Embassy Law | 2011

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.

Arbitral Award Against State Enforced

On August 3, 2011, the United States District Court for the District of Columbia granted a motion for the recognition of an arbitral award in the matter Continental Transfert Technique Ltd. v. Federal Government of Nigeria, docket number 08-2026. Nigeria had sought to vacate the award in Nigerian courts which declared it enforceable and valid. Therefore, the DC court saw no impediment to enforcing the award, as converted into an English judgment, under the Uniform Foreign-Money Judgment Recognition Act of the District of Columbia, D.C. Code §15-382, as well as the Federal Arbitration Act, 9 U.S.C. §§201 et seq., and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, reprinted in 9 U.S.C. §201. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

United Nations: Treaty Violation

The frequently-mentioned July 8, 2011 United Nations statement on the Humberto Leal Garcia execution by the state of Texas as a violation of the Vienna consular convention has been published on the internet. The United Nations High Commissioner for Human Rights, Navi Pillay, stated that the US in breach of international law after execution of Leal Garcia in Texas while also addressing human rights concerns in Mexico.

Immunity at IMF, and Hotel?

The morning news relate an alleged sexual assault in New York City by the managing director of the International Monetary Fund in Washington, DC. An arraignment is scheduled for May 15, 2011. Dominique Strauss-Kahn's immunity is governed by two sets of rules:

Artice IX 8 of the IMF Articles of Agreement; and
the International Organizations Immunities Act.
The IMF displays a press release on its website which refers inquiries to defense counsel for its managing director:

IMF Managing Director Strauss-Kahn was arrested in New York City. Mr. Strauss-Kahn has retained legal counsel, and the IMF has no comment on the case; all inquiries will be referred to his personal lawyer and to the local authorities.

The response of the IMF is unsurprising and similar to modern positions on private conduct taken by international organizations and also many embassies. More facts are needed, however, for a full immunity analysis. In any case, employees of international organizations are not diplomats and carry a Laissez Passer, not a diplomatic passport. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Germany: Dismissed Sua Sponte

On April 14, 2011, the United States Court of Appeals for the Second Circuit affirmed the May 4, 2010 judgment issued by the United States District Court for the Eastern District of New York in the case of Zapolski v. Federal Republic of Germany, docket number 10-2018. The District Court's dismissal was based on the Federal Rules of Civil Procedure, which states that if a court "determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action," Rule 12(h)(3) FRCP. The Court reviewed these findings under the Foreign Sovereign Immunities Act, 28 U.S.C. §1604 for clear error and its legal conclusions de novo and found that the District Court's sua sponte determination was correct. -- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

The Sad Lot of Local Hires

In Canada, local hires at foreign missions do not enjoy all of the benefits of the Ontario Human Rights Code, Ed Canning explains in Diplomacy Trumps Labour Laws for Pregnant Secretary, on April 3, 2011. The article relates unequal treatment experienced by local hires employed by consulates, embassies and foreign military installations and questions whether the equal protection rules have been sufficiently tested under section 15 of the Canadian Charter of Rights and Freedoms. Canning advocates an adjustment of the State Immunity Act in order to accommodate the requirements of the Employment Standards Act, unless a court would interpret the acts in favor of local hires. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

What are Disputes, Negotiations: ICJ

What are disputes between nations? Are negotiations required from them before the International Court of Justice obtains jurisdiction to settle a dispute under the International Convention on the Elimination of All Forms of Racial Discrimination of December 21, 1965?

In dismissing a complaint by Georgia against Russia over armed hostilities and alleged ethnic cleansing in 2008, the ICJ explored these issues in an opinion of April 1, 2010. The court rejected Russia's position that no dispute existed. Georgia's complaint was dismissed because the preconditions of article 22 CERD were not met.

In the matter Case Concerning the Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), docket number 140, the court defined the term dispute as well as those preconditions which it determined to include negotiations between the parties before the litigation. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Victory for Sovereign Immunity and Cultural Heritage

Victims of terrorism found justice and a judgment for damages which they sought to enforce in Iranian antiquities lent to American research institutions by way of their attachment. When the owner-government attempted to block the attachment, the court granted the victims' motion to force the government into the disclosure of all of its assets in the United States and to require it to appear before the court and affirmatively plead immunity under §1609 of the Foreign Sovereign Immunities Act, 28 USC §1609.

On March 29, 2011, the United States Court of Appeals for the Seventh Circuit in Chicago reversed the district court with a detailed 41-page opinion in the matter Rubin et al. v. Iran et al., docket number 08-2805. The court noted the interest of the United States which happens to be aligned with that of the global community of nations.

Most importantly, the appellate judges found the FSIA to presume sovereign immunity. Exceptions are the exception and have to be pled. States do not need to plead the rule. It should be determined by the court. The decision limits the participation of governments in discovery to the property at issue. The court explains that victims can receive assistance from the government to learn about additional assets a foreign government may own in the United States. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Note: The author's colleagues represent the defendant-appellant.

Cross-Border Parliamentarian Immunity

The American federal investigation of Wikileaks caused the United States District Court for the Eastern District of Virginia to address the cross-border immunity foreign parliamentarians may enjoy in the United States under principles of comity.

With its opinion of March 11, 2011 denying relief to a delegate from Iceland, the court released a Magistrate Judge's order In Re: §2703(d) Order. The court found that the government's demand of user account data, not content, from Twitter to the extent that such data is material and relevant under the standards established by the Stored Communications Act, 18 USC §2703(d), does not give rise to the required standing claimed by the affected Twitter users.

Despite this initial determination, the court examined the comity issue raised by an Icelandian twitter user and member of parliament. Although the order compelling Twitter's release of data does not pertain to content, the court hinges its conclusion on the fact that Twitter users publish content, and a parliamentarian's publications could not be protected by immunity. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

U.S. Purchases With Direct U.S. Effect

In an amended summary order dated February 16, 2011, the United States Court of Appeals for the Second Circuit in New York City confirmed the rejection of FSIA immunity claims advanced by the Republic of Iraq and its Ministry of Industry. The decision was not a close call, the court confirmed, because the Ministry had purchased American goods and acted commercially with direct effects in the United States.

The commercial activities of the Ministry could easily be attributed to the Republic under First National City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 626-27 (1983), the court noted in the matter Servaas Inc. v. Republic of Iraq et al., docket number 10-282. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

State Bank Enjoys FSIA Immunity

Without direct effects in the United States, the United States Court of Appeals for the Second Circuit in New York City held on January 21, 2011 in the matter Gosain v. State Bank of India, New York Branch, docket number 10-711, the court cannot exercise jurisdiction over the defendant foreign state-owned bank. The opinion analyzes the direct effects-prong of the commercial activity exception to foreign sovereign immunity in 28 USC §1605(a)(2). -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.