Foreign Sovereign Not Immune from Discovery
In an April 13, 2010 ruling by the United States Court of Appeals for the Tenth Circuit, the Court affirmed the lower court's order that a discovery be conducted on the issue of whether defendant PT. Bank Negara Idonesia, BNI, was subject to litigation due to the commercial activity exception of the Foreign Sovereign Immunities Act, FSIA.
In the case Theodore Hansen et al. v. PT. Bank Negara Indonesia (Persero) et al., docket no. 09-4052, the plaintiffs filed suit when the defendant refused to honor certain financial instruments they had issued on the premise that those instruments were fraudulent.
According to the court, the plaintiffs had compelling evidence that suggested these instruments were at the very least authenticated and the subsequently rejected by employees of the defendant-appellant. Thus, the lower court allowed for a limited jurisdictional discovery on whether [BNI], or its officials conducted commercial activity that satisfies the commercial activity exception under the [FSIA].
In this case the Court of Appeals affirmed the decision to allow for limited jurisdictional discovery relying on Maxey ex rel. Maxey v. Fulton, 890 F.2d 279, 282-83 (10th Cir. 1989). The precedent states that in the qualified immunity context, discoveries that are narrowly tailored to uncover only those facts needed to rule on the immunity claim are not immediately appealable. Thus, the Court of Appeals would only have jurisdiction to rule in favor of BNI if the district court did not adequately limit permissible discovery to the question of BNI's immunity. -- Laura Valle, legal assistant,Berliner, Corcoran & Rowe, LLP, Washington, D.C.
Tue, / Embassy Law Link