NOVALPINA CAPITAL PARTNERS GP v. OREGON DEPARTMENT OF JUSTICE (2026)

This case is a single strand of what the United States Court of Appeals for the Ninth Circuit dubbed a “[s]prawling tangle of litigation related to the bitter breakup between a Luxembourg-based investment fund and its former General Partner,” which has “mushroomed into a variety of civil cases and criminal investigations winding their way through multiple legal systems.” Novalpina Capital Partners I GP S.A.R.L. v. Read, 149 F4th 1092, 1095 (9th Cir 2025).¹

Novalpina Capital Partners I GP S.à.r.l. (Novalpina GP) is the former General Partner of the Luxembourg-based investment fund. That fund was formerly known as Novalpina Capital Partners I SCSp (the Fund).

In this strand of the sprawling tangle, petitioner, Novalpina GP, appeals an order denying its petition to set aside a civil investigative demand (CID), which was issued by the Oregon Department of Justice (the DOJ) in September 2024 pursuant to ORS 180.775 for the purpose of determining whether “there has been a violation of the Oregon False Claims Act.” Among other conduct, the False Claims Act prohibits requests or demands to a public agency for money based on “false or fraudulent information.” ORS 180.750; ORS 180.755.

On appeal, Novalpina GP raises three assignments of error: First, it contends that “the trial court erred in holding that specific personal jurisdiction exists over Novalpina GP because Novalpina GP lacks minimum contacts with the State of Oregon sufficient to comport with the Due Process Clause”; second, it contends that “the trial court erred in holding that the forum-selection and choice-of-law clauses found in the agreements between the parties failed to preclude enforcement of the CID in the State of Oregon”; and, third, it contends that “the trial court erred by refusing to apply the Hague Evidence Convention, which would preclude enforcement of the CID in the State of Oregon.”

We conclude that the trial court did not err when it determined that Novalpina GP was subject to personal jurisdiction in Oregon, because it purposefully availed itself of the Oregon market; that this litigation arises out of Novalpina GP's availment of the Oregon market; and that the exercise of personal jurisdiction over Novalpina GP in this case does not offend traditional notions of fair play and substantial justice. Additionally, we conclude that the trial court did not err in determining that the forum-selection and choice-of-law clauses found in the agreements between the parties did not preclude enforcement of the CID in Oregon and application of Oregon law. Finally, we conclude that the trial court did not abuse its discretion when it did not require the DOJ to comply with the Hague Evidence Convention in this case. Accordingly, we affirm.²

I. HISTORICAL FACTS AND PROCEDURAL BACKGROUND

We note at the outset that this case involves an “acrimonious split” between entities who formerly did business together and, as has been the case in other litigation involving Novalpina GP, “the parties present very different versions of the relevant facts.” Novalpina Capital Partners I GP S.A.R.L., 149 F4th at 1095.

Further, although the parties dispute aspects of the standard of review in connection with the various legal issues in this case, ultimately we understand the parties to assert, with respect to the first and third assignments of error, that we review the trial court's factual findings to determine whether they are supported by any evidence, and, where the trial court failed to make express factual findings, we assume that the court found the relevant facts in a manner consistent with its ultimate ruling. We agree with the parties that that is the appropriate standard of review for the first and third assignments of error. Espinoza v. Evergreen Helicopters, Inc., 359 Or 63, 117, 376 P3d 960 (2016); Munson, 264 Or App at 700-01. Further, to the extent consideration of facts is necessary to our analysis of the second assignment of error, which concerns issues of contract interpretation, we apply that same standard of review to our consideration of the historical facts. Batzer Construction, Inc. v. Boyer, 204 Or App 309, 319, 129 P3d 773, rev. den., 341 Or 366 (2006).³

A. Novalpina Entities and the Solicitation

In August 2017, Novalpina GP and another entity, Novalpina Capital Partners I Group GP S.à.r.l. (the Initial LP), created a partnership by entering into an agreement “for the purpose of raising a fund to undertake investment activities.” That partnership was, or would ultimately become, the Fund—i.e., Novalpina Capital Partners I SCSp.

Novalpina GP and the Initial LP are just two of a number of what Novalpina GP refers to as “Novalpina-related entities,” the ultimate parent of which is a company called Novalpina Capital Group S.à.r.l. (TopCo). The “Novalpina-related” entities are part of what Novalpina GP's counsel in the trial court in this case “perhaps agree[d]” was a “byzantine” corporate structure, and we note that similarly the Ninth Circuit has stated that the Fund's operating structure could “be described as intricate at best and byzantine at worst.” Novalpina Capital Partners I GP S.A.R.L, 149 F4th at 1096.

TopCo is owned by three people—Stefan Kowski, Stephen Peel, and Bastian Lueken—each of whom hold a one-third ownership interest. Kowski, Peel, and Lueken are, as Novalpina GP acknowledges on appeal, the “[F]ounders” of the Fund. As explained by Novalpina GP's counsel in the trial court, those three individuals “organized” the Fund. The Fund's “carried interest partner”—Novalpina Capital Partners I FP SCSp—had an approximately 17 percent stake in the Fund's profits, and the ultimate beneficial owners of those earnings were the Founders, via their interest in TopCo.

During argument in the trial court, in “clarif[ying] what role [Novalpina] GP had,” its counsel explained that the Founders “exercise[d] practical control and influence over” Novalpina GP, and pointed the trial court to a document detailing aspects of the Founders’ “day-to-day effective practical control or influence over Novalpina GP.” That document is the “Particulars of Claim”—a document filed in the High Court of Justice Business and Property Courts of England and Wales—which counsel for Novalpina GP represented to the trial court “really crystallizes the distinction between the entities.”

In late 2017, two of the Founders—Peel and Kowski—came to Oregon for the purpose of soliciting an investment by the Oregon Public Employees Retirement Fund (OPERF) into the nascent investment fund. After the two made a presentation to the Oregon Investment Council on November 1, 2017, the Oregon Investment Council approved a €200 million capital commitment to the Fund. The slide deck presented during that meeting begins with a slide reading “Novalpina Capital,” and a disclaimer on the second to last page notes that the slide deck was “prepared by Novalpina Capital LLP.”

With its investment, OPERF became the first investor in the Fund—i.e., it became a “limited partner” in the partnership that was created by Novalpina GP in August 2017 “for the purpose of raising a fund to undertake investment activities.”⁴

B. The Agreements

OPERF's investment in the Fund was effectuated in a series of agreements, the terms of which are important to our analysis of the issues on appeal. Those agreements, which are all dated November 15, 2017, are (1) an Amended and Restated Limited Partnership Agreement (the LPA), (2) a Subscription Agreement, and (3) a Side Letter Agreement.

1. The LPA

The LPA, by its terms, “govern[ed]” the operation of the Fund. It recounts that, as noted above, a partnership was originally established via an agreement in August 2017 for the purpose of raising a fund to undertake investment activities, and provides that the LPA was intended to “amend and restate” that agreement in its entirety to provide for “the further admission of persons as Limited Partners.”

Under the LPA, Novalpina GP, “as managing general partner * * *, is responsible for the conduct of the Partnership's activities.” The LPA further provides that Novalpina GP “shall have full power and authority, exercisable in its discretion, to manage and operate the Partnership,” including the power and authority “to market the Partnership and to accept applications by, and require the Partnership to admit, prospective Investors (including Subsequent Investors and Substitute Investors), in each case in accordance with this agreement.”

The LPA also contains choice-of-law and forum-selection clauses which, as detailed below, Novalpina GP argues required the trial court to set aside the CID. In particular, the choice-of-law clause provides:

“This agreement and the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg. Noncontractual obligations (if any) arising out of or in connection with this agreement (including its formation) shall also be governed by the laws of the Grand Duchy of Luxembourg.”

