Embassy Law Web Log   
Washington, DC, USA      

German Supreme Court Disallows Foreclosure

Real estate owned by a foreign sovereign and used solely for diplomatic purposes enjoys protection under German law. In a recent decision (BGHR 03, 1041), the German Supreme Court in Civil Matters (Bundesgerichtshof - BGH) prevented such property from going into foreclosure. The question whether such real estate is governed by German law or not is a matter of international law, according to Art. 25 Grundgesetz (Constitution - GG) and § 20 Abs. 2 Gerichtsverfassungsgesetz (Constitution of the Courts - GVG). Under the principles of international law adapted into German law, it is not generally undue that a foreign sovereign's property may become subject foreclosure, as the German Constitutional Court (Bundesverfassungsgericht - BVerfG) stated in the matters BVerfGE 46, 342, 388, 392; 64, 1, 23, 40. But there is an international principle according to which property situated in Germany may not be executed into without the express consent of the foreign state, provided the property is being used chiefly for political or diplomatic purposes.

Because of the obvious difficulties in determining the property's main purpose, international law requires the broad application of this rule. Therefore, any property used for consular or diplomatic missions is inviolable. This includes an embassy's real estate (Art. 22 ff. of the Vienna Convention on Diplomatic Relations; Art. 31 of the Vienna Convention on Consular Relations), the court confirmed. -- Contributed by Jens Nebel, Esq., Recklinghausen, Germany.

Popular Notion of Sovereign Immunity

Post-Gazette explains the popular notion of sovereign immunity in the domestic context of the United States of America in this article. Putting the Eleventh Amendment of the U.S. Constitution in contrast to the Foreign Sovereign Immunities Act of 1976 may help understand some perceptions relating to this complex area of the law.

New ICSID General Counsel

The November 14, 2003 joint ICSID, AAA and ICC conference will mark the first public appearance of the new ICSID general counsel, Roberto Danino in his new position which he took up in late October.

Ninth Circuit Ruling on Gaza Death and Collection Case

Metropolitain News-Enterprise summarizes the Ninth Circuit holding that deals with the issue whether Bank Saderat Iran was a juridical entity separate from Iran. While Iran is generally entitled to sovereign immunity, the United States Congress had carved an exception in the Antiterrorism and Effective Death Penalty Act of 1996. The bank as the defendant was not shown to be an arm of the excepted nation, the appellate court determined. As a result, a judgment against Iran cannot be enforced against the bank's holdings in the United States. Some $26 million has already been paid to the victim's family under the Victims of Trafficking and Violence Protection Act of 2000 but the plaintiff lawyer is said to complain that the State Department supports Iran.

Cert. Granted in Altman Case

The United States Supreme Court granted certiorari in the Foreign Sovereign Immunity Act case Republic of Austria, et. a. v. Maria V. Altman, case number 03-13.

The facts involve valuable paintings, changes in their ownership and releases related thereto which could constitute an improper taking, as well as the sovereignty of Austria and its agencies that could apply to the country's actions. The legal issues center around the applicability of the 1976 statute that enunciates the U.S. policies on the recognition and scope of foreign immunity of nations for circumstances preceding the entry into force of the statute. A court in California held in favor of local plaintiff Altman.

Property rights and sovereignty do not always mix well, as Spennemann's fine essay The Ownership of Cultural Resources in the Marshall Islands illustrates in an entirely different setting. -- Contributed by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC