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Vacated Default Judgment Against Foreign Sovereign
Default judgments against foreign sovereigns are especially disfavored, the United States District Court for the District of Columbia explained in a 20-page memorandum opinion on December 28, 2009. In Reuven Gilmore et al. v. Palestinian Interim Self-Government Authority et al., docket number 01-853, the court examined the default of the Authority in case alleging acts of terrorism.
The sovereign suffered a default but after consultation with the United States Department of State understood that such complaints deserve a proper response, and it launched its defense. The Authority is not recognized by the United States as a sovereign nation, but they maintain diplomatic relations.
Therefore, the court decided to apply the precedential reasoning from Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1551 n. 19 (D.C. Cir. 1987), to the instant case. An important factor for the leniency afforded the Authority is its accommodation of plaintiffs in certain regards to mitigate undue hardship to them. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Sean Goldman Return Under Hague Convention
The United States Secretary of State has a brief note on the Sean Goldman return to his American father from Brazil under the Hague Convention on International Child Abduction. There are no details on the efforts of the embassy in what has been called the Miracle in Rio.
Sat, / Embassy Law Link
Waiver Implied in Garnishment?
When it completed a form in a garnishment matter and objected to the personal jurisdiction, did the
Japan Bank for International Cooperation imply a waiver of its immunity from subject matter jurisdiction? On December 3, 2009, the United States District Court for the District of Columbia held in Inversora Murten S.A. v. Energoproject Holding Co., docket number 03-73, that the bank did not.
The court explains the reasons in its detailed opinion. Most importantly, the garnishment form does not constitute one of the pleadings where a failure to object would be harmful. In addition, the court emphasizes the intent standard that bars an inadvertent waiver from becoming effective under the Foreign Sovereign Immunities Act. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Material Support in Terror Exception to FSIA
On November 30, 2009, the United States District Court for the District of Columbia dismissed the complaint in the matter Asemani v. Syrian Arab Republic, docket no. 09-1158, on the basis of the defendant's immunity under the Foreign Sovereign Immunities Act.
The plaintiff alleged that he was tortured on July 14, 2000 by several members of the Iranian Revolutionary Guards Corps in Tehran. He claimed that the Syrian Arab Republic was liable for his personal injury because Syrian military and intelligence agents informed Iranian authorities of his religious dissent. This exchange of information, he claimed, proximately caused his torture and resulting injuries.
The court noted that foreign states are not immune from claims for damages based on personal injury … caused by an act of torture under 28 U.S.C. §1605A, the most recent amendment to the FSIA. However, in order for the plaintiff to be awarded damages, he must show that "the foreign sovereign engaged in conduct that falls within the ambit of the statute,"i.e. here by providing material support for an act of torture.
Upon reviewing the definition of material support as defined in 18 U.S.C. §2339A, the court determined that Syria's relaying of information to Asemani's torturers fell short of the statutory definition of 'material support'. -- Laura P. Valle, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington D.C.
Fri, / Embassy Law Link
Immunity in Emergency
Foreign states providing assistance in emergencies should be immune from proceedings for acts or omissions in such assistance. The same applies to their personnel, an Australian bill, Foreign States Immunities Amendment Bill 2009, provides. The November 7, 2009 bill is available at Lexis Legal. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link
Enforcement of Arbitral Awards Against Sovereigns
Juris Publishing recently released a treatise entitled, Enforcement of Arbitral Awards Against Sovereigns. Bound in hard-cover and measuring approximately 500 pages, the volume is described as a comprehensive discussion of the trials parties face when initiating arbitration against a foreign sovereign. The publisher notes that the book includes a thorough discussion of immunities, diplomatic protection, and enforcing awards won against sovereigns before ending with a discourse on several jurisdictions where enforcement against sovereign assets is commonly sought. Through November 25, 2009, the publisher is offering a 20% discount off of the regular price of $125. -- Laura P. Valle, Legal Assistant, Berliner Corcoran & Rowe, LLP, Washington D.C.
Wed, / Embassy Law Link
U.S. Seeks Counterterrorism Seizure
On November 12, 2009 the United States Department of Justice reported that the United States Attorney for the Southern District of New York filed an amended complaint in United States v. Assa Corp., docket no. 08-10934. The amended complaint seeks the complete forfeiture of all assets belonging to Assa Corp. and the Alavi Foundation. Assets are reported to include several bank accounts, a 36-story high-rise in Manhattan, and a number of other properties throughout the United States including four places of worship.
According to the Alavi Foundation website, the foundation is a charitable organization which promotes Islamic education and culture through academic grants and scholarships. Assa Corp. is a subsidiary of Assa Co. Ltd.; an entity which, the amended complaint alleges, represents the interests of Iranian board members in the nationalized Bank Melli Iran.
The amended complaint relies on evidence which suggests that both Assa Corp. and the Alavi Foundation provide illicit financial services for Bank Melli Iran and the Iranian government including but not limited to, managing assets and income in the Manhattan building and running a charitable organization for Iran, according to the U.S. Department of Justice. The United States argues that because neither the Alavi Foundation nor Assa Corp. ever applied for a license from the Department of the Treasury, providing any financial services to Bank Melli or the Government of Iran violates the International Emergency Economic Powers Act (IEEPA).
On November 15, 2009 the government of Iran condemned the U.S. move, calling the action a disgrace, the Washington Post wrote. -- Laura P. Valle, Legal Assistant, Berliner Corcoran & Rowe, LLP, Washington D.C.
Tue, / Embassy Law Link
FSIA: Military or Terror Action?
On November 3, 2009, the United States District Court for the District of Columbia dismissed the complaint in the matter Baumel v. the Syrian Arab Republic, docket number 06-682.
On June 11, 1982, the Syrian Army captured Zachary Baumel, an American citizen and member of the Israeli Defense Forces Armored Corps, in Lebanon. He was taken to Damascus where he was displayed as a trophy of war in a victory parade. Since then, Baumel has not been seen or contacted by friends, family, or members of the international community. The plaintiffs, representing the Baumel family, sued the Syrian government for several claims including battery, assault, and solatium, and asked for punitive damages.