The forum selection clause provides:

“The parties irrevocably agree that the courts of the Grand Duchy of Luxembourg are to have the exclusive jurisdiction to settle any disputes (whether contractual or non-contractual) which may arise out of or in connection with this agreement and accordingly any suit, action or proceeding arising out of or in connection with this agreement shall be brought in such courts. Each party accordingly irrevocably submits to the jurisdiction of the courts of the Grand Duchy of Luxembourg, and to any other courts in which any judgment of any court of the Grand Duchy of Luxembourg may be enforced.”

2. The Subscription Agreement

The Subscription Agreement constituted OPERF's “offer to invest in the Partnership”—i.e., its application to “become a Limited Partner and an Investor in the Partnership.” In the offer, OPERF “applied” to commit an investment of €200 million to the Fund, and that offer was accepted by Novalpina GP on November 15, 2017.

Like the LPA, the Subscription Agreement also contains a choice-of-law clause and a forum-selection clause. The choice-of-law clause provides:

“This Subscription Agreement shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg. Non-contractual and pre-contractual obligations (in each case, if any) arising out of or in connection with this Subscription Agreement or the process leading to the submission by the Applicant of this application shall also be governed by the laws of the Grand Duchy of Luxembourg.”

The forum-selection clause provides:

“The Applicant irrevocably agrees that the courts of the Grand Duchy of Luxembourg are to have the exclusive jurisdiction to settle any disputes (whether contractual, non-contractual or pre-contractual) which may arise out of or in connection with this Subscription Agreement or the process leading to the submission by the Applicant of this application and accordingly: (i) any suit, action or proceeding arising out of or in connection with any of the foregoing shall be brought in such courts; and (ii) the Applicant irrevocably submits to the jurisdiction of the courts of the Grand Duchy of Luxembourg, and any other courts in which any judgment of any court of the Grand Duchy of Luxembourg may be enforced.”

3. The Side Letter Agreement

Finally, we turn to the Side Letter Agreement, which is an agreement that was provided “in consideration of the Subscriber [i.e., OPERF] agreeing to make a Commitment to the Partnership by executing a Subscription Agreement,” that was executed by Novalpina GP, and that is dated November 15, 2017.

The Side Letter Agreement provides that if there is “any inconsistency between any of the provisions of this letter agreement, the [LPA] and the Subscriber's Subscription Agreement, the provisions of this letter agreement shall prevail.”

The Side Letter Agreement, like the LPA and the Subscription Agreement, contains a choice-of-law clause and a forum-selection clause, but those clauses differ from the choice-of-law and forum-selection clauses in the LPA and the Subscription Agreement, because both clauses in the Side Letter Agreement point to the application of Oregon law and the jurisdiction of Oregon courts in certain circumstances.

The choice-of-law clause in the Side Letter Agreement provided:

“This letter agreement and the rights of the parties shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg. Notwithstanding any of the foregoing, pursuant to Oregon law all issues of law relating to the governmental authority, and the scope of sovereign and governmental immunities, of the Subscriber, or otherwise governed by Oregon law, must be resolved and enforced according to the laws of the State of Oregon, without resort to any jurisdiction's conflict of law rules or doctrines.”

(Emphases added.)

The forum-selection clause provided:

“Solely on the basis of the Subscriber's status as a state entity and the limitations on its ability to waive sovereign and governmental immunities, the General Partner acknowledges and agrees that nothing contained in this letter agreement, the Partnership Agreement or the Subscription Agreement may be construed as a waiver of the Subscriber's right to be subject to suit only in the courts of Oregon and the Subscriber does not agree to the jurisdiction of any state courts other than those of the State of Oregon or to the jurisdiction of any federal or other court.”

(Emphasis added.)

C. The Drawdown Notices and the Change of General Partner

After OPERF's initial €200 million commitment to the fund in November 2017, between October 2018 and June 2021, Novalpina GP sent OPERF 10 “drawdown notices” seeking over €100 million of capital funding, which OPERF fulfilled. The LPA defines a “drawdown notice” as a “written notice to each Investor of any amount that the Investor is required to pay to the Partnership under this agreement.”

More specifically, in November 2018, Novalpina GP—on behalf of the Fund—issued the first drawdown notice (for over €15 million) and transmitted it to OPERF. That drawdown notice was signed by directors of Novalpina GP—Philip Zara Mizzi, Allen Foley, and Gaëtan Dumont—and attached an “investment summary” signed by Peel, Kowski, and Lueken, on behalf of the Fund's Investment Advisors (which are defined in the LPA to be Novalpina Capital LLP and Novalpina Capital Management International LLP).

A second drawdown notice was transmitted to OPERF in July 2019 (for over €38 million), and a third in February 2020 (for over €4 million), each also signed by directors of Novalpina GP—Mizzi, Foley, and Dumont—and each attaching an investment summary signed by Peel, Kowski, and Lueken, on behalf of the Investment Advisors.

Then, between September 2020 and June 2021, additional drawdown notices were transmitted to OPERF, and each was signed by Mizzi, Foley, and Dumont, on behalf of Novalpina GP.

Ultimately, OPERF's investments as a limited partner in the Fund were considerable in amount for the Fund; as of June 30, 2021, the Fund's limited partners had contributed “only €548 million” in total, and OPERF was the Fund's largest investor.

In July 2021, the limited partners voted to remove Novalpina GP as General Partner of the Fund “without cause” pursuant to a “no fault divorce” clause in the LPA. In other litigation, Novalpina GP contends that, as a result of the removal, and as the “original general partner of the fund, Novalpina GP and its related entities are owed payment of substantial contractual entitlements * * * likely worth hundreds of millions of dollars.”

D. DOJ's Investigation, the CID, and the Instant Litigation

Since September 2023, the DOJ has been conducting an Oregon False Claims Act investigation in connection with OPERF's investment in the Fund. The purpose of the investigation is to “determine whether there has been a violation of the Oregon False Claims Act, ORS 180.750 through ORS 180.785, in connection with claims for payments submitted to [OPERF] in connection with its investment into Novalpina Capital Partners I.” Among other conduct, the Oregon False Claims Act prohibits presenting “for payment or approval, or caus[ing] to be presented for payment or approval, a claim that the person knows is a false claim.” ORS 180.755. A “false claim” is a claim that, among other things, “[c]ontains, or is based on, false or fraudulent information.” ORS 180.750.

On September 16, 2024, as part of its investigation, the DOJ issued the CID pursuant to ORS 180.775. See ORS 180.775(1) (“If it appears to the Attorney General that a person has possession, custody or control of any information, document or other materials that are relevant to an investigation of a violation of ORS 180.755, or that could lead to the discovery of relevant information in an investigation of a violation of ORS 180.755, the Attorney General may cause an investigative demand to be served upon the person.”). The CID sought documents and deposition testimony, and it propounded interrogatories on Novalpina GP. Id. (“The investigative demand may require the person: (a) To appear and testify under oath at the time and place stated in the investigative demand; (b) To answer written interrogatories; or (c) To produce relevant documentary material or physical evidence for examination at the time and place stated in the investigative demand.”).

