Full opinion text
LEONARD P. STARK, UNITED STATES DISTRICT JUDGE OPINION Plaintiff/Judgment Creditor Crystallex International Corporation ("Crystallex") holds a $1.2 billion judgment against the Bolivarian Republic of Venezuela ("Venezuela" or "the Republic"). (D.I. 1) Crystallex has registered the judgment in Delaware. (Id. ) Venezuela has not appeared in the litigation. However, Petróleos de Venezuela, S.A. ("PDVSA"), an oil company, has intervened. (D.I. 14) This is because Crystallex seeks to collect on its judgment against Venezuela by executing on property nominally owned by PDVSA, specifically shares of common stock PDVSA owns in PDV Holding Inc. ("PDVH"), a Delaware corporation. Crystallex's theory is that PDVSA is the alter ego of Venezuela, making PDVSA's property subject to execution for payment of Venezuela's debt. Crystallex and PDVSA have each filed a motion. Crystallex moves for a writ of attachment fieri facias ("fi. fa. ") pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1601(c). (D.I. 2) In turn, PDVSA has filed a motion to dismiss for lack of subject matter jurisdiction. (D.I. 25) Together, the parties' motions present numerous complex questions, some of which have been addressed by no previous court, and others on which different courts have reached competing conclusions. The Court's careful consideration of the issues before it has included reviewing numerous briefs (D.I. 3-1, 26, 33), letter briefs (D.I. 51-54, 70-71), submissions of supplemental authority (D.I. 41, 46, 59-60, 63-65), six substantive declarations (D.I. 7-8, 28-29, 35-36), and hundreds of exhibits (see, e.g. , D.I. 4-6, 11, 27, 34, 37, 47). The Court also heard oral argument on two separate occasions. (See Transcript of Dec. 21, 2017 Hr'g (D.I. 49) ("Tr."); Transcript of Aug. 3, 2018 Hr'g (D.I. 74) ("Aug. Tr.") ) Having undertaken the required analysis, the Court will grant Crystallex's motion and deny PDVSA's motion. BACKGROUND In 2002, the Government of Venezuela awarded Crystallex, a Canadian corporation, a Mine Operating Contract ("Contract") by which Crystallex was granted the opportunity to develop the Las Cristinas gold mines. (D.I. 3-1 at 1; D.I. 26 at 4-5) Completion of the mining project was dependent on Crystallex obtaining certain permits from Venezuela. (D.I. 26 at 5) Crystallex never obtained such permits. (Id. ) Instead, in 2011, Venezuela seized the Las Cristinas mines. (D.I. 3-1 at 5) "In accordance with a bilateral investment treaty (BIT) between Canada and Venezuela, Crystallex pursued its grievances against Venezuela before an international arbitration tribunal ...." Crystallex Int'l Corp. v. Bolivarian Republic of Venezuela , 244 F. Supp. 3d 100, 105 (D.D.C. 2017) (" Crystallex "). Specifically, in 2011, Crystallex initiated arbitration proceedings against Venezuela before the International Centre for Settlement of Investment Disputes ("ICSID") in Washington, D.C. (D.I. 3-1 at 1, 5) On April 4, 2016, an arbitration panel found that Venezuela's actions constituted an indirect expropriation of Crystallex's rights under the Contract. (D.I. 26 at 5) The ICSID awarded Crystallex $1.2 billion plus interest. (Id. ; D.I. 3-1 at 5) Crystallex then filed suit in the United States District Court for the District of Columbia (the "D.C. Court") seeking to confirm the arbitral award. See Crystallex Int'l Corp. v. Bolivarian Republic of Venezuela , C.A. No. 16-0661 (RC) D.I. 1 (D.D.C. Apr. 7, 2016). On March 25, 2017, Judge Rudolph Contreras issued an opinion and order confirming the award. (See D.I. 1; D.I. 26 at 6; D.I. 4-1 Exs. 6, 7) On April 7, 2017, the D.C. Court entered judgment against Venezuela. (D.I. 1; D.I. 26 at 6) Just over two months later, on June 9, 2017, Judge Contreras found that a "reasonable period" had elapsed since entry of judgment but Venezuela had not paid its debt. Crystallex Int'l Corp. v. Bolivarian Republic of Venezuela , C.A. No. 16-0661 (RC) D.I. 36 (D.D.C. June 9, 2017) (see D.I. 4-1 Ex. 8) ("Crystallex II "). Hence, pursuant to Section 1610(c) of the FSIA, the D.C. Court ruled that Crystallex could commence proceedings in aid of execution of the judgment. Id. Accordingly, on June 19, 2017, Crystallex registered the D.C. Court's judgment in this Court. (D.I. 1; see also 28 U.S.C. § 1963 (providing district court in which judgment is registered with same power to enforce it that is possessed by district court which issued judgment) ) Crystallex filed its pending motion for a writ of attachment on August 14, 2017, seeking to attach shares of PDVH, which are owned by PDVSA, which Crystallex alleges is an alter ego of Venezuela. (D.I. 3-1 at 1; see also Tr. at 36 (PDVSA stating "the PDV Holding shares they want to attach belong to PDVSA") ) Thereafter, PDVSA moved to intervene for the purpose of opposing the attachment motion (D.I. 14), a request the Court granted on August 28, 2017 (D.I. 17), without objection from Crystallex (D.I. 16). Subsequently, on November 3, 2017, PDVSA filed its pending cross-motion to dismiss for lack of subject matter jurisdiction. (D.I. 25) The parties initially completed briefing on the motions on November 22, 2017 (D.I. 3-1, 26, 33) and were scheduled for oral argument on December 5, 2017 (D.I. 23). When they appeared on December 5, Crystallex requested a continuance in light of a recent settlement reached between it and Venezuela. (See D.I. 40; see also Transcript of Dec. 5, 2017 Chambers Conference) The Court continued the argument until December 21, at which point the parties again appeared, indicated that Venezuela had not met a condition precedent to the settlement, and proceeded to present argument. (See D.I. 43; Aug. Tr. at 12-13) Over the ensuing months, the parties have advised the Court of subsequent authorities and developments (see, e.g. , D.I. 59-60, 63-65) and responded to the Court's orders for supplemental briefing (see D.I. 51-54, 70-71). On July 30, 2018, the Court provided the parties with a list of additional questions on which it sought their input. (See D.I. 68) Then, on August 3, the Court heard additional oral argument. (See Aug. Tr.) APPLICABLE LAW A. Writ Of Attachment Pursuant to Federal Rule of Civil Procedure 69(a)(1), "[a] money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution - and in proceedings supplementary to and in aid of judgment or execution - must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies." Under Rule 69, "a district court has the authority to enforce a judgment by attaching property in accordance with the law of the state in which the district court sits." Peterson v. Islamic Republic of Iran , 876 F.3d 63, 89 (2d Cir. 2017) (internal quotation marks omitted). Delaware law permits a judgment creditor to obtain a writ of attachment fi. fa. , as set out in 10 Del. C. § 5031 : The plaintiff in any judgment in a court of record, or any person for such plaintiff lawfully authorized, may cause an attachment, as well as any other execution, to be issued thereon, containing an order for the summoning of garnishees, to be proceeded upon and returned as in cases of foreign attachment.