2006年7月7日，美国联邦法院哥伦比亚地区巡回法院就仰融诉辽宁省政府案上诉作出判决，认为辽宁省政府的行为属主权行为，维持了哥伦比亚地区法院因缺乏标的管辖权而驳回仰融起诉的一审判决.
一、 仰融其人
他是第一个让社会主义国家的股票在纽约证券交易所成功挂牌的人，也曾是300亿资产的"主人"。然而，过去一年中，他陆续经历了资产清查、职务解除、出走美国……直至被中国辽宁省政府刑事批捕。他越洋起诉中华人民共和国辽宁省政府和中国金融教育基金会资产侵权，成为新中国历史上我国地方政府首次在国外被起诉的案例。
仰融，原沈阳金杯客车制造有限公司董事长、华晨中国汽车控股有限公司董事长兼总裁、上海华晨集团股份有限公司董事长、中国航天华晨汽车有限责任公司董事长、清华大学汽车工程开发研究院理事长……现在他仍然担任所谓华晨系下香港圆通科技董事长以及香港华博财务有限公司总经理。
1992年10月9日，美国纽约交易所，华晨汽车（NYSE.CBA）成为第一家中国国有企业概念股，发行500万股，IPO价格16美元，筹集资金8000万美元，51%控股沈阳金杯客车。这个当时在刘鸿儒(中国第一任证监会主席)看来是"不可能完成的任务"，却被一个叫仰融的人操盘成功了，创造了中国国有企业海外融资第一的案例。
10年来，他又凭借资本运作，成功打造出一个以华晨汽车为主，包括至少4家纽约、香港、上海上市公司及大量非上市公司、资产一度达到300亿人民币被人称之为"华晨迷宫"的华晨系。
一位采访过仰融的记者这样描述他：身材不高、浓眉飞扬、"大背头"永远纹丝不乱的仰融，平时极少把观察他侧面以至背面的机会留给他人。
传媒中，仰融公开的履历总是从20世纪90年代开始说起。即便是补写上前面关于仰融的最初身世，在仰融作为企业家的履历中始终有一段空白。最经常看到关于仰融的介绍是这样的：现年49岁的仰融毕业于西南财经大学，拥有经济学博士学位，他领导的华晨在纽约、中国香港和上海三地都拥有上市公司。在去年的《福布斯》中国富豪排行榜上，仰融以70亿元的资产名列第三。
据了解，仰融祖籍安徽，本人出生在江苏省江阴市北国镇，兄弟4人。仰融初中毕业后，先是做厨师，后来承包小商店，再后来又到江阴市外贸公司，20世纪80年代初去了深圳，几经周折，慢慢走上资本运作之路。但据《中国青年报》报道，仰融曾对人讲过自己在华晨之前的经历，"……在越南打过仗，1988年受了一次大伤，腿断了，头也打开了，三进手术室，奇迹般地、没有残废地活了下来，这以后便开始既珍惜又藐视生命。"
90年代初，仰融初入道时也很寒酸。他在香港注册了一家叫华博财务的公司。当时公司只有借款400万元，员工5、6个，主要业务是为人拆借资金，兼做债券和股票买卖。仰融的第一桶金就是这时积累的。
仰融没说清过自己的来历，更没说清过华晨的出身，他曾说过："华晨出身不好，在当时的条件下，有些事不得不迷。华晨经历的一些事，不管别人怎样迷惑，到今天我可能也没有权力说清楚。"
也许因为这种扑朔迷离，金杯汽车中甚至传闻，"仰融的名字是假的。仰融，就是崇尚金融的意思"。传闻毕竟是传闻。仰融的一位儿时伙伴说："仰融从小就姓仰，只是以前的名字是叫仰勇，什么时候改的名儿也说不好。仰融从小人很聪明，但不安分。"
商海十年，仰融成功了。他一手缔造了一个资产规模达200亿元、旗下掌控六家上市公司的华晨帝国。央视将其评为2001年经济界的十大风云人物。
纵观仰融的发迹史，遭遇“金杯”是其事业的转折点。而“金杯汽车”始终是这个“庞大帝国”的核心。甚至可以说，华晨帝国就是仰融将金杯汽车反复包装的产物。(上述介绍来自网上材料)
二、 仰融案始末
1991年仰融与辽宁省沈阳市成立了一家生产汽车的合资企业。该合资企业名为沈阳金杯客车制造有限公司（沈阳汽车），其主要合作方是由仰融全资拥有的在香港设立的华博财务公司（华博）和沈阳市政府拥有的金杯汽车控股有限公司（金杯）。合资企业设立之时，金杯拥有沈阳汽车60％的股权，华博拥有25％，另一合作方海南华银国际信托投资公司（海南）拥有15％的股权。华博随后收购了海南的股权，使得沈阳汽车的股权结构变为60/40，即金杯控股60％，华博控股40％。
为通过进入美国资本市场从而扩大企业规模，合作方准备将沈阳汽车在纽约证交所上市。仰融作为沈阳汽车的首席执行官和经理，在百慕大成立了百慕大控股有限公司（华晨中国）作为沈阳汽车在纽约证交所上市的融资工具，并将其40％的股权转让给了的华晨中国。金杯亦将其在沈阳汽车的11％股权转让给华晨中国，至此，华晨中国拥有沈阳汽车51％的权益。作为转让11％股权的回报，金杯取得了华晨中国21.57％的股份，使仰融在华晨中国的股份减至78.43%。在向美国证券交易委员会登记股票，筹备在美国的首次公开发行以及纽约证交所上市过程中，中国政府高层官员通知仰融，上市公司的大股东应是一家中国实体，而非某香港私人企业，这样，将是50年来中国公司首次在美国登记和上市。仰融理解如果该上市公司的大股东由一家中国非政府组织担任即可满足中国政府的要求。1992年5月，华博、中国人民银行及另外几家中国政府机构成立了一家非政府组织——中国金融教育发展基金会（基金会）。中国人民银行副行长尚明担任基金会主席，仰融任副主席。
1992年9月，华博将其在华晨中国的股份转让给了基金会。最终，仰融与尚明同意“基金会将为华博托管股份，事实上作为华博的被指定人”，仰融全权管理、控制和支配基金会在华晨中国的股份。被转让的华晨中国的股份以基金会的名义持有。在这一安排下，加之2002年10月华晨中国出售了28.75%的股权，基金会拥有了华晨中国55.85%的股权，金杯拥有15.37％的股权。根据仰融的指示，华博支付了华晨中国股票登记和上市的费用，并为基金会支付了各项管理费用。他还负责华晨中国的主要股东在沈阳汽车的工作，安排为丰田和通用汽车生产汽车。沈阳汽车的所有生产设施均在辽宁省。
与此同时，2002年初，辽宁省政府成立了一个由省长助理领导的“工作小组”。2002年3月，工作小组宣布基金会名下的所有股权，包括仰融在华晨中国的权益，均为国有资产，要求他将这些股份转让给省政府。仰融拒绝之后，工作小组通知仰融和华晨中国董事会，基金会不再承认华博在华晨中国的受益权益。根据辽宁省政府的指示，华晨中国董事会解除了仰融总裁、首席执行官和董事的职务，将工作小组成员安排在这些职务和其他管理职务上。2002年10月，新组建的华晨中国董事会不再支付仰融工资，并于次月解除了其经理职务，终止其劳动合同。辽宁省政府还成立了华晨汽车集团控股有限公司（新华晨），任命省政府官员作为新公司的管理人员。大约两个月后，新华晨以市场价格的6％即1800万美元收购了名义上由基金会为华博托管的华晨中国的股份。新华晨与华晨中国董事会并对剩余的华晨中国的股份，包括纽约证交所交易的股份进行了要约收购，导致2002年12月18日至19日华晨中国股票在纽约证交所停牌。