The plaintiffs filed the suit on April 14, 2006 under 28 USC §1605(a)(7), the FSIA exception for state sponsors of terrorism, and then amended their complaint under §1605A on July 14, 2009. The new statute gave plaintiffs with pending suits against state sponsors of terrorism the ability to sue for solatium and ask for punitive damages.
The defendants argued that the amendment to the claim was time-barred. The statute gave pending suits 60 days to re-file their claim under §1605A after its enactment on January 28, 2008. The court agreed with Syria that the plaintiffs had brought their cause of action against Syria a year too late.
Also, the court found that the plaintiffs' cause of action under 28 USC §605(a)(7) failed. The court concluded that it is not an act of 'terrorism' for a designated foreign state to fail to release a combatant captured on the battlefield upon cessation of military hostilities. Therefore, the exception to Syria's immunity under 28 USC §1605(a)(7) did not apply in this case. -- Laura P. Valle, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington D.C.
Mon, / Embassy Law Link
China not Liable for Bonds in U.S.
Courthouse News Service describes the determination by United States District Court Judge Richard J. Howell of the dismissall of a claim by Gloria Bolanos Pons and Aitor Rodriguez Soria against the People's Republic of China for some $2.4 billion in bonds issues by the Chinese government in 1913. The November 5, 2009 report China Off the Hook for $2.4B Bond-Holder Debt states that the claims are barred by the Foreign Sovereign Immunities Act. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / Embassy Law Link
Immunity for Argentina
On November 5, 2009, the United States Court of Appeals for the Second Circuit remanded Seijas v. Argentina, docket number 08-2847, to the lower court to explain its 2008 Temporary Restraining Orders and address Argentina's FSIA claims.
On April 18, 22 and 25, 2008 the District Court had granted several TROs which restrained Argentina's ability to transfer, sell, pledge, loan, or otherwise encumber Argentinean bonds held in the Depository Trust Corporation in New York.
The District Court held a hearing on April 30, 2008, to determine whether these TROs should be converted into preliminary injunctions but the court reserved a decision, thus allowing the TROs to continue until they converted automatically into preliminary injunctions on May 23, 2008. Argentina appealed, claiming that the injunctions were precluded by the FSIA which granted it immunity under 28 USC §1609.
The Second Circuit found that the preliminary injunctions were unsupported by the requisite findings and remanded the case to allow the District Court to provide an explanation for its decision. While this represents a small victory for Argentina, the Circuit Court refused to address the FSIA claim and allowed the foreign nation's assets to remain frozen. -- Laura P. Valle, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.
Fri, / Embassy Law Link
Russia Storms Bulgarian Offices
The Sofia Echo describes a November 5, 2009 raid by Russian forces of a Bulgarian state office in Moscow, in Russian police storms Bulgarian state properties in Moscow and noted the explanation for the raid: A search warrant based on allegations of violations of intellectual property.
The article alleged a breach of the 1961 Vienna Convention of Diplomatic Relations which provides for the inviolability of diplomatic premises. The affected property is part of the Bulgarian Ministry of Economy, Energy and Tourism and is one of the biggest Bulgarian state-owned properties abroad. It is home to a number of Bulgarian companies that rent offices there, the report continues. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
United States Joins Iran on International Law Issue
On November 2, 2009, Lynne Marek provides details on a case involving the discovery of assets held by foreign nations. The issue is of significant interest to the United States, she reports in DOJ Urges 7th Circuit to Shield Iranian Artifacts From Seizure by Terrorism Victims. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP. Disclaimer: The author's partner appears in the matter on behalf of a foreign government; the outcome could affect other government clients of the author's firm.
Mon, / Embassy Law Link
Abuse of Foreign Embassy for Political Propaganda
The International Court of Justice published a press release dated October 29, 2009, on the filing by the Republic of Honduras of a claim against the Federative Republic of Brazil. Allegedly, Brazil's embassy in Honduras awards critics of the Honduras government safe haven and enables the critics' political propaganda. The release states:
Honduras respectfully requests the Court to adjudge and declare that Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so. Just as Brazil rightly demands that the Honduran authorities guarantee the security and inviolability of the Mission premises, Honduras demands that Brazil's diplomatic staff stationed in Tegucigalpa devote themselves exclusively to the proper functions of the Mission and not to actions constituting interference in the domestic affairs of another State. Id.Honduras argues that Brazil violates, inter alia, the 1961 Vienna Convention on Diplomatic Relations and claims damages. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Terror Claims Not Commercial Claims
On October 28, 2009, the United States District Court for the District of Columbia determined that terror activities cannot simply be restyled as commercial activities. Plaintiffs had based certain claims for compensation on the terror exception to the sovereign immunities of Libya under the Foreign Sovereign Immunities Act.
When the exception for state sponsors of terrorism became inapplicable after the renewal of relations between the United States and Libya, they sought to pursue their claims under the commercial exception of the FSIA.
The court explained why that avenue is not open to the plaintiffs, in the matter McDonald et al. v. Socialist People's Libyan Arab Jamahiriya et al., docket number 06-0729. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
FSIA 0 : EFT Transfer Jurisdiction 1
In an October 16, 2009 decision, the United States Court of Appeals for the Second Circuit reversed its Winter Storm doctrine in the matter The Shipping Corporation of India Ltd v. Jaldhi Overseas Pte Ltd., docket number 08-3477, but skipped a decision on an underlying FSIA issue because it would become moot.
Under Winter Storm, the presence of Dollar-denominated funds in the Second Circuit for merely a split second could trigger attachments in certain maritime matters. The court explains the critical views and economic effects of the precedent. It also details how subsequent decisions changed some of its effects on the EFT practice.
By expressly overruling Winter Storm, the appellate court in New York City intends to increase clarity and legal certainty which should be welcomed by the banking sector and U.S. marshalls in its district as well as foreign defendants who - aside from EFT transfers in United States currency - lack other connections to the United States courts in the district.
-- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Argentina Attachment Reversed
In an October 15, 2009 decision, the United States Court of Appeals for the Second Circuit reversed the order of attachment against the Republic of Argentina in Aurelius Capital Partners v. The Republic of Argentina, docket number 08-5621. Justice Sotomayor belonged to the panel before her call to the United States Supreme Court and did not participate in the decision. The court summarizes the matter as follows:
The Republic of Argentina appeals from the district court's orders of attachment and execution entered in late 2008 over Argentine social security funds, which under proposed Argentine legislation were to be transferred to the Administración Nacional de Seguridad Social (the Administration), an Argentine governmental entity. The orders were confirmed in the district court's opinion and order dated December 11, 2008, immediately after the legislation transferring the funds to the Administration became effective. We reverse the decision of the district court and vacate the orders.As explained in a 29-page opinion, the court concluded that the funds were immune from attachment under the Foreign Sovereign Immunities Act (Act), 28 U.S.C. §§ 1602-1611 it reversed the decisions of the district court and vacated its order. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
Reconciled Immunity for International Organizations
Two brief opinions on the reconciliation of precedent with respect to the immunity of international organizations excel in Jorge Villa v. Inter-American Development Bank, docket number 08-7042. The October 5, 2009 decision relates to the denial of a rehearing en banc and is of interest to practitioners of international organization law. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington DC.
Tue, / Embassy Law Link
Alien Torts Statute: Business Liable for State Acts
The violation of human rights may be sanctioned by U.S. courts. Even if they involve non-American corporations and human rights violations by foreign nations, claims find their way to American courts.
But the latter will not necessarily remain there, as the new decision from the United States Court of Appeals for the Second Circuit illustrates with its October 2, 2009 dismissal in the matter The Presbyterian Church of Sudan et al. v. Talisman Energy, Inc., docket number 07-0016.
The complaint is based on the Alien Tort Statute, 28 USC § 1350. The dismissal of the suit against the Canadian defendent corporation concludes a detailed legal analysis which the court summarized:
We hold that under the principles articulated by the United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the standard for imposing accessorial liability under the ATS must be drawn from international law; and that under international law, a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses. Applying that standard, we affirm the district court's grant of summary judgment in favor of Talisman, because plaintiffs presented no evidence that the company acted with the purpose of harming civilians living in southern Sudan. Id. 8.-- Clemens Kochinke, partner
Sun, / Embassy Law Link
No Due Process in State Matters
The United States Court of Appeals for the Second Circuit in New York City overruled its precedent allowing for due process protections for states in the context of a jurisdictional analysis. The September 28, 2009 ruling in the matter Frontera Resources Azerbaijan Corporation v. State Oil Company of the Azerbaijan Republic, docket number 07-1815, involves a conflict between a Cayman Islands company and the state oil agency over the confirmation of a Swedish arbitral award against the state entity. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link
Picasso in Spain and California Courts
Plaintiffs, alleging expropriation of art by Nazi Germany, may rely for subject matter jurisdiction of United States courts on 28 USC §1605(a)(3) even if they seek to recover the art from another nation.
On September 8, 2009, the United States Court of Appeals for the Ninth Circuit decided in Claude Cassirer v. Thyssen-Bornemisza Collection Foundation, docket number 06-56325, that the expropriation exception of the Foreign Sovereign Immunities can apply to a state and its foundation that have not been involved in the expropriation.
In addition, the court explored whether the required commercial activity of the defendants King of Spain and the Thyssen-Bornemisza in the United States suffice to meet the definition in 28 USC §1604(d). In relying on Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (1992) and Altmann v. Republic of Austria, 317 F.3d 954 (2002), the court upheld the lower court's finding of commercial transactions by the art foundation as generating a sufficient nexus.
Based on limited jurisdictional discovery, the district court had concluded that the foundation transacted business as a purchaser and a seller of goods and services and as an advertiser in distributing marketing and other commercial materials in the United States.
The appellate court concluded its analysis with a detailed discussion of the exhaustion requirement, developed for Alien Tort Statute litigation, as applied to FSIA matters. Its remand to the district court includes instructions for a further analysis of the case in light of a limited exhaustion requirement to be imposed on the plaintiff. As a result, the plaintiff may need to pursue claims in Spain or Germany, not in the United States, if the district court so decides.
Judge Ikuta's minority opinion takes exception to writing a judge-made exhaustion requirement into the FSIA. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Million Dollar Plea over Delays in Visa Rejected
In Samar Chatterjee v. U.S. Consul General et al., No. 07-2172, the U.S. District Court for the District of Columbia rejected the plaintiff's plea for one million dollars in damages in response to the delay and initial rejection of his fiance's visa. After the issuance of his fiance's visa, the plaintiff dropped its original claim for damages against the U.S. Citizen and Immigration Service.
However, he still asked the Court to admonish or sanction the remaining defendant, the U.S. Counsel General in Mubai, India for its conduct, id. at 1. Since the plaintiff has not come forth with a cause of action to base his claim, and has failed to identify a basis for the Court's jurisdiction over this motion, the complaint was dismissed, on August 27, 2009, for lack of subject matter jurisdiction. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
State Law in Conflict With Foreign Policy
State law in conflict with with federal foreign policy is incompatible with federal constitutional principles, the United States Court of Appeals for the Ninth Circuit confirmed in Movsesian et al. v. Victoria Versicherung AG et al., docket number 03-09407. Therefore, §354.4 of the California Code of Civil Procedure improperly interferes with the national government's power to conduct foreign affairs.
While the Turkish government denies the Armenian genocide, Congress has sought to recognize it, and the California statute seeks to provide redress to its victims by way of rules affecting the defendant insurance companies of Germany. To avoid conflict with the Turkish government, however, former United States presidents opposed congressional resolutions recognizing the Armenian genocide. These actions, the court concluded, formed an American foreign policy and stand in the way of state legislative recognition of the genocide.
