Embassy Law Web Log   
Washington, DC, USA      

Confiscated Gold: No Suit in USA

An American company pays for gold, but it is confiscated in Kenya, and the company seeks to cover its loss in a United States court. The Foreign Sovereign Immunities Act protects Kenya by withholding subject-matter jurisdiction, the United States Court of Appeals for the Eighth Circuit explained in the matter Community Finance Group v. Republic of Kenya, docket number 11-1816, December 15, 2011. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Iran to Collect in United States

Public policy considerations do not bar the confirmation in the United States of a Swiss arbitral award under the New York Convention from a hostile nation subject to special anti-terrorism laws in the United States, the United States Court of Appeals for the Ninth Circuit ruled in Ministry Of Defense v. Cubic Defense Systems, Inc., docket number 99-56380, on December 15, 2011.

Dismissal of Libya Overhang Cases

Long after the normalization of relations between the United States and Libya, some cases instituted for acts of terrorism remain in litigation. Based on a statement of interest filed by the State Department with the court, the United States District Court for the District of Columbia dismissed the matter of La Reunion Aerienne v. Socialist People's Libyan Arab Jarmahiriya et al., docket number 05-1932.

The just-ended remaining case pins French insurance companies against Libyan government officials and seeks the redress of losses caused by the explosion of an aircraft in 1989. The case against the government had been dismissed following the Libyan Claims Resolution Act of 2008. The subsequent Claims Settlement Agreement Between the United States of America and Great Socialist People's Libyan Arab Jamahiriya terminated all suits.

As a result of these actions and the United States government's statement of interest, the court ended the remaining litigation on December 12, 2011. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Public Space: Trap for Unwary Embassy

Quite a tiff on 16th Street. Less than a mile from the White House, the Republic of Congo purchased a stately mansion, restored it beautifully, and paved the lawn. An uproar ensued, and the public learned that the lawn surrounding the mansion is public space, regardless of the sturdy and decorative perimeter fence that encloses it.

The District of Columbia disclosed that the embassy had neither sought nor received a permit for its paving work, the Dupont Current reported on December 7, 2011. Protests followed from summer through fall.

Eventually, both the District of Columbia government, through its DCRA, and the federal government, through the Office of Foreign Missions at the State Department, ordered the embassy to remove the paving and install approved landscaping by December 17, 2011.

Public space surrounding embassies can easily complicate embassy construction or renovation. The same is true for curb cuts, which are rarely granted. Careful observation of federal and local law is required in order to achieve the desired objective. Cooperation with neighbors and their committees can be crucial. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Local Hires Gain from Immunity Exception

On November 28, 2011, the United States District Court for the District of Columbia analyzed the state sponsor of terrorism exception to the Foreign Sovereign Immunities Act with respect to local hires of the U.S. government serving at embassies abroad.

The 45-page opinion in Owens v. Republic of Sudan, docket number 01-2244, examines the law and the alleged facts in the context of defaults by several foreign-nation defendants. The court finds that it has subject-matter jurisdiction under the FSIA exception and determines liability satisfactory to the Court under 28 U.S.C. §1608(e).

One of the difficulties of the case are the claims of foreign national family members of victims. These relatives of local hires lack a federal cause of action but may continue to pursue claims under applicable state and/or foreign law, the court notes; id. at 38.

The court also resolves the complex choice of law questions presented in this case, i.e. District of Columbia law, Tanzania law, Kenya law, or the laws of the domicile of each plaintiff, in favor of D.C. law. Judgment on liability is ordered against each defendant. The court finally refers the individual claims to a special master. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Bribes Abroad - Civil Liability at Home

Corruption lives at the periphery of embassy law. Many nations threaten criminal sanctions for bribes paid foreign officials, for instance the Foreign Corrupt Practices Act in the United States. Some foreign bribes result in civil action against the corrupt company at home. The November 14, 2011 ruling from the United States District Court for the District of Columbia in the matter Purcell v. MWI Corp, docket number 98cv2088, illustrates the point.

The American defendant company certified to the Export-Import Bank of the United States, a government lender, that its sales to Nigerian states were free of corruption. An ex-employee sued the company as a whisteblower for the benefit of the United States government -- and a small reward -- under the False Claims Act of 1863 which the court discusses in detail. The company will likely owe compensation if the court confirms the alleged bribes. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Frozen Embassy Account: Retaliation

A Belgian court froze the bank account of the Rwandan embassy in Belgium in late October 2011. Now, Rwanda has retaliated by freezing Belgian government accounts in the African nation. The trigger for the initial injunction is said to be a failed business relationship between a Rwandan businessman, Gaspard Gatera, and a Rwandan ministry.

Primary documentation appears to be unavailable; reports by observers point to a development worth watching. Reportedly, Portais Musoni, a minister in the Rwandan government, called the injunction a violation of article 22 of the Vienna Convention on Diplomatic Relations justifying retaliation. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Issues in Voting at Embassies

All-Ahram Weekly online sheds light on a variety of issues in expatriate voting at embassies and consulates. From the Fifth Switzerland, i.e Swiss living abroad, to Egyptians spread around the world, such voting has achieved global significance. Various countries have updated their election laws to address the concerns of an increasingly mobile workforce.

After its recent revolution, Egypt faces unique demands and challenges which the paper's November 3, 2011 article Expat Elections explores in exemplary detail. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

No Discovery Assistance for Foreign Case

A set of unusual circumstances involving the enforcement of an arbitral award rendered enforceable by a Paris Court found its way into the United States District Court for the District of Columbia. The target of the arbitration was the Lao People's Democratic Republic.

Because of Laos' failure to pay, the winner went after a French power company. In order to obtain evidence located in France and needed for the French proceeding, the winner filed an ex parte petition for discovery in aid of a proceeding before a foreign tribunal pursuant to 28 U.S.C. § 1782, against an apparently defunct affiliate of the French company possibly active in Washington, DC.

The 15-page memorandum opinion of October 31, 2011 carefully analyzes the confusing facts and applicable law in the matter In re Thai-Lao Lignite (Thailand) Co., Ltd. et al., docket number 11-313. The court declines to use the authority to grant the requested relief for several reasons, among them:

It would be a less efficient means of assistance to participants in any French proceeding (not to mention, of questionable prudence) for this Court to direct a French entity, through its U.S.-based subsidiary, to produce France-based documents or information about French assets to a French court in petitioners' attempt to satisfy a French judgment. Similarly, it is unlikely that this Court's granting of the petition would further the objective of encouraging foreign countries to provide similar means of assistance to U.S. courts. Id. at 14.
In addition, the court disapproved of the lack of an even minimal showing that the ex parte defendant resides in its district. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Germany v. Italy -- Live from The Hague

A dispute of possibly major impact has begun in The Hague. The court broadcasts live over the internet the immunity matter between Germany and Italy in which Greece recently intervened.

The live broadcasts should cover the hearings from September 12 through 16, 2011 . After each hearing, the court makes the session available for download as a video file. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.