Embassy Law Web Log   
Washington, DC, USA      

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.