[ ] The attachment, condemnation, or judgment thereon, shall be pleadable in bar by the garnishee in any action against the garnishee at the suit of the defendant in the attachment. As expressly provided by statute, the types of property a judgment creditor may attach include a debtor's shares in a Delaware corporation: The shares of any person in any corporation with all the rights thereto belonging ... may be attached under this section for debt, or other demands, if such person appears on the books of the corporation to hold or own such shares, option, right or interest. 8 Del. C. § 324(a). Delaware law further provides that judgment creditors may execute on their judgments by "the attachment of a defendant's property in the hands of a third party." UMS Partners, Ltd. v. Jackson , 1995 WL 413395, at *5 (Del. Super. Ct. June 15, 1995). B. Subject Matter Jurisdiction Federal Rule of Civil Procedure 12(b)(1)"authorizes dismissal of a complaint for lack of jurisdiction over the subject matter, or if the plaintiff lacks standing to bring his claim." Samsung Elecs. Co., Ltd. v. ON Semiconductor Corp. , 541 F.Supp.2d 645, 648 (D. Del. 2008). "At issue in a Rule 12(b)(1) motion is the court's very power to hear the case." Petruska v. Gannon Univ. , 462 F.3d 294, 302 (3d Cir. 2006) (internal quotation marks omitted). Usually, a motion to dismiss for lack of subject matter jurisdiction presents either a facial or factual challenge. See CNA v. United States , 535 F.3d 132, 139 (3d Cir. 2008). A facial attack "concerns an alleged pleading deficiency," while a factual attack concerns the "failure of a plaintiff's claim to comport factually with the jurisdictional prerequisites." Id. (internal quotation marks and brackets omitted). Where the motion presents a facial challenge to the Court's jurisdiction, or one based purely on the sufficiency of the plaintiff's allegations, the Court must accept well-pled factual allegations as true and generally may consider only the complaint and any documents referenced in or attached to it. See Lincoln Benefit Life Co. v. AEI Life, LLC , 800 F.3d 99, 105 (3d Cir. 2015) ; see also Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977) ("[T]he court must consider the allegations of the complaint as true."). "Affidavits and briefs in opposition do not fall in this category." Lincoln Benefit , 800 F.3d at 110. "The factual attack, however, differs greatly ...." Mortensen , 549 F.2d at 891. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction ... there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist. Id. Occasionally, the Court must consider both facial and factual challenges to its subject matter jurisdiction. See Carrier Corp. v. Outokumpu Oyj , 673 F.3d 430, 440 (6th Cir. 2012) ("Outokumpu has presented arguments for both a facial and factual challenge to subject-matter jurisdiction, and we address each in turn."); Hopewell Valley Reg'l. Bd. of Ednc. v. J.R. , 2018 WL 2411616 (D.N.J. May 29, 2018) (addressing motion to dismiss presenting both types of challenges); In re PennySaver USA Publ'g, LLC , 587 B.R. 43, 48 (Bankr. D. Del. 2018) ("Defendant has made both factual and facial challenges in its Rule 12(b)(1) Motion.... [T]he Court will review the factual and then facial challenges, in that order."). When a motion presents both types of attacks, the plaintiff must overcome both in order for its claims to proceed. Here, PDVSA presents both a facial and factual attack to subject matter jurisdiction. (See, e.g. , D.I. 26 at 20 (discussing facial attack); id. at 22-27 (discussing factual attack); see also infra n.16) DISCUSSION A. Foreign Sovereign Immunity 1. The Parties' Disputes Are Governed By The FSIA The Foreign Sovereign Immunities Act ("FSIA" or "Act"), 28 U.S.C. § 1602 et seq. ,"establishes a comprehensive framework for determining whether a court in this country, state or federal, may exercise jurisdiction over a foreign state." Republic of Argentina v. Weltover, Inc. , 504 U.S. 607, 610, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992). The FSIA is the "sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp. , 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). "[F]oreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution." Verlinden B.V. v. Centr. Bank of Nigeria , 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). "Under the Act, a 'foreign state shall be immune from the jurisdiction of the courts of the United States and of the States' unless one of several statutorily defined exceptions applies." Weltover , 504 U.S. at 610-11, 112 S.Ct. 2160 (quoting 28 U.S.C. § 1604 ). Hence, "a district court has subject matter jurisdiction over a suit against a foreign state if - and only if - the plaintiff's claim falls within a statutorily enumerated exception." Odhiambo v. Republic of Kenya , 764 F.3d 31, 34 (D.C. Cir. 2014). Accordingly, the FSIA must be applied by the District Courts in every action against a foreign sovereign since subject matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity, 28 U.S.C. § 1330(a).[ ] At the threshold of every action in a District Court against a foreign state, therefore, the court must satisfy itself that one of the exceptions applies - and in doing so it must apply the detailed federal law standards set forth in the Act. Verlinden , 461 U.S. at 493-94, 103 S.Ct. 1962 (internal footnote omitted). "[T]he FSIA exceptions are exhaustive; if no exception applies, the district court has no jurisdiction." Odhiambo , 764 F.3d at 34 ; see also Verlinden , 461 U.S. at 497, 103 S.Ct. 1962 ("[I]f a court determines that none of the exceptions to sovereign immunity applies, the plaintiff will be barred from raising his claim in any court in the United States ...."). Therefore, the disputes among Crystallex, Venezuela, and PDVSA are governed by the FSIA. Unless Crystallex can meet its burden to establish the applicability of exceptions to sovereign immunity, the Court is required to dismiss this case. 2. Crystallex Must Establish An Exception to Jurisdictional Immunity, Although It Need Not Show An Independent Basis For Subject Matter Jurisdiction With Respect to PDVSA Venezuela, as a foreign sovereign state, is presumptively immune from suit in all courts in the United States. See 28 U.S.C. § 1604 ("Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter."). Crystallex contends, and PDVSA does not dispute, that Venezuela is subject to the Court's jurisdiction under § 1605(a)(6), the arbitration exception. Section 1605(a)(6) states, in relevant part: (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... (6) in which the action is brought, ... to confirm an award made pursuant to ... an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States .... The Act defines a "foreign state" to include "a political subdivision of a foreign state or an agency or instrumentality of a foreign state." 