Full opinion text
SCIRICA, Chief Judge. At issue in this World War II reparations case is whether a suit seeking additional funds for victims of Nazi-era wrongs is justiciable. Claimants contend German companies owe “interest” on their payments to a reparations fund created with the substantial involvement of the United States and German governments to benefit Nazi victims or their descendants. The District Court held the claim presented a nonjusticiable political question. We will reverse and remand. I. Background During the Nazi era, German companies employed slave and forced labor, appropriated private property, and refused to pay insurance policies. Legal redress was largely unavailable to the victims of these crimes for nearly half a century because their claims against the German government and German companies were barred or deferred by various international agreements and treaties, intended to facilitate the rebuilding of the German economy. The situation began to change after the fall of the Berlin Wall in November 1989, when the Federal Republic of Germany, the German Democratic Republic, the United States, Great Britain, France, and the former Soviet Union entered into the Two-Plus-Four Treaty, ending the rights formerly held by the Allies in Germany. The treaty was silent on the issue of private individuals’ war-related claims against the German government and German companies, but German courts interpreted it to terminate the previous bar on such claims. E.g., Oberverwaltungsgericht [OVG] [Administrative Court of Appeals, Muenster] NJW 1998, 2302, at 8-10, cited in Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 455 (D.N.J.1999); Landgericht [LG] [District Court, Bremen] 1998, 1 0 2889/90, at 13, cited in Iwanowa, 67 F.Supp.2d at 455; see also Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 404-05, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). In light of the German courts’ interpretation of the treaty, many uncompensated victims brought claims against German companies in United States courts. Victims and their hems, both individually and in class actions, sued banks, insurers, and manufacturers that had used or profited from slave and forced labor, or wrongfully appropriated assets during the National Socialist era. In response to early cases and in preparation for further litigation, seventeen major German corporations formed an unincorporated association called the German Foundation Industrial Initiative. The seventeen founding members were Allianz AG, BASF AG, Bayer AG, BMW AG, Commerzbank AG, Daim-lerChrysler AG, Degussa Huís AG, Deutsche Bank, Deutz AG, Dresdener AG, Hoechst AG, RAG AG, Robert Bosch GmbH, Siemens AG, Veba AG, Thyssen-Krupp AG, and Volkswagen AG. A. Negotiations for a Reparations Fund The United States and German governments, aware of the significance of the underlying claims and the seriousness of the risk posed to the German economy, encouraged negotiations between plaintiffs and defendant German corporations. In the Fall of 1998, the German government asked Deputy Secretary of the Treasury Stuart Eizenstat to facilitate a resolution of the class action suits. Over the next year and a half, Deputy Secretary Eizens-tat chaired a series of meetings among lawyers for the victims, lawyers for the German companies, and representatives of the German government. Leading negotiations on the German side were Chancellor Schroeder’s Envoy and Chief German Negotiator, Count Otto Lambsdorff, and his predecessor, Bodo Hombach. On February 16, 1999, German Chancellor Gerhardt Schroeder, joined by the German companies that comprised the German Foundation Industrial Initiative, announced plans for formal negotiations to settle all pending litigation in United States courts relating to German companies’ Nazi era conduct. The United States State Department hosted the first plenary session of formal negotiations on May 11 and 12, 1999. The goal was to create a foundation (a reparations fund) to compensate Nazi-era victims and to fund ongoing projects to prevent religious and ethnic intolerance in Germany. In exchange for funding the foundation, German companies would receive “legal peace” — the termination and resolution of all suits against them in United States courts on WWII-era claims and an assurance of protection from future suits. A total of 12 plenary sessions were held in Bonn and Berlin, Germany, and in Washington, D.C. Lawyers in the pending cases joined government representatives from the United States, Germany, Israel, Belarus, the Czech Republic, Poland, Russia, Ukraine, representatives from the Conference on Jewish Material Claims Against Germany, and representatives from the German Foundation Industrial Initiative. Negotiations reached a breakthrough in December 1999. Responding to an offer from the German companies to fund the foundation with DM 8 billion, the plaintiffs’ lawyers, with the support of Poland, the Czech Republic, the Republic of Belarus, and the Ukraine, countered on December 13 with an offer for DM 10 billion. President Bill Clinton wrote to Chancellor Ger-hard Schroeder that day, urging acceptance of the DM 10 billion “counteroffer,” which was “a firm commitment for settlement of which we both could be proud.” See Garamendi, 539 U.S. at 405-06, 123 S.Ct. 2374. The next day, Chancellor Schroeder accepted the counteroffer, thanking President Clinton for his “decisive impulses for a consensus which could be accepted by all parties involved.” Also that day, Deputy Secretary Eizenstat communicated to the victims’ attorneys the German Foundation Industrial Initiative’s and German government’s acceptance of this offer. President Clinton announced the agreement from the Oval Office the following day, December 15. Two days later, the parties made a formal public announcement in Bonn, Germany. Over the ensuing months, the parties negotiated allocation details — how much money would go to each partner organization and which types of victims were eligible — and detailed procedures for the Foundation’s operation. On July 20, 2000, the foundation, called “Remembrance, Responsibility and the Future,” was formally established. B. The Berlin Accords The documents establishing the Foundation, collectively referred to as the Berlin Accords or the Berlin Agreements, consist of the Joint Statement, the Executive Agreement between the United States and Germany, and the Foundation Law. The Joint Statement — -formally titled “The Joint Statement on occasion of the final plenary meeting concluding international talks on the preparation of the Foundation ‘Remembrance, Responsibility and the Future’ ” — sets forth the goal of the Foundation, which is to “provide dignified payments to hundreds of thousands of survivors and to others who suffered from wrongs during the National Socialist era and World War II.” Preamble, para. 12. The Joint Statement commits the German government and German industry to a DM 10 billion capitalization, and places responsibility for collecting the German companies’ share on the German Foundation Industrial Initiative. Particularly significant for this case, Section 4(d) of the Joint Statement provides, in part: German company funds will continue to be collected on a schedule and in a manner that will ensure that the interest earned thereon before and after