The French Supreme Court upheld Malta's immunity claim in a case involving an oil spill by a Malta-flagged tanker near the French coast. The French government sought to subject the Maltese government to its jurisdiction, apparently based on a theory of rogue flags not being entitled to immunity. The Times of Malta published a summary of the proceedings and issues. - by Clemens Kochinke, partner with Berliner, Corcoran & Rowe, LLP in Washington.
Today, in Price v. Libya, the District of Columbia Circuit Court of Appeals decided an FSIA case involving the limitation of immunities under the terrorism exception. The matter involves the detention of plaintiff in Libya. - by Clemens Kochinke, partner with Berliner, Corcoran & Rowe, LLP in Washington.
On November 4, 2004, the United States Court of International Trade confirmed in a slip opinion in the matter Nippon Express USA Inc. v. United States, No. 97-12-02187, that imports for foreign military assigned to duty in the United States are exempt from the Harbor Maintenance Tax despite the lack of exemption in the rules for the tax, 26 USC §4461. The HMT constitutes, however, an "internal revenue tax" for purposes of a specific exemption in the Harmonized Tariff Schedule of the United States ("HTSUS"), 9809.00.30 that turns on reciprocal exemptions for foreign and American military. - by Clemens Kochinke, partner with Berliner, Corcoran & Rowe, LLP in Washington.
Iran won an award in ICC arbitration against a U.S. supplier of military equipment. May parties holding default judgments against the nation enforce their judgments into the award?
The United States Court of Appeals for the Ninth Circuit allowed one of two holders to garnish the award in satisfaction of his default judgment, in the matter of The Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Defense Systems Inc. et al., No. 99-56498, on October 7, 2004, and denied Iran's immunity claim against a claim not already satisfied by Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1464.
The court addresses two separate claims and, in addition to the special rules governing the assets of Iran, such as the Iranian Transactions Regulations, 31 CFR part 560, discusses extensively the applicable provisions of the Foreign Sovereign Immunities Act and the effect of a immunity waiver for ICC arbitration on subsequent enforcement action in United States courts which affect most sovereigns with assets or claims located in the United States. - by Clemens Kochinke, partner with Berliner, Corcoran & Rowe, LLP in Washington.
The garnishment of taxes accrued in the United States for the benefit of the Rupublic of Congo under oil transaction contracts is subject to the commercial exception of the
The case involves a highway construction contract and a bank loan which comprises a contractual waiver of sovereign immunity for the collateral which involves revenues from oil transactions, among others, which are to secure payment for the bank loan. The bank loan was made with Equator Bank Ltd. and assigned to a Connecticut, USA, bank which obtained a default judgment on it against the Congo in a London court. That judgment was recognized and enforced by a court in New York. On that basis, a garnishment was had in Texas on obligations by certain companies to pay taxes and royalties to the Republic.
The appeals court held that these payment obligations constituted commercial property of the Congo and are not protected by the Foreign Sovereign Immunities Act, as their situs is also the United States. - by Clemens Kochinke, partner with Berliner, Corcoran & Rowe, LLP in Washington.
In the matter of Ye v. Zemin, docket number 03-3989, the United States Court of Appeals for the Seventh Circuit had to decide the issue whether an attempt toserve a complaint on a former president of a foreign nation could be impermissible. In light of arguments proferred by the executive branch of the United States government to the effect that service would foil objectives of the United States in the diplomatic arena, the court determined that such objectives could bar service.
Under Article 25 of the Vienna Convention on Diplomatic Relations, the receiving state shall accord full facilities for the performance of the functions of the mission. On this basis, states must offer each other the opportunity to fullfil all diplomatic functions according to Article 3 of the Convention. That includes the obligation to offer an adequate infrastructure for diplomatic missions.
Whether the United States of America is in violation of the Convention with respect to the necessity of a bank account has become an virulent issue. An investigation into practices of the major bank for diplomatic missions in Washington, Riggs Bank, forced embassies to close after the American government ordered Riggs to leave the diplomatic sector and other banks refused to enter it, despite the personal intervention of the Secretary of State. Today's Wall Street Journal at C1cites a number of practical issues--and the retaliatory threat against the United States to bar banks from providing banking services to American missions. - by Markus Stoeterau, a lawyer currently in an internship with Berliner, Corcoran & Rowe, LLP in Washington.
The terrorism exception to the Foreign Sovereign Immunities Act applies in the case of a murdered American, the United States District Court for the District of Columbia decided on July 30, 2004 in the matter of http://caselaw.lp.findlaw.com/data2/circs/dc/037117a.pdfKilburn v. Islamic Republic of Iran, docket number 03-7117. - by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
One June 8, 2004, the D.C. Circuit appeared to expand jurisdiction over foreign nations under the
The Republic had waived its immunity in a contractual framework for commercial oil transactions and also agreed on arbitration. Later, another oil company sued the Republic on breach of contract and torts claims. The Republic won in the District Court which found the waiver not to apply.