Novalpina GP moved to set aside the CID in Multnomah County Circuit Court pursuant to ORS 646.618(2), which provides, in pertinent part, “At any time before the return date specified in an investigative demand * * * a petition to * * * set aside the demand, stating good cause * * * may be filed in the appropriate court.”⁵ Novalpina GP asserted, among other points, that the demand should be set aside for three reasons. First, it contended that there is no “personal jurisdiction over Novalpina GP in the State of Oregon, and therefore, the CID is not enforceable.” Second, it argued that “mandatory forum selection and choice of law clauses found in the limited partnership agreement between OPERF, an instrumentality of the State of Oregon, and Novalpina GP, require all contract and non-contract claims ‘arising out of or in connection with’ the limited partnership agreement to be brought against Novalpina GP in courts of the Grand Duchy of Luxembourg and under Luxembourgish law.” As to that argument, Novalpina GP contended that “the State has waived its right to hail [Novalpina GP] into its courts and has furthermore waived claims under Oregon's False Claims Act by agreeing to the exclusive application of the laws of Luxembourg.” And, third, Novalpina GP asserted that the DOJ's “attempt to gather what amounts to civil discovery through a CID fails to comply with international law, including but not limited to the Hague Evidence Convention.”

Ultimately, in a written opinion, the trial court rejected Novalpina GP's arguments. Regarding personal jurisdiction, the trial court concluded that Novalpina GP's “contacts with the State of Oregon are sufficient to subject [it] to specific jurisdiction.” The court reasoned that the “ ‘shell’ corporate structure in place between [Novalpina GP], a [General Partner], and the persons/entities who functionally own [it] and actively aimed their communications at Oregon through solicitation of investment of Oregon funds while in Oregon, does not function to entirely shelter [Novalpina GP] from jurisdiction” and that, “the actions of the persons/ entities who functionally owned and operated Novalpina GP are sufficient to establish * * * purposeful availment of privileges and laws of the forum state, and establish minimum contacts with the forum state of Oregon.” The court also found that “[p]ersons with functional control over Novalpina GP were aware that any fraud-related injury arising from the relationship between [Novalpina GP] and [the State of Oregon] would be directed at and sustained in Oregon,” and further determined that “[h]ailing [Novalpina GP] into Oregon to answer for possible injury arising out of an ongoing financial relationship with an Oregon entity, that exists as a result of [its] active solicitation of said relationship in Oregon also does not offend notions of fair play or substantial justice under the law.”

Regarding the choice-of-law and forum-selection clauses, the court determined, among other points, that “the forum selection clauses of the agreement do not control [the DOJ's] choice of venue for purposes of pursuing claims and process pursuant to ORS 180.755,” which “exist outside the parameters of the parties’ contractual agreement.” Further, the court concluded that nothing in the choice-of-law clauses “provides any support for [Novalpina GP's] position that the ORS 180.755 (False Claims Act) claim [that the DOJ] seeks to investigate and assert against [Novalpina GP] can only be brought in Luxembourg and must be subject to Luxembourgish law.”

Regarding compliance with the Hague Evidence Convention, the court determined that adherence to the Hague Evidence Convention is not mandatory and would likely not result in production of the requested information, which militated against its application in this case. The court noted further that Novalpina GP had not pointed to any Luxembourg law that prohibited pre-litigation disclosure of the requested material. Moreover, the court observed that “comity analysis also favors application of domestic discovery rules, laws and process over Hague Convention process.”

Thus, the trial court denied the petition to set aside. This appeal followed.

II. PERSONAL JURISDICTION

As noted, in its first assignment of error, Novalpina GP argues that “[t]he trial court erred in holding that specific personal jurisdiction exists over Novalpina GP because Novalpina GP lacks minimum contacts with the State of Oregon sufficient to comport with the Due Process Clause.”

“Under ORCP 4 L—the catchall provision of this state's long-arm statute—Oregon may exercise specific personal jurisdiction over a defendant ‘in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States.’ ” M. C. v. Quest Global, Inc., 328 Or App 378, 382, 537 P3d 571 (2023), rev. den., 372 Or 718 (2024) (quoting ORCP 4 L).⁶ “Thus, for Oregon to exercise specific personal jurisdiction over a defendant, there must be ‘minimum contacts’ between the defendant and Oregon.” Id. “In determining whether those contacts exist, we look to three considerations.” Id. at 383.

First, “we determine whether the defendant ‘purposefully availed’ itself of the privilege of conducting activities in Oregon or ‘purposefully directed’ its activities at residents of Oregon.” Id. (citing Cox v. HP Inc., 368 Or 477, 497, 507, 492 P3d 1245 (2021)). Second, “if a contact exists, * * * we next consider whether the litigation ‘arises out of or relates to’ that contact.” Id. (quoting State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151, 159, 854 P2d 461 (1993)). Third, if both of those prerequisites are met, “we consider whether exercising jurisdiction over the defendant would comport with ‘fair play and substantial justice.’ ” Id. (quoting Circus Circus Reno, Inc., 317 Or at 159-60).

A. Purposeful Availment

A foreign defendant's “activities within Oregon rise to the level of ‘minimum contacts’ ” only when “the defendant has ‘purposefully availed’ itself of the privilege of conducting activities in Oregon or ‘purposefully directed’ its activities at residents of Oregon.” Id. at 383. That requirement exists “to prevent foreign defendants from being haled into local courts because of ‘random, fortuitous or attenuated contacts’ with the forum state or the ‘unilateral activity’ of a plaintiff.” Id. at 383 (quoting Burger King Corp. v. Rudzewicz, 471 US 462, 475, 105 S Ct 2174, 85 L Ed 2d 528 (1985)). Thus, a “purposeful availment” analysis involves “a qualitative evaluation of the defendant's contact with the forum state in order to determine whether the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” Munson v. Valley Energy Investment Fund, 264 Or App 679, 699, 333 P3d 1102 (2014).

Importantly, “mere injury to a forum resident is not a sufficient connection to the forum.” M. C., 328 Or App at 384 (internal quotation marks and brackets omitted). Instead, the defendant “must have deliberately reached out beyond its home by engaging in some act in the forum state,” and that act, or acts, “must create a substantial connection with the forum state and must have been created by the defendant himself.” Id. (internal quotation marks and brackets omitted).

Ultimately, “[s]pecific personal jurisdiction is a highly fact-specific inquiry,” and as such, “it can be established in a wide variety of circumstances.” Id. at 387. In the context of a financial relationship such as this one, “contracting alone with a party located in the forum state is not automatically enough to establish sufficient minimum contacts.” Ancor Holdings, L.P. v. Landon Capital Partners, L.L.C., 114 F4th 382, 395 (5th Cir 2024).⁷ A contract is ordinarily merely “an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” Burger King Corp., 471 US at 479. The court must “analyze prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing, to determine whether the defendant purposefully established minimum contacts within the forum.” Ancor Holdings, L.P., 114 F4th at 395 (internal quotation marks omitted).

Here, we conclude that the trial court did not err when it determined that Novalpina GP had purposefully availed itself of the privilege of conducting activities in Oregon. We understand the trial court to have determined that in late 2017, when two of the Founders—Peel and Kowski—came to Oregon for the purpose of soliciting an investment by OPERF into the Fund, they did so as representatives of, and on behalf of, Novalpina GP, the General Partner of that Fund. That is, the trial court determined that Novalpina GP itself “active[ly] solicit[ed] * * * said relationship in Oregon.” That finding is supported by the record: As detailed in the LPA, which was entered into on the same day that OPERF's €200 million capital commitment was accepted, Novalpina GP was “responsible for the conduct of the Partnership's [(i.e., the Fund's)] activities,” and Novalpina GP had authority “to market the Partnership [(i.e., the Fund)].”⁸ Moreover, Novalpina GP stood to financially benefit, directly, from OPERF's investment in the Fund. Novalpina GP's solicitation in Oregon of an investment from OPERF supports a determination of purposeful availment. See Decker Coal Co. v. Commonwealth Edison Co., 805 F2d 834, 840 (9th Cir 1986) (concluding that, “if the defendant directly solicits business in the forum state, the resulting transactions will probably constitute the deliberate transaction of business invoking the benefits of the forum state's laws”).

