Visitors now: 13
Garnishment Dispute in Supreme Court
In today's session, the United States Supreme Court granted certiorari in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, docket number 07-615. For a prior discussion, see Attachment of Award and Blocked Assets. The issue accepted on June 23, 2008 is whether an award received by a foreign sovereign may be garnished by a third party that won an award against the sovereign. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Philippine FSIA Case on the Docket
On The Docket maintains a list of Supreme Court cases that address the Foreign Sovereign Immunities Act. The newest decision is Philippines v. Pimental, 553 US ___ (2008). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Embassies' Business Outreach
On June 12, 2008, the US-ASEAN Business Council facilitated the business outreach efforts of American embassies in South-East Asia. Under its auspices, four U.S. ambassadors joined with 10 foreign ambassadors to meet with business representatives at the Willard Hotel in Washington, DC. Secretary of Commerce, Carlos Gutierrez, present the keynote speech.
Gutierrez argued that protectionism does not protect and called for focused efforts on free trade agreements with ASEAN nations. The Council has long supported such FTAs and serves as the secrectariat of the US-Malaysia FTA Business Coalition.
The American ambassadors stressed the educational aspects of their tour. In San Diego and Houston, they learned from business about approaches in intellectual property law and energy where embassies and business have opportunities for enhanced cooperation. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Cultural Heritage Lost to Russia
On June 13, 2008, the United States Court of Appeals for the District of Columbia Circuit reviewed a lower court partial victory for the release of cultural property from Russia.
The dispute Agudas Chasidei Chabad of United States v. Russian Federation et al., docket number 07-7002, involves the application of the FSIA to Russia and her agencies, the act of state doctrine and the forum non convenience principle. The cultural heritage at issue comprises Russian Chabad libraries and archives taken by Russia after tortuous escapes from Russian revolutionaries and German invaders.
Now that the D.C. Circuit in Washington, DC has confirmed the jurisdiction of American courts claimed by the plaintiffs, the plaintiffs may proceed with their claims in the district court. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Breach of Radius or Convention
In US - UK Diplomats Conduct Appalling, an unattributed comment chides diplomats from the United States and the United Kingdom for breaching a travel restriction. The June 8, 2008 comment in the Sunday News of Zimbabwe reports that the alleged violation caused party members to endanger the lives of the diplomats, police had to step in to protect the diplomats, and the diplomats protested their treatment by police as harassment.
The commenter characterized the confrontation:
While Zimbabwe is a signatory to the Vienna Convention on the treatment of diplomats, it is still a sovereign nation with a functioning Government and not a banana republic.It calls for swift remedial action against perceived childish antics and cheap publicity seeking stunts by diplomats. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Human Rights Exception to Immunity
Reminscent of the proposed FSIA exception for barbarism in Washington, DC, litigation, the highest Italian court reportedly issued rulings containing an exception to sovereign immunity for human rights violations. The court authorized the attachment of a Germany-owned villa at Lake Como and other cultural institutions in a dispute between Germany and Italian and Greek victims of the Third Reich, Netzeitung.de reports on June 6, 2008.
According to the article, Kulturinstitut muss für Nazi-Terror büssen, Germany understands that it had compensated Italian victims, while plaintiffs believe they fell through cracks in the ever-expanding German compensation system which most recently included the Foundation Remembrance, Responsibility and Future. La Repubblica quotes the court as follows:
La Repubblica federale di Germania - si legge nell'ordinanza n.14201 - non ha il diritto di essere riconosciuta, nella presente controversia, immune dalla giurisdizione civile del giudice italiano, anche in ragione del fatto che la condotta illecita si e' verificata anche in Italia …The decisions are apparently not yet available on the web site of the Corte Suprema di Cassazione. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
and
…l'ordinamento internazionale gia' consente di esercitare nei confronti dello Stato straniero in caso di violazioni ad esso addebitabili, di obbligazioni negoziali, resti, invece, esclusa a fronte di ben piu' gravi violazioni, quali quelle costituenti crimini addirittura contro l'umanita' e che segnano anche il punto di rottura dell'esercizio tollerabile della sovranita' …
Fri, / / Embassy Law Link
Recent Moves in Embassy Immunities
Election seasons present opportunities to seek scapegoats, and in 2008 the latter include foreign governments. This year witnesses various inroads into the sovereignty and immunity of foreign nations, embassies and state assets.
The first advance arrived in January 2008 with major changes in the Foreign Sovereign Immunities Act. Unless a commercial exception applies, international law protects the assets of foreign states and missions by a blanket grant of immunity from civil actions. The FSIA limits the jurisdiction of courts in the United States. It generally shields foreign missions from nuisance actions.
The shield of the Foreign Sovereign Immunities Act cracked when Congress passed the National Defense Authorization Act for Fiscal Year 2008 which amended §1610 of the FSIA and adds §1605(a). The assets of foreign nations became more easily attachable. Fortunately, the changes are not intended to alter relations with most nations and do not affect diplomatic and consular property. Property of foreign states deemed sponsors of terrorism can be used, however, to satisfy victims' civil claims.
As a result of the enactment, there is a rush of litigation involving those possessing assets or holding claims against foreign states -- such as foreign airlines with landing rights abroad and banks managing accounts. Non-terror states and third parties, including both domestic and international corporations, can easily become entangled in litigation previously unthinkable.
In a February 2008 development strengthening sovereign immunity and facilitating diplomacy, a Washington court lifted the Damocles Sword threatening foreign nations with civil litigation merely because of a nation's accession to a treaty. The United States Court of Appeals for the District of Columbia Circuit decided in a Warsaw Convention matter that American courts lack jurisdiction if the only American connection of the foreign nation's entities consists of its adherance to a treaty also signed by the United States. Diplomats in Washington may continue, therefore, to negotiate agreements and treaties without added concerns over exposing their governmental entities to American courts.
A more troubling development for missions is a series of orders on procedures for the enforcement of judgments against assets of foreign nations located in the United States. In a cultural heritage case, a district court in Chicago required a foreign nation to divulge its assets to plaintiffs. The effect is that plaintiffs can institute proceedings against foreign states in order to obtain a list of state assets which plaintiffs can then use to satisfy jugdments.
The United States Department of State sided with the foreign state on that issue. Obviously, the United States does not want to be placed in a similarly vulnerable position in courts abroad. This is only one of various judicial scenarios where the State Department reaffirms its understanding that the interests of foreign nations and of the United States are closely aligned.
On another plane, the uncertainy surrounding immunities vis-a-vis local hires at embassies and consulates persists. Various courts of appeals in the United States have sought to classify non-diplomatic personnel into categories. The D.C. Circuit in Washington, DC, colloquially known as the second-highest court, made some progress in 2007, but there is no nationwide standard with easy-to-administer rules for embassies.
Similarly, litigation under the 1798 Alien Tort Claims Act lacks definitive guidance. In May 2008, the Supreme Court was unable to provide the long-sought interpretation of the ancient statute that is frequently invoked in foreign sovereign immunities litigation.
In another recent development, the Congressional Research Service released a paper on American and international principles of sovereignty and immunities. While focused on the American response to terror of foreign origin, the research paper entitled Suits Against Terrorist States by Victims of Terrorism, provides detailed information of likely interest to any embassy.
Looking forward, a major tremor may shake international relations if currently discussed federal legislation would remove immunity from OPEC members in antitrust cases. Presently, serious efforts are underway to expand the jurisdiction of American courts. Exceptions for the trade in oil could open the floodgates to similar developments relating to other scarce commodities -- and as the many terrorism exceptions demonstrate -- to foreign-policy reasons.
Except for the Supreme Court's recent ruling on consular notification requirements, American courts have historically applied a sense of fair balance in the area of sovereignty and immunity as well as the obligations of the United States under international law which, in the long run, is likely to prevail. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Eager OPEC Action
Many potential plaintiffs in the United States eagerly await the passage of NOPEC legislation opening avenues to sue OPEC or its member states for antitrust violations of American law. In a National Law Journal commentary, U.S. Antitrust Laws Should Govern OPEC, Joseph Becker advocates submitting OPEC to the jurisdiction of U.S. courts.
He summarizes developments in antitrust and immunities law and explains the status of OPEC under the laws of Austria. As potential qualified plaintiffs, the May 29, 2008 article identifies American gas stations.
A better read than the usual anti-OPEC refrain and nagging over sovereign immunities for embassies and international organizations, the article concludes with a sense of national urgency. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Comprehensive FSIA Report
On May 1, 2008, the Congressional Research Service released Suits Against Terrorist States by Victims of Terrorism, an annual report to Congress now available courtesy of OpenCRS. The 77-page report discusses the impact of recent FSIA amendments on litigation against foreign states named State Sponsors of Terrorism.
The CRS report also describes current legislative initiatives that deal with sovereign immunity, including H.R. 394, a bill to abrogate the Algiers Accords, and H.R. 5167, which aims to repeal the FSIA waiver provision for Iraq. As this report deals extensively with FSIA matters beyond terrorism, it should be recommended reading at embassies.
-- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Cultural Heritage Ruling
On May 23, 2008, a federal district court overruled objections to a magistrate's ruling permitting discovery against a sovereign state in a dispute involving national heritage, Jenny Rubin, et al. v. The Islamic Republic of Iran, et. al., Northern District of Illinois, no. 03-cv-9370. Judge Manning ruled that discovery against Iran is permissible:
Rubin is not seeking 'broad assets discovery,' but rather has limited its requests to information about a discrete collection of artifacts that it believes falls within an exception to the immunity otherwise afforded a foreign sovereign's assets.This finding would seem to conflict with the explicit language of plaintiffs' request for discovery concerning any and all tangible and intangible assets...that are located within the United States.
In addition to rejecting Iran's defenses under the FSIA and Algiers Accords, the court dismissed concerns about international comity and reciprocity expressed by both Iran and the United States as somewhat overblown. As a practical matter, the court contended, plaintiffs must be able to identify which assets of a foreign sovereign are immune and which are available for attachment, and this burden … can be met only after reaping the benefits of discovery. -- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
