The International Court of Justice reports in a press release that Germany seeks the clarification of enforcements of judgments against non-commercial property of a foreign sovereign. The German petition of December 23, 2008 follows proceedings in Italy and Greece resulting in judgments against Germany and subsequent enforcement actions in Italy, including a judicial mortgage recorded against German sovereign real estate.

The Italian view of international law in this respect is broader than the American and German views. Therefore, a decision by the World Court may produce implications exceeding the reach of the nations involved. The court intends to publish the German petition soon. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Eight sovereign nations, an international organization and numerous German companies signed the Joint Statement of the Berlin Accords on claims for slave labor and reparations on July 17, 2000. As a result, it constitutes a diplomatic effort that justifies applying treaty law as opposed to federal common law in litigation over the disputed enforcement by private parties of interest payments due under the terms of the accord, the United States Court of Appeals for the Third Circuit determined in Elly Gross et al. v. The German Foundation Industrial Initiative et al., docket number 07-3726, on December 10, 2008. Ultimately, the court agreed with the District Court that the treaty-like agreement affords no private cause of action. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

On November 24, 2008, the United States Court of Appeals for the Sixth Circuit in O'Bryan et. al. v. Holy See, docket numbers 07-5078/5163, affirmed a decision of the United States District Court for the Western District of Kentucky at Lousville. Plaintiffs had brought an action against the Holy See, alleging its liability for sexual molestation suffered at the hands of Roman Catholic priests in the United States. The District Court had dismissed the claims in part, and confirmed that other grounds for defendant's liability remain.

The appellate court affirmed after discussing a variety of issues arising out of suits against foreign sovereigns. It ruled in favor of the Holy See as a foreign state within the meaning of the FSIA, refusing plaintiff's construction of the defendant entity as a somewhat hybrid sovereign and non-sovereign actor, the latter being liable for its actions as acta iure gestiones outside the scope of the FSIA.

Further, the court decided the commercial activity exception in 28 USC §1605 (a)(2) of the FSIA would not apply because the gravaman of plaintiff's claims was non-commercial. The FSIA tortious act exception in 28 USC §1605 (a)(5) would apply in part, however, to defendant's alleged misconduct, as it constitutes violations of the customary international law of human rights, neglicence and breach of fiduciary duty.

The key here is its issuance of a legislative text in 1962 that required, inter alia, bishops in the United States not to report child abuse to civil or criminal authorities.

The case offers an in-depth look into the very idea of foreign sovereign immunity from different angles. It also deals with some of the most difficult and contentious issues at the crossroads between law and the supremacy of political deliberations by pursuing the restrictive theory of sovereign immmunity in legislating the FSIA and its amendments. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.

The United States District Court for the District of Columbia ordered the Bush government to take quick diplomatic action to effect the release of five Bosnia-Algerians from custody at Guantanamo Bay:

Ordered that Respondents are directed to take all necessary and appropriate diplomatic steps to facilitate the release of Petitions Lakhdar Boumediene, Mohamed Nechla, Hadj Boudella, Mustafa Air Idir, and Saber Lahmar forthwith. Lakhar Boumediene et al. v. George W. Bush et al., docket number 04-1166, at 14 (November 20, 2008).

Libya's immunity has been reinstated by a Bush decree of October 31, 2008. The executive order provides for the termination of pending actions against the Libyan government as a result of the Lockerbie and Berlin discotheque assaults. Libya had paid the settlement amounts required under the Claims Settlement Agreement, thereby triggering the presidential order under the Libyan Claims Resolution Act, Public Law 110-301. Compensation owed Libyan victims of an American air raid remain due; according to the Wall Street Journal, Bush does not intend to use taxpayer funds for that purpose. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

The United States Court of Appeals for the District of Columbia Circuit affirmed in Ahmad Chalabi, et al. v. Hashemite Kingdom of Jordan, et al., docket number 07-7141, the dismissal of an action by a Jordanian bussinesman who sued Jordan under the RICO statute and for common law torts for the unlawful seizure of his bank in 1989.