We further note that the Side Letter Agreement between OPERF and Novalpina GP contained a choice-of-law provision providing that Oregon law would apply to all issues of law “governed by Oregon law” and “all issues of law relating to the governmental authority,” which, as explained below, we understand to include CIDs issued by the Attorney General pursuant to an Oregon statute. That choice-of-law provision, too, seemingly supports the trial court's conclusion regarding personal jurisdiction. See Burger King Corp., 471 US at 482 (observing that a choice-of-law provision “standing alone would be insufficient to confer jurisdiction,” but that by entering into contracts expressly providing that Florida's laws would govern disputes a defendant “purposefully availed himself of the benefits and protections of Florida's laws”).

Finally, as detailed above, subsequent to Novalpina GP's solicitation in Oregon of the initial investment from OPERF, Novalpina GP transmitted 10 drawdown notices to OPERF, seeking over €100 million of capital funding, all of which OPERF fulfilled.

We are persuaded that that cumulative conduct establishes Novalpina GP's purposeful availment, and the trial court did not err in so concluding. See Walden v. Fiore, 571 US 277, 285, 134 S Ct 1115, 188 L Ed 2d 12 (2014) (“[W] e have upheld the assertion of jurisdiction over defendants who have purposefully reach[ed] out beyond their State and into another by, for example, entering a contractual relationship that envisioned continuing and wide-reaching contacts in the forum State.” (Internal citation and quotation marks omitted; second brackets in Walden.)); Ooma, Inc. v. Dept. of Rev., 369 Or 95, 101, 501 P3d 520 (2021) (considering “cumulative conduct” in determining whether a party purposefully availed itself “of the Oregon market”).

In arguing that the trial court erred, Novalpina GP raises two arguments of note. First, Novalpina GP argues that the trial court erred because it—Novalpina GP—did not have “minimum contacts with Oregon sufficient to constitute purposeful availment,” given that there “is no evidence that Novalpina GP solicited anything.” (Emphasis in Novalpina GP's brief.) As we understand Novalpina GP's argument, that is because, in its view, “Peel and Kowski attended the meeting as Novalpina Capital LLP, which was putting together a Fund to be called Novalpina Capital Partners I SCSp,” and neither “Peel nor Kowski ever had a role in Novalpina GP.”

We are not persuaded. This record permits an inference that Peel and Kowski were also soliciting the investment on behalf of Novalpina GP, the General Partner of the Fund, which stood to benefit from investment in the Fund. That is particularly true given that Peel and Kowski, along with Lueken, “organized” the Fund and that Novalpina GP, as General Partner of the Fund, was responsible for the conduct of the Fund's activities. Indeed, although Novalpina GP argues that, at the time of the solicitation, it was “not doing anything” because it did not have “a Fund to manage,” by the time of the solicitation in November 2017, Novalpina GP had created the partnership “for the purpose of raising a fund to undertake investment activities”—precisely what it was doing in Oregon, as the trial court found. In the circumstances of this case, as the trial court aptly put it, Novalpina's corporate structure “does not function to entirely shelter” Novalpina GP from jurisdiction.

Additionally, Novalpina GP points to the forum-selection clauses in the various agreements, contending that “the parties’ choice of Luxembourg law and forum for all disputes, regardless of whether they are precontractual, non-contractual or contractual in nature, is strong evidence that Novalpina GP did not purposefully invoke the benefits and protections of a State's laws.” (Emphasis in Novalpina GP's brief.) As described below, however, in our consideration of Novalpina GP's second assignment of error, we disagree with Novalpina GP's interpretation of the applicability of the forum-selection clauses and choice-of-law clauses; to the extent the various agreements have bearing here, they reflect that the parties understood Oregon law would apply to this issue and did not intend for it to be litigated exclusively in the Grand Duchy of Luxembourg.⁹

B. Arising Out of or Related To

As noted, to give rise to specific personal jurisdiction, the litigation must “arise out of or relate to” the party's “minimum contacts” with the forum. M. C., 328 Or App at 384. “At a minimum, to satisfy that requirement, the ‘nature and quality’ of the defendant's Oregon activities must permit a determination that it was ‘reasonably foreseeable’ that the defendant would be sued in Oregon for the type of claim at issue.” Cox, 368 Or at 496.

On appeal, Novalpina GP does not meaningfully develop an argument that it is not subject to personal jurisdiction because the CID does not “arise out of or relate to” its minimum contacts with Oregon. Instead, it asserts that “[w]here there are no minimum contacts establishing purposeful availment of the forum, there can be no facts that the claim arises out of or relates to the defendant's forum-related activities.”

In our view, the trial court did not err in determining that this prong of the minimum contacts analysis is satisfied: In this case, the DOJ has initiated a False Claims Act investigation regarding investments solicited by Novalpina GP and, as part of that investigation, it issued the CID. The CID—which is the subject of this matter—both arises out of and relates to the contacts between Novalpina GP and Oregon. The “reasonably foreseeable” standard is met here.

C. Fair Play and Substantial Justice

We turn to the last prong of the specific personal jurisdiction analysis. Oregon “may exercise jurisdiction over a foreign defendant only if doing so ‘would comport with fair play and substantial justice.’ ” M. C., 328 Or App at 384 (quoting Burger King Corp., 471 US at 476). Under that prong, the burden shifts to the party contesting the assertion of jurisdiction “to present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Id. at 385 (internal quotation marks omitted). Moreover, where the party responsible for meeting the first two prongs—here, the DOJ—meets their burden on those prongs, the party with the burden on the third prong—here, Novalpina GP—“carries a substantial burden to make a compelling case that the exercise of jurisdiction would not be reasonable.” Id. at 389.

Whether the exercise of jurisdiction comports with fair play and substantial justice presents a “fact-specific inquiry which requires balancing * * * seven factors.” Id. Those factors are:

“ ‘(1) the extent of the defendant's purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum.’ ”

Id. at 385 (quoting Munson, 264 Or App at 700).

Having considered the trial court's ruling, the record, and the parties’ arguments, we conclude that the trial court did not err.

Concerning “the extent of the defendant's purposeful interjection,” Novalpina GP argues that its “minimum contacts, properly assessed, are completely lacking,” which “makes the unreasonableness of the court's exercise of personal jurisdiction over Novalpina GP * * * glaring,” and that Novalpina GP did not “inject itself into Oregon's affairs.” But, as detailed above, given the trial court's findings, we disagree with Novalpina GP's contentions regarding its contacts with Oregon. 353 Or App at 130-32.

Concerning the “burden on the defendant in defending in the forum,” Novalpina GP has not persuasively explained why responding to the CID is particularly burdensome, and in that regard, we note that the trial court required the DOJ to allow Novalpina GP to provide the requested deposition testimony “via remote video means.” See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F3d 1122, 1133 (9th Cir 2003) (recognizing that “modern advances in communications and transportation have significantly reduced the burden of litigating in another country” (internal quotation marks omitted)); see also Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 US 522, 539, 107 S Ct 2542, 96 L Ed 2d 461 (1987) (explaining that “interrogatories and document requests are staples of international commercial litigation” and can be “routine”). Nor has Novalpina GP persuasively explained how responding to the CID “conflict[s] with the sovereignty” of the Grand Duchy of Luxembourg, when Novalpina GP traveled to Oregon to solicit investment from OPERF in Oregon, agreed in the Side Letter Agreement that Oregon law would govern certain disputes when accepting OPERF's investment, and the CID concerns a False Claims Act investigation undertaken by the Attorney General of Oregon. See Vitamins Antitrust Litig., 120 F Supp 2d 45, 50, amended in part, 2000 WL 33142129 (DDC Nov. 22, 2000) (“[T]he Court sees no reason why the foreign nations’ sovereign interests would be offended by the investigation of this antitrust price-fixing conspiracy; many of these nations prohibit this type of conduct in their own laws and presumably all of these countries would want to have these laws enforced to the fullest extent.”).