28 U.S.C. § 1603(a). In turn, an "agency or instrumentality of a foreign state" is defined as any entity: (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b). It is undisputed that PDVSA is an "agency or instrumentality" of Venezuela within the meaning of the FSIA. (See D.I. 26 at 12 ("PDVSA indisputably is an 'agency or instrumentality of a foreign state' as defined in the FSIA ...."); Tr. at 36 ("Where the plaintiffs and PDVSA agree is that PDVSA is an agency or instrumentality of Venezuela ....") ) Where the parties' views first diverge is on the question of whether the Court must have an independent basis for subject matter jurisdiction with respect to PDVSA. PDVSA contends that because Crystallex's motion seeks to impose liability on PDVSA for Venezuela's debt, Crystallex is in effect suing PDVSA, and the Court cannot adjudicate such a suit without having a basis to exercise subject matter jurisdiction over PDVSA. (See, e.g. , D.I. 26 at 10-11; see also Tr. at 36-37) To PDVSA, the effect of Crystallex prevailing on its motion would be the same as if PDVSA were added to the judgment Crystallex holds against Venezuela, rendering PDVSA - a third party, which had no involvement in the events that harmed Crystallex and no involvement in the arbitration giving rise to the judgment against Venezuela - potentially liable for all of Venezuela's debts. Crystallex counters that once it establishes the Court has subject matter jurisdiction with respect to its dispute with Venezuela, and further establishes that PDVSA is the alter ego of Venezuela, it will have met its burden to show that the Court has subject matter jurisdiction with respect to PDVSA as well. To Crystallex, the crucial facts are that Crystallex has not sued PDVSA and does not seek to add PDVSA as a liable party on its judgment against Venezuela. (See, e.g. , D.I. 70 at 8) ("Crystallex does not seek to hold PDVSA liable for its judgment but rather seeks a more limited finding, namely that the specific property at issue on this motion - the shares of PDVH - though nominally held in the name of PDVSA, are, at this time, really the property of Venezuela.") Alternatively, if an independent basis for subject matter jurisdiction is necessary with respect to PDVSA, Crystallex argues that it, too, is present. (See id. at 4-5) ("[T]his Court has an independent basis for jurisdiction against PDVSA under 28 U.S.C. § 1330 and Section 1605(a)(6) of the FSIA.") On these points, the Court agrees with Crystallex. PDVSA's position is based on the Supreme Court's decision in Peacock v. Thomas , 516 U.S. 349, 357, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996), which stated, "We have never authorized the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not already liable for that judgment." See also Butler v. Sukhoi Co. , 579 F.3d 1307, 1313 (11th Cir. 2009) ("Because the Butlers sought to invoke the jurisdiction of the United States courts to enter a new judgment in a separate cause of action against appellants, they bore the burden of presenting a prima facie case that jurisdiction [against the third party] existed.") (footnote omitted). However, as Crystallex emphasizes, the Third Circuit has had occasion to consider the applicability of Peacock in the context of garnishment actions. (See, e.g. , Tr. at 10) (arguing " Peacock has no application to proper Rule 69 motions") In IFC Interconsult, AG v. Safeguard International Partners, LLC , 438 F.3d 298, 310 (3d Cir. 2006), the Third Circuit held that Rule 69 authorizes a garnishment action against an indemnitor of a judgment debtor even when there is no independent basis for federal subject matter jurisdiction - such as diversity - for a new action by the judgment creditor directly against that indemnitor. As the IFC Court stated: " Peacock itself made clear that it does not apply to Rule 69 actions." Id. at 311. IFC adds: "Although garnishment actions are new actions in the sense that there is a new party and a new theory for that party's liability, they are not new actions in the sense of a new direct claim." Id. at 314. Crystallex brings its motion for a writ of attachment fi. fa. pursuant to, inter alia , Rule 69, contending that it, as the garnishor, "is seeking to collect its judgment against Venezuela (the judgment debtor) by stepping into Venezuela's shoes and demanding Venezuela's alter ego's shares from PDVH (the garnishee)." (D.I. 70 at 7; see also D.I. 3 at 1; Tr. at 82-83 (" Rule 69 actions are to be treated as part of the original suit. Therefore, if the original suit was a suit against Venezuela, and there was jurisdiction under [ Section] 1330, there is jurisdiction to adjudicate rights in the property.") ) According to Crystallex, "[t]he fact that this garnishment proceeding involves an alter ego theory does not change the nature of the proceeding." (D.I. 70 at 7; Tr. at 11 ("[T]he fact that you could have a broader alter-ego theory does not mean that all alter-ego theories fall under Peacock .") ) Again, the Court agrees. Unlike the situation presented in Peacock , 516 U.S. at 350, 116 S.Ct. 862, this case is not "a subsequent lawsuit" to "impose an obligation to pay" an "existing federal judgment on a person not already liable for that judgment." To the contrary, it is part of the "same lawsuit" - that is, the action giving rise to the judgment against Venezuela, which has been registered in this District - and does not seek to impose any obligation on PDVSA to pay Venezuela's existing judgment, but, instead, seeks to attach property nominally belonging to PDVSA as truly belonging to Venezuela. (See D.I. 70 at 7-8) Rather than attempting to hold PDVSA primarily liable or shifting the judgment to PDVSA, Crystallex seeks to enforce its judgement against debtor Venezuela, "whose immunity has already been defeated on the FSIA and the arbitra[tion] exception," by attaching PDVSA property because it is "property of the debtor " under an alter ego theory. (Aug. Tr. at 31) (emphasis added) Such a theory, seeking only to collect a judgment but not to establish liability, does not require an independent basis for jurisdiction. See EM Ltd. v. Banco Cent. de la Republica Argentina , 800 F.3d 78, 91 n.56 (2d Cir. 2015) (" EM Ltd. II ") ("Our precedent supports the view ... that once an instrumentality of a sovereign state has been deemed to be the alter ego of that state ... the instrumentality and the state are to be treated as one and the same for all purposes."); Transfield ER Cape Ltd. v. Lndus.Carriers, Inc. , 571 F.3d 221, 224 (2d Cir. 2009) (stating alter egos "are treated as one entity for jurisdictional purposes") (internal quotation marks omitted); Patin v. Thoroughbred Power Boats, Inc. , 294 F.3d 640, 654 (5th Cir. 2002) (alter egos "are considered to be one and the same under the law"); Epperson v. Entm't Express, Inc. , 242 F.3d 100, 106 (2d Cir. 2001) ("Where the post-judgment proceeding is an effort to collect a federal court judgment, the courts have permitted judgment creditors to pursue, under the ancillary enforcement jurisdiction of the court, the assets of the judgment debtor even though the assets are found in the hands of a third party."); U.S.I Props. Corp. v. M.D. Constr. Co. , 230 F.3d 489, 496 (1st Cir. 2000) ("Where the postjudgment claim is simply a mode of execution designed to reach property of the judgment debtor in the hands of a third party, federal courts have often exercised enforcement jurisdiction.... Where the state procedural enforcement mechanisms incorporated by Rule 69(a) allow