their delivery to the Foundation will reach at least 100 million DM. The second document of the Berlin Accords, the Executive Agreement, outlines the United States and German governments’ commitment to the Foundation. It obligates the United States Executive, in all cases for which it is notified of a claim against a German company arising out of the WWII era, to file a statement of its foreign policy interests with the court in which the claim is pending, stating that United States’ foreign policy interests favor resolution through the Foundation. Specifically, Article 2(1) of the Executive Agreement provides: The United States shall, in all cases in which the United States is notified that a claim described in article 1(1) has been asserted in a court in the United States, inform its courts through a Statement of Interest, in accordance with Annex B, and, consistent therewith, as it otherwise considers appropriate, that it would be in the foreign policy interests of the United States for the Foundation to be the exclusive remedy and forum for resolving such claims asserted against German companies as defined in Annex C and that dismissal of such cases would be in its foreign policy interest. See also Art. 3(4) (“The United States shall take appropriate steps to oppose any challenge to the sovereign immunity of the Federal Republic of Germany with respect to any claim that may be asserted against the Federal Republic of Germany concerning the consequences of the National Socialist era and World War II.”). Article 1(1) describes the type of “claim” that triggers the filling of a Statement of Interest: The parties agree that the Foundation “Remembrance, Responsibility and the Future” covers, and that it would be in the their interests for the Foundation to be the exclusive remedy and forum for the resolution of, all claims that have been or may be asserted against German companies arising from the National Socialist era and World War II. The Executive Agreement also commits the- German government to oversight of the Foundation. See id., Art. 1(3) (“The Federal Republic of Germany assures that the Foundation will be subject to legal supervision by a German governmental authority[.]”). The final document of the Berlin Accords, the Foundation Law, is codified under German law. The Foundation Law went into effect on August 12, 2000, establishing the Foundation as a legal entity and an instrumentality of the German government, subject to initial oversight by the Ministry of. Finance. Foundation Law § 8(1). It specifies that DM 5 billion of the Foundation’s funding would be contributed by the German government, and the other DM 5 billion through the German Foundation Industrial Initiative. Id. § 3(3). It establishes a 27-member Board of Trustees and a three-member Board of Directors. Id. §§ 5-6. The Board of Trustees is to make decisions on “all fundamental matters” relating to the Foundation, id. § 5(5), and to perform roughly the same function a board of directors would perform in a United States corporation. The United States is permitted to appoint two members to the Board of Trustees: a representative of the United States government and an attorney to represent the interests of the victims. The Board of Directors is to represent the Foundation in judicial and extrajudicial matters, manage the day-to-day business of the Foundation, and implement the decisions of the Board of Trustees, id. § 6(3), and in this way to function like the officers of a United States corporation. C. Obtaining Dismissals of Cases Pending in United States Courts The Berlin Accords conditioned contributions to the Foundation on the dismissal of all pending and future WWII-era claims against German companies in United States courts. Joint Statement, Preamble, para. 13; id., § 4(b). Claimants contend at the time the Joint Statement and Executive Agreement were signed on July 1Y, 2000, the parties expected it would take about six months to obtain dismissal of cases then pending in United States courts. In August 2000, at the request of the parties, the Judicial Panel on Multi-District Litigation consolidated fifty-three cases involving slave and forced labor claims — most of which were putative class actions — before Judge Bassler in the United States District Court for New Jersey. MDL Transfer Order, No. 1337 (August 4, 2000); see In re Nazi Era Cases Against German Defs. Litig., 213 F.Supp.2d 439, 442 (2002). Suits involving unpaid insurance policies proceeded in the Southern District of New York before Chief Judge Mukasey; and suits against German banks involving unpaid insurance policies proceeded in the Southern District of New York before Judge Kram. After consolidation of the slave and forced labor claims but before class certification, the parties sought permission to dismiss the suits with prejudice in light of the proposed payments from the Foundation. Judge Bassler approved the voluntary dismissals of 49 pending cases on December 5, 2000, but sounded a cautionary note: [O]f great concern to Plaintiffs in these actions is the prospect that full funding of the Foundation might never be achieved, and that as a result they would have dismissed their claims with prejudice for nothing. The Court shares this understandable concern, and for this reason all of the Orders of Dismissal (with the consent of the parties) were made expressly subject to Federal Rule of Civil Procedure 60(b).... Pursuant to Rule 60(b), should the Foundation not achieve full funding, Rule 60(b) would provide the Plaintiffs who have dismissed with prejudice their complaints in reliance on full funding with an avenue for relief. In re Nazi Era Cases, 213 F.Supp.2d at 445 (citing In re Nazi Era Cases Against German Defs. Litig., 198 F.R.D. 429, 446-47 (D.N.J.2000)). On December 14, 2000, Chief Judge Mukasey similarly entered an order granting leave to dismiss the actions against the German insurance companies. Judge Kram refused to grant voluntary dismissal of the plaintiffs’ claims against the German banks. On March 8, 2001, she denied the voluntary motion to dismiss because it would “subject all absent class members to the detrimental statement of interest and the other terms of the Compact, even though the absent class members’ only source of compensation for their claims has yet to be fully funded.” See In re German and Austrian Bank Litig., 2001 WL 228107, at *6 (S.D.N.Y. Mar.8, 2001). At a May 10, 2001 rehearing, Judge Kram granted the motion to dismiss, conditioning the grant on certain changes to the Foundation’s allocation schedule. See Duveen v. U.S. Dist. Court (In re Austrian & German Holocaust Litig.), 250 F.3d 156, 160-62 (2d Cir.2001). Plaintiffs and defendants sought a writ of mandamus. On May 17, 2001, the Court of Appeals for the Second Circuit granted the writ, compelling Judge Kram to grant leave to dismiss all claims without conditions. Id. at 165. The judge granted the dismissals on May 18 and 21, 2001. On May 30, the German legislature declared “legal peace,” triggering the obligations of the German government and the German companies’ to each pay DM 5 billion to the Foundation. On October 19, 2000, the United States and German governments exchanged diplomatic notes stipulating, in accordance with Article 5 of the Executive Agreement, that the Executive Agreement