当工作小组进行收购时，仰融代表华博在各级法院寻求救济。２００２年９月２７日，华博财务向北京高院提出诉讼告中国金融教育基金会，要求确认其在基金会的投资权益，包括华晨股权。2002年10月14日，北京市高级人民法院经济庭正式受理该案。2002年10月18日，辽宁省检察院以涉嫌经济犯罪为名批准逮捕仰融。２００２年１２月２日，华博收到一份通知称，北京高院驳回起诉，并本着“先刑事后民事”的原则将此案移交辽宁省公安厅调查。至此，北京的起诉结束。仰融出走美国。
2002年12月18日，华晨中国在香港发布公告称，辽宁国有独资公司华晨汽车集团控股有限公司同基金会就基金会所持有的39.4%股权正式签署收购协议。2003年1月，仰融以基金会股权不明为由，提请百慕大法院发出禁止令，禁止华晨中国出售其股权。百慕大高等法院经过调查，于2月12日宣布驳回禁止令。
针对仰融在百慕大起诉华晨中国汽车控股有限公司、中国金融教育发展基金会和华晨汽车集团有限公司一案，２００３年１２月３１日，百慕大法院已做出判决，驳回仰融的诉讼。
百慕大诉讼是仰融以华博财务有限公司的名义提出的。华博公司声称其“拥有的华晨中国中的股权，被中国辽宁省政府拥有的华晨集团错误征收”。百慕大法院经对本案事实、证据全面审理，作出判决认定：“华博公司从未拥有华晨中国的任何股权”。法院还认为，华博公司的诉讼不是“可信的诉讼”；华博公司提出“其以信托方式将华晨中国的股权交给基金会”的主张构成“滥用法院程序”；华博公司是在“蓄意误导法院”，没有向法院说明华博公司从未拥有ＣＢＡ股权的证据，是对“重大”事项未作披露的“严重”行为；华博公司“故意向法院隐瞒事实”。据此，ＰｈｉｌｉｐＳｔｏｒｒ大法官在判决书中警告仰融：如果他本人以个人名义重新起诉，就意味着他在此前向法院提交的所有证言都是谎言，希望他不要再做浪费法律资源的事情。
虽然仰融对该判决可以上诉，但熟悉此案的律师都认为，上诉根本没有成功的可能。百慕大法院的判决实际上彻底宣判了仰融对华晨中国资产图谋的破灭。
在百慕大法院驳回禁止令后，2003年8月7日，仰融在美国华盛顿联邦法院以个人名义起诉辽宁省政府，此案在当地时间８月７日一经受理便在海内外引起了巨大反响。一些观察人士认为，事实上，仰融正在将这场私人产权纠纷案作为“人质”，向一个地方政府“挑战”
２００３年８月８日凌晨５点（纽约东部时间８月７日下午），美国华盛顿哥伦比亚特区联邦地区法院立案受理新中国历史上首例美国公民状告中国地方政府的诉讼案：华晨中国汽车控股有限公司（香港上市代码：１１１４；纽约上市代码：ＣＢＡ，下简称“华晨汽车”）的前主席仰融在美国起诉辽宁省政府。
“起诉书”称，原告仰融，Ｒｈｅａ Ｙｅｕｎｇ（仰妻）及华博财务（仰融持７０％股权）因辽宁省不正当行为，财产被不当剥夺。其有关请求包括：辽宁省政府将华晨汽车和其他产权利益还给华博，或以此股份现值补偿原告；废止华晨汽车的交易，命令将此股份和其他产权交还华博，或以此股份现值补偿原告；依华博股份权益金额判决赔偿金，金额由审判证明，和从原告夺走的其他财产；废止华博在华晨股份的交易（指华博将３９．４５％的股权交给基金会），被告将此股份交还华博，或以此股份现值补偿原告；依原告被辽宁省转换的华晨股份及其他产权权益金额判决赔偿金，金额由审判证明；律师费及该案诉讼费；等等。
8月21日，美国联邦法院哥伦比亚特区分庭，就仰融等起诉辽宁省政府非法侵占财产一案，正式向辽宁省政府发出民事案传票，并以特快形式寄往中国司法部，由司法部传送辽宁省政府。该传票称：被告方需在送达后的６０日内答辩，如被告未按时送达答辩，法庭将以缺席判决被告方败诉，并按原告方诉状要求的赔偿请求做出判决。
中国司法部已经拒绝了仰融律师提出的司法文书送达请求。司法部有关人士指出，根据国际法和公认的国际关系准则，任何外国司法机构都不能对另一主权国家、国家机构行使管辖权。根据《海牙送达公约》第13条第一款“执行请求将损害被请求国家主权或利益”的不予送达的规定，中国司法部拒绝了仰融的律师的送达请求，拒绝函已经寄送请求方，并退回仰融的律师的请求及其所附的司法文书。
中国司法部１０月８日拒绝仰融在美诉辽宁省政府产权纠纷案的律师司法文书的送达请求后，次日，美国律师即通过哥伦比亚地方法院，以外交途径将文件
递交到美国国务院，由其下属的特殊领事服务司负责，将该案的法律文书送往中国外交部。
收到美方通过外交途径转递的传票后，辽宁省政府积极出庭应诉，请求美法院驳回仰融的诉讼请求。美国哥伦比亚地区法院审理后认为，辽宁省政府征收华晨中国的股份是主权行为，辽宁省政府享有豁免。地区法院根据美国《联邦民事诉讼规则》在2005年作出判决，驳回仰融的起诉。仰融随后提出上诉，对地区法院拒绝适用商业行为例外提出质疑。
美国上诉法院哥伦比亚特区巡回法庭在2006年7月7日就仰融的上诉作出判决，维持地区法院因缺乏标的管辖权而驳回起诉。（一审、上诉审判决书附后）。
三、 仰融案引发的国际法问题
仰融案在中美法律界引起极大关注，该案涉及众多法律问题，特别是涉及国际私法、国际公法等方面的问题，如涉外案件的域外送达问题、涉外案件的管辖权问题、国家主权豁免问题等。近年来，中国政府在国外特别在美国面临多次被诉。在以往的案件中，中国政府坚持绝对豁免论，并且美国国务院也会出面干预此类案件中。可在近年来的案件中，美国国务院基本不再插手此类案件，而让中国直接出庭应诉，例如，在仰融案件中，美国国务院就没有对美国法院提供有关意见。这些案件涉及问题较多，国际法专业的学生应予特别关注。
四、 仰融案一审、二审判决书
下面是仰融案的一审和二审判决书，希望大家认真研读，体会美国法院作出判决的理由。
一审判决书：
YANG RONG, ET AL., APPELLANTS v. LIAONING PROVINCE GOVERNMENT, A SUBDIVISION OF THE PEOPLE'S REPUBLIC OF CHINA, A FOREIGN STATE, APPELLEE
No. 05-7030
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
452 F.3d 883; 2006 U.S. App. LEXIS 16954
December 5, 2005, Argued
July 7, 2006, Decided
PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Columbia. (No. 03cv01687). Yang Rong v. Liaoning Provincial Gov't, 362 F. Supp. 2d 83, 2005 U.S. Dist. LEXIS 3258 (D.D.C., 2005)
COUNSEL: Bert W. Rein argued the cause for the appellants. Charles O. Verrill, Jr., John A. Hodges, Thomas W. Queen and M. Evan Corcoran were on brief.