the court to reach assets of the judgment debtor in the hands of third parties in a continuation of the same action, such as garnishment or attachment, federal enforcement jurisdiction is clear."); Thomas, Head & Greisen Emps. Tr. v. Buster , 95 F.3d 1449, 1454 & n.7 (9th Cir. 1996) (stating that where judgment creditor "is not attempting to establish the [third party's] liability for the original judgment,... Peacock [is] inapposite.... Peacock suggested that whether a judgment creditor's post-judgment action is within a federal district court's ancillary enforcement jurisdiction hinges on whether it seeks not merely 'to collect a judgment' but also 'to establish liability ' on the part of the third party."). The Court acknowledges that the proper resolution of this issue is not free from doubt. This case is certainly not an "ordinary" Rule 69 garnishment action. Moreover, PDVSA directs the Court's attention to Gambone v. Lite Rock Drywall , 288 Fed. App'x 9, 12 (3d Cir. 2008), in which the Third Circuit described Peacock as holding "that ancillary jurisdiction was not intended for use as a tool for establishing personal liability on the part of a new defendant, for instance by designating that third party as an alter ego of the indebted party or by piercing the corporate veil " (emphasis added). Gambone , then, suggests that seeking to attach a third-party's property on the basis that the third-party is the alter ego of a judgment-debtor is an effort to impose primary liability on the third-party, an outcome requiring an independent jurisdictional basis with respect to the third party. However, the Gambone Court elaborated that "[n]othing in Peacock ... precludes ancillary jurisdiction over suits involving assets already subject to the judgment; it only bars the exercise of ancillary jurisdiction over attempts to impose personal liability for an existing judgment on a new party. " Id. (emphasis added). Just as the creditor in Gambone was not seeking to impose personal liability on the third party transferees, and thus, the Third Circuit concluded that the district court there had ancillary jurisdiction (see id. at 13 ), here, too, Crystallex does not attempt to impose personal liability on PDVSA, but instead seeks to attach assets that it alleges belong to Venezuela - assets which belong only nominally to Venezuela's alter ego, PDVSA. Where, as here, a plaintiff "does not seek to impose personal liability on" a third party, but rather "the relief [it] seek[s] is solely to corral [the debtor's] assets in an effort to preserve [its] access to them," id. , an independent basis for subject matter jurisdiction is not required. Moreover, while the Gambone Court explained that " Peacock holds that ancillary jurisdiction does not extend to suits demanding that a third party use its legitimately held assets to satisfy a previously rendered judgment," id. , the Court finds it is appropriate - if it finds PDVSA is Venezuela's alter ego - to view the instant case as not involving a demand that PDVSA use its "legitimately held assets" to satisfy Venezuela's judgment. Rather, the issue here is whether PDVSA's assets are, in effect, Venezuela's assets; for if they are, then this case is not correctly characterized as one in which Crystallex is attaching a third-party's property. PDVSA also directs the Court to IFC , 438 F.3d at 312, in which the Third Circuit described veil-piercing as a mechanism for imposing "primary liability" on a third party. Id. The IFC Court explained, "[v]eil-piercing does not make a party secondarily liable. Rather, it collapses corporate distinctions to make for joint primary liability. This contrasts with garnishment, in which there is a new party and a new theory of liability, but not a new direct claim." Id. Like Gambone , then, IFC seems to suggest that the Third Circuit would hold that alter ego liability is a form of "primary liability," which, pursuant to Peacock , requires an independent basis to exercise subject matter jurisdiction as to the third party. See Epperson , 242 F.3d at 106 ("Since Peacock , most courts have continued to draw a distinction between post-judgment proceedings to collect an existing judgment and proceedings, such as claims of alter ego liability and veil-piercing, that raise an independent controversy with a new party in an effort to shift liability."). But the Court finds persuasive Crystallex's notion of "two different contexts" of alter ego liability. (D.I. 70 at 7-8 & n.8) (citing, for example, First Horizon Bank v. Moriarty-Gentile , 2015 WL 8490982, at *4 n.4 (E.D.N.Y. Dec. 10, 2015) (finding independent jurisdiction, but also noting "alternate basis for jurisdiction" based on finding that third party was alter ego of debtor); Aioi Seiki, Inc. v. JIT Automation, Inc. , 11 F.Supp.2d 950, 952-54 (E.D. Mich. 1998) ("An action to pierce the corporate veil is not a new cause of action, but merely a determination of whether multiple entities exist as separate entities or as mere alter egos of each other.... Accordingly, [such actions are] brought supplementary to and in an effort to enforce a previous judgment of this court and should therefore be brought pursuant to Fed. R. Civ. P. 69(a).") An alter ego (or veil piercing) theory may be raised either as a basis for primary liability, in which "the judgment creditor seeks to establish that the alleged alter ego is liable for the original judgment, and thus obtain a new judgment against the alter ego," or alternatively as a basis for secondary liability, in which the judgment creditor "seeks a more limited finding, namely that the specific property at issue ... though nominally held in the name of [a third party, is], at this time, really the property of the [judgment debtor]." (D.I. 70 at 7-8) For the reasons already discussed in relation to Gambone , the Court views the present case as involving garnishment, seeking only to establish secondary liability (by attaching certain specified property), rather than an action seeking to impose primary liability on PDVSA. Therefore, the Court concludes that if Crystallex meets its burden to show that the Court has subject matter jurisdiction with respect to Venezuela under Section 1605(a)(6), and if Crystallex further demonstrates that PDVSA is the alter ego of Venezuela, then Crystallex will also necessarily have established that the Court may exercise subject matter jurisdiction with respect to PDVSA as well. Crystallex does not need to additionally prove that some other independent basis of subject matter jurisdiction exists with respect to PDVSA. See Kensington Int'l Ltd. v. Republic of Congo , 2007 WL 1032269, at * 13 (S.D.N.Y. Mar. 30, 2007) ("[I]f the facts alleged in the Complaint claiming that SNPC is an alter ego of Congo are accepted as true, then SNPC is Congo, and the only immunity at issue is Congo's immunity."). 