entered into force on that same date. With all cases pending in United States courts dismissed and with the Executive Agreement in force, the German government fulfilled its DM 5 billion commitment in two equal payments on October 31, 2000, and December 31, 2000. The German Foundation Industrial Initiative was not as prompt. The parties dispute the timing and amounts of the German Foundation Industrial Initiative’s payments toward its obligation of DM 5 billion principal, plus DM 100 million “interest.” In June 2001 it transferred the contributions it had collected to date, which represented the bulk of its payments. It made another contribution in October 2001. After a final payment in December 2001, the German Foundation Industrial Initiative’s contribution totaled DM 5.1 billion. D. Dispute Over the “Interest” Obligation The parties’ dispute in this case centers on the German Foundation Industrial Initiative’s obligation to pay “interest” on the German companies’ DM 5 billion contribution to the Foundation. Section 4(d) of the Joint Statement provides: Assuming the request for transfer referred to in paragraph (e) is granted, the DM 5 billion contribution of German companies shall be due and payable to the Foundation and the payments from the Foundation shall begin once all lawsuits against German companies arising out of the National Socialist era and World War II pending in U.S. courts including those listed in Annex C and D are finally dismissed with prejudice by the courts.... German company funds will continue to be collected on a schedule and in a manner that will ensure that the interest earned thereon before and after their delivery to the Foundation will reach at least 100 million DM. The Joint Statement uses the term “German companies,” defined in Annex A, to describe the German corporations, and other businesses, that would contribute DM 5 billion to the Foundation in exchange for “legal peace.” The Joint Statement provides that if the full contribution were not raised from the German companies, the seventeen founding members of the Initiative would make up the difference. In exchange, the founding members had exclusive decision making authority for the Initiative. Claimants contend the German Foundation Industrial Initiative owes “interest” in excess of the amount of DM 100 million set forth in Section 4(d) of the Joint Statement. Interpreting “at least” as a floor and not a ceiling, they contend “interest” is owed in the amount earned on third-party contributions for the period those contributions were held by the German Foundation Industrial Initiative prior to their transfer to the Foundation. Claimants also contend “interest” is owed to compensate the Foundation for the unexpected delay in the German Foundation Industrial Initiative’s completion of its contribution — for the time period between dismissal of the last case and full payment of the obligation. Claimants contend the parties intended “interest” would be payable at four percent on all funds collected by the Initiative from German businesses, and that this rate should be used to calculate the additional “interest” due. Their theory is that the “interest” amount of DM 100 million in the Joint Statement was calculated using the July 2000 German statutory default interest rate, which was four percent. Contending the parties expected legal peace to be achieved within six months after the Joint Statement’s signing, they note that applying a four percent rate to DM 5 billion for six months amounts to DM 100 million. As for when “interest” obligations commenced, claimants alternatively contend additional “interest” payments were due from the time of Judge Kram’s refusal to grant dismissal until the day the German Foundation Industrial Initiative fully contributed its principal obligation or from the day the Bundestag declared legal peace until the day of final payment. The German Foundation Industrial Initiative contends nothing is due beyond the DM 5.1 billion German companies have paid. It contends the DM 100 million was an absolute ceiling on “interest” payments, explaining this amount did not represent actual interest earned on the DM 5 billion. Rather, it was additional funding intended to break an impasse in the allocation negotiations among the victims’ representatives. It was labeled “interest” so as not to breach the DM 10 billion cap — a breach that might have upset the fixed expectations of the German companies and the German government on the agreed-to DM 10 billion figure. The German Foundation Industrial Initiative cites a letter from President Bill Clinton to Chancellor Ger-hard Schroeder, describing the DM 10 billion as a “ceiling agreed [to] by all participants in this process.” The German Foundation Industrial Initiative contends that putting the merits of the “interest” dispute aside, this case raises a nonjusticiable political question. It contends the Joint Statement is a political and diplomatic statement rather than an enforceable contract or settlement agreement and that United States courts have no authority to “rewrite” the document to include new obligations. The German Foundation Industrial Initiative also contends the United States Executive has made a decision, reflected in the Berlin Accords, to commit supervision and administration of the Foundation to diplomacy or to the German government. Moreover, if the United States courts do not refrain from adjudicating the case because it presents a nonjusticiable political question, the German Foundation Industrial Initiative contends they should do so under the act of state doctrine or under the doctrine of international comity. Claimants respond this case is justicia-ble as a basic contract dispute. They contend the Joint Statement either constitutes or includes a contract. They also contend contractual obligations were created by the German Foundation Industrial Initiative’s oral promises to pay DM 5 billion, beginning in mid-December 1999, and by representations before United States judges that if the judges dismissed the cases, the German Foundation Industrial Initiative would fully fund the Foundation. The United States government addressed the “interest” issue in two letters. The first, relied upon heavily by the German Foundation Industrial Initiative in litigation, was written by the Deputy Secretary of State Richard Armitage in response to an April 18, 2002 letter from Dr. Otto Graf Lambsdorff, the Vice Chairman of the Board of Trustees of the Foundation, also the former German Federal Minister of Finance and the German Federal Chancellor’s personal representative to the Board of Trustees of the Foundation. Gross v. German Found. Indus. Initiative (In re Nazi Era Cases Against German Defs. Litig.), 320 F.Supp.2d 235, 250 (D.N.J.2004). The undated letter makes two general points: first, the United States’ interests are better met through political rather than judicial resolution of this dispute; second, the United States takes no position on whether additional funds are due. The full text of the letter reads: Dear Otto: I am writing in response to your letter of April 18, to share with you U.S. views concerning the obligations of German companies with regard to interest payments. President Bush reaffirmed the United States’ support for the German Foundation, “Remembrance, Responsibility