Embassy Law

ICJ Confirms Sovereign Immunity

Mon, 13 Feb 2012 15:16:42 EST

On February 3, 2012, the International Court of Justice in The Hague delivered its judgment in the case on Jurisdictional Immunities of the State, Germany v. Italy: Greece intervening. The Court finds that Italy violated its obligation to respect Germany's immunity by permitting civil claims based on violations of international humanitarian law committed by the German Reich between 1943 and 1945 to be brought against Germany.

The key issue in the dispute was not whether those acts were illegal but whether the Italian courts had to accord Germany immunity in the proceedings over claims for compensation. Whether immunity might apply in criminal proceedings against an official of the State was not an issue in this case because the matter involved solely civil claims.

The rules of sovereign immunity are determined to decide if the courts of one state may exercise jurisdiction in respect of another state; they are not conditioned on the question whether the conduct at issue was lawful or unlawful. The Court concludes that, even on the assumption that the proceedings in the Italian courts involved violations of ius cogens, the applicability of the customary international law of sovereign immunity was not affected.

Further, a claim of immunity cannot depend on the existence of effective alternative means of securing redress. Customary international law continues to require that a state be accorded immunity in proceedings for torts supposedly committed on the territory of another state in the course of an armed conflict or if the state is accused of serious violations of international human rights. Thus, the rule of tort exception cannot justify a denial of state immunity.

In addition, the Court finds that Italy breached its obligations by declaring enforceable in Italy civil judgments rendered by Greek courts for violations of international humanitarian law committed in Greece by the German Reich during the Distomo massacre. -- Christina Theocharopoulou, law student, Heidelberg University Law School, Heidelberg.

Embassy Renovation, Waiver, Eviction

Wed, 08 Feb 2012 22:37:54 EST

Major renovation and construction projects always promise surprises and pitfalls. Embassy renovations, currently en vogue in Washington, can be particularly tricky. Suitable interim spaces are not easy to locate. Landlords require extensive waivers of immunity.

One of the most beautiful embassy buildings on Massachusetts Avenue, that of Cameroon, is currently undergoing renovation. The embassy found interim facilities on Wisconsin Avenue. The lease expired recently but the renovation is incomplete. Meanwhile, ownership in the interim premises changed.

Harvard Trustees, the new owner, decided to evict the embassy. The complaint in Trustees for Harvard University v. Embassy of the Republic of Cameroon filed in the United States District Court for the District of Columbia is available online, published by the Legal Times. Huffington Post has the story. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Treaty-Conditioned BIT Arbitration

Wed, 18 Jan 2012 15:03:00 EST

On January 17, 2012, the United States Court of Appeals for the District of Columbia Circuit reversed the award issued by an arbitral panel in 2007 in the case of Republic of Argentina v. BG Group PLC, docket number 11-7021. It determined that BG Group PLC violated the terms of the governing Bilateral Investment Treaty whose Article 8(2) states that disputes between an investor under the treaty and the host state that

have not been amicably settled shall be submitted, at the request of one of the parties to the dispute, to the decision of the competent tribunal of the Contracting Party in whose territory the investment was made.

Under the treaty, a dispute may be submitted to international arbitration if eighteen months have passed from when the dispute was raised and a final decision has not been made or if the final decision has been made but the parties remain in dispute.

In this case, BG Group, an investor in Argentinian gas companies, failed to file a claim in Argentinian courts and instead immediately invoked the arbitration clause. Their rationale was based on their own assessment that it would take six years to resolve their claim in the Argentinian courts, and that Article 8(2) of the Treaty was senseless. The arbital panel allowed BG Group to bring its claim because it was an in investor in the Argentinian gas companies which had greatly decreased in value as a result of the collapse of the Argentinian economy and a subsequently enacted emergency law. Based on this, the panel found that Argentina had violated Article 2 of the Treaty and had failed to provide fair treatment to investments. The panel compared two trades of BG Group's shares, one before the emergency law was enacted, and one after, and assessed the damages caused by emergency law to be $185,285,485.85. Damages were awarded to BG Group.