Justice Pregerson's dissenting opinion does not perceive a conflict where no foreign policy explicitly prohibits the use of specific legislative action:
- California's interest in ensuring that its citizens are fairly treated by insurance companies over which the State exercises jurisdiction is hardly a superficial one. The strength of this traditional state interest weighs against preemption in a case, such as the case before us, where there is doubt about the clarity of the conflict between state law and federal policy. Indeed, there is no conflict. I can find no evidence of any express federal policy forbidding states from using the term Armenian Genocide.
Fri, / Embassy Law Link
Judicial Discretion in Jurisdictional Discovery
On August 14, 2009, the United States Court of Appeals for the Second Circuit affirmed, in Compania Del Bajo Caroni, C.A. v. Bolivarian Republic of Venezuela, docket number 08-2706, the decision of the District Court for the Southern District of New York, dismissing the plaintiff's claim. The plaintiff sued the foreign state, but the District Court repelled its motions due to lack of subject matter jurisdiction.
Even though foreign states enjoy protection under FSIA, the court determines whether subject matter jurisdiction exists or may be barred by the FSIA. The courts enjoy discretion in determining the scope of any judicial discovery that may be necessary, as long as they act circumspectly and only to verify allegations of specific facts crucial to an immunity determination, the court explained. -- Lucyne Ghazarian, law student, international intern, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Expropriation Sovereign, not Commercial Activity
On July 28, 2009, the United States District Court for the Middle District of Tennessee dismissed the complaint in Fred Westfield v. Federal Republic of Germany, 2009 U.S. Dist. Lexis 65133, due to lack of subject matter jurisdiction, under Rule 12 (b)(1) of the Federal Rules of Civil Procedure. The court based its decision on 28 U.S.C. §1602 of the Federal Sovereign Immunities Act, which grants foreign sovereigns immunity from federal and state jurisdiction.
The plaintiff, as administrator de bonis non administratis of the estate of an alien, claimed a constructive trust and an equitable accounting with respect to the seized art collection of Walter Westfield. In 1938, a German court had falsely convicted Walter Westfield of an offense under a currency exchange statute and fined him 300,000 Reichsmark. The Nazi administration seized and auctioned his art collection, with the proceeds to cover the purported fine. The postwar German government had not provided compensated.
The court discussed the plaintiff's motion to apply §1605(a)(2), which enables United States courts to exercize their jurisdiction when the action against the foreign state is based upon commercial activity carried on outside of the United States which causes a direct effect in the United States.
For this exception to apply, the action of the German government would have to be commercial activity. The court could not find it because the Nazi government did not act as a private player within the market, engaging in trade and traffic of commerce like private persons. Further, the court noted, expropriations constitute sovereign rather than commercial activity. -- Lucyne Ghazarian, law student, international intern, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / Embassy Law Link
FSIA and Conflict of Laws
On July 28, 2009, the United States Court of Appeals for the District of Columbia Circuit reversed the United States District Court of the District of Columbia's March 12, 2009 judgment in the matter Amir Reza Oveissi v. The Islamic Republic of Iran, et al., docket number 07-7132, stating that the District Court applied the wrong law to the plaintiff's claims because it conducted an erroneous choice-of-law analysis. The Court of Appeals finds that French law rather than California law governs the case.
In 1984, Gholam Oveissi, the plaintiff's grandfather and decorated military general under the former Shah of Iran, was assassinated in Paris by a group named Islamic Jihad. The organization was allegedly funded by the Iranian government's Ministry of Information and Security from whom the plaintiff is seeking damages under the Foreign Sovereign Immunity Act exemption for state sponsored terrorism, effectively stripping Iran of its immunity.
The Court of Appeals found issue with the accuracy of the District Court's application of California law and Lord Campbell's Act in determining its decision. The FSIA does not provide a choice-of-law provision but it does provide that a foreign state removed of its immunity is liable in the same manner and to the same extent as private individuals, id. at 10. Therefore, a court should apply the forum state's choice-of-law rules which the District Court had not done, the appellate court observed.
In its determination, the Court of Appeals referred to the Restatement (Second) of Conflict of Laws §145(2) to determine jurisdiction and cited these four factors: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; (4) the place where the relationship, if any, between the parties is centered, id at 11.
In this case, all factors point to France, the Court held, while the interest of California, which arises solely out of the fact that the plaintiff was born and briefly resided there--for less than a year and not at the time of the attack--is slight by comparison, id. at 12.
--Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
Consular Report: Jerusalem Issue
May the United States Department of State list the births of American citizens born in Jersualem with a state suffix? The nation follows a calibrated policy of expressing no official view on the thorny issue of whether Jersualem is part of Israel, the United States Court of Appeals for the District of Columbia Circuit explains in Ari Zivotofsky v. Secretary of State, docket number 07-5347.
On July 10, 2009, the court refuses to force another procedure on the department. It explains its rationale in a 34-page opinion with the nonjusticiable nature of the political question presented. The Consular Report of Birth, an official record of U.S. citizenship for a person born abroad, will remain unchanged. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Germany, Holland Placate China
Quick to jump on foreign violators of treaties, it seems, People's Republic of China condemned German and Dutch failures to protect Chinese embassies in the Netherlands and Germany. Communist China urged the two countries to abide by the Vienna Convention on Diplomatic Relations and take all measures necessary to ensure the safety and dignity of its emissaries, China Daily reported on July 8, 2009.
Both host nations are reported to have quickly pledged compliance, and Holland expressed regret. Article 22(2) of the 1961 Convention provides for embassies:
- 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
Wed, / Embassy Law Link
Enforcement Book Discount
JurisNet offers a promotional discount of $25 on its Enforcement of Arbitral Awards Against Sovereigns book, ISBN-13: 978-1-933833-29-3, to be published in July 2009. The book comes with an online subscription. After an introduction into sovereign immunity and dispute settlement mechanisms, it turns to ICSID procedures.