Craig A. Hoover argued the cause for the appellee. Jonathan S. Franklin, Christopher T. Handman and Jessica L. Ellsworth were on brief.
JUDGES: Before: HENDERSON, ROGERS and TATEL, Circuit Judges. Opinion for the court filed by Circuit Judge HENDERSON. Concurring opinion filed by Circuit Judge HENDERSON.
OPINION BY: KAREN LECRAFT HENDERSON
OPINION:
[*885] KAREN LECRAFT HENDERSON, Circuit Judge: Appellants Yang Rong, Rhea Yeung and the Broadsino Finance Company, a limited company controlled by Yang Rong and incorporated in Hong Kong, appeal the district court's dismissal of their complaint brought under the Foreign Sovereign Immunities Act (FSIA or Act), 28 U.S.C. § § 1602 et seq., against Liaoning Province (Province), a subdivision of China, for lack of subject matter jurisdiction. On appeal Yang Rong, n1 a Chinese national and permanent resident of the United States, and his fellow appellants argue that the district court erroneously [**2] found that the Province's challenged act was insulated from suit by sovereign immunity. He claims jurisdiction exists under the "commercial activity" exception set out in section 1605(a)(2) of FSIA, which provides that an action does lie against a foreign state if it 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." Id. § 1605(a)(2). We conclude that the "commercial activity" exception is inapplicable to the Province's act and that instead its action was quintessentially sovereign. Accordingly, we affirm the district court's dismissal of the complaint.
n1 In discussing the facts in Part I, "Rong" refers to Yang Rong. In Part II, however, "Rong" refers to all three appellants.
I.
In 1991 Rong and the municipality of Shen Yang, a city in the Liaoning Province in northeast China, entered into a joint venture for automobile production. n2 The principal partners [**3] in the venture, called Shen Yang Jin Bei Passenger Vehicle Manufacturing Company, Ltd. (Shen Yang Automotive), were the Broadsino Finance Company (Broadsino), a Hong Kong-incorporated company wholly owned by Yang Rong, and Jin Bei Automotive Shareholding Company, Ltd. (Jin Bei Shareholding), a corporation owned by the Shen Yang municipal government. At the venture's inception Jin Bei Shareholding owned 60 per cent of Shen Yang Automotive, Broadsino owned 25 per cent and another partner, Hainen Huayin International Trust Investment Company (Hainen), owned 15 per cent. Broadsino subsequently acquired Hainen's shares to effect a 60/40 ownership split in Shen Yang Automotive, that is, Jin Bei Shareholding had 60 per cent ownership and Broadsino had 40 per cent ownership. Compl. P19, reprinted in Joint Appendix (JA) 12.
n2 We take the facts from Rong's complaint, assume them to be true and draw all plausible inferences in his favor. Price v. Socialist People's Libyan Arab Jamahiriya, 352 U.S. App. D.C. 284, 294 F.3d 82, 93 (D.C. Cir. 2002).