Moreover, concerning “the forum state's interest in adjudicating the dispute,” the trial court determined that “[t]he State of Oregon has a substantial interest in vindicating the rights of Oregonians, and in enforcement of ORS 180.750 et. seq., Oregon's False Claims Act,” and further that the “identification of persons involved in and/or transactions that potentially constitute the basis of [a False Claims Act] claim is integral to litigation and prosecution of said claim under ORS 180.760,” the statute that permits the Attorney General to bring a False Claims Act claim. We agree with that assessment concerning the State of Oregon's interests. See Harris Rutsky & Co. Ins. Servs., Inc., 328 F3d at 1133 (recognizing that California has “a strong interest in providing an effective means of redress for its residents who are tortiously injured” (brackets and internal quotation marks omitted)).

Finally, concerning whether there is an “alternative forum” for the Attorney General to obtain the documents it seeks to investigate a potential violation of the Oregon False Claims Act, Novalpina GP takes the position—and the trial court found—that “Luxembourgish law generally has no mechanism for pretrial discovery.” Consequently, the trial court could find, in our view, that “convenient and effective relief” lies in this forum and that this forum will provide “efficient judicial resolution of the controversy.”

D. Conclusion Regarding Personal Jurisdiction

In sum, we conclude that the trial court did not err when it determined that Novalpina GP was subject to personal jurisdiction in Oregon. Specifically, it did not err when it determined that Novalpina GP purposefully availed itself of the Oregon market; that this litigation arises out of Novalpina GP's availment of the Oregon market; and that the exercise of personal jurisdiction over Novalpina GP in this case does not offend traditional notions of fair play and substantial justice.

III. FORUM-SELECTION AND CHOICE-OF-LAW CLAUSES

In its second assignment of error, Novalpina GP contends that “the trial court erred in holding that the forum selection and choice-of-law clauses found in the agreements between the parties failed to preclude enforcement of the CID in the State of Oregon.”¹⁰

As noted, regarding the forum-selection clauses, the trial court determined that those clauses do not “control [the DOJ's] choice of venue for purposes of pursuing claims and process pursuant to ORS 180.755,” which “exist[s] outside the parameters of the parties’ contractual agreement.” In so determining, the trial court relied on Black v. Arizala, 337 Or 250, 95 P3d 1109 (2004). As also noted, regarding the choice-of-law clauses, the trial court determined that nothing in those clauses “provides any support for [Novalpina GP's] position that the ORS 180.755 (False Claims Act) claim [that the DOJ] seeks to investigate and assert against [Novalpina GP] can only be brought in Luxembourg and must be subject to Luxembourgish law.”

As explained below, we agree with the trial court.

A. Contract Interpretation Under Oregon Law

Under Oregon law, “[c]ontract interpretation presents a question of law that we review for legal error.”¹¹ Santoro v. Eagle Crest Estate Homesite Owners Assn., 319 Or App 793, 798, 512 P3d 828 (2022). In interpreting a contract, “the court first examines the text of the disputed provision, in the context of the document as a whole, inquiring whether the provision at issue is ambiguous.” Id. (internal quotation marks omitted). Our goal is to “discern the intent of the parties in entering into that agreement.” Black, 337 Or at 267. In the absence of an ambiguity, “the court construes the words of a contract as a matter of law, and the analysis ends.” Santoro, 319 Or App at 800. A court may consider “extrinsic evidence of the circumstances underlying the formation of the contract” in determining whether a contract is ambiguous. Riverside Homes, Inc. v. Murray, 230 Or App 292, 302, 214 P3d 835 (2009) (internal quotation marks omitted). If the contract remains ambiguous even after considering such evidence, “the court then examines extrinsic evidence of the contracting parties’ intent” to determine the meaning of the contract. Id.

B. The Forum-Selection Clauses

We first consider the meaning and scope of the forum-selection clauses. Novalpina GP notes that the forum-selection clause in the LPA covers “any disputes (whether contractual or non-contractual) which may arise out of or in connection with this agreement” and the Subscription Agreement forum selection clause covers “any disputes (whether contractual, non-contractual or pre-contractual) which may arise out of or in connection with this Subscription Agreement or the process leading to the submission by the Applicant.” (Emphases added.) Novalpina GP argues that because “[t]he State” has “no other connection to Novalpina except through the contracts[,] all disputes will arise in connection with the investment agreement[s].” Novalpina GP further argues that the trial court's reliance on Black to conclude the forum-selection clauses are not controlling was misplaced, because the forum-selection clauses in this case are “far broader” than the clause at issue in Black.

In Black, the Oregon Supreme Court considered whether, in a contract governed by Delaware law, a choice-of-venue clause required the plaintiffs to bring their claim for damages for “securities law violations and related torts” in Puerto Rico. 337 Or at 256. The clause at issue in Black provided that the “venue for any legal action arising from this Agreement, * * * shall be in San Juan, Puerto Rico.” Id. at 266 (emphasis in Black). After noting that the objective in “construing the venue agreement is to discern the intent of the parties in entering into that agreement,” the court looked to the dictionary definitions of the verb “arise” and, based on those definitions, determined that the parties’ contract “must be the specific place of origin or the source of the legal action to trigger application of the venue agreement.” Id. at 267.

Consequently, the court concluded that the plaintiffs in Black could “maintain an action [in Oregon] based on noncontractual sources of their rights even though the claims arise from some of or all the same facts that relate to the parties’ contractual transactions.” Id. at 270. In so concluding, the court in Black discussed with approval a Delaware Supreme Court case, Parfi Holding AB v. Mirror Image Internet, Inc., 817 A2d 149 (Del 2002), cert. den., 538 US 1032 (2003).

In Parfi, the Delaware Supreme Court considered the scope of an arbitration clause bearing some similarity to the forum-selection clauses in this case.¹² The issue in Parfi was whether an arbitration clause providing that the parties agreed to arbitrate “any dispute, controversy, or claim arising out of or in connection with this Agreement” extended to certain breach of fiduciary duty claims under Delaware law. Id. at 155. The court concluded that “the arbitration provision, no matter how broadly drafted, can reach only the claims within the scope of the contract” and did not apply to the breach of fiduciary duty claims since the “fiduciary duties * * * consist of a set of rights and obligations that are independent of any contract.” Id. at 151, 157. The court reasoned that, although the language of the arbitration clause had a “broad scope,” the arbitration clause “signals” only “an intent to arbitrate matters that touch on the rights and performance related to the contract” and must be “considered in that light.” Id. at 156. It further explained that, although similar conduct might lead to claims for relief based on breach of contract and breach of fiduciary duty, the court must consider that the “separate rights pursued by plaintiffs under both the contract and the independent fiduciary duties rather than the similarity of the conduct that led to potential claims for both the contract and fiduciary breaches of duty.” Id. (emphases in original).

More recently, in Peters v. C21 Investments, Inc., 322 Or App 462, 465, 520 P3d 920 (2022), rev. den., 371 Or 309 (2023), we considered whether a forum-selection clause providing that each “of the Parties hereto irrevocably attorns [(consents)] and submits to the exclusive jurisdiction of the courts of the Province of British Columbia in respect of the subject matter of this Agreement” applied to certain “tort claims for intentional interference with business relations and intentional interference with employment relations.” Id. at 464 (brackets in Peters). Following the analysis of Black in making that determination, we looked to the dictionary definition of “in respect of” and concluded that the forum-selection clause applied to claims “ ‘as to’ or ‘as regards’ or ‘with respect to’ the specific subject matter” of the agreement at issue, as well as “associated agreements,” and concerned disputes regarding “specific contractual obligations” between the parties. Id. at 474. In ruling that the tort claims were not covered by the clause, we reasoned that, although the claims concerned “interference with th[e] agreements” subject to the forum-selection clause, the claims were not themselves “ ‘in respect of the subject matter’ of the agreements,” notwithstanding that the agreements “could provide information to the court in its analysis of plaintiffs’ tort claims.” Id.