The 502-pages volume concludes with specific enforcement procedures in the United States, England, Switzerland, France, the Netherlands and South America, specifically in cases of Argentina and Ecuador. The authors and contributors are highly regarded in their practice areas. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Sovereign Tied to Counterclaim: No FSIA Immunity
A foreign sovereign may not necessarily claim FSIA immunity on a counterclaim after filing suit in an American court. Illustrating the issue on June 12, 2009, the United States Court of Appeals for the Second Circuit reviewed the United States District Court for the Southern District of New
York's grant of summary judgment in Reino de España v. American Bureau of Shipping,. docket number 08-0579.
In January 2008, the District Court held that the International Convention on Civil Liability for Oil Pollution Damage deprived the Court of subject matter jurisdiction. It also dismissed ABS' counterclaims against Spain stating such claims did not satisfy the FSIA exceptions under 28 USC §1607(b) because they were sufficiently different in kind, id. at 6.
The Court of Appeals vacates the summary judgment on both accounts due to the United
States being a non-signatory of the CCL-OPD which would allow the District Court the option to exercise its jurisdiction.
The Court also views the counterclaims as an instance that upholds the main purpose behind 28 USC §1607(b) to prevent a foreign sovereign from obtaining the benefit of litigating its claims in a United States Court while simultaneously avoiding liability for counterclaims logically related to them, id. at 7. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / Embassy Law Link
International Organization Contract
A consultant worked for an international organization, relying on the promise that a written contract would follow. When that did not happen and much work had been performed, he sued the organization for breach of contract and unjust enrichment.
The organization claimed immunity, lost its motion for dismissal under the International Organizations Immunities Act, 28 USC §288a(b), and appealed. The United States Court of Appeals for the District of Columbia Circuit affirmed in Jorge Vila v. Inter-American Investment Corp., docket number 08-7042.
While the IOIA ties the waiver of immunity to the existence of a contract, the court follows precedent by applying the waiver also to unjust enrichment claims, as it explained in its 37-page opinion on June 19, 2009. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link
Don't Count on it: Refuge at Embassy
Don't count on finding refuge at an embassy. Not every country permits it. Those that do, may enforce severe restrictions. Generally, the circumstances must be very special. A current example is the deadlock between the government of Peru and Amazonian indigenous groups that resulted in the groups' leader seeking safe haven in the embassy of Nicaragua, as reported by the Environment News Service on June 15, 2009. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Embassy Attack in Closed Trial
From Azerbaijan, Trend News reports on the prosecution of embassy attackers as terrorists. The proceedings will be closed to the public at the state's request. The trial will be held on June 24, 2009. The six locals and foreigners were detained in May 2008, the June 10, 2009 report notes.
Thu, / Embassy Law Link
Supreme Court Rejects Challenges to Iraq Immunity
Designated a state sponsor of terrorism and, therefore, enjoying severely limited immunity, Iraq regained the protection of the Foreign Sovereign Immunities Act pursuant to actions by President Bush and congressional amendments. However, the District of Columbia federal courts found jurisdiction for certain plaintiffs attempting to sue Iraq for damages suffered under the overthrown regime.
On June 8, 2009, the Supreme Court of the United States examined Republic of Iraq v. Jordan Beaty et al., docket number 07-1090. The unanimous opinion delivered by Justice Scalia untangles the changing legal regimes for immunity in conjunction with the terrorism exception. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP.
Mon, / Embassy Law Link
Immunity for Cultural Artefacts?
Under the headline Supreme Court Case can Decide Fate of Persepolis Tablets, Ehsan Tabesh analyzed immunity issues relating to disputes over cultural artefacts from Persia presently located in the United States. On the National Iranian American Council website, the May 29, 2009 article draws from analogies in the matter of Republic of Iraq v. Beaty and argues in favor of compensation for victims under FSIA exceptions but questions the exploitation of cultural artefacts to accomplish that purpose. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP.
Mon, / Embassy Law Link
Sotomayor and FSIA
Does Supreme Court candidate Sonia Sotomayor hold any special views on sovereign immunity? A per curiam opinion in Raymonde Abrams et al. v. Société Nationale des Chemins de Fer Français, 389 F.3d 61 (2d Cir. 2004), does not shed much light on the issue.
On November 2004, the three-judge panel that included Judge Sotomayor reviewed the case in light of the Supreme Court's Altmann ruling. The higher court had rebuffed an initiative by the Second Circuit to have the lower court review the railroad's immunity under pre-FSIA principles of grace and comity. In the end, the court deferred to the Supreme Court and concluded:
- We are bound by the Supreme Court's decision to defer to comity rather than to approach the situation from the perspective of the injured plaintiffs whose rights have now been altered. Accordingly, the evil actions of the French national railroad's former private masters in knowingly transporting thousands to death camps during World War II are not susceptible to legal redress in federal court today, because defendant has since become a part of the French government and is therefore immunized from suit by the Foreign Sovereign Immunities Act. Nonetheless, the railroad's conduct at the time lives on in infamy.
Mon, / Embassy Law Link
FSIA Dismissal of Political Persecution Claims
In a political persecution case, the United States Court of Appeals for the Fifth Circuit summarily affirmed the dismissal of the complaint in the matter Bacilio A. Amorrortu v. Republic of Peru, docket number 08-20565, on May 29, 2009. The court relied entirely on the reasons stated by the district court which based the dismissal on the lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and the immunity afforded foreign governments and their instrumentalities by the Foreign Sovereign Immunities Act, 28 USC §1605. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / Embassy Law Link
United States Favors FSIA Immunity
By way of an amicus brief filed with the Supreme Court of the United States, the federal government comments on the application of the FSIA in Federal Insurance Co. et al. v. Kingdom of Saudi Arabia et al, docket number 08-640. The Solicitor General of the United States agrees in general with the holding of the lower court which confirmed the immunity of defendants, including individual Saudi princes. Both the brief, and SCotusBlog which published the brief, provide background information. The brief delves into the historical development of foreign sovereign immunity issues. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / Embassy Law Link
Diplomatic Reception
The Washington Foreign Law Society circulates this invitation:
- The Washington Foreign Law Society and the U.S. Department of State's Office of the Legal Adviser are pleased to honor at this year's Diplomatic Reception the East African Community (EAC), the regional intergovernmental organization of the Republics of Burundi, Kenya, Uganda, and Rwanda and the United Republic of Tanzania, which is celebrating its 10th anniversary in 2009. The reception is an opportunity to meet the Ambassadors from those countries and many others from the public and private sectors who share an appreciation for the EAC and Africa in general.
