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Washington, DC, USA      

Enforcement Before World Court

The International Court of Justice reports in a press release that Germany seeks the clarification of enforcements of judgments against non-commercial property of a foreign sovereign. The German petition of December 23, 2008 follows proceedings in Italy and Greece resulting in judgments against Germany and subsequent enforcement actions in Italy, including a judicial mortgage recorded against German sovereign real estate.

The Italian view of international law in this respect is broader than the American and German views. Therefore, a decision by the World Court may produce implications exceeding the reach of the nations involved. The court intends to publish the German petition soon. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Berlin Accord Represents Diplomatic Effort

Eight sovereign nations, an international organization and numerous German companies signed the Joint Statement of the Berlin Accords on claims for slave labor and reparations on July 17, 2000. As a result, it constitutes a diplomatic effort that justifies applying treaty law as opposed to federal common law in litigation over the disputed enforcement by private parties of interest payments due under the terms of the accord, the United States Court of Appeals for the Third Circuit determined in Elly Gross et al. v. The German Foundation Industrial Initiative et al., docket number 07-3726, on December 10, 2008. Ultimately, the court agreed with the District Court that the treaty-like agreement affords no private cause of action. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

FSIA and Holy See

On November 24, 2008, the United States Court of Appeals for the Sixth Circuit in O'Bryan et. al. v. Holy See, docket numbers 07-5078/5163, affirmed a decision of the United States District Court for the Western District of Kentucky at Lousville. Plaintiffs had brought an action against the Holy See, alleging its liability for sexual molestation suffered at the hands of Roman Catholic priests in the United States. The District Court had dismissed the claims in part, and confirmed that other grounds for defendant's liability remain.

The appellate court affirmed after discussing a variety of issues arising out of suits against foreign sovereigns. It ruled in favor of the Holy See as a foreign state within the meaning of the FSIA, refusing plaintiff's construction of the defendant entity as a somewhat hybrid sovereign and non-sovereign actor, the latter being liable for its actions as acta iure gestiones outside the scope of the FSIA.

Further, the court decided the commercial activity exception in 28 USC §1605 (a)(2) of the FSIA would not apply because the gravaman of plaintiff's claims was non-commercial. The FSIA tortious act exception in 28 USC §1605 (a)(5) would apply in part, however, to defendant's alleged misconduct, as it constitutes violations of the customary international law of human rights, neglicence and breach of fiduciary duty.

The key here is its issuance of a legislative text in 1962 that required, inter alia, bishops in the United States not to report child abuse to civil or criminal authorities.

The case offers an in-depth look into the very idea of foreign sovereign immunity from different angles. It also deals with some of the most difficult and contentious issues at the crossroads between law and the supremacy of political deliberations by pursuing the restrictive theory of sovereign immmunity in legislating the FSIA and its amendments. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.

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.

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.

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.

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.

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.

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.

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.