Guided by the analysis in Black, which applied Delaware law, and Peters, which applied the same approach as Black under Oregon law, and Parfi, which we consider persuasive authority, we conclude that the forum-selection clauses in the LPA and the Subscription Agreement did not require the trial court to set aside the CID.

Novalpina GP's argument that the forum-selection clauses in the LPA and the Subscription Agreement apply to the CID is largely based on the words “in connection with” in those contracts. As our Supreme Court has observed, relying on Webster's Third New International Dictionary, the phrase “in connection with” is an “ ‘ambiguous phrase that means a relationship or association.’ ” Portland Distributing Co. v. Dept. of Rev., 307 Or 94, 99, 763 P2d 1189 (1988) (citing Webster's Third New International Dictionary 481 (1971)); see also Webster's Third New International Dictionary 481 (2002) (defining “connection” as, among other definitions, “relationship or association in thought” and “the act of connecting”). But “dictionaries do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.” State v. Corcilius, 294 Or App 20, 23, 430 P3d 169 (2018) (emphasis in original; internal quotation marks omitted). Here, the dictionary definition is of little utility in interpreting the phrase “in connection with” in the LPA and Subscription Agreement because, as our Supreme Court has also observed, the “ ‘only merits’ ” of the phrase “in connection with” are its “ ‘vagueness & pliability’ ”; it is a phrase that “ ‘everyone who prefers vigorous to flabby English will have as little to do with as [they] can.’ ” Id. at 99 n 5 (quoting Margaret Nicholson, A Dictionary of American-English Usage 102 (1957)).

As was the agreement to arbitrate in Parfi, we believe the forum-selection clause in this case is of “broad scope” and covers disputes that “touch on the rights and performance related to the contract,” id. at 155-56, but, from the “vague[ ] & pliab[le]” language of the clause, we do not understand the parties to have intended to require the Attorney General to have forfeited the separate statutory right under Oregon law to serve and enforce a CID on “a person” that the Attorney General believes to have “possession, custody or control of any information, document or other materials that are relevant to an investigation of a violation of ORS 180.755.” ORS 180.755 (setting forth that authority). That is, here, “the right[ ] pursued” by the DOJ to serve and enforce a CID is entirely statutory in nature, created by legislative action in 2009, see Or. Laws 2009, ch. 292, § 6, and exists wholly independently from any contract between OPERF and Novalpina GP. The Attorney General's statutory authority would exist even if the contracts were never entered into or if they were void. Although similar conduct might be both a breach of contract and give rise to a claim for violation of the False Claims Act, as explained in Parfi, that does not mean the latter is “in connection with” the contract.

Moreover, we think Novalpina GP's argument concerning the scope of the forum-section clauses in the LPA and the Subscription Agreement is misplaced because the jurisdictional provision of the Side Letter Agreement provides, as noted, that the “Subscriber does not agree to the jurisdiction of any state courts other than those of the State of Oregon or to the jurisdiction of any * * * other court.” (Emphases added.) That provision is inconsistent with the forum-selection clauses in the LPA and the Subscription Agreement, the latter of which provides that “Applicant irrevocably agrees that the courts of the Grand Duchy of Luxembourg are to have the exclusive jurisdiction to settle any disputes * * *, which may arise out of or in connection with this Subscription Agreement,” and the former of which provides that the parties “irrevocably agree that the courts of the Grand Duchy of Luxembourg are to have the exclusive jurisdiction to settle any disputes * * *, which may arise out of or in connection with this agreement.” The Side Letter Agreement is inconsistent because, plainly, a party cannot both agree to the jurisdiction of the Grand Duchy of Luxembourg (as in the Subscription Agreement and the LPA) and, simultaneously, not agree to the jurisdiction of any courts other than Oregon (as in the Side Letter Agreement). By its terms, and as noted, the Side Letter Agreement “prevail[s]” if there is “any inconsistency between” it and the LPA or the Subscription Agreement.

Thus, we reject Novalpina GP's argument that the trial court was required to set aside the CID due to the forum-selection clauses in the various agreements.

C. The Choice-of-Law Clauses

Turning next to the choice-of-law clauses, we agree with the trial court that nothing in those clauses “provides any support for [Novalpina GP's] position that the ORS 180.755 (False Claims Act) claim [that the DOJ] seeks to investigate and assert against [Novalpina GP] can only be brought in Luxembourg and must be subject to Luxembourgish law.”

As an initial matter, as suggested by our discussion above concerning the forum-selection clauses, it is not clear that the LPA, the Subscription Agreement, and the Side Letter Agreement are broad enough to control the right of the Attorney General to issue a CID under ORS 180.775, which is a right that exists independent of any contractual rights.

But more to the point regarding the choice-of-law provisions, the choice-of-law provision in the Side Letter Agreement provides, in relevant part, “all issues of law relating to the governmental authority, and the scope of sovereign and governmental immunities, of the Subscriber, or otherwise governed by Oregon law, must be resolved and enforced according to the laws of the State of Oregon, without resort to any jurisdiction's conflict of law rules or doctrines.” (Emphases added.) The Attorney General's authority to issue CIDs under ORS 180.775 is an issue of “governmental authority” that is “governed by Oregon law.” See Etter v. Dept. of Rev., 360 Or 46, 52, 377 P3d 561 (2016) (observing that “federal law” governs the meaning of “a federal statute”). And, as noted, the Side Letter Agreement, by its terms, “prevail[s]” if there is “any inconsistency between” it and the LPA or the Subscription Agreement.

Thus, we agree with the trial court regarding the choice-of-law provisions.

D. Conclusion Regarding Forum-Selection and Choice-of-Law Clauses

In sum, we conclude that the trial court did not err in determining that the forum-selection and choice-of-law clauses found in the agreements between the parties did not preclude enforcement of the CID in Oregon by application of Oregon law.

IV. THE HAGUE EVIDENCE CONVENTION

In its third assignment of error, Novalpina GP contends that the trial court erred “by refusing to apply the Hague Evidence Convention, which would preclude enforcement of the CID in the State of Oregon.”

By way of background, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555 (the Convention), “prescribes certain procedures by which a judicial authority in one contracting state may request evidence located in another contracting state.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 US 522, 524, 107 S Ct 2542, 96 L Ed 2d 461 (1987) (Aerospatiale). Both the United States and the Grand Duchy of Luxembourg are contracting states.

The Convention's “purpose was to establish a system for obtaining evidence located abroad that would be ‘tolerable’ to the state executing the request and would produce evidence ‘utilizable’ in the requesting state.” Id. The procedures in the Convention for requesting evidence “are not mandatory,” but, instead, the Convention is “one method of seeking evidence that a court may elect to employ.” Id. at 541. Thus, the procedures are a “permissive supplement, not a pre-emptive replacement, for other means of obtaining evidence located abroad.” Id. at 536.

In Aerospatiale, the Court expressly rejected a party's argument that the Convention was the “exclusive means for obtaining evidence located abroad”—which it characterized as an “extreme position”—explaining that that would effectively “subject every American court hearing a case involving a national of a contracting state to the internal laws of that state.” Id. at 529, 539. In so concluding, the Court observed that “[i]nterrogatories and document requests are staples of international commercial litigation” and “a rule of exclusivity would subordinate the court's supervision of even the most routine of these pretrial proceedings to the actions or, equally, to the inactions of foreign judicial authorities.” Id.

