arbitration “may” be
governed by the New York Convention. The Czech Republic
is not entitled to sovereign immunity in this matter under the
FSIA’s arbitration exception. 28 U.S.C. § 1605(a)(6).

Basis for a U.S. Court to enforce an arbitration award. To
satisfy our standard for subject matter jurisdiction in an
international arbitration case against a foreign sovereign, we
must assure ourselves not only that the foreign sovereign is
not entitled to sovereign immunity, but also that a basis exists
upon which “a court in the United States may enforce [the]
foreign arbitral award.” Creighton Ltd., 181 F.3d at 121. Our
FSIA analysis in the previous section answers this
question. We have already established that the New York
                               12
Convention, as codified by the United States, grants federal
courts jurisdiction over arbitration disputes that fall within its
ambit. 9 U.S.C. § 203. And we have established that in the
United States, an arbitral award falls under the Convention
when it “aris[es] out of a legal relationship, whether
contractual or not, which is considered as commercial.” Id. §
202. Here, Diag Human’s relationship with the Czech
Republic qualifies as a commercial legal relationship, and the
arbitration at issue here arises out of that commercial legal
relationship. A legal basis exists for federal courts to enforce
this arbitration award, and so we are satisfied that subject
matter jurisdiction exists.

     The dissent sees this matter differently not because it
disagrees with our analysis here, but because it believes that
analysis rests on our resolution of disputed facts, facts which
the district court resolved and to which resolution we are
bound to defer. Dissent Op. at 1. But the dissent confuses
disputed facts with the disputed legal consequences of facts.
The district court determined that a legal relationship did not
exist between these parties. That conclusion is not a factual
one, but a legal conclusion about the importance attributed to
certain facts under the law. The relevant facts here are not in
dispute—the parties agree about the existence of the
Framework Agreement (just not its legal consequences),
about the conduct of the two tender bids (just not why those
bids took place or how they were awarded), and Diag’s
performance of certain blood services in the country (just not
whether that performance was relevant to establishing a legal
relationship). We have resolved only disputed questions of
law, and as to those questions, we appropriately review the
district court’s decision de novo.

    We wrap-up by addressing an issue that arose at oral
argument: whether the arbitration award to be enforced here
                              13
is final and how finality might (or might not) affect the
resolution of this appeal. Though not covered in the briefing,
it seems the arbitration award Diag Human obtained may
have been subsequently reversed by an appellate arbitration
panel, although the legitimacy of that reversal remains
disputed between the parties. This appeal, however, concerns
only whether the district court possessed subject matter
jurisdiction to hear the dispute over the arbitral award. We
have answered that question, and nothing about our holding
suggests an outcome on the merits one way or the
other. Whether the arbitration award is final will be a
question going to the merits of the case, as it could determine
whether the arbitration award can be enforced or not. Our
opinion today expresses no view on the matter. It is enough
for us to establish that the district court possesses subject
matter jurisdiction to proceed with this case.

                             III

    For these reasons, we reverse the holding of the district
court and this case is remanded for further proceedings
consistent with this opinion.
                                                So ordered.
     SENTELLE, Senior Circuit Judge, dissenting: In reversing
the district court’s dismissal for lack of jurisdiction, the
majority discerns error both in the district court’s
determination that the dispute did not come within the New
York Convention and that the Czech Republic had not
otherwise waived its sovereign immunity under the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605(a)(1).
See Maj. Op. at 6. In so concluding, the majority holds that
Diag Human and the Czech Republic had a commercial legal
relationship at the time this dispute arose, thereby bringing the
arbitration award at issue within the scope of the FSIA and
the New York Convention. See 28 U.S.C. § 1605(a)(6); 9
U.S.C. § 202. I see no error in the district court’s finding that
any legal relationship between Diag Human and the Czech
Republic ended before the present dispute. Nor do I conclude
that the Czech Republic has otherwise waived its sovereign
immunity. I would therefore affirm the district court.

