Lawyers for Grenada¹s Deputy Prime Minister, Gregory Bowen are asking a New York court to dismiss bribery allegation charges filed against him by oil investor, Jack Grynberg on the grounds that he is immune from prosecution in the United States.
The Keith Mitchell-led New Natoinal Party (NNP) government has paid out $271, 000 E.C dollars to the law firm of Paul, Weiss, Rifkind, Wharton & Harrison LLP to represent Bowen in the bribery case in New York.
Grynberg is alleging that Bowen tampered with the 1996 oil agreement signed with the Grenada government after he refused to pay the senior government minister a bribe.
Minister Bowen has denied the accusation, saying that he had never met Grynberg and could not have asked him for any money to facilitate the oil deal.
In the May 18 issue of GRENADA TODAY, we printed Part 1 of Minister¹s Bowen¹s defense as put forward by his legal team.
Part 11 follows:
The Arbitration
In reaction to the denial of its license application, RSM filed a request for arbitration with the International Centre for the Settlement of Investment Disputes on August 31, 2004.
The ICDSID accepted the arbitration claim a year later, in August 2005.
In the arbitration, RSM claims that the Government of Grenada breached the 1996 Agreement by refusing to grant RSM an exploration license.
In the arbitration RSM also accuses Minister Bowen of personally obstructing the process and recites a variety of allegations against him.
The Government responds, in the arbitration, that it was RSM that failed to comply with the terms of the Agreement, that RSM wrongfully invoked the force majeure clause as an excuse to conduct no meaningful exploration for eight years, that RSM misrepresented its resources to conduct exploration activities and that RSM attempted to assign away to others its exploration rights without Grenada¹s permission, in violation of the Agreement.
A hearing on these claims and counterclaims is scheduled for June 2007.
This lawsuit
To be sure, the instant lawsuit is an improper end-run around the pending arbitration, and an attempt by Grynberg to pressure the Grenadian government by personally attacking its Deputy Prime Minister.
At the heart of the claims against Minister Bowen in this lawsuit is the same issue in the arbitration against the Government of Grenada: Grenada¹s refusal to award RSM a license to explore for oil and gas in Grenada¹s off shore waters.
Almost immediately after this lawsuit was filed in November 2006, the Government filed a "request for provisional measures" in the ICSID arbitration, asking the arbitrators to direct RSM to withdraw the lawsuit.
Ultimately, the Tribunal determined that it could postpone the hearing on the request for provisional measures until the next regularly scheduled hearing in the case on March 26, 2007.
However, in that order, the Tribunal warned:
Both parties to bear in mind that each party is required to conduct these arbitration proceedings in good faith and not to do or permit anything which would unnecessarily either aggravate the parties dispute or render more difficult the respective tasks of the Tribunal and the parties legal representatives.
The Government¹s request that the arbitrators direct RSM to withdraw this lawsuit is now sub judice.
Despite the Tribunal¹s admonition that the parties do nothing to "aggravate" the dispute, plaintiffs did exactly that by moving for entry of a default judgment against Minister Bowen.
That motion was denied by the Court on April 6, and Minister Bowen was given until April 30 to respond to the complaint.
Argument
.
This action must be dismissed on grounds of sovereign Immunity
Deputy Prime minister Bowen is immune from suit in this Court pursuant to the Foreign Sovereign Immunities Act ("FSIA").
The FSIA provides the sole basis for subject matter -jurisdictional immunity unless one of the statutory exceptions within the FSIA applies.
An individual is a "foreign state" within the meaning of the FSIA when he is a foreign official being sued for actions taken in his official capacity. On their face, Minister Bowen¹s alleged acts could only have been performed "in his official capacity and pursuant to the execution of his official duties".
This is apparent from the very nature of those allegations, which include: refusing to award RSM¹s licenses in 2004, involving himself in the agreement between the Government and RSM, terminating Grynberg¹ status as Grenada¹s Special Envoy to Venezuela, refusing to participate in a case between Grenada and Trinidad and Tobago to resolve maritime boundary disputes, giving parties other than RSM permission to perform seismic work in Grenada¹s offshore waters, taking action with regard to the Government of Grenada¹s UN seismic data, and involving himself in the defense of the Government of Grenada in the ICSID arbitration.
