Compagnie Noga D'ImportatIon Et D'Exportation S.A. v. The Russian Federation

In these consolidated appeals, we are confronted with the issue of whether a foreign arbitration award can be confirmed and enforced against a sovereign nation where the arbitration agreement was signed by an organ of that nation's central government and where that organ — and not the nation itself — participated in the underlying arbitration proceedings. Specifically, plaintiff-appellant Compagnie Noga D'Importation et D'Exportation S.A. ("Noga") sought to confirm and enforce a Swedish arbitration award against defendant-appellee Russian Federation. The Russian Federation opposed confirmation principally on the ground that it was a party to neither the arbitration agreement nor the Swedish arbitration proceedings. Instead, it argued that the proper party to these proceedings should be the Government of Russia (the "Government"), a political organ of the Russian central government. The United States District Court for the Southern District of New York (Pauley, J.), accepted the Russian Federation's argument and denied Noga's motion to confirm. For the reasons set forth below, we conclude that, for the purposes of these proceedings, the Russian Federation and the Government are the same party, and accordingly, we vacate the judgment of the District Court. Furthermore, we remand for further proceedings with respect to, among other things, (i) whether Noga's assignments of its arbitration proceeds to certain of its creditors deprived it of standing to seek confirmation of the arbitral award; and (ii) whether the creditors to whom Noga assigned the arbitration proceeds must be joined as necessary and indispensable parties under Fed.R.Civ.P. 19.

I. Loans That Were the Subject of the Underlying Arbitration

In December 1990, Noga entered into supply contracts to provide $550 million worth of food and consumer goods to foreign trade agencies of both the Union of Soviet Socialist Republics ("USSR"), the predecessor to the Russian Federation, and the Federative Socialist Soviet Republic of Russia ("RSFSR"), a constituent republic of the USSR. When anticipated third-party financing for these supply contracts did not materialize, Noga agreed to finance them in part.

In April 1991, Noga entered into a $422.5 million loan agreement ("1991 Loan Agreement") with the Government of the RSFSR, which was represented by its Council of Ministers and defined in the agreement as the "Borrower." The stated purpose of the 1991 Loan Agreement was to finance Noga's existing supply contracts with the state-owned agencies and enterprises of the RSFSR. As consideration for the 1991 Loan Agreement, the Borrower agreed to cause the RSFSR-owned oil company to deliver crude oil products to Noga pursuant to a schedule extending into September 1993. Moreover, the Borrower represented that it had obtained all the "required licenses, approvals and consents from the appropriate Authorities of the U.S.S.R." to provide this consideration. As contemplated in the 1991 Loan Agreement, Noga and the RSFSR state oil company entered into a separate agreement for the delivery of crude oil products. In anticipation of receiving the crude oil products on schedule, Noga advanced cash and credit to finance RSFSR imports of food and consumer goods and the development of a baby food factory and a television station in the RSFSR.1

In January 1992, Noga and the Government of the Russian Federation2 entered into a $400 million loan agreement ("1992 Loan Agreement"), which defined the term "Borrower" as "the Government of the Russian Federation, acting for and on its own behalf and responsibility [sic]." The 1992 Loan Agreement provided that half of the $400 million loan would be used to finance supply contracts executed between Noga and another agency of the Russian Federation for the import of agro-chemical products and that the other half would be used to discharge state debt to foreign suppliers for deliveries of similar products to the RSFSR during the period 1990-1991. The promised consideration for the 1992 Loan Agreement was the delivery of crude oil from an agency of the Russian Federation under a separate contract with that agency and pursuant to a delivery schedule extending through the end of 1994. In anticipation of these deliveries and pursuant to the 1992 Loan Agreement, Noga financed imports of agro-chemical products into the Russian Federation.3

Both the 1991 Loan Agreement and the 1992 Loan Agreement provided for: (i) binding arbitration of any disputes between the parties and their successors in the Chamber of Commerce of Stockholm, Sweden; (ii) the choice of Swiss law to resolve those disputes; (iii) the waiver of immunity with respect to the enforcement of any arbitration award; and (iv) consent to suit in the state and federal courts of, inter alia, New York.