3. Crystallex Must Establish An Exception to Attachment and Execution Immunity In addition to showing that Venezuela and PDVSA are not immune from exercise of this Court's subject matter jurisdiction, Crystallex must also establish an exception to attachment and execution immunity. See Rubin v. Islamic Republic of Iran , 637 F.3d 783, 793 (7th Cir. 2011) ("The Act contains two primary forms of immunity[:] ... Section 1604 provides jurisdictional immunity from suit ... [while] Section 1609 ... codifies the related common-law principle that a foreign state's property in the United States is immune from attachment and execution ...."). In order for the Court to issue the requested writ of attachment, the Court must be satisfied that the specific property on which Crystallex seeks to execute - PDVSA's shares of stock in Delaware corporation PDVH - are not immune from attachment and execution under the FSIA. See generally Rubin v. Islamic Republic of Iran , --- U.S. ----, 138 S. Ct. 816, 823-25, --- L.Ed.2d ---- (2018) (discussing "attachment and execution immunity" in relation to FSIA terrorism exception, 28 U.S.C. § 1605A ). "[T]he FSIA's provisions governing jurisdictional immunity, on the one hand, and execution immunity, on the other, operate independently." Walters v. Indus. & Commercial Bank of China, Ltd. , 651 F.3d 280, 288 (2d Cir. 2011). "[T]his means that 'a waiver of immunity from suit does not imply a waiver of immunity from attachment of property, and a waiver of immunity from attachment of property does not imply a waiver of immunity from suit.' " Id. (quoting Restatement (Third) of Foreign Relations Law of the United States § 456(1)(b)(1987) ). Notably, "the exceptions to attachment immunity are narrower than the exceptions to jurisdictional immunity. Although there is some overlap between the exceptions to jurisdictional immunity and those for immunity from execution and attachment, there is no escaping the fact that the latter are more narrowly drawn." Rubin , 637 F.3d at 796 (internal quotation marks omitted). That is, all else being equal, it is easier to establish subject matter jurisdiction over a foreign sovereign entity than it is to attach and execute on the property in the United States of such an entity. In the instant case, it is also important to understand that the scope of the exceptions to attachment and execution immunity vary depending on whether the property targeted by the plaintiff is property of the foreign sovereign itself or, instead, is property of an agency or instrumentality of the foreign sovereign. Consequently, "property owned by a foreign state's instrumentalities is generally more amenable to attachment than property owned by the foreign state itself." Id. at 794. As applied here, however, because of the Court's alter ego finding, Crystallex's burden is the greater of the two: as the Court is treating PDVSA as Venezuela, and therefore treating the property of PDVSA as the property of Venezuela, Crystallex must satisfy the narrower exception to execution immunity applicable to property of foreign states. 4. PDVSA Is Presumptively Separate from Venezuela It is undisputed that PDVSA is an agency or instrumentality of Venezuela, having been separately formed by Venezuela in the 1970s. (See, e.g. , Tr. at 13, 36) "[D]uly created instrumentalities of a foreign state are to be accorded a presumption of independent status." First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba , 462 U.S. 611, 627, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) (" Bancec "). This is a strong presumption. See Arch Trading Corp. v. Republic of Ecuador , 839 F.3d 193, 201 (2d Cir. 2016). "Both Bancec and the FSIA legislative history caution against too easily overcoming the presumption of separateness." De Letelier v. Republic of Chile , 748 F.2d 790, 795 (2d Cir. 1984) ; see also EM Ltd. II , 800 F.3d at 99 ("[ Bancec ] sets a high bar for when an instrumentality will be deemed an alter ego of its sovereign state."). Indeed, in Bancec - the leading case on how the presumption of separateness between a foreign state and its agency or instrumentality may be overcome - the Supreme Court explained that "the instrumentality's assets and liabilities must be treated as distinct from those of its sovereign in order to facilitate credit transactions with third parties." 462 U.S. at 626, 103 S.Ct. 2591. "Freely 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. "Due respect for the actions taken by foreign sovereigns and for principles of comity between nations leads us 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 (citation omitted). Therefore, the Court must presume that PDVSA retains its status as separate and distinct from the nation of Venezuela. Unless Crystallex can overcome this strong presumption, the Court must dismiss this case. 5. Federal Common Law Provides The Applicable Disjunctive Test For Rebutting Presumption of Separateness The FSIA does not address the circumstances under which an agency or instrumentality of a foreign state may be treated as the sovereign state itself for purposes of either jurisdiction or attachment and execution. Thus, to determine whether Crystallex has rebutted the strong presumption of separateness between PDVSA and Venezuela, the Court applies standards developed pursuant to federal common law. See Bancec , 462 U.S. at 623, 103 S.Ct. 2591. "The controlling case for when an instrumentality of a foreign sovereign state becomes the 'alter ego' of that state" is, once again, Bancec . EM Ltd. II , 800 F.3d at 89 ; see also Doe v. Holy See , 557 F.3d 1066, 1080 (9th Cir. 2009) ("The Bancec standard is in fact most similar to the 'alter ego' or 'piercing the corporate veil' standards applied in many state courts to determine whether the actions of a corporation are attributable to its owners."). In Bancec , the Supreme Court explained that the "presumption may be overcome in certain circumstances:" (1) "where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, we have held that one may be held liable for the actions of the other," and "[i]n addition," (2) where adhering to "the broader equitable principle" of corporate separateness "would work fraud or injustice." Id. at 628-29, 103 S.Ct. 2591 (emphasis added; internal quotation marks omitted). The test, then, is disjunctive. A party such as Crystallex may rebut the presumption of separateness by establishing either of the foregoing and need not establish both. See Fed. Ins. Co. v. Richard I. Rubin & Co. , 12 F.3d 1270, 1287 (3d Cir. 1993) ("We recognize that there are two major exceptions to the Bancec rule, namely, the independent corporate status of government-owned entities should be disregarded (1) 'where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created;' or (2) where to give effect to the separate instrumentalities 'would work fraud or injustice.' ") (emphasis added); see also Arch Trading , 839 F.3d at 201 (stating alter ego may be shown by either extensive control "or ... fraud or injustice"); EM Ltd. II , 800 F.3d at 90-91 (same); Holy See , 557 F.3d at 1077-80 (same). The Court will refer to the Bancec disjunctive test for whether the presumption of separateness has been rebutted as the "extensive control" and "fraud or injustice" tests (or prongs), respectively. In "examin[ing] ... the nature of government instrumentalities," the Bancec Court noted these entities "vary considerably, but many possess a number of common features." 