Embassy Law Web Log   
Washington, DC, USA      

Award to Capture Fugitive

A five million dollar award promised by a foreign government for the capture of a fugitive can constitute commercial activity under the Foreign Sovereign Immunities Act, the United States Court of Appeals for the Eleventh Circuit ruled in the matter Jose Guevara v. Republic of Peru et al., docket number 05-16235, on November 1, 2006.

The interim president of Peru had established the award by Emergency Decree No. 049-2001. The plaintiff delivered the fugitive into the hands of a foreign intelligence agency and then sued Peru in the United States for the award which Peru refused to pay, under theories of contract and tort.

After examining the term commercial under Supreme Court precedent established since the days of Chief Justice Marshall and the affirmation of the restrictive immunity theory by the FSIA, the court held that the award, as phrased in the decree, does not merely express sovereign policy objectives, but falls with the commercial exception to the FSIA in 28 USC §1605(a)(2).

With its decree, Peru ventured into the private marketplace for information, seeking to acquire it in exchange for payment. By contrast, use of its police forces for such a purpose would have enabled Peru to retain immunity from suit in the United States. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.