                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                          F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                           May 29, 2003
                           FOR THE FIFTH CIRCUIT
                                                                     Charles R. Fulbruge III
                                                                             Clerk
                                  No. 02-20882


                    GRAYBAR ELECTRIC COMPANY, INC.,

                                                           Plaintiff-Appellant,

                                     versus

               CHINA NATIONAL OFFSHORE OIL CORPORATION,

                                                           Defendant-Appellee.


            Appeal from the United States District Court
                 for the Southern District of Texas
                            (H-02-CV-100)


Before WIENER and BARKSDALE, Circuit Judges, and FERGUSON, District
Judge*.

PER CURIAM:**

     The    district      court    held        China   National    Offshore      Oil

Corporation     (CNOOC)    entitled       to    immunity   under    the    Foreign

Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602, et seq.                   Graybar

claims:    CNOOC waived its right to claim immunity; alternatively,

under 28 U.S.C. § 1605(a)(2), this action falls within an exception

to immunity.



     *
          District Judge of the Western District of Texas, sitting
by designation.
     **
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
      Having heard oral argument, and based upon our review of the

briefs and pertinent parts of the record, we hold:             CNOOC did not

waive its right to assert immunity, because, inter alia, in its

answer it claimed lack of subject matter jurisdiction; and this

action does not fall within § 1605(a)(2).

      In holding CNOOC entitled to immunity, the district court

reasoned that the third clause of § 1605(a)(2) (immunity exception

“in which the action is based upon ... an act outside the territory

of the United States in connection with a commercial activity of

the foreign state elsewhere and that act causes a direct effect in

the United States”) required the requisite act be non-commercial.

It is not necessary to decide this issue because, for this action,

the   exception   does   not   apply       whether   the   requisite   act   is

commercial or non-commercial.      On the other hand, the § 1605(a)(2)

third clause exception has apparently been applied to commercial

acts.   See, e.g., Republic of Arentina v. Weltover, 504 U.S. 607

(1992) (third clause applied to extension of payment schedules for

bonds); Byrd v. Corporacion Forestal y Industrial de Olancho S.A.,

182 F.3d 380, 389 (5th Cir. 1999) (paraphrasing third clause as “a

commercial activity carried on outside the United States that has

a direct effect in the United States”); Voest-Alpine Trading USA

Corp. v. Bank of China, 142 F.3d 887 (5th Cir. 1998) (third clause




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applied to failure of foreign bank to remit funds to designated

American corporation).

                                                    AFFIRMED




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