and the Future,” on the occasion of Chancellor Schroeder’s March 2001 visit to Washington. You can be assured that the United States has never wavered from its strong commitment, memorialized in the Executive Agreement of July 17, 2000, to help achieve all-embracing and enduring legal peace for German companies operating in the United States. We will continue to work closely with the Federal Republic of Germany to ensure the success of the Foundation. I also assure you that the interest issue does not affect the U.S. Government’s obligation to file statements of interest in individual cases pursuant to the Executive Agreement. We will continue to satisfy that obligation. We have made many attempts to resolve this issue over the past several months together with your government, the Foundation, and the Foundation Initiative. Our goal has been to ensure that all obligations are met in the course of the Foundation’s implementation, while at the same time bearing in mind our shared vision of legal peace. The policy of the United States has been that the proper venues for addressing issues concerning the Foundation are in the Foundation or through U.S.-German diplomacy. Therefore, the U.S. Government believes that matters concerning interest payments should be resolved as a political matter in these domains, not by the courts. Neither the Joint Statement nor the Executive Agreement conclusively provides for the disposition of interest earned prior to the transfer of the industry contribution to the Foundation. At this time, there is no shared understanding among the participants to the Foundation negotiations as to their intent with respect to the disposition of such interest. Nor does the negotiating history provide a basis for decisively resolving disagreements on the interest issue. The Joint Statement states in paragraph 4(d) that “German company funds will continue to be collected on a schedule and in a manner that will ensure that the interest earned thereon before and after their delivery to the Foundation will reach at least 100 million DM.” The German Finance Ministry and the Foundation Board of Directors have provided their view that the Foundation Initiative has met its legal and financial obligations. The Foundation Board of Directors’ letter of April 4 confirmed that the companies had paid DM 5 billion plus DM 100 million in interest to the Foundation, and that the Foundation had earned additional interest of DM 90 million on the companies’ contribution after the transfer. The Directors’s December 11, 2001, letter asserted that the Foundation Initiative has met the financial commitments it made in the Joint Statement. The Finance Ministry, which is responsible under German law for legal oversight of the Foundation, also has stated that German industry has “fulfilled its obligations vis-a-vis the [Foundation] to their full extent.” The U.S. Government has no independent information that conclusively resolves disagreements surrounding the interest issue. It is not in a position to say that German industry has a commitment to provide additional funds beyond the DM 5.1 billion previously transferred to the Foundation. With respect to any U.S. court cases that may be brought against German entities on the question of pre-transfer interest, the U.S. Government will be guided by this view. I am pleased to learn that the Foundation’s tremendous progress continues, and that $1.3 billion in payments have been made to some 750,000 surviving forced and slave laborers. German-American cooperation has made a significant contribution to the reconciliation between Germany and the victims of National Socialism, especially those in Central and Eastern Europe who were caught behind the Iron Curtain without recognition of their suffering. Our common effort demonstrates our shared commitment to human dignity, especially as many of these countries turn to our democracies to help shape their future. German-American cooperation in addressing the injustices of the past is but one element of our joint effort to expand the community of nations that cherish the values of democracy, tolerance and economic freedom. I look forward to the satisfactory resolution of the insurance issues as well as future reports on the Foundation’s achievements. Sincerely, Richard L. Armitage The second letter addressing the issue was written by William R. Kirschner, a trial attorney for the United States Department of Justice, Civil Division. Sent to Judge Bassler on July 22, 2002, in advance of oral argument on the claimants’ 60(b) motion, discussed below, it was the only official correspondence sent to a United States judge regarding the “interest” dispute. Kirschner was silent on the United States’ position as to justiciability and the proper forum in which to resolve the dispute, but expressly disclaimed a position on the merits. The letter reads: Dear Judge Bassler: It has come to our attention that there is a proceeding currently before you in which one of the issues is whether the German Foundation “Remembrance, Responsibility, and the Future” was fully funded with respect to the contributions owed by German companies, and, in particular whether the German companies paid sufficient interest on their promised DM 5 billion contribution. The U.S. Government has no independent information that conclusively resolves disagreements surrounding the interest issue. It is not in a position to say whether or not German industry has a commitment to provide additional funds beyond what has been transferred to the Foundation. Sincerely yours, William R. Kirschner II. Procedural History This is not the only litigation associated with the “interest” dispute. Certain slave labor claimants brought a Fed.R.Civ.P. 60(b) motion before Judge Bassler to enforce the “settlement” and for declaratory relief. See In re Nazi Era Cases, 213 F.Supp.2d at 439. To avoid jeopardizing the entire resolution and the payment of the DM 10 billion to the victims, claimants declined to move to reopen under Rule 60(b). Instead, they asked the court to define the defendants’ “interest” obligation. On July 23, 2002, the District Court held it had not retained jurisdiction to enforce the “settlement.” Id. at 450. On October 18, 2001, attorney Michael Hausfeld sought an order in the United States District Court for the Eastern District of New York to prevent the United States from filing a statement of interest urging dismissal of related cases. See Ukrainian Nat’l Ass’n of Jewish Former Prisoners of Concentration Camps & Ghettos v. United States, 178 F.Supp.2d 312, 314 (E.D.N.Y.2001). The court dismissed the case without prejudice, holding it had no authority to prevent the United States from filing a statement of interest in other litigation. In November 2001, attorney Burt Neuborne sought an order directing payment of all “interest” allegedly due from the Foundation. See Newborne v. German Found. Indus. Initiative, No. CV-01-7701 (E.D.N.Y. filed Nov. 16, 2001). At the request of a German negotiator, Neuborne withdrew the lawsuit shortly thereafter, intending to pursue negotiations with the German Foundation Industrial Initiative. In May 2002, Hausfeld brought an action in California state court on behalf of third-party beneficiaries of the Foundation, suing under state law for unlawful, deceptive, and