Wed, / Embassy Law Link
Obligation to Protect Embassy
The Democratic Socialist Republic of Sri Lanka's ambassador to the Netherlands reminded the The Hague Foreign Ministry of its obligation under International Law to protect the inviolability of diplomatic premises on its territory, the Sri Lanka Ministry of Defence, Public Security, Law & Order reports on May 20, 2009 after a second attack within a week.
Its report notes that the Kingdom assured the government of Sri Lanka that security for the Chancery, Residence of the Ambassador, as well as for the Sri Lankan staff of the mission, would be put in place at the highest level in order to prevent the recurrence of such incidents…
The inviolability is established in Art. 22 of the Vienna Convention on Diplomatic Relations of April 18, 1961. The defense ministry calls the present security arrangements [c]learly … grossly inadequate and a wake up call for all governments. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
China Suit Dismissed
The United States District Court for the District of Columbia dismissed on May 15, 2009 the action Michael B. Dorsey v. Government of China et al., docket number 08-1276, and published its order but not the underlying Memorandum Opinion, on the court website. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC
Sat, / Embassy Law Link
No Privileges and Immunities for Embassy Staffer
On May 15, 2009, CQPolitics describes how a U.S. embassy staffer lost her diplomatic immunity while facing extradition to Italy in conjunction with criminal proceedings for extraordinary renditions. Her attorney, seeking the support of the U.S. government, feels rebuffed.
Fri, / Embassy Law Link
Libya Suit Dismissed Under LCRA
On the basis of the Libyan Claims Resolution Act, Pub. L. No. 110-301, 122 Stat. 2999 (2008) and in response to procedural claims raised by the defendants, Socialist People's Libyan Arab Jamahiriya and the Jamahiriya Security Organization, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2), the United States District Court for the District of Columbia dismissed the action Karin Harris v. Socialist People's Libyan Arab Jamahiriya et al., docket number 06-732.
The court published its seven-page, May 5, 2009 Memorandum Opinion on the court website. Among other things, the plaintiff had claimed that the LCRA could constitute an unconstitutional taking. The action arose from the 1986 bombing at the LaBelle Discotheque in Berlin, Germany. Because the LCRA restored Libya's immunity under the Foreign Sovereign Immunities Act, the District Court also lacked statutory subject matter jurisdiction and personal jurisdiction, id. n. 4. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC
Wed, / Embassy Law Link
Considerate Secret Service
The Secret Service along Embassy Row in Washington, DC has become quite considerate in recent months. The heavily-traveled stretch is an important segment of Massachusetts Avenue, connecting downtown DC with the Vice President's mansion and residential areas in Northwest Washington and the Maryland suburbs of Bethesda and Potomac.
An important change in security is also the truthful representation of the Naval Observatory on Google Maps. Under Vice President Cheney, the area was pixelated and looked like pea soup. Now, taxpayers can view the area as clearly as the surrounding neighborhoods.
Despite such changes and their consideration of traffic needs, the Secret Service had to step up on April 27, 2009, to protect the Sudan Embassy on lower Embassy Row when five members of Congress crossed police lines in protest of Sudan's civil rights policies. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC
Tue, / Embassy Law Link
Supreme Court Voids Attachment of Award
For the second time in the same matter, the United States Supreme Court had to step in to void the encumbrance by a third party of a foreign government's arbitral award in the United States. On April 21, 2009, the court explained in Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, docket number 07-615, that not only were the foreign government's assets free from blocking statutes and orders, the third party had previously received compensation and waived further claims against the defendant government. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Security Agent Immune under FSIA or Common Law
In an action against a former director of Israel's General Security Service for war crimes and violations of international law in a Gaza City attack, the United States Court of Appeals for the Second Circuit in New York City affirmed the dismissal of the complaint in the matter Ra'ed Ibrahim Mohamad Matar et al. v. Avraham Dichter, docket number 07-2579, on April 16, 2009.
The opinion discusses FSIA and political question issues relative to claims under the Alien Tort Statute and the Torture Victim Protection Act. The court explains that common law immunity would protect Dichter even if the FSIA would not apply. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / Embassy Law Link
Court Leaves Politics to Politicians
On April 7, 2009 the United States Court of Appeals for the District of Columbia affirmed the district courts' dismissal of Roger C.S. Lin, et al. v. United States of America, docket number 08-5078, based on the political question doctrine.
The appellants sought to appeal on the grounds that the case is merely a straightforward question of treaty and statutory intepretation and well within Article III powers of the court id. at 6. Due to the strategic ambiguity in the United States foreign policy towards Taiwan, the Court notes their inability to determine the Appellants'rights based on the uncertainty of Taiwan's sovereign.
The court expressed the limitation that it may not dictate to the Executive what governments serve as the supreme political authorities of foreign lands id. at 8. Therefore, this case is outside its jurisdiction. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Indigenous Sovereignty Revisited
A decision by the United States Supreme Court touched the issue of indigenous peoples' rights. At the heart of the dispute in Hawaii et al. v. Office of Hawaiian Affairs et al., docket number 07-1372, were the scope and meaning of a Congressional resolution passed in 1993, apologizing for the United States role in overthrowing the Hawaiian monarchy in 1893.
In 1959, Congress passed the Admission Act, making Hawaii a State. The new state acquired the sovereign right to administer and sell all previously annexed public land on the condition of holding the land and its proceedings as a public trust.
