This HTML version is machine-generated. Always consult the original document.

[Page 1]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ORDER

This case is the latest development in a long-running contract dispute regarding a World Bank-funded gas pipeline construction project in Afghanistan. Petitioner Unicon Limited (“Unicon”) is a consulting firm that provided supervisory, quality assurance, and technical support on the project. Respondent, the Ministry of Energy and Water of the Islamic Republic of Afghanistan (“MEW”), was the beneficiary of these services. Unicon alleges that MEW refused to pay it for certain amounts due. So Unicon initiated an arbitration seeking monetary damages and interest, and the arbitral tribunal rendered an award in its favor in early 2023.

Unicon has filed the present lawsuit to enforce its arbitral award against MEW. However, service of process has proven challenging because, among other things, the United States currently lacks diplomatic relations with Afghanistan, and certified mail service is apparently unavailable there. Unicon has therefore moved for permission to serve MEW by an alternative means. The Court will GRANT the motion in relevant part, as explained below.

Federal Rule of Civil Procedure 4(j) requires that a “foreign state or its political subdivision, agency, or instrumentality . . . be served in accordance with 28 U.S.C. § 1608,” the service provision of the Foreign Sovereign Immunities Act (“FSIA”). That statutory provision,

[Page 2]

in turn, has multiple parts. Subsection (a) of § 1608 details the process for serving a “foreign state or political subdivision of a foreign state.” Subsection (b) outlines the process for serving “an agency or instrumentality of a foreign state,” which entails a cascading set of service options. Service under this subsection shall be made:

(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents;

(3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated to give actual notice, by delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state--

A. as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request or

B. by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served, or

C. as directed by order of the court consistent with the law of the place where service is to be made.

28 U.S.C. § 1608(b)(1)–(3).

In its amended petition, see generally ECF No. 6-1 (“Amended Pet.”), Unicon alleges that MEW is an “agent and/or instrumentality of the Afghan government” within the meaning of the FSIA. Id. ¶¶ 5, 8. At this early juncture and for the limited purpose of resolving the pending motion for alternative service, the Court will assume without deciding that MEW qualifies as an agency or instrumentality of Afghanistan, as alleged, rather than as the state itself or a political subdivision thereof. Whether that premise is true is not patently obvious. Although Unicon stresses that MEW has a separate legal personality—for instance, it can sue or be sued in its own name, see Mot. for Leave to File Amended Pet. at 3—the D.C. Circuit has embraced a “categorical approach” in this context, meaning that the question is not so much whether an

2

[Page 3]

entity may “sue and be sued” or “contract in its own name,” but instead “whether the core functions of the foreign entity are predominantly governmental or commercial.” Transaero, Inc. v. La Fuerz Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994). Unicon posits that MEW’s core functions are predominantly commercial, but also acknowledges that it has key regulatory functions in the energy and water sectors. Mot. for Leave to File Amended Pet. at 2–3. Other courts have characterized regulatory functions as “governmental in nature.” See, e.g., Estate of Hardwick v. Islamic Republic of Iran, No. 18-1612 (CKK), 2021 WL 6805391, at *6 (D.D.C. Oct. 1, 2021) (cleaned up).

As the issue of MEW’s commercial or governmental character has not been fully ventilated, Unicon is advised that this Order does not represent the Court’s definitive ruling on whether MEW actually constitutes a “foreign state” or an “agency or instrumentality” under the FSIA. Its status may be examined more closely upon an eventual challenge to Unicon’s proposed mode of service or a future motion for default judgment.

If MEW is an “agency or instrumentality” of the Afghan government, service must conform with § 1608(b). Unicon proposes to serve MEW pursuant to § 1608(b)(3)(C). To invoke this last-resort option, it must show that none of the previous modes of service are available. It appears that service pursuant to § 1608(b)(1) is not available because there is no evidence or suggestion of a “special arrangement for service” between Unicon and MEW. See generally Amended Pet., Ex. 2 (contract between Unicon and MEW). Service pursuant to § 1608(b)(2) also appears infeasible because Afghanistan lacks diplomatic relations with the United States; there are no officers or agents of the MEW to receive service in this country; and there is no applicable international convention that would provide for a specific method of service here. See Alcitepe Decl. ¶¶ 2–7, 9.