[**4]
To expand the venture through access to American capital the partners sought to list Shen Yang Automotive on the New York Stock Exchange (NYSE). Yang Rong, who served as Shen Yang Automotive's chief executive and manager, incorporated Brilliance Holdings Limited (Brilliance Holdings) in Bermuda as [*886] the financing vehicle to obtain a listing on the NYSE and transferred his 40 per cent ownership interest to Brilliance Holdings. Jin Bei Shareholding also transferred 11 per cent of its interest in Shen Yang Automotive to Brilliance Holdings, thereby giving the Bermuda-based company a 51 per cent interest in Shen Yang Automotive. In return for transferring 11 per cent of its interest, Jin Bei Shareholding received 21.57 per cent of Brilliance Holdings stock, thereby reducing Rong's interest in Brilliance Holdings to the remaining 78.43 per cent of its stock. Compl. P20, JA 12. In registering the stock with the Securities and Exchange Commission (SEC), preparing the initial public offering in the United States and listing the stock on the NYSE, senior Chinese government officials informed Rong that a Chinese entity rather than a Hong Kong private company should be the majority shareholder [**5] of the listed company inasmuch as the U.S. registration and listing would be the first for a China-based company in 50 years. Rong understood that the Chinese authorities would be satisfied if the majority interest in the listed company was held in the name of a Chinese non-governmental organization (NGO). 1st Am. Compl. P3, JA 24. Consequently in May 1992, Broadsino, the People's Bank of China and other Chinese governmental entities created the Chinese Financial Educational Development Foundation (Foundation), an NGO. Shang Ming, the deputy governor of the People's Bank of China (Ming), served as the Foundation's chairman while Rong served as vice chairman.
In September 1992, Broadsino transferred its Brilliance Holdings stock to the Foundation. Eventually, Rong and Ming agreed "that the Foundation would hold the shares in trust for Broadsino, in effect acting as the nominee for Broadsino," and that Rong was to have sole authority to manage, control and administer the Foundation's equity interest in Brilliance Holdings. 1st Am. Compl. P28, JA 32-33. The transferred Brilliance Holdings shares were held in the Foundation's name. As a result of this arrangement, as well as the sale [**6] of 28.75 per cent of Brilliance Holdings shares in October 2002, the Foundation held 55.88 per cent of the Brilliance Holdings shares and Jin Bei Shareholding held 15.37 per cent. 1st Am. Compl. P30, JA 34. At Rong's direction, Broadsino paid the costs to register and list the Brilliance Holdings stock and paid various administrative fees to the Foundation. He also managed and directed Brilliance Holdings' primary holding, Shen Yang Automotive, arranging with Toyota and General Motors to manufacture automobiles for those companies. All of Shen Yang Automotive's manufacturing facilities were located in Liaoning Province.
Meanwhile, in early 2002 the Province formed a "Working Committee," headed by the Assistant to the Governor of the Province. In March 2002 the Working Committee declared that all equity interests held in the name of the Foundation, including Rong's interest in Brilliance Holdings, were state assets and demanded that he transfer them to the Province. Compl. P28-29, JA 14-15. After Rong refused, the Working Committee informed Rong and the Brilliance Holdings board of directors that the Foundation no longer recognized Broadsino's beneficial interest in Brilliance Holdings. [**7] At the direction of the Province, the Brilliance Holdings board dismissed Rong as President, CEO and Director and placed Working Committee members in those positions and other management positions. In October 2002 the newly installed Brilliance Holdings board ceased paying Rong a salary, dismissed him as a director the next month and terminated his contract. The Province also formed Huachen Automotive [*887] Group Holdings Company Limited (Huachen) and appointed Province officials as officers of the new company. Approximately two months later Huachen purchased the Brilliance Holdings shares nominally held by the Foundation in trust for Broadsino for $ 18 million, about six per cent of market price. Huachen and the Brilliance Holdings board also made a tender offer for the remaining Brilliance Holdings shares, including those traded on the NYSE, resulting in the suspension of trading of Brilliance Holdings shares on the NYSE from December 18 to December 19, 2002. Compl. P35, JA 17.
As the Working Committee was executing the takeover, Rong, acting for Broadsino, sought relief in various courts. n3 Broadsino initiated proceedings against the Foundation in the Beijing Municipal High Court seeking [**8] a determination of its interest in the assets nominally held by the Foundation, including the Brilliance Holdings stock the Foundation held in trust, but was rebuffed. 1st Am. Compl P38, JA 38. Rong also filed a complaint against the Province in the District of Columbia district court, challenging the Province's "implementation of the scheme to take Plaintiffs' shares, other equity interests, and other property and then to maintain control thereof for its own commercial benefit" under FSIA. 1st Am. Compl. P14, JA 27. The Province moved to dismiss for lack of subject matter jurisdiction, asserting that neither FSIA's commercial activity exception, 28 U.S.C. § 1605(a)(2), nor its expropriation exception, id. § 1605(a)(3), applied. n4 JA 50. The district court agreed, holding that the Province's acquisition of the Brilliance Holdings shares was a sovereign act and the Province was therefore immune from suit. It dismissed the action under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Yang Rong et al. v. Liaoning Provincial Gov't, 362 F. Supp. 2d 83, 103 (D.D.C. 2005). This appeal followed, in [**9] which Rong challenges the district court's rejection of the commercial activity exception. n5
n3 Although the history of the litigation is not set forth in Rong's complaint, Broadsino also brought a lawsuit in Bermuda against Brilliance Holdings, four Brilliance Holdings board members, the Foundation and Huachen to block the stock transfer from the Foundation to Huachen. The Bermuda court refused to enjoin the transfer and on appeal the Bermuda Supreme Court ruled that Broadsino "never owned any shares in [Brilliance Holdings]" and therefore concluded that it was "an abuse of the process of the Court to pursue a claim that [Broadsino] transferred any shares" in Brilliance Holdings to the Foundation. Broadsino Fin. Co. v. Brilliance China Auto. Holdings Ltd. (Sup. Ct. of Berm., Dec. 31, 2003), JA 116. In 2005, the Court of Appeal for Bermuda affirmed, concluding that Broadsino had no beneficial interest in Brilliance Holdings stock and the Foundation, by extension, held no Brilliance Holdings stock in trust for Broadsino. It also found that Brilliance Holdings had paid Broadsino for the latter's interest in Shen Yang Automotive. See Broadsino Fin. Co. v. Brilliance China Auto. Holdings Ltd., (Berm. Ct. App., Mar. 14, 2005), Appellee's Br. Addendum 1, 7.