unfair business practices stemming from the “interest” dispute. See Widerynski v. Deutsche Bank AG, No. BC274449 (Cal.Super.Ct. filed May 23, 2002). In January 2003, the court dismissed the action for failure to state a claim under California law and also by reason of international comity. The court observed, the case “is a classic paradigm for the application of international comity ... where, as here, a foreign country’s laws and executive actions bar the suit, the foreign country has a substantial interest in the matter, the country has provided an appropriate method of resolving it, and there is no overriding U.S. interest to the contrary.” Widerynski v. Deutsche Bank AG, No. BC274449, op. at *6 (Cal.Super.Ct. Jan. 31, 2003). This case was filed in June 2002, when Elly Gross, Roman Neuberger, and other? brought a. claim as third-party beneficiaries for breach of contract against the German Foundation Industrial Initiative and against its founding companies. In July 2003, Bernard and Barbara Schwartz Lee brought a similar breach of contract action as third-party beneficiaries against Deutsche Bank AG and Dresdner Bank AG. Claimants in both casés were either named plaintiffs or class members in the Nazi-era cases bx-ought against German corporate defendants consolidated before Judge Bassler: Responding tó a defense motion, the District Court dismissed both cases as presenting nonjusticiable political questions on June 8, 2004. Gross, 320 F.Supp.2d at 252. Both cases were consolidated for appeal. III. Standard of Review and Jurisdiction The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a)(2). We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review because the actions were dismissed under the political question doctrine. New Jersey v. United States, 91 F.3d 463, 466 (3d Cir.1996). Justiciability under the political question doctrine is a matter of federal law. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). Our review under the act of state doctrine and international comity is plenary because the District Court did not reach these issues. See Specter v. Garrett, 971 F.2d 936, 942-43, 955-56 (3d Cir.1992), vacated on other grounds by 506 U.S. 969, 113 S.Ct. 455, 121 L.Ed.2d 364 (1992). IV. Discussion Questions of justiciability are distinct from questions of jurisdiction, and a court with jurisdiction over a claim should nonetheless decline to adjudicate it if it is not justiciable. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). At issue here is whether the “interest” dispute is justiciable. The German Foundation Industrial Initiative contends we should dismiss this case as a nonjusticiable political question because: (1) the President of the United States made a decision, reflected in the Berlin Accords, to relegate the supervision and administration of the Foundation to German sovereignty or to diplomacy, (2) the Joint Statement is a political and diplomatic statement rather than an enforceable contract or settlement agreement, and (3) the United States judiciary should refrain from “rewriting” the Joint Statement to include obligations not addressed in that political document. Alternatively, the German Foundation Industrial Initiative contends we must decline to adjudicate this case under either the act of state doctrine or the doctrine of international comity. Claimants respond this case is justicia-ble as a basic contract dispute involving the interpretation of Section 4(d) of the Joint Statement. They contend a contract was created by reason of (1) the Joint Statement, either by itself or as a memori-alization of the December oral agreement, (2) oral promises beginning in mid-December 1999 by the German Foundation Industrial Initiative to pay DM 5 billion, and (3) representations made by the German Foundation Industrial Initiative’s lawyers before United States judges, constituting an enforceable promise binding the German Foundation Industrial Initiative. As an initial matter, we decline to consider the oral statements made in December 1999 and those made before United States judges. As claimants define it, the dispute in this case is over the meaning of the “interest” provision in the Joint Statement. (Appellants’ Br. 18 (“The precise legal issue before the Court is the construction of the term ‘at least’ as used in Defendants’ promise ... to pay interest on the deferred payment of DM 5 billion.”).) But the oral communications in December 1999 occurred before the Joint Statement was adopted. As a result, they do not bear on our analysis of whether a dispute arising from the Joint Statement is justiciable. Nor do the alleged promises made to United States judges. As claimants concede, if the Berlin Accords do not require additional “interest” payments, the promises in United States courts to follow through on their terms cannot independently require additional payments. If at all relevant, the promises made before judges might provide evidence that the German Foundation Industrial Initiative is bound to pay additional “interest” under Section 4(d) of the Joint Statement. But this goes to the merits of the “interest” dispute and not to the question of justicia-bility. Accordingly, our analysis focuses on claimants’ contention that the Joint Statement creates enforceable obligations and this case is justiciable as a basic contract dispute. A. The Political Question Doctrine “The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). As a general matter, the conduct of foreign relations is constitutionally committed primarily to the Executive Branch. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 706 n. 18, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976); see also Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (“The ‘nuances’ of the ‘foreign policy of the United States ... are much more the province of the Executive Branch and Congress than of this Court.’ ”) (quoting Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 196, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983)); Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”). But the Court has cautioned that not “every case or controversy which touches foreign relations lies beyond judicial cognizance,” Baker, 369 U.S. at 211, 82 S.Ct. 691. “[U]nder the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes[, treaties, and executive agreements],” and “we cannot shirk this responsibility merely because our decision may have significant political overtones.” Japan Whaling, 478 U.S. at 230, 106 S.Ct. 2860. Accordingly, a predicted negative impact on foreign relations does not, by itself, render a case nonjusticiable under the political question doctrine. In determining the presence or absence of a nonjusticiable political question, whether or not foreign relations are implicated, we consider six factors articulated by the Court in Baker v. Carr: Prominent on the surface of any case held to involve a political question is found [ 1 ] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [ 2 ] a lack of judicially discoverable and manageable standards for resolving it; or [ 3 ] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [ 4 ] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [ 5 ] an unusual need for unquestioning adherence to a political decision already made; or [ 6 ] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. at 