Notwithstanding that use of the Convention is not mandatory in all cases, courts have the power “to insist upon the use of Convention procedures to obtain evidence.” St. Jude Med. S.C., Inc. v. Janssen-Counotte, 104 F Supp 3d 1150, 1160 (D Or 2015). The decision whether to do so requires “scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective.” Aerospatiale, 482 US at 544.

The Court identified the following factors in Aerospatiale as “relevant to any comity analysis” concerning the Convention:

“(1) the importance to the litigation of the documents or other information requested;

“(2) the degree of specificity of the request;

“(3) whether the information originated in the United States;

“(4) the availability of alternative means of securing the information; and

“(5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.”

Id. at 544 n 28 (internal quotation marks omitted). However, those factors are not exclusive. See St. Jude Med. S.C., Inc., 104 F Supp 3d at 1161 (considering also “[1] the extent and the nature of the hardship that inconsistent enforcement would impose upon the person, and [2] the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state” (internal quotation marks omitted)).

For us, it appears to be a matter of first impression which party bears the burden of persuasion on the issue of whether resort to the Convention should be required and also our standard of review with regard to a trial court ruling on whether to require a party to use the Convention—i.e., there is no directly controlling case law on those points. Having considered the relevant case law, however, we readily conclude that the party urging use of the Convention—here, Novalpina GP—has the burden of persuasion as to whether to require the generally “optional use of the Convention procedures.” See, e.g., In re Auto. Refinishing Paint Antitrust Litig., 358 F3d 288, 305 (3d Cir 2004) (so concluding and collecting cases); see also Aerospatiale, 482 US at 547 (stating that the court should give “the foreign litigant a full and fair opportunity to demonstrate appropriate reasons for employing Convention procedures in the first instance, for some aspects of the discovery process” (emphasis added)). We also conclude that we review the trial court's determination of whether comity requires resort to the Convention for abuse of discretion. See, e.g., Arcelik A.S. v. E.I. DuPont de Nemours & Co., 856 Fed Appx 392, 395 (3d Cir 2021) (“We review the District Court's balancing of the international comity factors for abuse of discretion.”); see also Kotera v. Daioh Int'l U.S.A. Corp., 179 Or App 253, 274, 40 P3d 506 (2002) (“A court's invocation of comity in declining to consider an issue is a matter of discretion, which we review for abuse of discretion.”).

Before turning back to our analysis in this case, we note that, before “addressing Aerospatiale’s comity factors,” as set forth above, some courts require, “as an initial step,” identification of “a true conflict between U.S. law and foreign law.” Arcelik A.S., 856 Fed Appx at 397 n 9; e.g., In re Sealed Case, 932 F3d 915, 931 (DC Cir 2019) (explaining that, “[a]bsent a clash of foreign and domestic law, American courts may press forward free from worry that their rulings will threaten the international legal ties that advance the rule of law within and among nations” (internal quotation marks omitted)). Such a conflict may exist where, for example, requiring discovery from a foreign entity would subject the entity to legal penalties in their home country. In re Sealed Case, 932 F3d at 931.

Here, as noted above, the trial court determined that a comity analysis using Aerospatiale’s comity factors may be unnecessary because there was no Luxembourg law that Novalpina GP pointed to that prohibits disclosure of the requested materials; that is, that there was no “true conflict” because Novalpina GP did not identify a law that would prohibit disclosure of the materials sought in the CID. And the trial court also determined that, even if it were to apply a comity analysis, that analysis “favors application of domestic discovery rules, laws and process over Hague Convention process.”

Having considered the comity analysis undertaken by the trial court, the record, and the parties’ arguments, we conclude that the trial court did not abuse its discretion when it determined that comity did not require resort to the Convention in this case.

As an initial matter, the trial court correctly observed that, in determining whether to require resort to the Convention, a court should consider “the likelihood that resort to those procedures will prove effective.” Aerospatiale, 482 US at 544. Here, the trial court determined that it was likely “accurate” that “adherence to the [C]onvention process will be fruitless” because, pursuant to Article 23 of the Convention, Luxembourg “declared that Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries shall not be executed.” The finding that resort to the Convention would likely be “fruitless” is amply supported by the record: Luxembourg counsel for Novalpina GP filed a declaration in this action stating that “the CID should [be] considered as a request for pre-trial discovery, which Luxembourg has prohibited via its declaration under Article 23 of the Evidence Convention.” Consequently, in our view, the trial court correctly determined this factor weighs against requiring resort to the Convention. See St. Jude Med. S.C., Inc., 104 F Supp 3d (requiring compliance with the Convention is “counsel[ed] against” when the request is likely to prove fruitless, such as when a country made a statement pursuant to Article 23 of the Convention stating pretrial discovery would not be allowed).

In reaching its conclusion, the trial court also carefully considered the five factors set forth in Aerospatiale and quoted above. Regarding (1) “the importance to the litigation of the documents or other information requested,” the trial court determined, among other points, that the information sought by the CID “is important to the litigation of an Oregon False Claims Act claim” and that the “State of Oregon has a substantial interest in vindicating the rights of Oregonians, and in enforcement of * * * Oregon's False Claims Act.” Regarding (2) “the degree of specificity of the request,” the trial court determined that, although the request was “broad,” it was not “nonspecific” insofar as it identifies “by name the entities, individual persons, subject matters, relative time frames, documents, and communications sought.” Regarding (3) “whether the information originated in the United States,” the trial court determined that the information sought “likely did not originate in the United States” and that that was the “only factor that weighs in favor of application of the Convention process.” Regarding (4) “the availability of alternative means of securing the information,” the trial court determined that there are “no obvious alternative means of obtaining the information sought.” And, finally, regarding (5) “the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located,” the trial court determined that the CID is “based on an investigation conducted for the purpose of vindicating the statutory rights of Oregonians conferred by ORS 180.750 et. seq.” and that the “lack of stated Luxembourg statute or law barring production of the information sought leaves the Court without an identified sovereign interest in nondisclosure of these specific kinds of material.” (Internal quotation marks and brackets omitted.)

In arguing that the trial court erred in weighing the comity factors, Novalpina GP contends that the CID is “part of a fishing expedition into matters that are truly only related to commercial claims being pursued by Novalpina GP, OPERF, or OPERF's allies in the UK and Luxembourg” and that the CID is a “quintessential fishing expedition * * * not permitted under U.S. or Luxembourg law.” The difficulty for Novalpina GP is that the trial court was not required to accept Novalpina GP's view of the nature and purpose of the CID and, in fact, in its ruling, the trial court expressly rejected Novalpina GP's argument that the CID issued by the DOJ “should be set aside because it was issued for an illegitimate or fraudulent purpose.”

Likewise, we are not persuaded by Novalpina GP's other arguments concerning comity.

V. CONCLUSION

In sum, we conclude that the trial court did not err when it determined that Novalpina GP was subject to personal jurisdiction in Oregon. We also conclude that the trial court did not err in determining that the forum-selection clauses and the choice-of-law clauses did not require the trial court to set aside the CID. Finally, we conclude that the trial court did not abuse its discretion when it did not require the DOJ to comply with the Convention in this case.

Affirmed on appeal; cross-appeal dismissed as moot.

FOOTNOTES

1.   As the Oregon Department of Justice (the respondent and cross-appellant) puts it, this case involves the “same operative facts” as the petition in the litigation underlying the appeal in Novalpina Capital Partners I GP S.A.R.L. v. Read, 149 F4th 1092 (9th Cir 2025).