The Court of Appeals found that the district court erred in the enforcement proceeding by failing to determine whether there was unmistakable evidence of the intention for the arbitrator to decide arbitrability after BG Group did not attempt to resolve its dispute in an Argentinian court. The arbitrator would only be able to decide on arbitrability after the proper procedure under the treaty was followed and eighteen months had passed since filing a claim with an Argentinian court. The court considered BG Group's approach a blatant violation of the treaty and vacated the award:

… the arbitral panel rendered a decision wholly based on outside legal sources and without regard to the contracting parties' agreement establishing a precondition to arbitration.

Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

No to SOPA, no to ACTA

Wed, 18 Jan 2012 10:47:55 EST

CK - Washington.

No to
SOPA
No to
ACTA
No to Hollywood
Yes to Science & Technology

Confiscated Gold: No Suit in USA

Fri, 16 Dec 2011 18:20:24 EST

An American company pays for gold, but it is confiscated in Kenya, and the company seeks to cover its loss in a United States court. The Foreign Sovereign Immunities Act protects Kenya by withholding subject-matter jurisdiction, the United States Court of Appeals for the Eighth Circuit explained in the matter Community Finance Group v. Republic of Kenya, docket number 11-1816, December 15, 2011. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Iran to Collect in United States

Thu, 15 Dec 2011 22:18:34 EST

Public policy considerations do not bar the confirmation in the United States of a Swiss arbitral award under the New York Convention from a hostile nation subject to special anti-terrorism laws in the United States, the United States Court of Appeals for the Ninth Circuit ruled in Ministry Of Defense v. Cubic Defense Systems, Inc., docket number 99-56380, on December 15, 2011.

Dismissal of Libya Overhang Cases

Wed, 14 Dec 2011 21:02:02 EST

Long after the normalization of relations between the United States and Libya, some cases instituted for acts of terrorism remain in litigation. Based on a statement of interest filed by the State Department with the court, the United States District Court for the District of Columbia dismissed the matter of La Reunion Aerienne v. Socialist People's Libyan Arab Jarmahiriya et al., docket number 05-1932.

The just-ended remaining case pins French insurance companies against Libyan government officials and seeks the redress of losses caused by the explosion of an aircraft in 1989. The case against the government had been dismissed following the Libyan Claims Resolution Act of 2008. The subsequent Claims Settlement Agreement Between the United States of America and Great Socialist People's Libyan Arab Jamahiriya terminated all suits.

As a result of these actions and the United States government's statement of interest, the court ended the remaining litigation on December 12, 2011. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Public Space: Trap for Unwary Embassy

Wed, 07 Dec 2011 19:55:17 EST

Quite a tiff on 16th Street. Less than a mile from the White House, the Republic of Congo purchased a stately mansion, restored it beautifully, and paved the lawn. An uproar ensued, and the public learned that the lawn surrounding the mansion is public space, regardless of the sturdy and decorative perimeter fence that encloses it.

The District of Columbia disclosed that the embassy had neither sought nor received a permit for its paving work, the Dupont Current reported on December 7, 2011. Protests followed from summer through fall.

Eventually, both the District of Columbia government, through its DCRA, and the federal government, through the Office of Foreign Missions at the State Department, ordered the embassy to remove the paving and install approved landscaping by December 17, 2011.

Public space surrounding embassies can easily complicate embassy construction or renovation. The same is true for curb cuts, which are rarely granted. Careful observation of federal and local law is required in order to achieve the desired objective. Cooperation with neighbors and their committees can be crucial. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Local Hires Gain from Immunity Exception

Tue, 29 Nov 2011 20:38:10 EST

On November 28, 2011, the United States District Court for the District of Columbia analyzed the state sponsor of terrorism exception to the Foreign Sovereign Immunities Act with respect to local hires of the U.S. government serving at embassies abroad.

The 45-page opinion in Owens v. Republic of Sudan, docket number 01-2244, examines the law and the alleged facts in the context of defaults by several foreign-nation defendants. The court finds that it has subject-matter jurisdiction under the FSIA exception and determines liability satisfactory to the Court under 28 U.S.C. §1608(e).

One of the difficulties of the case are the claims of foreign national family members of victims. These relatives of local hires lack a federal cause of action but may continue to pursue claims under applicable state and/or foreign law, the court notes; id. at 38.