462 U.S. at 623-24, 103 S.Ct. 2591. A typical government instrumentality, if one can be said to exist, is created by an enabling statute that prescribes the powers and duties of the instrumentality, and specifies that it is to be managed by a board selected by the government in a manner consistent with the enabling law. The instrumentality is typically established as a separate juridical entity, with the powers to hold and sell property and to sue and be sued. Except for appropriations to provide capital or to cover losses, the instrumentality is primarily responsible for its own finances. The instrumentality is run as a distinct economic enterprise; often it is not subject to the same budgetary and personnel requirements with which government agencies must comply. Id. at 624, 103 S.Ct. 2591. A typical government instrumentality would, normally, retain its separate juridical status. See id. at 633, 103 S.Ct. 2591. Still, "[d]etermination of who is and is not an agent of whom will be in great part factual, and the fact-finding should be explicit." Foremost-McKesson, Inc. v. Islamic Republic of Iran , 905 F.2d 438, 448 (D.C. Cir. 1990) (internal citation and quotation marks omitted). In Bancec , the Supreme Court emphasized that it was not "announc[ing] [a] mechanical formula for determining the circumstances under which the normally separate juridical status of a government instrumentality is to be disregarded." Bancec , 462 U.S. at 633, 103 S.Ct. 2591 ; see also Hester Int'l Corp. v. Federal Republic of Nigeria , 879 F.2d 170, 179 (5th Cir. 1989) (describing how "determination of whether a government instrumentality is a separate juridical entity involves the application of the law to fact-specific situations"). The burden of making the appropriate showing rests on the party seeking to rebut the presumption of separateness, which here is Crystallex. See Hester , 879 F.2d at 179 ; see also Foremost-McKesson , 905 F.2d at 447 ("It is further clear that the plaintiff bears the burden of asserting facts sufficient to withstand a motion to dismiss regarding the agency relationship.") (emphasis omitted). The Supreme Court has held that a plaintiff must "make out a legally valid claim" and ultimately prove the facts supporting the court's jurisdiction under the FSIA; it is insufficient simply to state a "non-frivolous" claim to that effect. See Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co. , --- U.S. ----, 137 S. Ct. 1312, 1316, 1318-19, 197 L.Ed.2d 663 (2017) (considering jurisdictional standard under FSIA expropriation exception); see also Owens v. Republic of Sudan , 864 F.3d 751, 779 (D.C. Cir. 2017). B. Crystallex Has Met Its Burden with Respect to Jurisdictional Immunity It is undisputed that the Court has subject matter jurisdiction with respect to Crystallex's claim against Venezuela, given the FSIA's arbitration exception. Nonetheless, PDVSA has moved to dismiss Crystallex's efforts to collect on its judgment against Venezuela by attaching the property in the United States of PDVSA, on the theory that PDVSA is Venezuela's alter ego. In the Court's view, PDVSA's motion presents both a facial and factual attack on the Court's subject matter jurisdiction. Below, after setting out the statutory basis for the Court's undisputed jurisdiction with respect to Venezuela, the Court addresses PDVSA's facial and factual challenges. As to the facial challenge to the sufficiency of Crystallex's allegations, the Court determines that Crystallex's burden is to rebut the presumption of separateness between Venezuela and PDVSA by showing probable cause. The Court then explains that, taking Crystallex's allegations as true, Crystallex has met this burden by adequately alleging that Venezuela exerts extensive control over PDVSA, including its day-to-day operations, rendering PDVSA the alter ego of Venezuela. However, Crystallex has not shown probable cause to find that recognizing the separateness of PDVSA and Venezuela would work a fraud or injustice. Turning next to PDVSA's factual challenge, the Court concludes that Crystallex's burden is to prove its allegations by a preponderance of the evidence - not, as PDVSA contends, by clear and convincing evidence. The Court then summarizes the evidence presented by both sides and finds that Crystallex has proven, by a preponderance of the evidence, that Venezuela extensively controls PDVSA, and has, thus, proven that PDVSA is Venezuela's alter ego. With respect to the fraud or injustice prong, however, Crystallex has not met its burden. 1. The Court Has Undisputed Jurisdiction With Respect to Venezuela PDVSA does not challenge the Court's subject matter jurisdiction with respect to Venezuela. It is undisputed that Crystallex has gone beyond probable cause and fully proven that Venezuela is not immune from suit due to registration of the confirmed arbitration award against Venezuela. (See D.I. 3-1 at 5-7) As noted previously, § 1604 of the FSIA renders foreign states like Venezuela "immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607" of the Act. 28 U.S.C. § 1604. The exception Crystallex relies on to establish subject matter jurisdiction with respect to Venezuela is § 1605(a)(6), relating to arbitration: (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... (6) in which the action is brought ... to confirm an award made pursuant to ... an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States .... It is undisputed that the Court has subject matter jurisdiction over Venezuela under § 1605(a)(6)(A) due to Crystallex's $1.2 billion arbitral award against Venezuela, which was confirmed by the United States District Court for the District of Columbia, and is now registered in the District of Delaware. 2. PDVSA's Facial Attack There is no dispute that this litigation can go forward against Venezuela. But Venezuela has not appeared and Crystallex has not identified any specific property directly owned by Venezuela that can be found in the District of Delaware. Instead, as noted throughout this Opinion, Crystallex seeks to execute its judgment against Venezuela by attaching and executing on property owned by PDVSA and found in Delaware; specifically, the shares of Delaware corporation PDVH, which are indisputably directly owned by PDVSA. Hence, the Court now addresses PDVSA's facial attack on the Court's subject matter jurisdiction. a. Crystallex's burden is probable cause As previously noted, when considering PDVSA's facial attack on the sufficiency of Crystallex's allegation that PDVSA is Venezuela's alter ego, the Court takes as true all of Crystallex's well-pled factual allegations. See, e.g., Rong v. Liaoning Province Government , 452 F.3d 883, 888 (D.C. Cir. 2006) ("If the defendant challenges only the legal sufficiency of the plaintiff's jurisdictional allegations, then the district court should take the plaintiff's factual allegations as true and determine whether they bring the case within any of the exceptions to immunity invoked by the plaintiff. If a foreign state argues that even if taken as true, the plaintiff's allegations are insufficient to come within the commercial activity exception, this amounts to a challenge to