2.   Although the trial court ultimately concluded that it had personal jurisdiction over Novalpina GP on the basis of certain contacts that Novalpina GP had with Oregon, the trial court rejected the DOJ's alternative argument that Novalpina GP consented to personal jurisdiction in Oregon by filing a motion to compel discovery in a different case pursuant to 28 USC section 1782. The DOJ has cross-appealed that ruling, contending that the trial court erred “in determining that [Novalpina GP] did not consent to personal jurisdiction in Oregon when it affirmatively filed [a] 28 USC § 1782 petition in Oregon to compel production of discovery relating to this matter.”The DOJ acknowledges that we need only consider the cross-appeal if we determine that the trial court incorrectly concluded that it had specific personal jurisdiction over Novalpina GP based on its contacts with Oregon. Because we conclude that the trial court did not err when it determined that Novalpina GP was subject to specific personal jurisdiction in Oregon, we do not consider the merits of DOJ's cross-appeal, and we dismiss the cross-appeal as moot.

3.   We note, with respect to the first assignment of error, that the parties dispute whether we can assume that the facts alleged in the DOJ's pleadings are true. The DOJ asserts that we must; Novalpina GP, in its reply brief, asserts that we should not.Given the nature of this proceeding—which involves neither a complaint nor an answer—it is unclear to what “pleading” of the DOJ the parties are referring. In any event, we need not resolve that disputed issue concerning our standard of review, because the evidence—in the form of affidavits and documents—coupled with the trial court's findings and legal conclusions, is sufficient for our review of the trial court's rulings and compels us to affirm. Put another way, under Novalpina GP's proffered standard of review for the first assignment of error, which does not include assuming the truth of the “DOJ's pleadings,” Novalpina GP's first assignment of error fails.

4.   At this juncture, we pause to note that our task on appeal has been made more difficult by Novalpina GP's counsel's shifting positions concerning the record during the course of this litigation.For example, on appeal, Novalpina GP contends that the trial court erred when it referenced two of the Founders’ “control” over Novalpina GP in its written opinion, but as noted above, that is contrary to how it encouraged the trial court to understand the record.Further, in the trial court, Novalpina GP asserted that Peel, Kowski, and Lueken were “not founders of the Fund,” but on appeal—consistent with the record and Novalpina GP's representation to the United States District Court for the District of Oregon in other, related litigation—Novalpina GP appears to acknowledge that Peel, Kowski, and Lueken were “Founders” of the Fund.Additionally, in the trial court, Novalpina GP represented to the trial court that the evidence reflected that Novalpina GP intended to make a €75 million investment in the Fund but, on appeal, contends that evidence refers to a different Novalpina entity, not Novalpina GP.

5.   For purposes of this opinion, we assume without deciding that the procedures for setting aside a CID set forth in ORS 646.618(2), which appear to concern civil investigative demands issued under ORS 646.618(1), concerning the Oregon Unlawful Trade Practices Act, are applicable to the demand in this case, which was issued by the Attorney General under ORS 180.755 and concerns the Oregon False Claims Act.

6.   The parties agree that “general personal jurisdiction” does not exist in this case; that is, there is no contention that Novalpina GP has the kind of “continuous” operations within Oregon that are “so substantial and of such a nature” as to give rise to general personal jurisdiction. See Robinson v. Harley-Davidson Motor Co., 354 Or 572, 578, 316 P3d 287 (2013) (explaining the nature of general personal jurisdiction).Additionally, we note that although many cases use the word “defendant” when describing issues of personal jurisdiction, Novalpina GP was a “petitioner” in the trial court. Neither party has argued that Novalpina GP's petitioning the court for relief in this case should play a role in our analysis of personal jurisdiction.

7.   We are, of course, not bound by the decisions of lower federal courts, but we may consider them as “persuasive authority.” Mears v. Marshall, 138 Or App 476, 478, 909 P2d 212 (1996). Our citation to federal courts in this opinion—other than to the United States Supreme Court—should be so understood.

8.   We acknowledge that the LPA was entered into 14 days after the solicitation of OPERF in Oregon and that the record does not contain the August 2017 agreement between Novalpina GP and the Initial LP, which created the partnership. Seemingly, it was the August 2017 agreement, not the LPA, that was in effect at the time of the solicitation. Nevertheless, we think on this record, relying on the LPA to understand Novalpina GP's role at the time of the solicitation constitutes a legally permissible inference.

9.   In connection with personal jurisdiction, Novalpina GP raises other arguments, too, but they are, in our view, lacking in substance.By way of one example, Novalpina GP contends that the trial court “wrongly assumed and declared [that Kowski and Peel] own and control [Novalpina GP].” But, as noted above, in the trial court, counsel for Novalpina GP encouraged the trial court to understand that the Founders—Kowski, Peel, and Lueken—exercised “practical control and influence over” Novalpina GP, 353 Or App at 120, and the record is replete with evidence from which the trial court could find that TopCo, which is owned by the Founders, has an ownership interest, at least indirectly, in Novalpina GP.Additionally, Novalpina GP points to the trial court's use of the term “ ‘shell’ ” and asserts that “[t]here were no facts in the record to support the trial court's finding that there was a ‘shell corporate structure’ between Novalpina GP and the three investment advisers.” But, as we understand the trial court's ruling, the word “shell” was in quotation marks in its written opinion for a reason: As the transcript of oral argument makes clear, the trial court used the word “shell” in paraphrasing Novalpina GP's argument about its own role in the Fund's corporate structure. We see no error with the trial court's use of the word “shell” when the trial court ruling is read in context. See State v Pothast, 352 Or App 468, 472, ––– P3d –––– (2026) (trial court statements must be read in context).Finally, Novalpina GP argues that the trial court erred in “concluding on a bare record that specific personal jurisdiction over Novalpina GP exists on account of an implied piercing/reverse piercing or alter ego analysis.” But as the DOJ notes, “the trial court did not mention, much less rely on, the theory of piercing the corporate veil or alter ego to conclude that petitioner was subject to personal jurisdiction in Oregon,” but instead relied on Novalpina GP's “contacts with the State of Oregon.”Given the nature of many of Novalpina GP's arguments on appeal, in this opinion, we have addressed some but not all of them. To the extent we did not address an argument expressly, we reject it.

10.   Neither the LPA, the Subscription Agreement, nor the Side Letter Agreement was signed by the Attorney General. In analyzing this assignment of error, given the trial court's ruling, we assume, without deciding, that those agreements are binding on the parties in this litigation.We also observe that it is not apparent from Novalpina GP's arguments why a forum selection clause in the LPA, Subscription Agreement, or Side Letter Agreement would require the court to set aside the CID, which is the relief it sought in the trial court. It may be that, if the clauses were applicable to the CID, the appropriate court to resolve a dispute concerning the scope of the CID would be a court in the Grand Duchy of Luxembourg, but it does not necessarily follow from the forum selection that the CID would need to be set aside. Ultimately, however, we need not resolve the issue because the agreements do not reach the CID in the manner argued by Novalpina GP.

11.   Both the Subscription Agreement and the LPA designate “the laws of the Grand Duchy of Luxembourg” for interpretation of those agreements, including, presumably, the scope of the forum-selection clauses in those agreements. But, on appeal, neither party offers law from the Grand Duchy of Luxembourg regarding interpretation of such provisions. In the absence of such law, we apply Oregon law. Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh'd to on recons., 187 Or App 472, 68 P3d 259 (2003) (“[I]t is not this court's function to speculate as to what a party's argument might be” nor “to make or develop a party's argument when that party has not endeavored to do so itself.”).

12.   We note that, although the clause at issue in Parfi was an arbitration clause, and the clause at issue in Black was a choice of venue clause, the court in Black explained that those differences played “no role” in its analysis. Black, 337 Or at 269. So too with regard to the forum-selection clause at issue in this case.

ORTEGA, P. J.