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FSIA Protects National Oil Company

The United States Court of Appeals for the Second Circuit ruled October 18, 2007 that Congo's national oil company was immune to the charges of racketeering. Originating in 2005, Kensington International Limited v. Société Nationale des Pétroles du Congo, et al., docket no. 05 Civ. 5101 (LAP), involves claims against the company, its former Chief, Bruno Jean-Richard Itoua, and French bank BNP Paribas. According to the ruling, the defendants attempted to redirect oil revenues from the Republic of Congo to Congolese public officials, while keeping oil and revenue from seizure by legitimate creditors.

The appeal from SNPC and Itoua, docket nos. 06-1763-cv (L) and 06-2216-cv, came after a 2006 decision by U.S. District Judge Loretta Preska in Manhattan denying the defendants' motion to dismiss under the Foreign Sovereign Immunities Act. She found that the commercial activity exception to the FSIA annulled any immunity to which the defendants were entitled.

The commercial activities exception, 28 USC §1605(a), states that a foreign state does not enjoy immunity in any case that the action is based upon commercial activity in the United States or causes a direct effect in the U.S. The appeals court agreed with SNPC and Itoua that the commercial activity abroad did not have direct effect in the United States. However, the appeals court remanded the case to the district court to consider whether the FSIA applies to individual officials, such as Bruno Jean-Richard Itoua. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.

Sanctions for Foreign Service Dodgers

A peek into the assignment of embassy assignments by the United States Department offers an AP report of October 27, 2007, US to Order Diplomats to Serve in Iraq. The largest American embassy in a war-zone will no longer be staffed by volunteers. Instead, the administration of the Foreign Service resigned itself to assigning unarmed civilians into a combat zone [which] should be done on a voluntary basis, as a speaker for employees put it.

Sanctions await dodgers, the report continues. As stated on State's career site, the department is a #3 Ranked Ideal Employer but that designation is absent from the Foreign Service Office page. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Notarization at Embassy

In plain terms, Dan Melson explains on September 30, 2007 the notarization of the Power of Attorney for Real Estate Transactions. In the international context, he discusses the pros and cons of seeking the assistance of embassies for notarizations. Embassies in Washington provide that service for foreign properties just as American embassies do so abroad for transactions involving U.S. real estate. The appropriate official to contact is the consul.

Born in Jerusalem

Of possible tangential value to embassies and consulates is the United States District Court for the District of Columbia decision of September 19, 2007 in the matter Menachem Binyamin Zivitofsky et al. v. The Secretary of State, docket number 03-1921.

The plaintiff seeks to enforce a federal law permitting Israel to be listed in his passport as his place of birth under authority of §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, 1365-66 (2002).

The court dismissed the complaint as presenting a non-justiciable political question because President Bush expressed an opinion which entered into the defendant's Foreign Affairs Manual, 6 FAM §1393.1(b), see Statement by President George W. Bush Upon Signing H.R. 1646, 2002 USCCAN 931, 932 (Sept. 30, 2002).

Under the statement, the congressional mandate operates as an impermissible interference in presidential authority to conduct the foreign affairs of the United States, and the executive refuses to list Israel in passports of American citizens born in Jerusalem. The history and significance of the ruling are explained in ZOA Dismayed By U.S. Court Ruling. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Seizure of Embassy

A default judgment against Kenya resulted in the seizure of the Kenyan embassy in The Hague, The Nation reports on September 15, 2007 in Kenya: Cases And Contract Cash That Could Go Down the Drain. The article is long on factual reporting and short on legal detail. The plaintiff appears to be a Nederman company, and the Kenyan attorney-general is said to have now authorized legal representation for the defendant nation. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Iran - Hezbollah Default Judgment

The record default judgment against a foreign nation by an American court in excess of $2.6 billon in the matter Deborah D. Peterson et al. v. Islamic Republic of Iran et al., docket number 01-2094, has been published on the web site of the United States District Court for the District of Columbia, with an opinion, both dated Sepember 7, 2007. The court examined sua sponte the issues arising under Foreign Sovereign Immunities Act. President Reagan had sent the victims to Lebanon where they were killed or maimed on October 23, 1983 in a then-unusual attack. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Gated Immunity in Manila

In Spouse of German envoy urged to pay for property damage--Embassy says hubby enjoys diplomatic immunity, Veronica Uy explains a dispute between a Philippine property owner and the spouse of a diplomat whose car damaged a gate.

Reportedly, the driver acknowledged liability to police and promised compensation but payment did not follow. When the embassy expressed its understanding that immunity applies, the owner obtained a contrary opinion from the Manila Department of Foreign Affairs on the Vienna Convention on Diplomatic Relations issue.

An informal departmental opinion notes different treatment in criminal and civil matters. The department would make a recommendation to the court after the owner requests its intercession, the Global Nation article reports on September 7, 2007. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Twists, Turns and Anti-Suit Injunctions

Only peripherally mentioned, as an interest party, is a foreign state in the arbitration and anti-suit injunction decision rendered by the United States Court of Appeals for the Second Circuit on September 7, 2007 in the matter Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina),, docket number 07-0065.

The appellate ruling follows litigation in Switzerland, Texas, Indonesia, the Cayman Islands and New York to enforce and vacate a Swiss arbitral award under the New York Convention, Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, 21 UST. 2517, 330 UNTS 38, 9 USC §§201-208.

The court upholds an anti-suit injunction by applying the test set forth in China Trade & Development Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987), even after the satisfaction of the money judgment, by distinguishing the facts from the recent Eigth Circuit anti-suit injunction ruling in Goss International Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355 (8th Cir. 2007). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

No U.S. Effect in Foreign Bids

Quoting the United States Supreme Court, … an effect is direct if it follows as an immediate consequence of the defendant's activity, in Republic of Argentina v. Weltover, Inc., 504 US 607, 618 (1992), the United States Court of Appeals for the Sixth Circuit affirmed the dismissal of a bid protest by an American telecommunications company filed in a United States court.

The bidder had paid a bidding fee to the Republic of Lebanon from an American account. In American Telecom Company, LLC et al. v. Republic of Lebanon, docket number 05-2408, the appellate court decided on August 29, 2007 that the payment does not equal a direct effect in the United States.

The dispute could not fall within the exception for commercial activities under the Foreign Sovereign Immunities Act, it ruled, and deserved dismissal. If Congress would have wanted every foreign governmental tender to fall within the exceptions of the FSIA just because of a fee payment from an American bank account, it would have said so, the court concluded. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Consular Relations in Law School

As students return to law school and new generations find fascination or frustration in international law, we are likely to see more leaks from courses on diplomatic and consular relations as well as treaties and conventions. An example is an August 31, 2007 summary of facts and strategies in the Medina case. Jeff Vagle of the tractatus.org blog reminds defense counsel that a failure to invoke the foreign client's rights under the Vienna Convention on Consular Relations to ensure consular notification constitutes malpractice. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.