[**10]
n4 The expropriation exception provides in part that a foreign state may be sued in a U.S. court in a case "in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States." 28 U.S.C. § 1605(a)(3).
n5 Rong does not appeal the district court's decision regarding the expropriation exception. See Appellant's Br. 2 n.1.
II.
We review de novo a district court order dismissing an action brought [*888] under FSIA on the ground of sovereign immunity. Gulf Res. Am., Inc. v. Republic of the Congo, 361 U.S. App. D.C. 434, 370 F.3d 65, 70 (D.C. Cir. 2004). FSIA is "the sole basis for obtaining jurisdiction over a foreign state in our [**11] courts." Peterson v. Royal Kingdom of Saudi Arabia, 332 F. Supp. 2d 189, 195 (D.D.C. 2004) (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S. Ct. 683, 102 L. Ed. 2d 818 (1989)); see also Foremost-McKesson, Inc. v. Islamic Republic of Iran, 284 U.S. App. D.C. 333, 905 F.2d 438, 443 (D.C. Cir. 1990). A foreign state is immune from suit in the United States unless its challenged action comes within one of the exceptions enumerated in the Act. See 28 U.S.C. § 1604. "If the defendant challenges only the legal sufficiency of the plaintiff's jurisdictional allegations, then the district court should take the plaintiff's factual allegations as true and determine whether they bring the case within any of the exceptions to immunity invoked by the plaintiff." Mwani v. bin Laden, 368 U.S. App. D.C. 1, 417 F.3d 1, 15 (D.C. Cir. 2005) (quoting Kilburn v. Socialist People's Libyan Arab Jamahiriya, 363 U.S. App. D.C. 87, 376 F.3d 1123, 1127 (D.C. Cir. 2004)). If a foreign state "argues that even if taken as true, the [plaintiff's] allegations are insufficient to come [**12] within the commercial activity exception[, t]his amounts to a challenge to the legal sufficiency of the allegations." Id. "[J]urisdiction will not obtain," and the court may dismiss a complaint on that basis, "if the cause of action is based on a sovereign activity." Millen Indus., Inc. v. Coordination Council for N. Am. Affairs, 272 U.S. App. D.C. 240, 855 F.2d 879, 885 (D.C. Cir. 1988).
FSIA's commercial activity exception provides that a foreign state is not immune from suit in a U.S. court if its challenged act is "based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or 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." 28 U.S.C. § 1605(a)(2). In determining whether the "commercial activity" exception applies, the court looks to the character of the foreign state's exercise of power rather than its effects. See Saudi Arabia v. Nelson, 507 U.S. 349, 360, 113 S. Ct. 1471, 123 L. Ed. 2d 47 (1993) [**13] (foreign state engages in commercial activity if it exercises "only those powers that can also be exercised by private citizens" as opposed to those "powers peculiar to sovereigns") (quotations omitted); Republic of Argentina v. Weltover, 504 U.S. 607, 614, 112 S. Ct. 2160, 119 L. Ed. 2d 394 (1992) (sovereign engages in commercial activity if it acts "not as a regulator of a market, but in the manner of a private player within it"; issue is whether "the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a party engages in trade and traffic or commerce") (emphasis in original) (quotations omitted).
Here Rong claims that the Province's "implementation of the scheme to take Plaintiff's shares, other equity interests, and other property and then to maintain control thereof for its own commercial benefit," 1st Am. Compl. P14, JA 27, was "commercial activity" under the third clause of 28 U.S.C. § 1605(a)(2), that is, 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. [**14] " In Weltover, the United States Supreme Court declared that the analysis of the third clause of section 1605(a)(2) proceeds in three parts: 1) the lawsuit must be based upon an act that took place outside the territory of the United States; 2) the act must have been taken in connection with a commercial activity, and 3) the act must have caused a [*889] direct effect in the United States. Weltover, 504 U.S. at 611. Here there is no dispute that the act took place outside the U.S. The questions in dispute are (1) whether the Province's act was done "in connection with a commercial activity" in China, and (2) if so, whether it caused a "direct effect in the United States." Because we answer the first question in the negative, we do not reach the second.
In Weltover, the Argentine government had issued bonds, or "Bonods," which provided for repayment in U.S. dollars and permitted the bondholder to specify one of four cities, including New York City, as the location where payment was to be made on the date the bonds matured. When the maturity date arrived, Argentina was unable to meet its obligations and attempted to reschedule the payments unilaterally. Several bondholders [**15] balked, demanding full payment in U.S. dollars and naming New York City as the place of payment. When Argentina failed to make the payments, the bondholders sued, asserting subject matter jurisdiction under the commercial activity exception of section 1605(a)(2) of FSIA. The Supreme Court agreed with the bondholders, concluding that Argentina's issuance of a "garden-variety" debt instrument was indistinguishable from the actions of a private party engaged in commerce. In issuing the Bonods Argentina was participating in the market as a private actor, not as a sovereign. Because that act underlay the bondholders' claims and the nonpayment of bonds to be paid in New York City had a direct effect in the United States, the third clause of section 1605(a)(2) applied and Argentina could be sued in federal court under FSIA. Weltover, 504 U.S. at 612-17.
The parties here do not agree on the conduct of the Province that forms the basis of Rong's suit. Rong focuses on the Province's activities in toto--including Shen Yang City's initial participation in the Shen Yang Automotive joint venture, the Working Committee's establishment of Huachen, the transfer of Brilliance [**16] Holdings shares from the Foundation to Huachen and Huachen's tender offer for the outstanding publicly traded Brilliance Holdings shares--and claims they are the acts of a private player participating in the marketplace. The Province, on the other hand, focuses on Rong's allegation that his property "was wrongfully taken . . . by the Liaoning Provincial Government"; the Province asserts Rong accuses it of expropriating Broadsino's equity interest in Brilliance Holdings and expropriation is a quintessential governmental act. Appellee's Br. 17-18 (citing 1st Am. Compl. PP1, 37, 53, JA 23, 37, 43). According to the Province, any act it committed after it gained control of the Foundation and the Brilliance Holdings shares--including the transfer of those shares to Huachen--relates to the ultimate disposition of the already expropriated assets; those acts, the Province continues, cannot transform the initial expropriation into commercial activity. Id. 22-23. Rong contends that the Working Committee was formed to take over Brilliance Holdings through the Foundation; that act, maintains the Province, forms the basis of the complaint and is one that can be performed only by a state [**17] as sovereign.