The court also resolves the complex choice of law questions presented in this case, i.e. District of Columbia law, Tanzania law, Kenya law, or the laws of the domicile of each plaintiff, in favor of D.C. law. Judgment on liability is ordered against each defendant. The court finally refers the individual claims to a special master. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Bribes Abroad - Civil Liability at Home

Thu, 17 Nov 2011 22:29:15 EST

Corruption lives at the periphery of embassy law. Many nations threaten criminal sanctions for bribes paid foreign officials, for instance the Foreign Corrupt Practices Act in the United States. Some foreign bribes result in civil action against the corrupt company at home. The November 14, 2011 ruling from the United States District Court for the District of Columbia in the matter Purcell v. MWI Corp, docket number 98cv2088, illustrates the point.

The American defendant company certified to the Export-Import Bank of the United States, a government lender, that its sales to Nigerian states were free of corruption. An ex-employee sued the company as a whisteblower for the benefit of the United States government -- and a small reward -- under the False Claims Act of 1863 which the court discusses in detail. The company will likely owe compensation if the court confirms the alleged bribes. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Frozen Embassy Account: Retaliation

Sat, 12 Nov 2011 10:10:47 EST

A Belgian court froze the bank account of the Rwandan embassy in Belgium in late October 2011. Now, Rwanda has retaliated by freezing Belgian government accounts in the African nation. The trigger for the initial injunction is said to be a failed business relationship between a Rwandan businessman, Gaspard Gatera, and a Rwandan ministry.

Primary documentation appears to be unavailable; reports by observers point to a development worth watching. Reportedly, Portais Musoni, a minister in the Rwandan government, called the injunction a violation of article 22 of the Vienna Convention on Diplomatic Relations justifying retaliation. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Issues in Voting at Embassies

Thu, 03 Nov 2011 20:15:57 EDT

All-Ahram Weekly online sheds light on a variety of issues in expatriate voting at embassies and consulates. From the Fifth Switzerland, i.e Swiss living abroad, to Egyptians spread around the world, such voting has achieved global significance. Various countries have updated their election laws to address the concerns of an increasingly mobile workforce.

After its recent revolution, Egypt faces unique demands and challenges which the paper's November 3, 2011 article Expat Elections explores in exemplary detail. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

No Discovery Assistance for Foreign Case

Tue, 01 Nov 2011 22:55:59 EDT

A set of unusual circumstances involving the enforcement of an arbitral award rendered enforceable by a Paris Court found its way into the United States District Court for the District of Columbia. The target of the arbitration was the Lao People's Democratic Republic.

Because of Laos' failure to pay, the winner went after a French power company. In order to obtain evidence located in France and needed for the French proceeding, the winner filed an ex parte petition for discovery in aid of a proceeding before a foreign tribunal pursuant to 28 U.S.C. § 1782, against an apparently defunct affiliate of the French company possibly active in Washington, DC.

The 15-page memorandum opinion of October 31, 2011 carefully analyzes the confusing facts and applicable law in the matter In re Thai-Lao Lignite (Thailand) Co., Ltd. et al., docket number 11-313. The court declines to use the authority to grant the requested relief for several reasons, among them:

It would be a less efficient means of assistance to participants in any French proceeding (not to mention, of questionable prudence) for this Court to direct a French entity, through its U.S.-based subsidiary, to produce France-based documents or information about French assets to a French court in petitioners' attempt to satisfy a French judgment. Similarly, it is unlikely that this Court's granting of the petition would further the objective of encouraging foreign countries to provide similar means of assistance to U.S. courts. Id. at 14.

In addition, the court disapproved of the lack of an even minimal showing that the ex parte defendant resides in its district. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Germany v. Italy -- Live from The Hague

Mon, 12 Sep 2011 19:08:51 EDT

A dispute of possibly major impact has begun in The Hague. The court broadcasts live over the internet the immunity matter between Germany and Italy in which Greece recently intervened.

