FSIA and Implicit Waiver

In the matter of Pedro Gilly Calzadilla v. Banco Latino International, Fondo de Guarantia, No. 04-10730, the U.S. Court of Appeals for the Eleventh Circuit on June 21, 2005, addressed the plaintiff's claim of an implied waiver by the defendant Venezuelan bank reinsurer, a government entity. After its collapse, the defendant sued the plaintiff, its former director, in United States courts and lost.

Calzadilla argued in his subsequent case against the agency--when he claimed damages for malicious prosecution--that the agency had implicitly waived its immunity under the Foreign Sovereign Immunities Act, 28 USC §1602 et seq., by litigating its case in the United States.

Although the agency had maintained a Florida subsidiary under the Edge Act, 12 USC §611 et seq., the court rejected Calzadilla's argument, relying on the express FSIA language in 28 USC §1605(a)(5)(B) which specifically rejects implied waivers in the case of any claim arising out of malicious prosecution.   -   Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Tue, 19:58:47 28 Jun 2005 / Embassy Law Link

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