It may be true that in some respects the Working Committee's takeover of the Foundation and its ownership of the Brilliance Holdings shares seem commercial--for example, removing Yang Rong from the Brilliance Holdings board and placing Working Committee officials in those same positions. But all of these acts flow from the Working Committee's "state assets" declaration--an act that can be taken only by a sovereign. Rong is correct that this [*890] case has some similarity to Foremost-McKesson, supra, where we found the Republic of Iran's takeover of a dairy business commercial, in part because there was "no indication that Iran nationalized Pak Dairy by taking it over through a process of law," no formal declaration by the government of Iran that a takeover was to occur and no "statutory restrictions or governmental decrees or directives" referring to the takeover. Foremost-McKesson, 905 F.2d at 449-50. In Foremost-McKesson, however, the plaintiff and various instrumentalities of Iran entered into a formal contract for an agreed-upon venture; the commercial activity there was the sovereign instrumentalities' use of their "majority position [**18] to lock the appellee out of the management of the dairy and to deny the appellee its share of the company's earnings." Id. at 439. We affirmed the district court's conclusion that those allegations "sound[ed] in the nature of a corporate dispute between majority and minority shareholders"--allegations of breach of contract and of the directors' duty of care, with the only distinction being that the majority shares were held by the Iranian government and its subsidiaries rather than by a private party. Id. at 449-50. Here, by contrast, there was no contractual relationship between Yang Rong and the Province regarding the Foundation. The Province did not assume control over Brilliance Holdings by purchasing the majority of Brilliance Holdings' stock from Broadsino, as a private party would; instead, it declared the Brilliance Holdings shares held by the Foundation to be state assets and claimed them as does a sovereign. A private party in the market could not have done what the Province did here--form a committee whose goal, as Rong's complaint describes it, was to "assume and exercise control over the Foundation and to acquire from it the Brilliance Holdings shares that it [**19] held in trust for Broadsino" by "advis[ing] Yang Rong that all equity interests held in the name of the Foundation . . . were state assets and demand[ing] that they be transferred to the [Province]." 1st Am. Compl. P35, JA 36. These acts, initiated by the Assistant Governor of the Province and put into effect by the Working Committee, constituted a quintessentially sovereign act, not a corporate takeover.
Despite Rong's argument that the Province's use of the Brilliance Holdings shares after expropriating them independently establishes jurisdiction, the Province's subsequent acts of forming Huachen and transferring the Brilliance Holdings shares to Huachen did not transform the Province's expropriation into commercial activity. As the district court pointed out, Rong's complaint alleges that by the time of the stock transfer to Huachen, the Province had already wrested control of the shares; Huachen was not established until six months after the shares belonged to the Province. Yang Rong, 362 F. Supp. 2d at 97 (citing Compl. PP35, 37). Neither Yang Rong's refusal to comply with the Working Committee's demand to transfer the Brilliance Holdings shares nor the [**20] Province's subsequent transfer of them to Huachen at a "firesale" price makes the Province's expropriation commercial activity. If Rong's interpretation of commercial activity were correct, then almost any subsequent disposition of expropriated property could allow the sovereign to be haled into a federal court under FSIA. Such a result is inconsistent with our precedent, the decisions of other circuits and the Act's purpose. See Price v. Socialist People's Libyan Arab Jamahiriya, 352 U.S. App. D.C. 284, 294 F.3d 82, 87-88 (D.C. Cir. 2002) (under "restrictive" theory of sovereign immunity, FSIA presumes preclusion of suit against foreign state subject to "discrete and limited exceptions"); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 325 U.S. App. D.C. 117, 115 F.3d 1020, 1030 (D.C. Cir. 1997) (plaintiffs' attempt to bring suit against sovereign on basis sovereign acted [*891] commercially "confuse[s] general activity related to the claim with the specific activity upon which the claim is based"); Garb v. Republic of Poland, 440 F.3d 579, 587 (2d Cir. 2006) ("subsequent commercial transactions involving expropriated property do not [**21] give rise to subject matter jurisdiction over claims arising from the original expropriation"); Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1326-27 (11th Cir. 2003) (same); De Letelier v. Republic of Chile, 748 F.2d 790, 796 (2d Cir. 1984) (FSIA's legislative history makes clear courts should not deem activity commercial simply because aspects of activity are commercial). But see Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 708-11 (9th Cir. 1992) (Argentina's expropriation of hotel was commercial because government generated revenue from American tourists and paid for advertising in the United States).
For the foregoing reasons, the district court's dismissal of the complaint for lack of subject matter jurisdiction is affirmed.
So ordered.
CONCUR BY: KAREN LECRAFT HENDERSON
CONCUR:
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
While not necessary to our holding, see Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102, 30 F.3d 164, 168-69 (D.C. Cir. 1994), cert. denied, 513 U.S. 1078, 115 S. Ct. 726, 130 L. Ed. 2d 631 (1995), I believe that the district court can be affirmed just [**22] as soundly on the ground that the Province's activity had no direct effect in this country within the meaning of the third clause of section 1605(a)(2) of FSIA. Rong claims that the Working Committee's taking of Brilliance Holdings stock, his removal from executive and management positions in Brilliance Holdings and the suspension of trading of Brilliance Holdings shares on the NYSE deprived him of financial assets, compensation, dividends and corporate control and thus had a direct effect in the U.S. A mere financial loss by a resident of the United States does not constitute a "direct effect" in the United States. Zedan v. Kingdom of Saudi Arabia, 270 U.S. App. D.C. 382, 849 F.2d 1511, 1514 (D.C. Cir. 1988) (plaintiff's presence in U.S. was not direct effect because "financial hardship fortuitously suffered in the United States is not a direct effect of Saudi Arabia's failure to honor a contract in Saudi Arabia") (emphasis in original); see also Soudavar v. Islamic Republic of Iran, 67 F. App'x. 618, 619 (D.C. Cir. June 10, 2003) (unpublished judgment). Unlike the allegations of direct effect in Foremost-McKesson--not merely nonpayment but [**23] also cessation of the "flow of capital, management personnel, engineering data, machinery, equipment, materials and packaging" between Iran and the United States, see Foremost-McKesson, 905 F.2d at 451--here the direct effect involves only the monetary loss of a Chinese national resident in the U.S. In addition, Broadsino's status as a foreign corporation does alter the no "direct effect" determination. See Stena Rederi AB v. Comision de Contratos del Comite Ejecutivo General del Sindicato Revolucionario de Trabajadores Petroleros de la Republicana Mexicana, 923 F.2d 380, 390 (5th Cir. 1991) (foreign corporation's monetary loss in U.S. insufficient for direct effect in United States under section 1605(a)(2)).