In the case before the Supreme Court, the Office of Hawaiian Affairs as the manager of funds from the use or sale of lands ceded for the benefit of native Hawaiians, opposed removal of a parcel of land from the trust upon compensation by the Hawaiian Affordable Housing Agency.
In construing the Apology Resolution as an acknowledgement of native Hawaiian land claims, the office insisted on a disclaimer in the contract governing the removal of the parcel, in order to preserve these land claims as undiminished by the land sale.
The Hawaiian Supreme Court agreed, holding that §1 of the wording and other language in the resolution recognizes native Hawaiians' unrelinquished land claims and would, therefore, strip the state of Hawaii of its sovereign authority to sell this land.
The Supreme Court of the United States in Washington, DC, however, disputed any acknowledgement of native Hawaiian land claims by Congress. It pointed out that the conciliatory language of the resolution's operative provisions does not resemble language used to create substantive enforceable rights. Moreover, the court emphasized that Congress lacks authority to reserve or convey land that has already been bestowed upon a State in the event of its admission to the union. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.
Wed, / Embassy Law Link
Are Embassies Mean?
Today from New Zealand, tomorrow somewhere else, a familiar scene:
The US Embassy today refused to accept a hand delivered letter from MPs, City Councillors, trade unionists, church leaders, academics and other New Zealanders calling on the US Government not to oppose the petition to the US Supreme Court for the release of the Cuban 5. The US Government is require[d] to respond to the petition this week. Scoop, April 7, 2009 Press Release.Are embassies mean? Or do they act properly when refusing involvement in public, propaganda-like scenes?
Every attorney serving embassies has had to consider the proper response to calls from the embassy about admitting hordes of media, a scandal-feasting plaintiff's lawyer or other publicity seekers. There is no one right answer for every conceivable situation but when dealing with complaints, summonses or briefs, the rules are clear.
A private party's procedural ambitions stop at the gates to the embassy or consulate. International law provides the proper course and recourse. The letter urged upon the American embassy in Wellington addresses an issue before the Supreme Court in Washington, and the interested parties' proper avenue would be an amicus brief. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Organ of a Foreign State
The definition of an organ of a foreign state as an instrumentality of such state and the nexus requirement within the exception for commercial activities in the Foreign Sovereign Immunities Act of 1976, 28 USC §§1330, 1602-1611, support the lower court's dismissal, sua sponte, of a complaint filed by Falun Gong members against the govermental television service of the People's Republic of China's, CCTV, the United States Court of Appeals for the Second Circuit held on April 7, 2009 in the matter Gang Chen et al. v. China Central Television et al.
The plaintiffs had alleged violations of the Torture Victim Protection Act of 1991 and the Alien Tort Claims Act. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Argentinian Bonds under German Law: FSIA
In the long-simmering dispute over bonds issued by the Republic of Argentina, the United States Court of Appeals for the Second Circuit in New York City published a FSIA-pertaining errata opinion on March 19, 2009 which it summarized succinctly:
Plaintiff-appellant Capital Ventures International ("CVI") appeals from a judgment of the United States District Court for the Southern District of New York (Griesa, J.) dismissing, for lack of subject matter jurisdiction, those of CVI's claims that relate to bonds issued by defendant-appellee Republic of Argentina ("Argentina" or "the Republic") under German law, and denying CVI's request for statutory prejudgment interest on unpaid interest payments that would have come due on United States dollar denominated bonds issued by the Republic after the acceleration of those bonds. We find that there is subject matter jurisdiction over the claims relating to the German bonds because Argentina explicitly waived its sovereign immunity to suit in United States courts on those claims, and that the district court correctly determined that no interest payments became due on the United States bonds after they had been accelerated. Accordingly, we affirm in part and vacate in part.-- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / Embassy Law Link
FSIA, Paris Assassination
On March 12, 2009, the Legal Times reported on the current appeal by Amir Reza Oveissi against Iran regarding the 1984 assassination in Paris, France, of his grandfather by the Islamic Jihad.
The complaint in Amir Reza Oveissi v. The Islamic Republic of Iran, et al. no. 03-1197, was dismissed in the United States District Court for the District of Columbia on foreign sovereign immunity grounds in August 2007.
The court commended Oveissi for his courage and steadfastness of character in his pursuit of this litigation finding Iran […] culpable in the brutal murder of plaintiff's grandfather, Gholam Ali Oveissi. Sadly, however, damages are unavailable to plaintiff under the laws of the United States, id. at 23. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
Embassy Blueprints Public?
Few officials are likely to favor putting embassy blueprints on the Internet. In Why officials keep records to New York City's mystery buildings hidden, Daily News, February 15, 2009, Adam Lisberg accepts the proposition but argues that excluding embassies and other buildings from online lists requires a rational explanation. His beef is with the New York City project that pushes online the files of the city buildings department but omits embassies, a theater and other buildings. He criticizes the lack of transparancy and an explanation of the rationale therefor stated in a public forum.
The adoption of such projects in other cities, such as Washington, DC, and other nations may raise novel issues in Internet law, privacy and data protection law and the construction of treaties and bilaterals, including the Vienna treaties on diplomatic and consular relations and the international organizational agreements. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / Embassy Law Link
Barbarism Exception to Sovereign Immunity
Recently instituted proceedings by Germany against Italy before the International Court of Justice may help to clarify a legal issue that has become a hot topic of the sovereign immunity defense as a principle of customary international law.
Germany contends the violation of this principle by Italian courts, which ruled in favor of claiments seeking compensation for violations of humanitarian law by the Third Reich in World War II. Although not disputing the gross violations of international law standards that occurred during this time, Germany invoked the notion it was barred from civil liability due to the nature of these acts as acta iure imperii. This, in turn, would grant Germany jurisdictional immunity against any claims arising out of what had happened at this time.
However, Italian courts, including the Corte di Cassazione, which is Italy's highest court in civil matters, followed a restrictive interpretation of jurisdictional immunity. Focusing on the barbaric nature of the acts, it rather developed a doctrine of non-invokability of sovereign immunity in cases of grave violations of human rights and humanitarian law.