The Court of Appeals examined the framework contract and determined that its terms were to apply to other companies which, at a minimum, were contractual beneficiaries. While the term waiver applied only to the principal contractual party, the court found other language covering such beneficiaries to have no other but the meaning of a waiver. Since the waiver applied, the court declined to examine whether the Republic may have lost the FSIA protection under the exception for commercial activities. The case was remanded to the District Court which may now determine whether the parties are bound by the arbitration clause. - by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Today, the United States Supreme Court affirmed 6 - 3 the California decision in Republic of Austria v. Altmann. The United States Court of Appeals for the Ninth Circuit had found in favor of Altmann in its interpretation of 28 U.S.C. §1330(a) of the Foreign Sovereign Immunities Act, see Cert. Granted in Altmann Case. The Supreme Court limited its analysis to the question of whether the FSIA would apply to pre-FSIA facts which it answered in the affirmative. "The floodgates are open," comments FSIA expert Thomas G. Corcoran. - Contributed by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Today, the D.C. Circuit held against 17 soldiers who sued Iraq for
damages and obtained a default judgment in the United States District Court for
the District of Columbia, in the amount of $959 million.
The decision, published by Findlaw, in the matter of Clifford Acree et al. v. Republic of Iraq et al. is partially based on the intervention of the United States which argued that the Foreign Sovereign Immunities Act would deprive the court of its jurisdiction.
The court of appeals rejected this argument but found that as in its prior ruling in Elizabeth A. Cicippio-Puleo et al. v. Islamic Republic of Iran, Iranian Ministry of Information and Security of January 16, 2004, the plaintiffs had failed to state a claim. Jurisdiction would lie with the court based on the terror exceptions to the FSIA. -- Contributed by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Today, the International Court of Justice decided the matter of Avena and Other Mexican Nationals between Mexico and the United States of America in favor of Mexico after finding persistent and systemic violations by the United States system of justice. Links to the various opinions by the justices are at Findlaw's database of the case history.
The instant case, number 128, concerns the mandates of Article 36 of the
The United States opposed the complaint by referring to its change of practices after the ICJ case LaGrande (Germany v. United States of America) which related to German citizens executed in the United States without consular notification. Mexico's complaint involves similar circumstances affecting 52 Mexican citizens arrested and convicted in nine states of the United States in violation of the Convention.
The court disagreed with the United States procedurally and substantively, except for one vote. With 14 votes, it found the United States to violate systemically and persistently the Convention through various, major flaws in its criminal justice system. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP.
The Law of Administration for the State of Iraq for the Transitional Period, also known as the Interim Constitution of March 8, 2004, is published there at Findlaw.
While nations, international organizations and businesses conference about encouraging the use of Open Source software and content, a key piece for the foundation of its international success is still missing: an internationally valid open source license. Currently, the most frequently found Open Source licenses suffer from defects that are reflected in cases such as IBM's counterclaim against SCO and in Civil Law systems which find systemic problems with something for free, but with strings attached, no consideration of consumer protection laws and wholesale waivers for liability. Pragmatically, Open Source licenses overcome that barrier by barring the use of the underlying product or work where the license would not be valid.
That pragmatic approach is of little value, from a legal perspective, if Open Source licenses should be defective in a considerable number of systems. The barrier impedes wide distribution and support of Open Source products. At present, the licenses seem to be at least questionable.
Therefore, promoters of Open Source licensing should also consider an international legal umbrella for such licenses, possibly supported by international organizations keen on using and releasing Open Source products and nations that have recognized that their economic future lies with Open Source. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP.
The United States Court of Appeals for the District of Columbia Circuit released its opinion in the matter of Elizabeth A. Cicippio-Puleo et al. v. Islamic Republic of Iran, Iranian Ministry of Information and Security on January 16, 2004 for download from there. The case number is 01cv01496 in the lower court, and 02-7085 in the appellate court. The case was argued at the appellate level on December 15, 2003.
The decision is not the last word on this matter. The court dismissed the case to the extent that plaintiffs failed to state a claim under the terrororism exception of section 1605(a)(7) of the Foreign Sovereign Immunities Act, 28 U.S.C. §§1330, 1602-11, and the Flatow Amendment in 28 U.S.C. § 1605 which allow exceptions to the rules of foreign sovereign immunity. But the court remanded the matter to allow plaintiffs to pursue other avenues because they may have been confused by the law. The decision also appears to encourage the Congress of the United States of America to decide whether a cause of action should lie against foreign states. Courts themselves may not imply a cause of action where Congress has not affirmatively decided to permit one, the appellate court determined.
The case centers around the distress caused Joseph Cicippio's family by his being held hostage for 1908 days in hostile conditions, beginning in 1976, by Hizbollah, which the opinion states to be an agent of the defendant. -- Contributed by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.