The seizure caused the ruin of the bank and its American subsidiary. Seeking compensation, Chalabi alleged jurisdiction over Jordan under 28 USC §1605, which is the commercial activity exception of the FSIA.

The District Court had dismissed the claims as untimely, bypassing the question of subject-matter jurisdiction under the FSIA. This, it held, concurred with a recent Supreme Court decision, granting courts leeway to choose among threshold grounds for denying the review on a case on the merits. Because a final settlement of the immunity question would require further jurisdictional discovery, the court found judicial economy better served by dismissal on timeliness grounds.

The appellate court concurred the dismissal of the claims as untimely and bypassing the issue of immunity are proper. It determined timeliness as having both, threshold and merits characteristics. The October 24, 2008 decision illustrates the power of American courts to dismiss claims against foreign sovereigns without finally adressing their immunity. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.

In Francis Gates, et al., v. Syrian Arab Republic, et al., docket number 06-1500, the District Court for the District of Columbia held Syria as a state sponsor of terrorism responsible for actively supporting Al Qaeda in Iraq in the kidnapping and killing of two Americans. Relatives of both men brought the action against Syria under the new FSIA provision 28 USC §1605 a. The court awarded economic damages, constituting the present value of each man's anticipated earnings over the remainder of their lifetime, solatium for the relative's hurt feelings and grief relating the deaths, damages for pain and suffering of the victims before their death as well as punitive damages.

The merits were decided under the new FSIA provision of 28 USC §1605 a, although the action was originally brought under the Flatow Amendment. The latter, however, did not provide a private right of action against a foreign state itself, but only against the leaders of its government. The new provision confers such a right with regard to designated state sponsors of terrorism and sets forth enumerated types of damages recoverable. Congress eliminated earlier inconsistencies which arose when plaintiffs sued government leaders under different state law. Because the DC Circuit had dismissed other claims under the Flatow Amendment if brought under common law, the change was necessary. Under the old rules such claims could only be reviewed if a specific source of law was applicable.

Holding that the new 28 USC §1605 a provides the sole specific source of law now applicable to such cases, the court dismissed claims brought under state law. However, it did award damages arising from the federal cause of action under 28 USC §1605 a.

The new provision enhances relief for victims of state sponsored terrorism, not only by offering them the possibility to directly sue the sponsoring state itself rather than merely its government leaders. It also enables the court to award punitive damages, which in other circumstances is denied under 28 USC §1606. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Factual allegations sufficient to permit jurisdiction within the limits of the Foreign Sovereign Immunities Act led the United States District Court for the District of Columbia to allow limited jurisdictional discovery on September 30, 2008. The Doe plaintiff claims that the government of Afghanisten enabled the klling of his wife by Osama bin Laden and others, in the matter John Doe et al. v. Sheikh Usama Bin-Muhammad Bin Laden et al., docket number 01-2516. - Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

On August 14, 2008, the United States and Libya reached a bilateral comprehensive claims settlement agreement compensating victims of bombings attributed to Libya in Lockerbie, Scotland (1988) and Berlin, Germany (1986) and settling Libyan claims arising from U.S. military action in Tripoli and Benghazi (1986).

The nearly $2 billion deal settles 26 terrorism lawsuits pending against Libya in U.S. courts and provides immunity against future suits of this kind. According to Assistant Secretary of State David Welch, the agreement will permit Libya and the US to develop their relations, which have thawed considerably since Libya was removed from the U.S. State Sponsors of Terrorism list in 2006.

BBC News reports that although the agreement does not constitute an admission of fault by either party, it is an important step toward restoring U.S.-Libyan relations. The agreement, according to the Chicago Tribune may be a model for others seeking to restore diplomatic relations with the United States. Additional information on the agreement is available from the U.S. State Department and the Associated Press. -- Christina Mason, legal assistant, Berliner, Corcoran & Rowe, LLP.