In addition, Minister Bowen submits sworn testimony that he, in fact, was acting in official capacity and pursuant to the execution of official duties", to the extent he was involved in the acts alleged .
Therefore, Minister Bowen has presented a prima facie case that he is a "foreign state" within the meaning of the FSIA for purposes of this lawsuit.
Plaintiffs have not attempted to and cannot, satisfy the exceptions to immunity set for in the FSIA.
Based on the foregoing, Minister Bowen is immune from suit and the Court should dismiss the claim against him for lack of subject-matter jurisdiction.
This action must be dismissed for lack of personal jurisdiction over Minister Bowen.
Even if the Court were to find the FSIA inapplicable as to all or some of the allegations in the complaint, this action must still be dismissed against Minister Bowen for lack of personal jurisdiction.
In order adequately to allege personal jurisdiction against a defendant, plaintiffs must allege non-conclusory facts sufficient to establish a prima facie case for both the statutory and constitutional components of personal jurisdiction .
Even if the Court were to conclude that plaintiffs bribery allegations where outside the scope of the FSIA, courts in this Circuit have dismissed those particular allegations for lack of personal jurisdiction and have immunized the rest of that official¹s alleged conduct.
In this lawsuit plaintiffs plead diversity of citizenship as the basis for subject matter jurisdiction.
As such, personal jurisdiction must be premised on New York¹s general jurisdiction statute, or its long-arm statute.
CPLR 301 authorizes jurisdiction in limited circumstances: when a party consents, is physically present in New York is domiciled in New York, or is "doing business" in New York.
CPLR 302 (a) provides:
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator who in person or through an agent:
(1). Transacts any business within the state or contracts anywhere to supply goods or services in the state; or
(2). Commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act, or
(3). Commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(I) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
4. Owns, uses or possesses any real property situated within the state.
NY CPLR 302 (a):
Plaintiffs can satisfy neither 301 nor 302 (a).
Indeed, plaintiffs allege next to nothing to try to demonstrate personal jurisdiction over Minister Bowen in New York.
Plaintiffs allege that Minister Bowen makes "frequent trips" to the United States, that he "may" own property in the US that he was in New York for "several days" in June 2006, and that Grenada maintains a Consulate in New York City - the last of which is true of almost every nation in the world.
Plaintiffs do not allege that Bowen conducts or solicits business in New York or that nay of the acts complained of took place or had effects in New York. By their own admission plaintiffs themselves are all based in Colorado 9Id. 1).
In fact, Minister Bowen is a citizen and resident of Grenada. He does not consent to personal jurisdiction over him in New York, he is not domiciled in New York, he was not served with the summons and complaint in New York, he neither owns nor uses real property in New York, and he does not conduct or solicit business in New York.
Minister Bowen¹s limited contacts with New York specifically and the United States generally are disclosed in his declaration. He travels to this country no more than two to four times a year, (1) on airport layovers, (2) to visit his wife¹s family or a physician in Brooklyn, (3) to attend a conference at the World Bank in Washington, D.C. Or (4) to go on vacation with his family, the last of which was to Disneyworld in 2005.
This is not enough to satisfy 301 or 302. Therefore, plaintiffs have not and cannot establish personal jurisdiction over Minister Bowen pursuant to New York law.
Accordingly, the Court need not even consider the argument as to whether plaintiffs have shown that jurisdiction comports with constitutional due process.
Plaintiffs allegation do not meet Constitutional
standards of "minimum contacts" or "reasonableness"
In addition to failing to satisfy the requisite statutory basis for personal jurisdiction, plaintiffs do not and cannot allege that Minister Bowen had the required "minimum contacts" and that the exercise of jurisdiction would be "reasonable under the circumstances", so as to comport with the constitutional aspect of personal jurisdiction.