Disputes eventually arose between Noga and the Government regarding performance of the Loan Agreements. In December 1992, Noga declared the Government to be in default, claiming that it owed Noga $300 million in principal and interest. In April 1993, Noga terminated the agreements and accelerated payment on the loans. In June 1993, Noga filed a Request for Arbitration with the Stockholm Chamber of Commerce, seeking over $275 million for unpaid balances, plus consequential damages. Noga's Arbitration Request identified the Russian Federation as the respondent and explained that its decision to do so was based on the facts that (i) "[b]oth the `buying' and the `selling' Agencies `[were]' the Russian Federation, i.e. under the [Russian Federation's] control"; (ii) "[a]ll contracts between [Noga] and the Agencies [made] express reference to the contracts entered into by Noga and the Russian Federation, since such contracts represent[ed] the performance of the Loan Agreements"; and (iii) "[t]he Russian Federation guaranteed performance by the `selling' Agencies for repayment of the Loans."

The Russian Federation made no response to the Arbitration Request. Instead, attorneys representing the Government objected to Noga naming the Russian Federation as the respondent and requested that the arbitrators require Noga to amend its Arbitration Request to name the Government and the state agencies that had signed the contracts as the proper respondents. In response, Noga argued that the arbitrators should "overrule" the Government's objection on the ground that the Russian Federation and the Government were the same legal person and thus the Government's acts were directly attributable to the Russian Federation. The arbitrators never ruled on the Government's objection, and Noga never sought judicial intervention to compel the Russian Federation to participate in the arbitration.

Eight years of arbitration proceedings followed. The arbitration was conducted in two phases. Phase I related to liability and damages, except for consequential damages; Phase II related to consequential damages. Throughout the arbitration proceedings, the Government — and not the Russian Federation — appeared and arbitrated with Noga.

At the conclusion of Phase I, the arbitrators issued two awards, both of which are the subject of this appeal. In the first award, dated February 1, 1997, the tribunal determined that Noga had been justified in both declaring a default and in accelerating the remaining oil deliveries. The arbitrators awarded Noga approximately $23 million in damages, plus accrued interest from April 1993 until the date of payment. On May 15, 1997, the tribunal issued a supplemental award, which increased the amount of the earlier award by approximately $4 million for management fees that Noga had alleged were omitted from the first award. Together, the two awards (collectively, the "Phase I Award") totaled approximately $50 million, including interest through May 1997. The caption of the arbitration awards refers to the respondent as the "Government of the Russian Federation (Russia)" Throughout the awards, however, the arbitrators refer interchangeably to the "Government of the Russian Federation," the "Russian Federation," and "Russia."

The Government appealed the supplemental award to the District Court of Stockholm, which dismissed the appeal and awarded attorneys' fees and costs to Noga. The caption contained in the Swedish court's decision identified the "Russian Federation, the Ministry of Finance" as the plaintiff. The court's decision repeatedly refers to the plaintiff as the "Russian Federation," although the issue of which entity was the proper party was not before it, and it was not being asked to confirm the Phase I Award. The Stockholm District Court's decision was affirmed by the Svea Court of Appeal, which also referred to the "Russian Federation" in both the caption and text of its decision and awarded Noga additional attorneys' fees and costs.4 Neither the Russian Federation nor the Government has paid the Phase I Award.

On March 13, 2001 (while the actions giving rise to this appeal were pending), the arbitrators issued an award finding that Noga was entitled to approximately $25.3 million in consequential damages, plus interest that had accrued during the eight years since the Arbitration Request had been filed. As of the date the briefs in this appeal were filed, an appeal of the Phase II Award was still pending in the Swedish courts, and Noga had not yet sought to confirm or enforce this award.

III. Noga's Financial Problems and Assignments of Its Arbitration Claims to Its Creditor Banks

In 1993 and 1994, Noga assigned portions of the expected proceeds from both the Phase I and Phase II arbitration awards to four Swiss banks (the "Assignee Banks"), which had financed Noga's performance of the 1991 and 1992 Loan Agreements. Three of these assignments (which were originally written in French and subsequently translated into English) stated that they served as guarantees of Noga's debts to the respective banks. The first assignment, to Banque Nationale de Paris (Suisse) S.A. — Basle, assigned 10 million Swiss francs for every $100 million Noga received in the arbitration, not to exceed 20 million Swiss francs. The second assignment, to Credit Lyonnais (Suisse) S.A., assigned $5 million for the first $55 million received in the arbitration, and $1.814 million "for each collection exceeding" $55 million, with the caveat that, if the arbitration proceeds were less than $55 million, the payment would be "effected pro rata to the sum received." The third assignment, to United Overseas Bank, assigned the lesser of fifteen percent of the arbitration proceeds or $20 million. The fourth assignment, to Caisse d'Epargne de Geneve ("CEG"), assigned $10 million for every $50 million Noga received in the arbitration, not to exceed $20 million. CEG, in turn, "reassign[ed]" to Noga "in a fiduciary capacity and for collection purposes" CEG's portion of the arbitration proceeds.