As to his other claims of direct effect, Rong argues that the direct effect in Foremost-McKesson--i.e., the interference with the plaintiff's right to participate in management and as an active investor and the illegal installation of new directors by the foreign sovereign--is on all fours with the direct effect here. McKesson, however, was an American corporation while Broadsino is incorporated under the laws of Hong Kong. See Foremost-McKesson, 905 F.2d at 441; [**24] see also Int'l Hous. Ltd. v. Rafidain Bank Iraq, 893 F.2d 8, 11 (2d Cir. 1989) ("The fact that some or all of IHL's principals or officers may be United [*892] States citizens does not outweigh the facts that they organized the company outside the United States and that its losses in the instant transaction thus occurred elsewhere.") Weltover is not to the contrary. Weltover, 504 U.S. at 619 (U.S. was "place of performance for Argentina's ultimate contractual obligations"; rescheduling of obligations therefore had direct effect in U.S. because "[m]oney that was supposed to have been delivered to a New York bank for deposit was not forthcoming"); see also Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivanos, 712 F. Supp. 383, 389-90 (S.D.N.Y. 1989) (direct effect in United States found when commercial activity of Bolivian government's instrumentality occurred outside U.S. because contract was to be performed primarily in United States and foreign buyer utilized U.S. banking resources to facilitate payment). In the Second Circuit's Weltover decision (unanimously affirmed by the Supreme Court), the court declared that [**25] courts "often look to the place where legally significant acts giving rise to the claim occurred" to determine the location of a "direct effect." Weltover, Inc. v. Argentina, 941 F.2d 145, 152 (2d Cir. 1991); see also United World Trade, Inc. v. Mangyshlakneft Oil Prod. Ass'n, 33 F.3d 1232, 1239 (10th Cir. 1994), cert. denied, 513 U.S. 1112, 115 S. Ct. 904, 130 L. Ed. 2d 787 (1995) (rejecting American citizen's claim that his lost profits caused by foreign state's alleged breach of oil contract entered into by parties in Moscow specifying delivery of oil to Sicily with payment in Paris constituted direct effect under section 1605(a)(2): "[a]ppellant would have us interpret § 1605(a)(2) in a manner that would give the district courts jurisdiction over virtually any suit arising out of an overseas transaction in which an American citizen claims to have suffered a loss from the acts of a foreign state. We think that the language of § 1605(a)(2) limiting jurisdiction to cases where there is a 'direct effect' in the United States makes it unlikely that this was Congress' intent") (emphasis in original); cf. I.T. Consultants, Inc. v. Islamic Republic of Pakistan, 359 U.S. App. D.C. 40, 351 F.3d 1184, 1190 (D.C. Cir. 2003) [**26] (Pakistan's failure to meet payment obligation under contract providing for payment in Virginia had direct effect in U.S. because "the involvement of a U.S. bank was immediate and unavoidable"). Neither Rong's monetary loss nor his loss of control over Brilliance Holdings caused the necessary direct effect in the U.S. to allow him to sue the Liaoning Province. Zedan, 849 F.2d at 1515 (injury suffered in foreign country that has "eventual" effect in U.S. does not constitute direct effect). Nor is the loss allegedly suffered by third-party investors in the United States as a result of the one-day suspension of trading on the NYSE sufficient to establish a direct effect. See Corzo v. Banco Central de Reserva del Peru, 243 F.3d 519, 525-26 (9th Cir. 2001) (if cause of action arises entirely in foreign country, "[t]he fact that United States computer companies might have been affected by . . . breaches [resulting from Peruvian bank's act] is jurisdictionally irrelevant").
二审判决书：
YANG RONG, a/k/a YEUNG YUNG RHEA YEUNG, and BROADSINO COMPANY, LTD., Plaintiffs, vs. LIAONING PROVINCIAL GOVERNMENT, a subdivision of the People's Republic of China, a foreign state, Defendant.
Civil Case No.: 03-1687 RBW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
362 F. Supp. 2d 83; 2005 U.S. Dist. LEXIS 3258
March 3, 2005, Decided
SUBSEQUENT HISTORY: Later proceeding at Rong v. Liaoning Province Gov't, 2005 U.S. App. LEXIS 25667 (D.C. Cir., Nov. 23, 2005)
Affirmed by Yang Rong v. Liaoning Province Gov't, 2006 U.S. App. LEXIS 16954 (D.C. Cir., July 7, 2006)
DISPOSITION: Defendant's motion to dismiss granted
COUNSEL: [**1] For Plaintiff YANG RONG, an individual also known as YEUNG YUNG: Charles Owen Verrill, Jr., John Andrews Hodges, Matthew Evan Corcoran, Thomas William Queen, WILEY REIN & FIELDING, LLP, Washington, DC; Carol Elder Bruce, VENABLE LLP, Washington, DC.
For Plaintiff RHEA YEUNG, an individual: Charles Owen Verrill, Jr., John Andrews Hodges, Matthew Evan Corcoran, WILEY REIN & FIELDING, LLP, Washington, DC; Carol Elder Bruce, VENABLE LLP, Washington, DC.
For Plaintiff BROADSINO FINANCE COMPANY, LTD, a company: Matthew Evan Corcoran, WILEY REIN & FIELDING, LLP, Washington, DC; Carol Elder Bruce, VENABLE LLP, Washington, DC.
