Visitors now: 14
Diplomatic Action After Habeas Corpus
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).Are there countries that will award a lame-duck administration a diplomatic gift by accepting the detainees who may not have had any involvement with Afghanistan? -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Reinstated Immunity for Libya
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.
Sun, / / Embassy Law Link
Jordan Avoids Immunity Issue
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.
Wed, / / Embassy Law Link
Claims Under State and Federal Law
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.
Tue, / / Embassy Law Link
Afghanistan: Limited Jurisdictional Discovery
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.
Thu, / / Embassy Law Link
Libya Settles U.S. Terror Cases
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.
Tue, / / Embassy Law Link
International Treaties Not Issues for Domestic Courts
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.
Fri, / / Embassy Law Link
Saudi Immunity Affirmed
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.
Wed, / / Embassy Law Link
Direct Effect Exception Under FSIA
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.
Fri, / / Embassy Law Link
Subrogation and Immunity
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.
Sat, / / Embassy Law Link