217, 82 S.Ct. 691. Each of these factors “has one or more elements which identify it as essentially a function of the separation of powers.” Id. A finding of any one of the six factors indicates the presence of a political question. See INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Should a factor be present, a holding of nonjusticia-bility still depends on whether the factor is “inextricable from the case at bar.” Baker, 369 U.S. at 217, 82 S.Ct. 691. Aware that “the ‘political question’ label” can “obscure the need for case by case inquiry,” id. at 210-11, 82 S.Ct. 691, we necessarily avoid “resolution by any semantic cata-loguing,” id. at 217, 82 S.Ct. 691. Instead, we undertake a “discriminating inquiry into the precise facts and posture of the particular case.” Id. 1. The District Court’s Analysis Consistent with the approach of most courts in focusing only on those Baker factors applicable in a given case, the District Court analyzed this matter under the fourth factor — expressing lack of respect for coordinate branches of government— and the sixth factor — embarrassment arising from multifarious pronouncements. Gross, 320 F.Supp.2d at 254. In concluding the case presented a political question under both of these factors, the District Court focused on two issues: (1) the relationship between the “interest” dispute and the history of the underlying reparations claims, and (2) the letter from Deputy Secretary of State Armitage expressing “U.S. views concerning the obligations of German companies with regard to interest payments.” Id. at 252-53. With respect to the first issue, the District Court characterized the “interest” dispute as “the coda in the long drama of disagreements concerning Holocaust-era restitution.” Id. at 253. Recognizing that “matters of Holocaust-era restitution are best resolved through dialogue, negotiation, and cooperation as opposed to prolonged and uncertain litigation,” id. at 252 (quoting Frumkin v. JA Jones, Inc. (In re Nazi Era Cases Against German Defs. Litig.), 129 F.Supp.2d 370, 380 (D.N.J.2001)), the court explained that these considerations are “no less evident ... when the core issue is not whether restitution is proper, but how much restitution, namely in the form of interest, was agreed upon.” Id. With respect to the second issue, the court characterized the Armitage letter as an expression of the United States Executive’s position that the United States judiciary was not the proper forum for this dispute’s resolution. The court concluded the letter demonstrated that the United States and Germany had “committed the resolution of this issue to diplomacy over litigation.” Id. at 253. We agree with the District Court that these two factors — (1) the relationship of the “interest” dispute with the strong history of executive management of Nazi-era reparations claims, and (2) the presence of an expression of interest from the United States Executive — inform our analysis, and should be addressed before we discuss each Baker factor. We believe the parties’ characterizations of the Joint Statement should also be discussed before reaching the Baker factors. For reasons that follow, we reach a conclusion different from that of the District Court. We conclude that adjudicating the “interest” dispute would not present a nonjusticiable political question. 2. Reliance on History of Management A strong history of the United States Executive’s management of a dispute does not necessarily render a case nonjusticia-ble, just as a weak history does not rule out questions of justiciability. But a strong history of management is potentially relevant to an analysis of some of the Baker factors. For example, judicial intervention redirecting consistent Executive decision making could constitute policy-making under the third Baker factor. Judicial intervention where certain executive pronouncements have historically controlled a dispute could express a lack of respect for the Executive under the fourth Baker factor. We note that while a strong history of management is not one of the six factors, the Baker Court listed it as a relevant inquiry, commonly employed by courts that had found a political question in foreign-relations cases. There is a long history of executive management of the reparations claims underlying the “interest” dispute, with little judicial intervention. For sixty years, it has been the consistent policy of the United States to address compensation for Nazi-era injuries through diplomacy and through German government institutions, and not through litigation in United States courts. See Garamendi, 539 U.S. at 420-21, 123 S.Ct. 2374 (“The issue of restitution for Nazi crimes has in fact been addressed in Executive Branch diplomacy and formalized in treaties and executive agreements over the last half century, and ... securing private interests is an express object of diplomacy today, just as it was addressed in agreements soon after the Second World War.”). Many courts have treated Holocaust reparations cases as nonjusticiable disputes, even where private parties are bound up in the litigation. Whether this strong history of executive management of Holocaust reparations claims bears on our analysis under the Baker factors depends on whether the “interest” dispute is a final but inseparable part of the prior nonjusticiable claims or whether it is something different. If, as the District Court concluded, the “interest” dispute is the inseparable “coda” in the sixty-year history of international diplomatic negotiations, Gross, 320 F.Supp.2d at 253, the strong history of executive management would dominate our Baker analysis. But if the “interest” issue presents a distinct dispute, our Baker analysis will place less emphasis on the United States Executive’s past actions and statements and on the judiciary’s past responses in related cases. We believe the present dispute raises issues that are significantly different from those in cases that have been dismissed from United States courts under the political question doctrine. It is true that a judgment for the claimants would require payment to the Foundation, translating to increased payments to victims. But there is a difference between a suit for reparations and a suit to enforce an alleged contract for “interest.” As the District Court recognized, “the core issue is not whether restitution is proper, but how much restitution, namely in the form of interest, was agreed upon.” Gross, 320 F.Supp.2d at 252. The District Court concluded nonetheless that the “interest” dispute could not be separated from prior nonjusticiable reparations claims. But the present dispute is not over a reparations claim, but over a specific “interest” provision in a recently negotiated document. This distinction removes the dispute from the history of the underlying claims and distinguishes it from other cases dismissed by United States courts. Were the “interest” dispute inextricable from the long history of Executive management, we would expect some communication from the United States Executive— direct Executive intervention, a Statement of Interest under the Executive Agreement, a statutory statement of interest under 28 U.S.C. § 517, a letter to the court, or any other way in which the United States Executive can make its interests known