The case of the day is Process and Industrial Developments Ltd. v. Federal Republic of Nigeria (D.D.C. 2018). P&ID sought confirmation of an arbitral award against Nigeria and its Ministry of Petroleum Resources. On P&ID’s motion, the court had set a briefing schedule that required Nigeria to respond to the petition for confirmation with all of its jurisdictional and substantive defenses. Nigeria moved to dismiss on grounds of foreign sovereign immunity. P&ID complained to the court that Nigeria had only sought dismissal on jurisdictional grounds. The judge agreed and ordered Nigeria to plead all of its jurisdictional and substantive defenses, and Nigeria took an interlocutory appeal.
The question was whether the appeal divested the district court of jurisdiction, or whether it was so frivolous that the appeal should be disregarded. When framed this way, the answer seems pretty obvious. The ordinary rule is that interlocutory appeals are not allowed, but the DC Circuit has recognized an exception in cases where a foreign sovereign seeks dismissal but the court denies its motion to dismiss. The idea is similar to the idea of an appeal from a motion to dismiss on qualified immunity grounds. Part of the point of these immunities is to protect parties from the burden of having to litigate, not just from liability. In this light, maybe P&ID is right and maybe it is wrong, but surely Nigeria’s argument is not frivolous. The court, apparently correctly, refused to say that the appeal was frivolous, thus leaving the question for the D.C. Circuit to decide.