the legal sufficiency of the allegations.") (internal quotation marks and citations omitted); see also Holy See , 557 F.3d at 1073 ("[A] motion to dismiss for lack of jurisdiction under the FSIA is no different from any other motion to dismiss on the pleadings for lack of jurisdiction, and we apply the same standards in evaluating its merit."). The burden is on Crystallex to show that these allegations support a finding of at least probable cause that the Bancec presumption of separateness has been rebutted. See Strick Corp. v. Thai Teak Prods. Co. , 493 F.Supp. 1210, 1217 (E.D. Pa. 1980) ("The writ should issue only if on its face probable cause exists for accepting its conclusion."); Local Union No. 626 United Bhd. of Carpenters & Joiners of Am. Pension Fund v. Delmarva Concrete Corp. , 2004 WL 350452, at *2-3 (E.D. Pa. Feb. 24, 2004) (requiring "factual basis for satisfying" alter ego standard); see also 10 Del. C. § 3507 ("A writ of foreign attachment may be issued against any corporation, aggregate or sole, not created by or existing under the laws of this State upon proof satisfactory to the court that the defendant is a corporation not created by, or existing under the laws of this State, and that the plaintiff has a good cause of action against the defendant in an amount exceeding $50."); Del. Super. Ct. Civ. R. 49(b)(1) ("The proof required for the issuance of a mesne writ of attachment under Chapter 35, Title 10, Delaware Code, will be satisfied by filing with the complaint an affidavit of plaintiff or some credible person setting forth the facts required by the applicable statute."). Undertaking this analysis, the Court concludes that Crystallex has met its burden to overcome PDVSA's facial attack. Specifically, Crystallex has met this burden with respect to the extensive control prong of Bancec , but not with respect to the fraud or injustice prong. b. Extensive control Taking Crystallex's allegations as true, Crystallex has shown at least probable cause for a finding that PDVSA is not immune from suit. This is because Crystallex has stated sufficient allegations that, if proven, would rebut the presumption of separateness and establish that PDVSA is the alter ego of Venezuela. In determining whether a corporate entity is "so extensively controlled" by a sovereign state, the Court considers "whether the sovereign state exercises significant and repeated control over the instrumentality's day-to-day operations." EM Ltd. II , 800 F.3d at 91 ; see also Walter Fuller Aircraft Sales, Inc. v. Republic of Philippines , 965 F.2d 1375, 1382 (5th Cir. 1992) ("[W]e look to the ownership and management structure of the instrumentality, paying particularly close attention to whether the government is involved in day-to-day operations, as well as the extent to which the agent holds itself out to be acting on behalf of the government."); Holy See , 557 F.3d at 1079-80 (requiring "day-to-day, routine involvement" to overcome Bancec presumption). Considerations relevant to the fact-intensive inquiry of whether a sovereign state exercises control over an instrumentality's day-to-day operations include: whether the sovereign nation: (1) uses the instrumentality's property as its own; (2) ignores the instrumentality's separate status or ordinary corporate formalities; (3) deprives the instrumentality of the independence from close political control that is generally enjoyed by government agencies; (4) requires the instrumentality to obtain approvals for ordinary business decisions from a political actor; and (5) issues policies or directives that cause the instrumentality to act directly on behalf of the sovereign state. These factors are relevant to answering the touchstone inquiry for "extensive control": namely, whether the sovereign state exercises significant and repeated control over the instrumentality's day-to-day operations. EM Ltd. II , 800 F.3d at 91. Crystallex makes sufficient allegations which, taken as true, establish probable cause that the presumption of separateness is rebutted. As summarized in Crystallex's briefing on the motions, Crystallex has alleged each of the factors identified above, as well as other bases for finding Venezuela exercised significant and repeated control over PDVSA's day-to-day operations. Borrowing from Crystallex's briefing, the Court sets out below the well-pled allegations that, collectively, demonstrate probable cause that Venezuela extensively controls PDVSA, rebutting the Bancec presumption of separateness. Venezuela Using PDVSA's Property As Its Own • Venezuela uses PDVSA's property, including aircraft and tanker trucks, for its own political purposes Ignoring PDVSA's Separate Status • PDVSA discloses Venezuela's control and willingness to direct the company to act against its interests as risk factors in its bond offering documents • At least for marketing purposes, including on Twitter, PDVSA regularly boasts "PDVSA es Venezuela," which translates to "PDVSA is Venezuela" Depriving PDVSA of Independence from Close Political Control • Venezuela appoints PDVSA's Board of Directors, and several Government Ministers are also members of PDVSA's Board of Directors • Venezuela's Oil Minister has almost always also been PDVSA's President and Director • Venezuela's Oil Ministry and PDVSA share physical office space • Venezuela - including its President - hires and fires, and exerts political pressure on, both high- and low-level PDVSA employees, including by requiring that PDVSA managers be trained according to the Government's social policies • PDVSA's Articles of Incorporation confirm that it is required to adhere to the guidelines and policies established or agreed upon by the National Executive Requiring PDVSA to Obtain Approvals for Ordinary Business Decisions • Venezuela's National Executive regulates and supervises PDVSA's operations • Venezuela instructs PDVSA to whom it must sell oil internationally and at what price • Venezuela dictates the price at which oil is sold domestically (forcing PDVSA to subsidize gas prices) Issuing Policies Causing PDVSA to Act Directly on Behalf of Venezuela • PDVSA was created by presidential decree not to generate profits but as a national company to implement national policy on hydrocarbons • From 2010 through 2016, Venezuela required PDVSA to contribute to the State directly (through taxes, royalties, and dividends in the amount of approximately $119 billion) and indirectly (through off-budget social programs and other public expenditures that have nothing to do with the hydrocarbons industry in the amount of approximately $82 billion) • Venezuela uses PDVSA to achieve its social and political goals, both domestically (e.g., through Fondo Nacional para el Desarrollo Nacional ("FONDEN"), a social development fund) and abroad (e.g., through Petrocaribe) • Venezuela forces PDVSA to provide oil to China and Russia as repayment for loans those countries made to Venezuela • Venezuela directs PDVSA to sell oil to other friendly nations on non-economic terms to advance Venezuela's foreign policy objectives Additional Indications of Venezuela's Extensive Control Over PDVSA • Venezuela manipulates PDVSA's