For Defendant LIAONING PROVINCE GOVERNMENT, a subdivision of the People's Republic of China, a foreign state: Adam K. Levin, Craig Alan Hoover, Jonathan S. Franklin, HOGAN & HARTSON L.L.P., Washington, DC
JUDGES: REGGIE B. WALTON, United States District Court.
OPINION BY: REGGIE B. WALTON
OPINION:
[*86] The plaintiffs, Yang Rong ("Rong"), Rhea Yeung ("Yeung"), and the Broadsino Finance Company, Ltd. ("Broadsino"), brought this action against Liaoning Provincial Government ("LPG") for conversion, expropriation, the violation of international law and unjust enrichment pursuant [**2] to the Commercial Activity and Expropriation Exceptions to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § § 1330, 1605(a)(2)-(3) (2000). Currently before the Court is the Motion of Liaoning Provincial Government to Dismiss First Amended Complaint ("Def.'s Mot.") [D.E. # 11] pursuant to Federal Rules of Civil Procedure 12(b)(1), (2) and (6), the plaintiff's opposition thereto and the defendant's reply. For the reasons stated below, the defendant's motion is granted because this Court does not have subject matter jurisdiction.
I. Factual Background
The plaintiffs filed their initial complaint on August 7, 2003, see Complaint dated August 7, 2003, and their amended complaint on February 13, 2004. First Amended Complaint ("Compl."). The following is a recitation of the facts as alleged by the plaintiffs.
In 1991, Rong established Broadsino under the laws of Hong Kong. Compl. P 21. Rong has been the Chairman and Chief Executive Officer of Broadsino since its incorporation and has conducted business through Broadsino, acting as its agent or nominee. Id. Broadsino entered into a joint venture with two Chinese companies to form Shen [**3] Yang Automotive ("Shen Yang") for the purpose of manufacturing minibuses and other vehicles in China. Id. Rong possessed a 40 percent interest in Shen Yang and was the chief executive [*87] officer of the joint venture. Id. P P 21-22. In an effort to raise capital to increase Shen Yang's production level, Rong was determined to register Shen Yang's stock in the United States and to secure their listing on the New York Stock Exchange ("NYSE"). Id. P 23. This was a challenging goal for Rong since no company based in China had been listed on the NYSE in over 50 years. Id.
Senior Chinese government officials informed Rong that "since this would be the first U.S. registration and listing of a company based in China in 50 years, a Chinese entity, rather than a Hong Kong private company (Broadsino), should be perceived as the majority shareholder of the listed company." Id. After consulting with his counsel on this point, Rong understood that "to satisfy these views expressed by Chinese authorities, the majority interest in the listed company could be held in the name of a Chinese non-governmental organization and that this arrangement would simplify the registration and list [**4] of shares." Id. Consequently, Broadsino, the People's Bank of China, and other Chinese entities sponsored the formation of the Chinese Financial Education Development Foundation (the "Foundation") as a non-governmental organization that would, among other things, "serve as a vehicle whereby assets could be held in accordance with the wishes of patrons or contributors, including Yang Rong." Id. P 24 & Memorandum in Support of Motion of Liaoning Provincial Government to Dismiss First Amended Complaint ("Def.'s Mem.") at 2. Shang Ming ("Ming"), the deputy governor of the People's Bank of China, served as the Foundation's chairman while Rong served as vice chairman. Compl. P 24. According to the plaintiffs, Broadsino and another company controlled by Rong paid the initial expenses of the Foundation. Id.
In June 1992, Rong incorporated another company, Brilliance Holdings ("Brilliance"), as the corporate entity to be used for the purpose of registering stocks on the NYSE. Id. P 25. A month later Brilliance changed its name to Brilliance China Automotive Holdings Limited. Id. Subsequently, in exchange for Brilliance shares, Broadsino invested its equity interest in Shen [**5] Yang .Id. P 26. By August 1992, Rong and his nominees were the record owners of 78.43 percent of Brilliance's stocks. Id. P 27. In September 1992, Broadsino transferred its Brilliance stocks to the Foundation. Id. P 28. According to Rong, he believed that the Brilliance stocks, held on behalf of Broadsino, would be transferred to the Foundation in exchange for $ 12 million dollars, which the Foundation hoped to receive in donations from local banks. Id. However, Ming advised Rong that the Foundation did not receive any of the expected donations from the banks. Id. And because the Foundation could not pay for the Brilliance stocks, "Rong and Ming allegedly agreed that the Foundation would hold the [stocks] in trust for Broadsino, in effect acting as the nominee for Broadsino." Id. In exchange, Broadsino agreed to pay an administration fee and make certain donations to the Foundation to assist with its development. Id. Rong and Ming further agreed that Rong, as Vice Chairman of the Foundation, would have the sole authority to manage, control and administer the equity interest in Brilliance held by the Foundation. Id. Following the public offering of [**6] Brilliance's stocks in the United States, its stocks held by Rong as nominee for Broadsino were transferred to the Foundation pursuant to the agreement between Rong and Ming. n1 Id. According to Rong, despite [*88] this transfer, Broadsino and Rong retained beneficial ownership in the stocks and Rong exercised sole authority over the stocks until he was unlawfully divested of his interest in the stocks in 2002. Id.
n1 According to Rong, his authority to handle all matters associated with the stocks held in the name of the Foundation was confirmed by a power of attorney to that effect, signed by Ming as Chairman of the Foundation on September 8, 1992. Compl. P 28. Therefore, Rong continued to have an ownership interest in the Brilliance stocks, and the Foundation was obligated to hold the stocks in trust for the benefit of Broadsino. Id. However, the plaintiffs did not attach this particular agreement to the complaint.
In October, 1992, after final approval of the registration statement by the Securities [**7] and Exchange Commission ("SEC"), 5 million shares of Brilliance stock were offered for sale. Id. P 30. The stocks offered for sale amounted to 28.75 percent of Brilliance's total equity. Id. The percentage of Brilliance stock owned by the Foundation was 55.88 percent. Id. According to Rong, following the public offering, the Foundation continued to hold the Brilliance stocks on behalf of Broadsino. Id. P 31. At Rong's direction, Broadsino paid the
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