     We stated in Herbert v. Nat’l Acad. of Sciences, 974 F.2d
192, 197 (D.C. Cir. 1992), that the procedural posture by
which a district court considers subject-matter jurisdiction
“has a profound effect on the manner in which this Court will
review its disposition.” Where the district court relies only on
“undisputed facts within or outside the pleadings,” our review
is necessarily de novo. Id. “If, however, the trial court rests
not only upon undisputed statements, but determines disputed
factual issues, we will review its findings as we would any
other district court’s factual determinations: accepting them
unless they are ‘clearly erroneous.’” Id. These principles
suffice to dispose of this case.

     First, the district court did not clearly err when it found
that any legal relationship between Diag Human and the
Czech Republic ended before the dispute arose. Diag
Human’s complaint nowhere references a commercial
relationship between the Czech Republic and Diag Human.
See J.A. 388-96. Instead, the complaint avers that the Czech
                               2
Republic’s “actions had illicitly disrupted cooperation
between Diag Human and a second company, Novo
Nordisk, . . . causing it eventually to shut down.” J.A. 390
¶ 9. The district court so concluded when it dismissed Diag
Human’s complaint sua sponte. See Diag Human S.E. v.
Czech Republic-Ministry of Health, 64 F. Supp. 3d 22, 29
(D.D.C. 2014) (“Before entering into the Arbitration
Agreement, plaintiff and defendant did not have any legal
relationship, let alone a commercial one.”).

     Only with its Rule 59(e) motion for reconsideration did
Diag Human provide any evidence, or even an allegation, that
it had an ongoing legal relationship with the Czech Republic.
See J.A. 712-14. Specifically, Diag Human presented the
Declaration of Joseph Stava, which supposedly establishes
such a relationship “through a cooperation program and
Framework Agreement between the Ministry and Diag
Human.” J.A. 813. The district court considered the
statements in the Stava Declaration and, based on those
allegations, agreed “that at one time there was a commercial
relationship between Diag Human and the Ministry.” J.A.
814 (emphasis in original). However, the district court also
found that “the parties’ commercial relationship changed over
time” such that “the commercial relationship between the
parties ended before the dispute at issue in this case arose in
1992.” Id.

     Because the district court resolved disputed issues of fact
when it dismissed Diag Human’s complaint for lack of
subject-matter jurisdiction, we review those findings for clear
error. Herbert, 974 F.2d at 197. I see none. The Stava
Declaration contains myriad facts suggesting that Diag
Human’s relationship with the Czech Republic ended prior to
the dispute. For example, the declaration states that the
Ministry of Health “decided to open a tender for bids for a
                               3
relatively small portion of the work that already was covered
by the Framework Agreement,” suggesting that it did not see
itself as bound by that agreement.            J.A. 740 ¶ 14.
Furthermore, the Ministry of Health allegedly “aided” Diag
Human’s competitors “to discredit Diag.” Id. at 741 ¶ 17.
The Ministry did not award an initial tender to Diag Human
and “took further steps to cut Diag out as a competitor in the
market” while transferring control of Czech hospitals to state
regional offices. Id. at 742 ¶¶ 18-19. The Ministry also “sent
a directive ordering all hospitals to deal exclusively
with . . . parties” other than Diag Human. Id. at 743 ¶ 20.
When the Ministry announced a new tender in 1991 for blood
plasma services supposedly covered by the agreement with
Diag Human, Diag’s bid was unsuccessful. Id. ¶ 22. If
anything, the Stava Declaration suggests that the Czech
Republic affirmatively disavowed any legal relationship it had
with Diag Human. Diag’s alternative argument that its
participation in the tender bids sufficed to create a legal
relationship is specious. Cf. United States v. Comm. Am.
Barge Line Co., 424 F. Supp. 453, 456 (E.D. Mo. 1977)
(“[T]he government is under no obligation to accept bids and
[] no legal relationship arises from the submission of the bid.”
(citation omitted)).