In June 1997, one month after the arbitrators issued the Phase I Award, Noga obtained from the Court of Justice of the Republic and State of Geneva a stay of any attempt to place Noga into bankruptcy, so that Noga could propose a composition plan (similar to an American Chapter 11 reorganization plan) to its creditors. The Swiss court subsequently approved Noga's plan, referred to as a "Concordat." Under the terms of the Concordat, Noga was permitted to discharge its debts incurred prior to June 1997 (other than debts owed to certain preferred creditors, including the Assignee Banks) by paying a dividend equal to about twelve percent of the accepted value of its creditors' claims.5

In the Concordat, the Assignee Banks agreed to receive their portions of Noga's collection of its arbitration claims subject to certain conditions. First, Noga would pursue, in its own name, both for itself and for the Assignee Banks, all steps necessary to obtain: (i) payment of the Phase I Award; (ii) acknowledgment by the Russian Federation of the remaining balance owed to Noga; and (iii) payment of that balance through arbitral proceedings, judicial proceedings, enforcement proceedings, or amicable negotiations. Second, Noga agreed to keep the Assignee Banks informed regarding its attempts to obtain these payments and the results of those attempts, and to consider the Assignee Banks' advice, recommendations, and suggestions. Finally, the Assignee Banks reserved the right to enforce directly against the Russian Federation their assigned portions of Noga's claim, following notice to Noga. To date, none of the Assignee Banks has exercised this right.

The Concordat also established the following priority for application of any payment of Noga's arbitration claims: (i) full payment of the arbitration costs and/or collection of those costs (as defined in a Swiss court judgment); (ii) payments to the Assignee Banks according to the terms of their assignment agreements; (iii) a refund to one Jean Rouch of funds advanced to Noga for payment of its expenses during the moratorium and his payments to creditors in the first and second classes, if any, and to creditors in the third class;6 and (iv) the balance to Noga.

On January 27, 2000, Noga filed an action against the Russian Federation in the United States District Court for the Western District of Kentucky (the "Kentucky Action"), seeking confirmation and enforcement of the Phase I Award and domestication of the Swedish Court Judgments under Kentucky law.7 The next day, a similar action (the "New York Action") was filed in the United States District Court for the Southern District of New York (the "District Court"). In June 2000, the Russian Federation moved to dismiss the New York Action on the ground of improper service. In September 2000, the Kentucky Action was transferred to the District Court, where it was subsequently consolidated with the New York Action. During the last week of September 2000, the Russian Federation withdrew its motion to dismiss for improper service, and Noga filed a consolidated complaint in the District Court for the two actions, seeking confirmation and enforcement of the Phase I Award and recognition and enforcement of the Swedish Court Judgments.

In October 2000, the Russian Federation filed its answer, asserting four affirmative defenses: (i) that the complaint failed to state a cause of action; (ii) that the Russian Federation was not a proper party to the action because it was not a party to the Swedish arbitration; (iii) that Noga lacked standing to pursue some or all of the claims by virtue of the assignments of its arbitration claims to the Assignee Banks; (iv) that Noga was not the real party in interest by virtue of the prior assignments; and (v) that Noga failed to join the Assignee Banks, which were necessary parties.

In August 2001, Noga moved to confirm and enforce the Phase I Award and to recognize and enforce the Swedish Court Judgments. The Russian Federation opposed the motion on the same grounds as those raised in the affirmative defenses contained in its Answer. In a twenty-seven-page, unpublished memorandum decision and order dated September 19, 2002, the District Court denied Noga's motion, finding that the Russian Federation was a separate entity from the Government and that the Russian Federation had not been a party to the arbitration "and did not intend to arbitrate the submitted dispute." The District Court further found that, because the Russian Federation had objected to being named in the arbitration, the tribunal's Phase I Award had been issued only against the Government. According to the District Court, "a non-party [could] not be bound by an arbitration award unless it clearly and unambiguously demonstrate[d] an intent to arbitrate the submitted dispute."