The live broadcasts should cover the hearings from September 12 through 16, 2011 . After each hearing, the court makes the session available for download as a video file. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Arbitral Award Against State Enforced

Wed, 03 Aug 2011 21:39:25 EDT

On August 3, 2011, the United States District Court for the District of Columbia granted a motion for the recognition of an arbitral award in the matter Continental Transfert Technique Ltd. v. Federal Government of Nigeria, docket number 08-2026. Nigeria had sought to vacate the award in Nigerian courts which declared it enforceable and valid. Therefore, the DC court saw no impediment to enforcing the award, as converted into an English judgment, under the Uniform Foreign-Money Judgment Recognition Act of the District of Columbia, D.C. Code §15-382, as well as the Federal Arbitration Act, 9 U.S.C. §§201 et seq., and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, reprinted in 9 U.S.C. §201. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

United Nations: Treaty Violation

Sat, 09 Jul 2011 09:59:30 EDT

The frequently-mentioned July 8, 2011 United Nations statement on the Humberto Leal Garcia execution by the state of Texas as a violation of the Vienna consular convention has been published on the internet. The United Nations High Commissioner for Human Rights, Navi Pillay, stated that the US in breach of international law after execution of Leal Garcia in Texas while also addressing human rights concerns in Mexico.

Immunity at IMF, and Hotel?

Sun, 15 May 2011 10:03:04 EDT

The morning news relate an alleged sexual assault in New York City by the managing director of the International Monetary Fund in Washington, DC. An arraignment is scheduled for May 15, 2011. Dominique Strauss-Kahn's immunity is governed by two sets of rules:

Artice IX 8 of the IMF Articles of Agreement; and
the International Organizations Immunities Act.

The IMF displays a press release on its website which refers inquiries to defense counsel for its managing director:

IMF Managing Director Strauss-Kahn was arrested in New York City. Mr. Strauss-Kahn has retained legal counsel, and the IMF has no comment on the case; all inquiries will be referred to his personal lawyer and to the local authorities.

The response of the IMF is unsurprising and similar to modern positions on private conduct taken by international organizations and also many embassies. More facts are needed, however, for a full immunity analysis. In any case, employees of international organizations are not diplomats and carry a Laissez Passer, not a diplomatic passport. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Germany: Dismissed Sua Sponte

Thu, 21 Apr 2011 15:18:09 EDT

On April 14, 2011, the United States Court of Appeals for the Second Circuit affirmed the May 4, 2010 judgment issued by the United States District Court for the Eastern District of New York in the case of Zapolski v. Federal Republic of Germany, docket number 10-2018. The District Court's dismissal was based on the Federal Rules of Civil Procedure, which states that if a court "determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action," Rule 12(h)(3) FRCP. The Court reviewed these findings under the Foreign Sovereign Immunities Act, 28 U.S.C. §1604 for clear error and its legal conclusions de novo and found that the District Court's sua sponte determination was correct. -- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

The Sad Lot of Local Hires

Mon, 04 Apr 2011 21:07:29 EDT

In Canada, local hires at foreign missions do not enjoy all of the benefits of the Ontario Human Rights Code, Ed Canning explains in Diplomacy Trumps Labour Laws for Pregnant Secretary, on April 3, 2011. The article relates unequal treatment experienced by local hires employed by consulates, embassies and foreign military installations and questions whether the equal protection rules have been sufficiently tested under section 15 of the Canadian Charter of Rights and Freedoms. Canning advocates an adjustment of the State Immunity Act in order to accommodate the requirements of the Employment Standards Act, unless a court would interpret the acts in favor of local hires. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

What are Disputes, Negotiations: ICJ

Sat, 02 Apr 2011 08:47:33 EDT

What are disputes between nations? Are negotiations required from them before the International Court of Justice obtains jurisdiction to settle a dispute under the International Convention on the Elimination of All Forms of Racial Discrimination of December 21, 1965?

In dismissing a complaint by Georgia against Russia over armed hostilities and alleged ethnic cleansing in 2008, the ICJ explored these issues in an opinion of April 1, 2010. The court rejected Russia's position that no dispute existed. Georgia's complaint was dismissed because the preconditions of article 22 CERD were not met.

In the matter Case Concerning the Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), docket number 140, the court defined the term dispute as well as those preconditions which it determined to include negotiations between the parties before the litigation. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.