conversion of U.S. Dollars to Venezuelan Bolivars to leverage PDVSA's revenues for the sole benefit of Venezuela and to the detriment of PDVSA • Venezuela uses PDVSA to expropriate private investment • PDVSA paid Venezuela's fees to the ICSID tribunal in the underlying arbitration between Venezuela and Crystallex PDVSA's facial challenge can be summarized as follows: [T]he facts asserted in [Crystallex's motion] and supporting memorandum of law demonstrate nothing more than ordinary shareholder control and government regulation that cannot, as a matter of law, satisfy the required showing that the shareholder exercise complete domination and control over the corporation's day-to-day operations. (D.I. 71 at 4) The Court is not persuaded. Crystallex has shown probable cause to rebut the presumption of separateness between the Republic of Venezuela and PDVSA. PDVSA's arguments are weightier (though ultimately unsuccessful) in connection with its factual challenge, where the Court can (and does) consider PDVSA's evidence, and not just Crystallex's allegations. c. Fraud or injustice Crystallex contends that it has satisfied both prongs of the disjunctive Bancec test: extensive control as well as fraud or injustice. While, as already explained, the Court agrees with the former assertion, it rejects the latter. Even taking Crystallex's well-pled allegations as true, there is not probable cause that giving effect to the separateness of Venezuela and PDVSA would "work a fraud or injustice" as that term is used in Bancec (i.e., as a stand-alone test that may be satisfied independent of whether there is extensive control). Instead, as PDVSA contends, Crystallex has not "show[n] that the Republic abused PDVSA's corporate form to perpetrate a fraud or injustice resulting in harm to Crystallex." (D.I. 71 at 5) Crystallex alleges that the expropriation of its interest in the Las Cristinas mines "resulted in a multibillion dollar benefit to state-owned and controlled PDVSA." (D.I. 3-1 at 32) Further, Crystallex contends that "Venezuela reaps enormous benefits from owning and operating an oil refining company under the protection of Delaware law ... in an attempt to protect Venezuela's Delaware assets from execution." (Id. ) From these premises, Crystallex asks the Court to "deem PDVSA to be Venezuela's alter ego to avoid the obvious injustice that would result if Venezuela were permitted to violate international law by taking Crystallex's assets, transfer those assets [to] a state-owned and controlled company, PDVSA, for no consideration, and then use U.S. law to avoid paying its lawful obligations in the face of PDVSA's receipt of billions for those stolen assets." (Id. ; see also D.I. 33 at 17 ("Venezuela uses PDVSA to generate billions of dollars in revenue in the United States through its commercial refining and oil industry subsidiaries, while simultaneously using PDVSA to shield those same assets from creditors in the United States.") ) Crystallex's allegations fail because they do not sufficiently allege that Venezuela used PDVSA as an instrument to defraud Crystallex. Everything Crystallex alleges that Venezuela did to harm Crystallex could have been done - and, indeed, was alleged to have been done - by Venezuela itself, regardless of whether PDVSA even existed. It was Venezuela, not PDVSA, which expropriated Crystallex's interests in the mines. While Venezuela may have subsequently transferred those interests to PDVSA, it did not need to do so as part of its scheme to defraud Crystallex or to engineer an unjust outcome. Crystallex does not even allege that PDVSA participated in or facilitated the expropriation. Nor does Crystallex allege in anything other than an insufficient, conclusory manner that PDVSA was created and/or is being maintained by Venezuela for the purpose of defrauding Crystallex and other creditors. As PDVSA persuasively explains: PDVSA had nothing to do with the underlying dispute between the parties to the arbitration. And PDVSA is not a newly created sham corporation designed to insulate the Republic from liability. PDVSA was established over 40 years ago and is one of the largest oil companies in the world.... [T]he mere fact that a government instrumentality benefits from the actions of the government does not demonstrate an abuse of the corporate form required to overcome the presumption of separateness under Bancec . (D.I. 26 at 19-20) Therefore, the Court concludes that Crystallex cannot meet its burden under Bancec 's fraud or injustice prong. 2. PDVSA's Factual Attack As previously noted, PDVSA's motion presents both a facial and factual attack on Crystallex's efforts to establish subject matter jurisdiction. In evaluating the factual challenge, the Court does not assume the truth of Crystallex's allegations. Instead, the Court must consider the evidence presented by Crystallex, as well as any competing evidence presented by PDVSA, and determine, under the appropriate burden of proof, whether Crystallex's evidence meets that burden. For the reasons set out below, the Court concludes that (1) Crystallex's burden is to prove, by a preponderance of the evidence, that Venezuela extensively controls PDVSA, and (2) Crystallex has met this burden. a. Crystallex's burden is preponderance of the evidence While the parties agree that Crystallex bears some burden in order to obtain its requested writ, they disagree as to the nature of that burden. Crystallex argues for the " 'usual ... rule generally applicable to civil actions in federal courts' ": that the plaintiff must prove its case by a preponderance of the evidence. (D.I. 52 at 1) (quoting Ramsey v. United Mine Workers of Am. , 401 U.S. 302, 308, 91 S.Ct. 658, 28 L.Ed.2d 64 (1971) ) PDVSA contends that Crystallex, as "a party seeking to rebut the strong presumption of separateness under Bancec , bears the heavy burden of proving an alter ego relationship by clear and convincing evidence." (D.I. 51 at 1) The Court agrees with Crystallex. As Crystallex correctly points out, Bancec held there is "no mechanical formula" for assessing whether the presumption of separateness has been rebutted. 462 U.S. at 633, 103 S.Ct. 2591. Nor does Bancec speak of a heightened burden. Neither does the FSIA address the standard of proof or suggest it is a heightened one. (See D.I. 52 at 1) In this situation, the Court discerns no basis to depart from the ordinarily prevailing standard in a civil case, which is the preponderance of the evidence standard. See generally McNutt v. Gen. Motors Acceptance Corp. of Indiana , 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ("[T]he court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence."). The sparse caselaw on the subject further supports this conclusion. While many cases in this area fail to state the standard of proof being applied, Crystallex cites a handful of cases that expressly apply a preponderance of the evidence standard. See, e.g., Kirschenbaum v. 650 Fifth Ave. , 257 F. Supp. 3d 463, 472 (S.D.N.Y. 2017) (issuing findings of fact based on "assessment of the preponderance of the credible evidence," while also finding "massive amount of evidence" that left C