Although it did not need to reach the issue, the District Court also interpreted the Concordat and the assignments as "suggest[ing] that the Assignee Banks [were] real parties in interest to this action and that the Russian Federation could be subject to multiple litigations and judgments," implying that these entities were "necessary" parties whose joinder was required by Fed.R.Civ.P. 19(a).8 Final judgment was entered in the New York Action on September 25, 2002, and in the Kentucky Action on September 26, 2002. Noga timely appealed from both judgments, and we subsequently consolidated the appeals.

I. Can the Phase I Award Be Confirmed Against the Russian Federation?

A. Framework for Confirming International Arbitration Awards

Because Noga is seeking to enforce an arbitration award rendered in a foreign state, the confirmation of the Phase I Award is governed by the framework set forth in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 53 ("Convention"), as implemented by, and reprinted in, the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 201-08. "Under the Convention, [a] district court's role in reviewing a foreign arbitral award is strictly limited" and "the showing required to avoid summary confirmance is high." Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys "R" Us, Inc., 126 F.3d 15, 19, 23 (2d Cir.1997) (internal quotation marks omitted). Specifically, the FAA provides that, upon the application of a party to an arbitration award made pursuant to the Convention, a district court shall enter "an order confirming the award as against any other party to the arbitration," unless the court "finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the... Convention." 9 U.S.C. § 207. As the party opposing confirmation, the Russian Federation bore the burden of establishing that the Phase I Award should not have been honored. See Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc., 969 F.2d 764, 770 (9th Cir.1992) (citing La Societe Nationale Pour La Recherche v. Shaheen Natural Res. Co., 585 F.Supp. 57, 61 (S.D.N.Y.1983), aff'd, 733 F.2d 260 (2d Cir.1984) (per curiam)). This burden is imposed because "the public policy in favor of international arbitration is strong." Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 516 (2d Cir.1975).

The District Court declined to confirm the Phase I Award on the grounds that (i) the Russian Federation was not a party to the Swedish arbitration proceedings and (ii) this case did not fall under one of the limited exceptions in which we have held that an arbitration award can be enforced against a nonparty. See Monegasque De Reassurances S.A.M (Monde Re) v. Nak Naftogaz of Ukr., 311 F.3d 488, 495 (2d Cir.2002) (listing five theories for binding nonsignatories to arbitration agreements: incorporation by reference, assumption, agency, veil-piercing/alter ego, and estoppel); see also Bridas S.A.P.I.C. v. Gov't of Turkmenistan, 345 F.3d 347, 355-56 (5th Cir.2003). Consequently, the District Court concluded that it lacked jurisdiction to confirm the award against the Russian Federation. For the reasons that follow, we disagree with the District Court's conclusion that it lacked jurisdiction to confirm the Phase I Award against the Russian Federation.

On appeal, Noga principally challenges the District Court's legal conclusion that the Russian Federation and the Government are not the same entities for the purpose of confirming the Phase I Award, and urges that we apply principles of federal common law or public international law to reach this conclusion. The Russian Federation counters that: (i) this case should be decided under principles of private international law, which dictate that Russian law be applied in determining whether the Russian Federation and the Government are the same entities; and (ii) under Russian law, the Russian Federation and the Government are separate entities.9

In making their respective choice-of-law arguments, both parties rely on the Supreme Court's decision in First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) ("Bancec"). There, the Republic of Cuba established a state-owned trade bank "with full juridical capacity ... of its own." Id. at 613, 103 S.Ct. 2591 (internal quotation marks omitted). This trade bank sued to collect on a letter of credit issued by an American bank. The American bank counterclaimed, asserting a right to set off the value of its assets in Cuba that had been nationalized by the Cuban government. Id. at 614-15, 103 S.Ct. 2591. The Cuban trade bank claimed immunity from this counterclaim under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq.

The Supreme Court concluded that the FSIA did not control the determination of whether the seized Cuban assets could be set off against the claim of the Cuban trade bank. Instead, the Court held that principles of public international law and federal common law — rather than Cuban domestic law — should be applied to determine the "effect to be given to [the Cuban trade bank's] separate juridical status." Id. at 621, 103 S.Ct. 2591. According to the Court, "[t]o give conclusive effect to the law of the chartering state in determining whether the separate juridical status of its instrumentality should be respected would permit the state to violate with impunity the rights of third parties under international law while effectively insulating itself from liability in foreign courts." Id. at 621-22, 103 S.Ct. 2591. On the other hand, the Court cautioned that "[f]reely ignoring the separate status of government instrumentalities would result in substantial uncertainty over whether an instrumentality's assets would be diverted to satisfy a claim against the sovereign, and might thereby cause third parties to hesitate before extending credit to a government instrumentality without the government's guarantee." Id. at 626, 103 S.Ct. 2591. Consequently, "the efforts of sovereign nations to structure their governmental activities in a manner deemed necessary to promote economic development and efficient administration would surely be frustrated." Id. Thus, "[d]ue respect for the actions taken by foreign sovereigns and for principles of comity between nations" led the Court "to conclude... that government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such." Id. at 626-27, 103 S.Ct. 2591.