to a court. As we discuss, the United States Executive has declined to express a position to the United States courts either on the merits of the “interest” claim or on whether the matter should be resolved in a diplomatic or judicial forum. The United States Executive’s one communication expressing a position on justiciability — the Armitage letter — was not directed to a United States court. Were the “interest” dispute inextricable from the history of judicial noninvolvement in reparations cases, we would also expect ongoing diplomacy to resolve the issue. See Alperin v. Vatican Bank, 410 F.3d 532, 558 (9th Cir.2005) (holding no political question where “[i]n the landscape before us, this lawsuit is the only game in town with respect to claimed looting and profiteering by the Vatican Bank. No ongoing government negotiations, agreements, or settlements are on the horizon.”). There has been no representation that the United States government is engaged in any form of diplomacy or negotiations regarding the payment of additional “interest.” We do not think the Supreme Court’s opinion in Garamendi informs our inquiry into whether the strong history of executive management bears heavily on our justiciability analysis. The German Foundation Industrial Initiative contends Gar-amendi — which, in the context of a preemption analysis, gave strong deference to Executive prerogative in foreign affairs — stands for the proposition that the United States Executive has an “exclusive role in matters relating to the Foundation and Nazi-era claims against German nationals.” (Appellees’ Br. 27.) Garamendi addressed a California statute requiring any insurer doing business in the state to disclose certain information about Holocaust-era insurance policies that had been in effect between 1920 and 1945, and that the insurer or a related company had sold to persons in Europe. 539 U.S. at 409-10, 123 S.Ct. 2374. The Court noted, “[t]he issue of restitution for Nazi crimes” falls within the Executive’s powers, and “has in fact been addressed in Executive Branch diplomacy and formalized in treaties and executive agreements over the last half century.” Id. at 420-21, 123 S.Ct. 2374. The point of the California statute in Garamendi was to provide information about decades-old insurance policies, so that their holders or descendants would be able to sue on these policies. Besides its disclosure requirement, the state statute amended California’s rules of civil procedure to allow “state residents to sue in state court on insurance claims based on acts perpetrated in the Holocaust.” Id. at 409, 123 S.Ct. 2374. These claims to enforce insurance policies were the claims the Foundation was set up to exclusively resolve. Furthermore, the Supreme Court did not venture outside the confines of its preemption analysis to address questions of justiciability. To the extent the issues of executive prerogative raised in Garamen-di apply, they are accounted for in our discussion of the six Baker factors. We believe the “interest” dispute is distinct from the underlying reparations claims, which led to the creation of the Foundation. Accordingly, we will place less emphasis on the strong history of executive management of Nazi-era reparations cases in our analysis under the Baker factors than did the District Court. 3. United States’ Expressions of Its Interest A second factor central to our analysis under the Baker factors is the presence or absence of a formal expression to the courts of the United States Executive’s interests in this dispute. With respect to this issue, the District Court focused on the Armitage letter, believing it to be an expression of the United States Executive’s interest. As noted, the Armitage letter makes two general points: the United States’ interests are better met through political rather than judicial resolution of the “interest” dispute, and the United States takes no position on whether additional funds are due. The letter is silent on whether the Berlin Accords support a private, contract-based right of action. Certain questions frame our discussion of the Armitage letter. First, was the United States obligated to file a Statement of Interest, as described in Annex B to the Joint Statement? Second, how does this impact what weight we should give the Armitage letter as an expression of the United States Executive’s interests? Our answer to the first question informs our answer to the second. If a Statement of Interest were required under the Executive Agreement, the United States Executive’s decision not to file one would demonstrate that its interests align with judicial adjudication of the merits. We would then give little weight to the Armitage letter. If a Statement of Interest were not required under the facts of this dispute, we would attach greater weight to the Armi-tage letter as the only expression we have of the Executive’s position. A third question would then arise: does the Armitage letter constitute a definite and authoritative expression of interest to which we should defer, considering its content and the fact that the United States Executive has declined to file a statutory statement of interest or other communication with this Court? a. The Failure of the United States Executive to File a Statement of Interest Under the facts of this dispute, we do not think the United States was obligated by any provision of the Berlin Accords to file the Statement of Interest as set forth in Annex B of the Executive Agreement. In the Executive Agreement, the United States promised it would file a Statement of Interest in a certain set of eases: The United States shall, in all cases in which the United States is notified that a claim described in article 1(1) has been asserted in a court in the United States, inform its courts through a Statement of Interest, in accordance with Annex B, and consistent therewith, as it otherwise considers appropriate, that it would be in the foreign policy interests of the United States for the Foundation to be the exclusive remedy and forum for resolving such claims asserted against German companies as defined in Annex C and that dismissal of such cases would be in its foreign policy interest. Executive Agreement, Art. 2(a). Article 1(1), in turn, describes the covered claims as “... all claims that have been or may be asserted against German companies arising from the National Socialist era and World War II.” This is the same standard by which the United States and Germany would decide the class of claims for which the Foundation would be the “exclusive remedy and forum.” Art. 1(1); see also Joint Statement, Preamble, para. 14 (“exclusive remedy and forum”). The definition of claims that “arise from” WWII and the National Socialist era — which would trigger the obligation to file a Statement of Interest and make the Foundation the exclusive remedy and forum for the claim — should include those claims the Berlin Accords were organized to dismiss: slave labor claims, claims regarding banks’ wrongful retention of assets, insurance claims pending in United States courts, and similar suits that would be filed in the future. In the context of “exclusive remedy and forum,” the District Court recognized that these restitution and reparations claims differed from the present “interest” dispute. See Gross, 320 