The latest judicial decision in the 26-year long case McKesson Corporation et al., v. Islamic Republic of Iran was released August 26, 2008 from the United States District Court of Appeals for the D.C. Circuit.

The dispute surrounds an allegation by McKesson that Iran illegally expropriated McKesson's stake in an Iranian dairy company and blocked its receipt of dividends. In this appeal, Iran challenged the district court's decision upholding McKesson's argument that the 1955 Treaty of Amity, Economic Relations and Consular Rights provided a course of action for securing its due.

The appeals court, finding for Iran, reversed the district court on that issue, stating that generally, international agreements do not create private rights or provide for a private cause of action in domestic courts.

Additionally, because the Treaty of Amity does not explicitly call upon the courts for enforcement, it would be involving the judiciary in matters outside its competence and authority. Without a cause of action, McKesson's complaint cannot continue.

The appeals court remanded for the district court to consider whether McKesson may have a cause of action under Iranian law or under the Customary International Law and whether the act of state doctrine applies to this case. -- Genevieve Cohoon, law student, formerly legal assistant at Berliner, Corcoran & Rowe, LLP, Washington, DC.

Seven Saudi Arabian defendants who may have played a critical role in the 9/11 terrorist attacks cannot be sued in the United States, according to the U.S. Court of Appeals for the Second Circuit. On August 14, 2008, the Second Circuit ruled that the Foreign Sovereign Immunities Act renders the Kingdom of Saudi Arabia, four Saudi princes, a Saudi banker, and the Saudi High Commission for Relief to Bosnia and Herzegovina immune from litigation in U.S. courts; In re Terrorist Attacks on September 11, 2001, 2008 U.S. App. LEXIS 17223.

While acknowledging that plaintiffs' allegations include a wealth of detail … that, if true, reflect close working arrangements between ostensible charities and terrorist networks, including al Qaeda, the court nevertheless held that defendants retain their immunity because they do not fall under any of the FSIA's statutory exceptions. Those exceptions include (1) designation as a State Sponsor of Terrorism by the U.S. government, (2) personal injury or death resulting from a foreign sovereign's tortious act, and (3) commercial activity.

The decision sets a precedent in the Second Circuit with its holding that an individual official of a foreign state acting in his official capacity is the agency or instrumentality of the state, and is thereby protected under the FSIA. Judges Jacobs, Cabranes and Vitaliano agreed with similar decisions in the 4th, 5th, 6th, 9th, and D.C. Circuits and rejected the narrow[] construction of FSIA immunity held in the 7th Circuit.

Also noteworthy is the court's argument that applying the torts exception in this case would violate an important procedural safeguard--the formal designation of a defendant as a terror sponsor. The court reasoned that to apply the Torts Exception where the conduct alleged amounts to terrorism within the meaning of the Terrorism Exception would evade and frustrate that key limitation on the Terrorism Exception. Additional analysis of the decision is available at the New York Law Journal. -- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP.

The United States Court of Appeals for the Tenth Circuit upheld a prior ruling of the United States District Court of Utah on July 15, 2008 in Big Sky v. Sichuan Provincial Government et al., docket number 07-4014. Big Sky, a British Virgin Islands corporation, and a Chinese company had entered into a joint venture which was dissolved due to subsequently issued Chinese government mandates.

When no financial compensation was forthcoming, Big Sky brought suit against two provincial governments. While the court's first decision of enlarging the FSIA removal period was affirmed, the substantive issue of subject-matter jurisdiction of the Utah court under the exceptions to the FSIA remained unresolved. Big Sky claimed that the Chinese governments' actions directly affected commercial activity in the United States. The company claimed the application of the commercial activity exception clause in 28 U.S.C. §1441(d).

