24
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