14
Enforcement Book Discount
JurisNet offers a promotional discount of $25 on its Enforcement of Arbitral Awards Against Sovereigns book, ISBN-13: 978-1-933833-29-3, to be published in July 2009. The book comes with an online subscription. After an introduction into sovereign immunity and dispute settlement mechanisms, it turns to ICSID procedures.
The 502-pages volume concludes with specific enforcement procedures in the United States, England, Switzerland, France, the Netherlands and South America, specifically in cases of Argentina and Ecuador. The authors and contributors are highly regarded in their practice areas. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / / Embassy Law Link
Sovereign Tied to Counterclaim: No FSIA Immunity
A foreign sovereign may not necessarily claim FSIA immunity on a counterclaim after filing suit in an American court. Illustrating the issue on June 12, 2009, the United States Court of Appeals for the Second Circuit reviewed the United States District Court for the Southern District of New
York's grant of summary judgment in Reino de España v. American Bureau of Shipping,. docket number 08-0579.
In January 2008, the District Court held that the International Convention on Civil Liability for Oil Pollution Damage deprived the Court of subject matter jurisdiction. It also dismissed ABS' counterclaims against Spain stating such claims did not satisfy the FSIA exceptions under 28 USC §1607(b) because they were sufficiently different in kind, id. at 6.
The Court of Appeals vacates the summary judgment on both accounts due to the United
States being a non-signatory of the CCL-OPD which would allow the District Court the option to exercise its jurisdiction.
The Court also views the counterclaims as an instance that upholds the main purpose behind 28 USC §1607(b) to prevent a foreign sovereign from obtaining the benefit of litigating its claims in a United States Court while simultaneously avoiding liability for counterclaims logically related to them, id. at 7. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / / Embassy Law Link
International Organization Contract
A consultant worked for an international organization, relying on the promise that a written contract would follow. When that did not happen and much work had been performed, he sued the organization for breach of contract and unjust enrichment.
The organization claimed immunity, lost its motion for dismissal under the International Organizations Immunities Act, 28 USC §288a(b), and appealed. The United States Court of Appeals for the District of Columbia Circuit affirmed in Jorge Vila v. Inter-American Investment Corp., docket number 08-7042.
While the IOIA ties the waiver of immunity to the existence of a contract, the court follows precedent by applying the waiver also to unjust enrichment claims, as it explained in its 37-page opinion on June 19, 2009. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
Don't Count on it: Refuge at Embassy
Don't count on finding refuge at an embassy. Not every country permits it. Those that do, may enforce severe restrictions. Generally, the circumstances must be very special. A current example is the deadlock between the government of Peru and Amazonian indigenous groups that resulted in the groups' leader seeking safe haven in the embassy of Nicaragua, as reported by the Environment News Service on June 15, 2009. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / / Embassy Law Link
Embassy Attack in Closed Trial
From Azerbaijan, Trend News reports on the prosecution of embassy attackers as terrorists. The proceedings will be closed to the public at the state's request. The trial will be held on June 24, 2009. The six locals and foreigners were detained in May 2008, the June 10, 2009 report notes.
Thu, / / Embassy Law Link
Supreme Court Rejects Challenges to Iraq Immunity
Designated a state sponsor of terrorism and, therefore, enjoying severely limited immunity, Iraq regained the protection of the Foreign Sovereign Immunities Act pursuant to actions by President Bush and congressional amendments. However, the District of Columbia federal courts found jurisdiction for certain plaintiffs attempting to sue Iraq for damages suffered under the overthrown regime.
On June 8, 2009, the Supreme Court of the United States examined Republic of Iraq v. Jordan Beaty et al., docket number 07-1090. The unanimous opinion delivered by Justice Scalia untangles the changing legal regimes for immunity in conjunction with the terrorism exception. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP.
Mon, / / Embassy Law Link
Immunity for Cultural Artefacts?
Under the headline Supreme Court Case can Decide Fate of Persepolis Tablets, Ehsan Tabesh analyzed immunity issues relating to disputes over cultural artefacts from Persia presently located in the United States. On the National Iranian American Council website, the May 29, 2009 article draws from analogies in the matter of Republic of Iraq v. Beaty and argues in favor of compensation for victims under FSIA exceptions but questions the exploitation of cultural artefacts to accomplish that purpose. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP.
Mon, / / Embassy Law Link
Sotomayor and FSIA
Does Supreme Court candidate Sonia Sotomayor hold any special views on sovereign immunity? A per curiam opinion in Raymonde Abrams et al. v. Société Nationale des Chemins de Fer Français, 389 F.3d 61 (2d Cir. 2004), does not shed much light on the issue.
On November 2004, the three-judge panel that included Judge Sotomayor reviewed the case in light of the Supreme Court's Altmann ruling. The higher court had rebuffed an initiative by the Second Circuit to have the lower court review the railroad's immunity under pre-FSIA principles of grace and comity. In the end, the court deferred to the Supreme Court and concluded:
- We are bound by the Supreme Court's decision to defer to comity rather than to approach the situation from the perspective of the injured plaintiffs whose rights have now been altered. Accordingly, the evil actions of the French national railroad's former private masters in knowingly transporting thousands to death camps during World War II are not susceptible to legal redress in federal court today, because defendant has since become a part of the French government and is therefore immunized from suit by the Foreign Sovereign Immunities Act. Nonetheless, the railroad's conduct at the time lives on in infamy.
Mon, / / Embassy Law Link
FSIA Dismissal of Political Persecution Claims
In a political persecution case, the United States Court of Appeals for the Fifth Circuit summarily affirmed the dismissal of the complaint in the matter Bacilio A. Amorrortu v. Republic of Peru, docket number 08-20565, on May 29, 2009. The court relied entirely on the reasons stated by the district court which based the dismissal on the lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and the immunity afforded foreign governments and their instrumentalities by the Foreign Sovereign Immunities Act, 28 USC §1605. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / / Embassy Law Link
United States Favors FSIA Immunity
By way of an amicus brief filed with the Supreme Court of the United States, the federal government comments on the application of the FSIA in Federal Insurance Co. et al. v. Kingdom of Saudi Arabia et al, docket number 08-640. The Solicitor General of the United States agrees in general with the holding of the lower court which confirmed the immunity of defendants, including individual Saudi princes. Both the brief, and SCotusBlog which published the brief, provide background information. The brief delves into the historical development of foreign sovereign immunity issues. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / / Embassy Law Link
