In case of first impression, New York district court holds that federal courts should now consider Hong Kong as part of "foreign state," i.e., China and therefore its citizens may invoke alienage jurisdiction under 28 U.S.C. Section 1332(a)(2)


In case of first impression, New York district court holds that federal courts should now consider Hong Kong as part of "foreign state," i.e., China and therefore its citizens may invoke alienage jurisdiction under 28 U.S.C. Section 1332(a)(2)

In Matimak Trading Co. v. Khalily, 118 F.3d 76 (2d Cir. 1997), cert. denied, 522 U.S. 1091 (1998), the Second Circuit held that Hong Kong, while a British dependent territory, was not itself a "foreign state" for purposes of 28 U.S.C. Section 1332(a)(2) [U.S. District Courts have original jurisdiction over civil actions between "citizens of a State and citizens or subjects of a foreign state."]

The plaintiff in this case, Favour Mind Ltd., is a Hong Kong corporation. The defendant, Robert Czwartacky, is a citizen of South Carolina who operates two New York corporations. Czwartacky allegedly breached a sales agreement between the parties. Favour Mind brought suit, basing jurisdiction on 28 U.S.C. Section 1332(a)(2) and alleging that it had shipped garments to Czwartacky's companies on several occasions but never received any payments.

Czwartacky moved to dismiss pursuant to Matimak because Favour Mind, as a Hong Kong corporation, is not a "citizen or subject of a foreign state" under Section 1332(a)(2) and therefore cannot maintain an action in federal court. The U.S. District Court for the Southern District of New York denies the motion.

The court expressly limits the holding in Matimak to the period during which Hong Kong was a British territory. The Second Circuit had "expressed no view" as to the status of Hong Kong corporations "following Great Britain's transfer of sovereignty" to the People's Republic of China on July 1, 1997.

The Second Circuit had established the doctrine of "de facto" recognition of foreign states for purposes of Section 1332(a)(2) in Murarka v. Bachrack Bros., Inc., 215 F.2d 547 (2d Cir. 1954). In that case, the Court recognized India as a "foreign state" prior to the U.S.' formal recognition of India because the U.S. had already taken significant steps towards such recognition. In Matimak, the Court refused to recognize Hong Kong as ration may assert alienage jurisdiction in federal court after Hong Kong's reversion to China.

In this case, both the U.S. Department of State and the Hong Kong Special Administrative Region (SAR) filed amicus curiae briefs arguing that Favour Mind is a citizen of the "foreign state" of China. Also, the Basic Law" of Hong Kong established a regime of "one country/two systems." This allows Hong Kong to retain its separate commercial and legal institutions though becoming part of China.

Most importantly, a diplomatic note from the Chinese Government declared that: "Hong Kong is an inalienable part of the People's Republic of China. The Hong Kong SAR is a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy. Companies established in the Hong Kong SAR in accordance with its laws and decrees therefore enjoy the nationality of the People's Republic of China." [9/9/99 Diplomatic Note from Embassy of People's Republic of China to Department of State, No. CE 118/99.]

Finally, the district court notes that the principles underlying alienage jurisdiction support the finding that Hong Kong is part of a "foreign state." China considers the treatment of its citizens, including Hong Kong companies, a very important matter. To deny that Hong Kong corporations are citizens of China would frustrate the interests of every concerned government – the U.S., China and the Hong Kong SAR. It would also antagonize recognized foreign powers -- the harm that alienage jurisdiction was mainly designed to prevent.

Citation: Favour Mind Ltd. v. Pacific Shores, Inc., 98 Civ. 7038 (SAS) (S.D.N.Y. December 7, 1999).

 



**** Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. - Attorney Website at: https://terikhashmiattorney.com/ - Attorney Profile at: https://solomonlawguild.com/terik-hashmi%2C-esq# - Attorney News at https://attorneygazette.com/terik-hashmi%2C-consultant#eec97f53-49a0-4c94-869a-4847514cb694

Terik Hashmi, Attorney at Law, Legal Commentary

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