The Court held, however, that the mere financial loss to Big Sky's American mother company, though real, was felt prominently overseas and does not constitute a direct effect on American commerce. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

On July 25, 2008, the United States District Court of Appeals for the District of Columbia Circuit decided against Libya's Foreign Sovereign Immunities Act claim in La Reunion Aerienne v. Socialist People's Libyan Arab Jamahiriya et al., docket number 07-7050. A French insurer who had stepped into the shoes of Americans it paid under a policy covering the bombing of a French airliner over Africa could successfully plead subject-matter jurisdiction under the terrorism exception to the FSIA, the court held. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Generally, sovereignty shields states from litigation. There are exceptions, however. In the United States, the Foreign Sovereign Immunities Act lays down the general principles and exceptions under which lawsuits against sovereign states can be filed with courts in the United States.

In James Owens et al. v. Repubic of the Sudan et al., docket no. 06-5079, the United States Court of Appeals for the District of Columbia explains the constitutionality of 28 USC §1605(a)(7), which contains an exception to sovereign immunity: Nations found to be sponsors of terrorism by the Secretary of State may not invoke their immunity in litigation.

Sudan contests the constitutionality of 28 USC §1605(a)(7) on grounds that it violates the separation of powers. The court does not follow Sudan's logic that Congress unconstitutionally delegated its power to define the jurisdiction of the federal courts to the Executive.

Instead, the court explains on July 11, 2008, Congress assigned the Executive the authority to make a factfinding upon which jurisdiction partially rests and provided sufficient guidance to the Secretary of State to make the finding of the facts upon which the jurisdiction of federal courts over sovereign states depends. Therefore, 28 USC §1605(a)(7) meets the requirements of the intelligible principle standard of review, supra at 16. -- Michael J. Warning, International Fellow with Berliner, Corcoran & Rowe, LLP, Washington, DC.

On July 16, 2008, the International Court of Justice provided the United States with a clarification to take all measures necessary to ensure that five Mexican nationals are not executed pending its final judgment in The Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Its order is timely as Jose Medellin, one of the Mexicans concerned in the case, is scheduled to be executed on August 5, 2008 in Texas. According to the Houston Chronicle, Texas governor, Rick Perry, intends to execute Avena despite the World Court order. -- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.

The International Criminal Court published a press release on the Al-Bashir prosecution on July 14, 2008. The application against the President of Sudan was filed by the ICC prosecution and will be reviewed by the Pre-Trial Chamber. In controlling a counter-insurgency in Darfur, the president is alleged to have used genocidal means outside of the means available to sovereign nations to protect their territory. President Al-Bashir is the first sitting president to face such ICC charges, Times Online adds. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

On June 24, 2008, the United States Court of Appeals for the District of Columbia Circuit remanded the matter of Robert Simon et al. v. Republic of Iraq et al., docket number 06-7175, to the district court for further proceedings.

Relying on an exception in the Foreign Sovereign Immunities Act, FSIA, the plaintiffs sued Iraq, the Iraqi intelligence service and Saddam Hussein alleging they had been tortured and taken hostage during the Gulf War. Although foreign sovereigns are normally protected from lawsuits, the exception in the FSIA, 28 USC §1605(a)(7), allows for lawsuits against state sponsors of terrorism. The district court dismissed the lawsuit, however, on the basis that the actions were untimely, coming two years after the ten year limitation.

On appeal, Iraq newly contended that the §1083 of the National Defense Authorization Act for Fiscal Year 2008, NDAA, which revised the terrorism exception by repealing §1605(a)(7) of Title 28 and adding §1605A of Title 28, required dismissal of the cases. The new section mostly strengthened plaintiffs' ability to seek damages from state sponsors of terrorism, though §1083(d) allowed the President to waive §1083 with respect to Iraq, which he promptly did in order to protect its reconstruction.

Based on the text and structure of the NDAA, circuit judge Ginsberg wrote that the appeals court concluded that the courts retained jurisdiction over cases pending pursuant to former §1605(a)(7) when the Congress enacted the NDAA. The court found the actions to be timely and liable to be tried in court and, therefore, reversed the district court's dismissal. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.

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.

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.

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.