Immunity of International Organizations
On August 16, 2010, the United States Court of Appeals for the Third Circuit confirmed the District Court's decision that the European Space Agency is not entitled to immunity in the case of Oss Nokalva, Inc. v. European Space Agency, docket number 09-3601. While the District Court concluded that ESA waived the absolute immunity that it usually is entitled to, the decision by the U.S. Court of Appeals was made for different reasons.
The District Court based its ruling on the precedent of Atkinson v. Inter-American Development Bank, 156 F.3d 1335, 1340 (D.C. Cir. 1998), which determined that the Inter-American Development Bank, an international organization under the International Organizations Immunities Act, was entitled to virtually absolute immunity. The court found that ESA was entitled to absolute immunity under the IOIA. However, the appellate court did not accept the District Court's finding that ESA was entitled to absolute immunity and did not need to address whether ESA waived its immunity or not.
The reasoning behind its decision relies on the IOIA which states that international organizations shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments… 22 USC §288a(b). Such shorthand legislation linked the immunity of international organizations with the immunity of foreign governments.
While the District Court interpreted this statutory reference as the IOIA providing international organizations indefinitely with the same "virtually absolute" immunity as foreign sovereigns regardless of later changes to the law, the appellate court recognizes the changes to foreign sovereign immunity that have occurred since 1945.
With the creation of the Foreign Sovereign Immunities Act of 1976, foreign governments enjoy immunity from the jurisdiction of U.S. courts with a few specific exceptions. The exception relevant to this case states that
"the foreign state has waived its immunity either explicitly or by implication and in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere…" §1605(a)(1)-(2).The appellate court believes that the IOIA is clearly written and that Congress made its intent clear. Congress intended that the immunity created by the IOIA would adapt with the law of foreign sovereign immunity. For these reasons, the court concluded that ESA is not entitled to immunity as it stood in 1945 for foreign sovereigns and affirmed the District Court's order denying ESA's motion to dismiss. The court noted that
It is undisputed that the Agreements at issue here constituted such commercial activity and, because we construe the IOIA to incorporate the exceptions to immunity set forth in the FSIA, we will affirm the District Court's order denying ESA's motion to dismiss.-- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.
Wed, / Embassy Law Link