     The majority replaces the district court’s fact-finding
with its own view that “by all accounts Diag Human did
supply the necessary training, technology, and coordination
required for modernizing the Czech Republic’s plasma
system.” Maj. Op. at 9 (emphasis in original); see also id.
(“Moreover, since the agreement was open-ended, we cannot
conclude that it ended at any time prior to the 1992 letter that
is the subject of this dispute.”). Even disregarding the
problem of whether unilateral performance can establish a
legal relationship, “[f]actfinding is the basic responsibility of
district courts, rather than appellate courts . . . .” Pullman-
                               4
Standard v. Swint, 456 U.S. 273, 291 (1982) (citation and
internal quotation marks omitted). Taking the facts as the
district court found them, the New York Convention does not
apply to Diag Human’s claims, meaning that the FSIA, 28
U.S.C. § 1605(a)(6), provides no basis for the district court’s
jurisdiction. Accordingly, I would affirm.

     Second, in my view, the district court did not err in
holding that the Czech Republic did not otherwise waive its
sovereign immunity. As the majority acknowledges, “The
Foreign Sovereign Immunities Act ‘provides the sole basis for
obtaining jurisdiction over a foreign state in the courts of this
country.’” Maj. Op. at 6 (quoting Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)).
Therefore, as the district court held, if the current dispute is
not arbitrable under the New York Convention, then the
district court and derivatively this court have no jurisdiction
unless the dispute comes within one of the other exceptions to
foreign sovereign immunity recognized in the statute. The
only other exception asserted before us is that created by 28
U.S.C. § 1605(a)(1), which applies to “any case . . . in which
the foreign state has waived its immunity either explicitly or
by implication . . . .”

     I see no error in the district court’s conclusion that the
Czech Republic had not explicitly or by necessary implication
waived its sovereign immunity. Diag Human only argues
implied waiver under § 1605(a)(1). See Appellant’s Br. at 48.
“We . . . follow[] the ‘virtually unanimous’ precedents
construing the implied waiver provision narrowly.”
Creighton Ltd. v. Gov’t of State of Qatar, 181 F.3d 118, 122
(D.C. Cir. 1999) (citation omitted). Specifically, “we have
held that implicit in § 1605(a)(1) is the requirement that the
foreign state have intended to waive its sovereign immunity.”
Id. That is to say, “[a]n implied waiver depends upon the
                               5
foreign government’s having at some time indicated its
amenability to suit.” Id. (citation omitted). Because the
district court and I agree that the New York Convention
provides no exception to sovereign immunity for this case,
any implied waiver of the immunity must come from
elsewhere. The only “elsewhere” suggested by Diag Human
is the fact that in the early stages of this litigation, the
Republic moved to dismiss under Rule 12(b)(6) and for forum
non conveniens without raising sovereign immunity. I do not
agree that this is sufficient foundation to constitute an implied
waiver.

     Courts have found waivers of implied sovereign
immunity in three circumstances: “(1) a foreign state has
agreed to arbitration in another country; (2) a foreign state has
agreed that the law of a particular country governs a contract;
or (3) a foreign state has filed a responsive pleading in an
action without raising the defense of sovereign immunity.”
Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905
F.2d 438, 444 (D.C. Cir. 1990).

     While the list from Foremost-McKesson is not
necessarily exhaustive, it serves to illustrate what is not
present in the instant case. For the reasons set forth above,
the New York Convention does not apply to Diag Human’s
arbitral award, meaning the arbitration circumstance is not
present. Appellant makes no argument that the second
circumstance governs. As to the third circumstance, a motion
to dismiss is not a responsive pleading. Cf. Ashraf-Hassan v.
Embassy of Fr., 40 F. Supp. 3d 94, 101 (D.D.C. 2014) (“[A]
motion to dismiss that omits mention of immunity will not
provide sufficient proof of such a conscious decision.”).

   For the reasons stated above, I believe that the New York
Convention is inapplicable to this case, and Diag Human
                               6
otherwise provides no compelling argument to rebut the
presumed immunity of a sovereign. I therefore agree with the
district court’s conclusion that “[n]one of the bases to find an
implied waiver exist in this case.” Diag Human, 64 F. Supp.
3d at 31.

    I respectfully dissent.