As the principal issue in this appeal is whether the Government is an instrumentality established as a juridical entity distinct and independent from the Russian Federation, the Bancec decision is of little help to us here. In any event, because we conclude that the answer to this question is the same regardless which of the bodies of law advocated by the parties is applied here, we need not cut the Gordian choice-of-law knot presented to us by the parties. Cf., e.g., Blake v. Comm'r, 697 F.2d 473, 477 n. 4 (2d Cir.1982) (declining to decide whether to apply federal common law or state law where the result would be the same under either analysis).

We turn first to the Constitution of the Russian Federation in determining whether the Government and the Russian Federation should be treated as separate parties for the purposes of this confirmation proceeding. That charter provides a detailed discussion of the relationship between these two entities. The Russian Constitution provides for a bicameral federal executive consisting of the President of the Russian Federation, who is described as being "the head of [S]tate," Konst. RF art. 80(1), and the Government, which shall exercise "[e]xecutive power in the Russian Federation," id. art. 110(1). The Government consists of the Chairman of the Government (who is appointed by the president, subject to consent of the State Duma, the federal legislature), and the Deputy Chairman of the Government and the federal ministers (who are appointed by the president in consultation with the Chairman of the Government). Id. arts. 83(a), (e), 110(2), 111(1).

The Russian Constitution also enumerates the responsibilities of the Government, which include, among other things: (i) submitting a federal budget to the State Duma; (ii) "ensur[ing] the implementation... of a uniform financial, credit, and monetary policy"; and (iii) "exercis[ing] any other powers vested in [the Government] by the Constitution of the Russian Federation, [Russian] federal laws, and decrees of the President of the Russian Federation." Id. art. 114(a), (b), (g). To carry out these responsibilities, the Government is empowered to "issue decrees and orders," which "shall be binding throughout the Russian Federation." Id. art. 115(1), (2). Finally, the members of the Government serve at the pleasure of the President: they must resign upon the election of a new President, id. art. 116; they may resign only with the consent of the President, id. art 117(1); and the President also can require them to resign at any time, id. art. 117(2).

Plainly, in light of the description of the Government in the Russian charter, that entity is not a sovereign, corporation, or instrumentality separate from the Russian Federation. Rather, the Government is a political organ of the Russian Federation, analogous to the cabinet of the American president. Most significantly, in the words of one scholar, the Government "is not a juridical person and enjoys no autonomous legal capacity." William E. Butler, Russian Law 343 (2d ed.2003). Indeed, given the Supreme Court's Bancec decision, had either the Government or the Russian Federation wanted to shield the latter entity from being the subject of these confirmation proceedings, either could have designated a publicly-owned state corporation or instrumentality as the entity to contract with Noga. At bottom, the Government was performing a quintessential "governmental" function: financing the purchase of massive quantities of basic necessities and infrastructure improvements to provide for the Russian people and paying for those necessities and improvements with the country's natural resources.

Finally, the Russian Federation has not satisfied its burden of proving that the Government is a separate juridical entity that can sue and be sued in Russian courts for obligations that are analogous to the ones set forth in the Loan Agreements or, indeed, for any legal obligations. For example, the Russian Federation could have presented docket entries or court filings from Russian courts indicating that the Government had sued or been sued in this capacity. No such evidence was presented to the District Court, however. Accordingly, we find that, under Russian law, the Government and the Russian Federation should be treated as the same party for the purpose of this confirmation proceeding.

The question of whether a federal court will confirm a foreign arbitration award against a sovereign nation, where one of the sovereign's political organs was a party to the arbitration, appears to be one of first impression. Federal courts have been asked to confirm such awards against a corporation owned or operated by a foreign sovereign under such theories as alter ego, piercing the corporate veil, or agency. See, e.g., Monde Re, 311 F.3d 488; see generally Carolyn B. Lamm & Jocelyn A. Aqua, Defining the Party — Who Is a Proper Party in an International Arbitration Before the American Arbitration Association and Other International Institutions, 34 Geo. Wash. J. Int'l L. & Econ. 711 (2003) (discussing when U.S. courts will deem a foreign state to have consented to arbitration based on the acts of an instrumentality or state-owned entity). The Fifth Circuit's recent decision in Bridas S.A.P.I.C. v. Government of Turkmenistan, 345 F.3d 347, is illustrative.