In its own reasoning, the Corte di Cassazione described the exception it had developed as a rule of international law in formation. The reasoning resembles one in an earlier ruling by the United States District Court for the District of Columbia in a similar case, also arguing in favor of an immunity exception for barbaric acts committed by a foreign sovereign. The decision was later reversed by the United States Court of Appeals for the District of Columbia Circuit, yet with one judge dissenting in favor of the exception.
The disputed exception is a mixed blessing, both legally and politically. As for the latter, Germany openly acknowledges the suffering of those seeking compensation, yet at the same time argues it instituted ample mechanisms after World War II to compensate victims. On the other hand, these mechanisms did not resolve a host of compensation issues and are,
therefore, considered insufficient by those left out. Legally, one may argue for an exception to sovereign immunity in cases of gross human rights violations, especially since such acts can be regarded a violation of the principle of commity of nations on which the idea of immunity is essentially based.
It remains highly disputable, however, whether such an exception already exists as a principle of customary international law. Even more dubious is any such rule during World War II, or, as another line of argument, its retroactive applicability to violations of international law commited at that time.
Both the press release No. 2008/44 of December 23, 2008, as well as Germany's application of December 22, 2008, Federal Republic of Germany v. Italian Republic, are now at the International Court of Justice's official website.-- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.
Tue, / Embassy Law Link
Philippine-NYC Tax Dispute Settled
The Philippines and the City of New York settled a dispute over real estate taxes due on diplomatic property exempt under undernational law which hang like a Damocles' Sword over aid to the Philippines payable by the United States Department of State. The long-standing dispute consolidated efforts by the Philippines, India and Mongolia and in 2007 made it to the United States Supreme Court in Washington, DC. OFW Station details the history on January 30, 2009. -- Clemens Kochinke, Partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Request for Avena Judgment Interpretation Denied
Mexico's Request for Interpretation of the Judgment of March 31 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) was denied by the International Court of Justice on January 19, 2009. The Court, however, found the execution of Mr. Jose Ernesto Medellin Rojas as a direct breach of its July 16, 2008 order.
The Medellin execution was central to the Mexican request but, according to the Court, did not relate to the content of the March 31, 2004 judgment, therefore failing to meet the criteria for an interpretation under Section 60 of its governing statute. This, combined with Mexico's failure to precisely pinpoint a dispute, led to the Court's ultimate rejection.
The larger question of the extent to which the ICJ's Court orders directly affect domestic law remains relatively unanswered. Although the Court did reaffirm the binding nature of both the Judgment, taking note of American action thus far in stating that considerations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation. --Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / Embassy Law Link
ICJ to Deliver Interpretation of Avena Judgment
The International Court of Justice will deliver an interpretation of their March 31, 2004 judgment concerning Avena and Other Mexican Nationals (Mexico v. United States of America) regarding the issue of consular access and assistance. Thus far, the Court has ordered the United States to review the 51 cases where Mexican nationals were incarcerated without knowledge of their rights to consular notification, directly breaching Article 36 of the Vienna Convention.
In response to pending execution dates of four Mexican nationals, the Court later ruled in July 2008, among other things, that the United States must take all measures necessary to prevent their execution until a final judgment issues. Mr. Jose Ernesto Medellin Rojas' execution in August 2008, however, led to much Mexican speculation of the American interpretation of the court orders hence the reasoning behind Mexico's request for clarification. The Court will read their interpretation of the March 31, 2004 judgment on January 19, 2009 -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Mendaro-Atkinson Theory Affirmed
On January 13, 2009, the United States Court of Appeals for the District of Columbia Circuit affirmed today its long-standing Mendaro-Atkinson Theory that it applies to waivers of immunity for international organzations.
In Salah N. Osseiran v. International Finance Corporation, docket number 07-7122, it held against the IFC's claim of immunity which the IFC did not found on that doctrine while arguing that the lack of merit warranted its immunity under the International Organizations Immunities Act, 22 USC §§288-288f.
The case involving claims for the failed sale of shares in an investment corporation to the plaintiff and the breach of a promise of confidentiality, can continue in the district court. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP.
Tue, / Embassy Law Link
Relocation for Renovation
In A $300 Million Throwaway, Wall Street Journal's David D'Arcy illustrates the obstacles facing the renovation of the United Nations headquarters. With some sympathy, he notes legal hurdles that sound all too familiar to practictioners advising on embassy renovations and relocations in Washington. What looks like a throwaway to the naked eye, such as a temporary facility built at considerable expense on embassy grounds, often constitutes the ultimate recourse available to an international, security-dependent entity. Traditional avenues, such as simply moving to commercial space, encounter vetos from co-tenants or neighbors who do not always relish enhanced security or a target next door, even if agency concerns in host and home country are properly resolved. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
Embassy Design Secure
Associated Press touches in a January 2, 2009 report on designing a U.S. embassy for London on requirements for lead architects and the involvement of local firms under U.S. law. In US looks upscale for London embassy design, AP notes that the lead must be American, with appropriate security clearances. Similar issues arise in Washington with the construction or renovation of foreign embassies. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
North Korea's Immunity Lifted
The United States District Court for the District of Columbia confirmed in its December 30, 2008 decision William Thomas Massie et al. v. The Government of the Democratic People's Republic of Korea, docket number 06-00749, that the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §221(c), 110 Stat. 1214, 1243, applies to claims against North Korea brought by the crew of a U.S. vessel captured in international waters and tortured.
Congress had lifted the immunity of North Korea--otherwise available under the Foreign Sovereign Immunities Act of 1976, 28 USC §1602 et seq., as amended,--in part in consideration of this 1968 incident and made it retroactive.
The court held that the range of liability causes of action for money damages available applies to the defendant which had ignored the properly served complaint. The 33-page opinion outlines in detail the facts and applicable law of procedure and substance. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC
Thu, / Embassy Law Link