3

[Page 4]

Turning to § 1608(b)(3), service is available “if reasonably calculated to give actual notice, by delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state” through one of three means. A plaintiff can effect service “as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request,” see § 1608(b)(3)(A), but Unicon’s counsel avers that “Afghanistan has no certified mail services or recognized government that could assist in executing letters rogatory,” Alcitepe Decl. ¶ 7. Alternatively, a plaintiff may serve its opponent “by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served,” see § 1608(b)(3)(B), but that form of service seems unavailable too, as there is apparently no recorded mail delivery available in Afghanistan, and commercial services like FedEx and DHL do not ship to the country, see Alcitepe Decl. ¶¶ 7–8.

As a result, Unicon requests to serve MEW under § 1608(b)(3)(C), which permits service “reasonably calculated to give actual notice” through the delivery of a translated copy of the summons and complaint “as directed by order of the court consistent with the law of the place where service is to be made.”¹ Unicon proposes to serve MEW by sending the relevant papers to the two email addresses identified in the last post-arbitration correspondence from the Ministry ([email protected] and [email protected]) and by sending the papers via express mail to the Afghan Consulate in Dubai and the Afghan diplomatic mission in Abu Dhabi, which are apparently two of the “few diplomatic presences that the current [g]overnment of Afghanistan and its agencies have outside of Afghanistan.” Alcitepe Decl. ¶ 10.

¹ Unicon submits, in its motion, that service is available under § 1608(b)(3)(C) even if that method of service is inconsistent with the law of the place where service to be made. See Third Mot. for Alt. Serv. at 8. The plain text of the statutory provision says otherwise. ↩

4

[Page 5]

Unicon has appended an affidavit from Mr. Rohullah Esmati, an Afghan lawyer and expert in its legal system. According to Mr. Esmati, service on a government agent by email alone would not be sufficient to satisfy “Afghan law and practice.” Esmati Aff. ¶¶ 34, 41. However, “a package delivered from abroad by registered mail or courier requiring signed proof of receipt is consistent with Afghan law and practice if it physically delivers the court documents to the competent Government office or legal representative and creates reliable proof of receipt.” Id. ¶ 47.

At least at this early stage, Unicon’s proposal to serve MEW “through a combination of (i) email to the Ministry email addresses provided to Unicon through the August 22, 2023 email from the Embassy of the Islamic Republic of Afghanistan in The Hague, together with any additional Ministry addresses reflected in [Unicon’s appended correspondence], and (ii) express-mail delivery (DHL) to the Afghan Consulate in Dubai, as well as to the Afghanistan diplomatic mission in Abu Dhabi” appears to qualify as a proper alternative mode of service under § 1608(b)(3)(C)—so long as Unicon ensures that the physical delivery is consistent with Mr. Esmati’s representations about the appropriate way to effectuate service from abroad under Afghan law and practice and could reasonably be expected to reach MEW’s office or legal representative with a reliable proof of receipt to such representative. Cf. In re Terrorist Attacks on Sep. 11, 2001, No. 03-md-1570 (GDB-SN), 2022 WL 1088567, at *6–7 (S.D.N.Y. Apr. 5, 2022) (recognizing that “service by court order under § 1608(b)(3)(C) is not the norm,” and usually “occur[s] only when notice must be achieved despite a near-total breakdown in a country’s services,” but recognizing that “Afghanistan is facing such a breakdown”).

On a final note, Unicon suggests that the papers it will serve on the recipients enumerated above will be in English alone. See Third Mot. for Alt. Serv. at 12. That will not fly, as §

5

[Page 6]

1608(b)(3) requires “delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state.” Unicon must therefore provide the recipients of service with both original and translated copies of the summons and operative complaint in this case, as required by the statute.

In summary, Unicon has alleged that MEW is an “agency or instrumentality” of the Afghan government, which authorizes service of process under 28 U.S.C. § 1608(b). The Court does not decide that question in this ruling but will accept the allegation for purposes of resolving the present motion. Assuming MEW is an “agency or instrumentality” of the Afghan government, and not the foreign state itself, it seems that service via pathways laid out in § 1608(b)(1), (2), (3)(a), and (3)(b) are unavailable due to the lack of diplomatic relations between the United States and Afghanistan and an inability to reliably deliver recorded or certified mail to the country. However, if Unicon can serve MEW “by registered mail or courier” by “physically deliver[ing] the court documents to the competent Government office or legal representative”— here, Afghanistan’s diplomatic presences outside of the country—it may be able to satisfy the contours of § 1608(b)(3)(B) and withstand any future challenge to service by those means.

Unicon’s Third Motion for Alternative Service is thus GRANTED in part, insofar as its request for alternative service is consistent with this Order.

SO ORDERED.

6