There, an Argentinian corporation (Bridas) entered into a joint venture agreement with a production association formed and owned by the Government of Turkmenistan, which was not itself a party to the agreement. Bridas subsequently initiated an arbitration proceeding against both the production association and the Government of Turkmenistan, alleging breach of the agreement. Id. at 351-52. The arbitrators expressly rejected the argument of the Government of Turkmenistan that it was not a proper party to the arbitration because it had not signed the agreement. Id. at 352. The arbitrators subsequently issued an award in favor of Bridas, which successfully brought an action in the Southern District of Texas to confirm the award. On appeal, the Fifth Circuit declined to confirm the arbitration award against the Government of Turkmenistan under theories of agency, estoppel, and third party beneficiary. Id. at 356-58, 360-63. Nevertheless, the court remanded the case to the district court for further proceedings with respect to whether the production association was the alter ego of the Government of Turkmenistan, instructing the district court to consider, inter alia, the factors used by the Fifth Circuit in determining whether a state agency is the "alter ego" of a state for Eleventh Amendment sovereign immunity purposes. Id. at 358-60.

Likewise, this Court has been asked to confirm domestic arbitration awards under similar theories against nonparties to an arbitration proceeding or agreement.10 It is this latter line of cases that both the District Court and the Russian Federation cite in support of their conclusions that the Phase I Award should not be enforceable against the Russian Federation. But, as we noted above, analogizing the relationship between the Russian Federation and the Government to the relationship between a corporate parent and a subsidiary belies the reality of the political relationship between the Russian Federation and the Government and is thus inapposite. Analogies, as Cardozo warned of metaphors, "in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it." Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94, 155 N.E. 58 (1926).

While the issue of the nature of the relationship between a foreign sovereign and one of its political organs has not been presented in the context of the enforcement and confirmation of an arbitration award, this issue has come up in other contexts, and in each of those contexts the fact of an internal separation of some sort between the sovereign and one or more of its organs has been found to be of no legal significance. The most developed area of federal common law concerning this issue relates to whether, in the context of the FSIA, a ministry or other political subdivision of a foreign sovereign should be treated either as the foreign state itself or a political subdivision of it (in which case it would be immune from suit), or as an "agency or instrumentality" of the foreign state (in which case it would be subject to suit under 28 U.S.C. § 1605(a)(3)). For example, in O'Connell Machinery Co. v. M.V. "Americana", 734 F.2d 115, 116 (2d Cir.1984), we found that the Istituto per la Ricostruzione Industriale, "a public financial entity which coordinate[d] the management of the commercial enterprises of the Italian Government," was a political subdivision of Italy because it was a governmental unit beneath the central Italian government.

Ten years later, in Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (D.C.Cir.1994), the District of Columbia Circuit held that the Bolivian Air Force was a foreign state rather than an agency or instrumentality of Bolivia because the air force's "core functions" were "predominantly governmental." According to the court, the "armed forces are as a rule so closely bound up with the structure of the state that they must in all cases be considered as the `foreign state' itself, rather than a separate `agency or instrumentality' of the state." Id. at 153. Indeed, "[a]ny government of reasonable complexity must act through men organized into offices and departments." Id.11 Consequently, "[n]umerous other courts have assumed without discussion that governmental departments or ministries [— including ministries of the Russian Federation and the former Soviet Union —] qualify as political subdivisions of a foreign state under the FSIA." Garb v. Republic of Poland, 207 F.Supp.2d 16, 37 (E.D.N.Y.2002), vacated and remanded on other grounds, 72 Fed. Appx. 850 (2d Cir. 2003).12 Moreover, a similar conclusion was apparently reached by the Supreme Court in Bancec, when in the course of reinstating the district court's opinion, the Court quoted that opinion's statement that "[t]he [Cuban] Ministry of Foreign Trade is no different than the Government [of Cuba] of which its minister is a member." 462 U.S. at 618 n. 5, 103 S.Ct. 2591 (quoting Banco Nacional De Cuba v. Chase Manhattan Bank,