F.Supp.2d at 248-49. The District Court discussed the “arising from” definition at length, concluding the Foundation was not the exclusive forum for the “interest” dispute. See id. The United States’ commitment to file a Statement of Interest and the exclusive jurisdiction of the Foundation turn on the definition of the same phrase: “arising out of the National Socialist era and World War II.” Interpreting this phrase consistently in both instances, we conclude the claim for additional “interest” does not trigger the United States’ obligation to file an Annex B Statement of Interest in certain cases. When filed, the Statement of Interest outlined in the Berlin Accords explains that because of foreign policy interests, the United States Executive prefers dismissal and resolution through the Foundation. Annex B to the Executive Agreement further describes the types of cases for which the Foundation shall be the exclusive forum: [T]he President of the United States has concluded that it would be in the foreign policy interests of the United States for the Foundation to be the exclusive forum and remedy for the resolution of all asserted claims against German companies arising from their involvement in the National Socialist era and World War II, including without limitation those relating to slave and forced labor, aryanization, medical experimentation, children’s homes/Kinderheim, other cases of personal injury and damage to or loss of property, including banking assets and insurance policies. The language supports the view that the claims for which the Foundation is the exclusive forum and remedy, and for which the United States is required file a Statement of Interest, are reparations and restitution cases, and not the present “interest” dispute. The contrast is striking between the United States Executive’s inaction on the “interest” claim in this ease and its intervention in other cases for direct restitution or reparations where it filed a statement of interest. This contrast supports our view that a Statement of Interest (Annex B) was not required here. The United States filed a statement of interest — similar to that outlined in Annex B — in a private suit for Nazi-era property damage against the Austrian government and Austrian entities. See Whiteman v. Dorotheum GmbH, 431 F.3d 57, 58-63 (2d Cir.2005) (describing the General Settlement Fund, an Austrian reparations scheme modeled after that of the Berlin Accords). In dismissing WWII-era property damage claims against Austria and Austrian companies on political question grounds, id. at 72-73, the Court of Appeals for the Second Circuit relied on the United States Executive’s statement of interest for several points: the Fund encourages good relations with Austria, Eastern Europe, and Israel; negotiation is a better means to claim resolution than is litigation; the Fund represents the culmination of sixty years of diplomacy; and the outcome of litigation on the same claims is uncertain at best. Id. at 66-68. The Whiteman court explained: [W]e hold that deference to a statement of foreign policy interests of the United States urging dismissal of claims against a foreign sovereign is appropriate where, as here, (1) the Executive Branch has exercised its authority to enter into executive agreements respecting the resolution of those claims; (2) the United States Government (a) has established through an executive agreement an alternative international forum for considering the claims in question, and (b) has indicated that, as a matter of foreign policy, the alternative forum is superior to litigation; and (3) the United States foreign policy advanced by the executive agreement is substantially undermined by the continuing pendency of the claims. Id. at 59-60. Even the Armitage letter distinguishes the “interest” dispute from one in which the Executive Agreement requires the United States to file a Statement of Interest. It explains: “the interest issue does not affect the U.S. Government’s obligation to file statements of interest in individual cases pursuant to the Executive Agreement.” With this, Deputy Secretary Ar-mitage acknowledged — and we agree — the United States Executive was not required under the Executive Agreement to file a Statement of Interest in this case. b. Expression of the United States Executive’s Position We look to other potential indications and expressions of the United States Executive’s interest, the most obvious being the Armitage letter. But for several reasons, we conclude the Armitage letter does not constitute a policy determination by the United States Executive, or an authoritative expression of Executive interest, to which we should defer. The Armitage letter is directed to Otto Lambsdorff, the Vice Chairman of the Foundation’s Board of Trustees. It is not directed to the United States court adjudicating the “interest” dispute, or to any court for that matter. The letter states the proper forum for resolution of the “interest” dispute is political and diplomatic, not legal. But it explicitly leaves open the merits question, stating “[t]he U.S. Government has no independent information that conclusively resolves disagreements surrounding the interest issue.” Furthermore, the letter fails to declare the United States Executive will seek intervention or dismissal. The Supreme Court instructs “ ‘case-specific deference’ to the expressed foreign policy interests of the United States.” See Whiteman, 431 F.3d at 59 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n. 21, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)). We conclude the Armitage letter, making no promises to seek dismissal or that the United States Executive would intervene, does not require or counsel our deference. Cf. Republic of Austria v. Altmann, 541 U.S. 677, 702, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (finding courts might defer to “the considered judgement of the Executive on a particular question of foreign policy”). The Kirschner letter, although directed to the court, does not change our view. As noted, the Kirschner letter was written to Judge Bassler in advance of oral argument on the 60(b) motion. It is the only formal correspondence from the United States Executive to a court on the “interest” dispute, albeit from a Department of Justice trial attorney and not from a State Department official. Kirschner was silent on the position of the United States as to justicia-bility and the proper forum in which to resolve the dispute, but explicitly disclaimed a position on the merits, stating the United States Executive “is not in a position to say whether or not German industry has a commitment to provide additional funds.” Kirschner’s position is consistent with the decision of the United States Executive not to file an Annex B Statement of Interest and with the lack of ongoing diplomacy on the “interest” issue. The United States could have expressed an interest in this case through other means. The United States Executive has the statutory authority, in any case in which it is interested, to file a statement of interest: The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States. 28 U.S.C. § 517 (“Interests of United States in Pending Suit”). This authority is wholly separate from the obligations of the Joint Statement. Alternatively, the United S