An ICC arbitral award against the Dominican Republic lies at the heart of an enforcement action in the United States District Court for the District of Columbia in its December 20, 2012 decision in the matter Concesionaria Dominicana de Autopistas y Carreteras, S.A. v. Dominican State. The Republic failed to appear, despite proper service of the action to confirm an arbitral award, the court holds.

The Foreign Sovereign Immunities Act confers subject matter jurisdiction for such a post-arbitration suit, 28 USC §1605(a)(6)(B). It also supports personal jurisdiction, given appropriately effected service, 28 USC §1608: More simply put, "under the FSIA, subject matter jurisdiction plus service of process equals personal jurisdiction." … Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11 (D.C. Cir. 1987) id. at 6.

Without any defense undertaken by the foreign state, the court considers possible grounds for refusing to confirm the arbitral award, after determining that the petitioner presented satisfactory evidence to justify the default judgment. Finding no defenses available to the state, the court confirms the award. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

The statute of frauds requires a writing to memorialize the sale of real estate. In Republic of Benin v. Mezei, docket number 11-4423, parties to a real estate transaction with the Republic of Benin claimed an exception for acts of corporate officers under N.Y. Gen. Oblig. Law §5-703(2).

In New York City, the United States Court of Appeals for the Second Circuit explained that the corporate officers exception does not apply to foreign governments. They continue to benefit from the same protection as non-entities, the court noted on December 11, 2012. In the decided case, the other parties could have relied only on a written authorization of the real estate transaction. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

The Republic of Peru lost a motion to vacate an ICSID arbitral award, see ICSID Award Against Peru Confirmed, on September 14, 2012. The republic then pursued a second motion to deny confirmation of interest on the award on grounds of ambiguity of the appropriate interest rate. In Duke Energy International Peru Investments No. 1 Ltd. V. Republic of Peru, docket number 11-1602, DEI argues again that the United States District Court for the District of Columbia should confirm its previous confirmation.

The court granted Peru an additional briefing, and Peru contended that the amended Article 38 of its Tax Code does not apply to the award, and the previously confirmed interest rate is invalid. On November 19, 2012, the court found the state's argument for the application of Peruvian tax law irrelevant and explained that a remand of the award would be warranted only in cases of ambiguity. Because Peru failed to prove any ambiguity, the court reaffirmed the previous award in favor of DEI. -- Caroline Covington, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Flying from New Jersey to Nigeria via Ethiopia, the plaintiff had funds confiscated in Addis Abbeba and was allegedly unlawfully detained there for 40 days. He sues Ethiopia, the Ethiopian airline and its insurer. Under the Foreign Sovereign Immunities Act, the court dismissed the complaint for lack of subject-matter jurisdiction.

On November 8, 2012, the United States Court of Appeals for the Second Circuit affirmed in the matter Edem v. Ethiopian Airlines Enterprise, docket number 11-3770. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

The immunity of foreign states, their instrumentalities and officials is governed in the United States, in large part, by the Foreign Sovereign Immunities Act, 28 USC §1330. The Act establishes when United States court may exercise subject matter jurisdiction over claims of sovereign immunity.

A practical consideration is also the weight that the Executive in exercising its powers over foreign relations give to claims of immunity of foreign entities and persons. The State Department's practice of offering courts a "Suggestion of Immunity" to express its views came under review by the United States Court of Appeals for the Tenth Circuit in the matter Habyarimana v. Kagame, docket number 11-6315.

On October 10, 2012, the court confirmed the long-practiced tradition of such evaluations and the conclusive effect they may have, in a matter involving a suit under the Alien Torts Claims Act, 28 USC §1350, the Torture Act, 18 USC §2340A and the Racketeeer Influenced and Corrupt Organization Act, 18 USC §1962 filed by widows of two former presidents against the current president of Rwanda whom they consider responsible for their husbands' assassinations. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

If falling through platform cracks under a train is bad, and having both legs amputated as a result is inconceivably tragic, what is running into a court that cannot exercise its jurisdiction over the defendant railroad?

The plaintiff in Carol Sachs v. Republic Of Austria, docket number 11-15458, suffered her accident in Austria on a Eurail journey, filed suit in the United States and lost again on September 26, 2012 because the federal courts lack subject matter jurisdiction under the Foreign Sovereign Immunities Act, 28 USC § 1602, over the defendant railroad and the foreign nation that owns it.

The United States Court of Appeals for the Ninth Circuit explains in great detail and much clarity why the commercial exception claimed by the plaintiff does not apply, even considering the fact that the Eurail pass was purchased in the United States. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

In Rahim v. Government of People's Republic of Bangladesh, docket number 11-3458, the foreign state made no appearance but won anyway, on September 21, 2012.

Both the United States District Court and the appellate court in New York City found the discrimination complaint so deficient that they (1) upheld Bangladesh's immunity under the Foreign Sovereign Immunities Act, and (2) would not permit the plaintiff who had been employed by Bangladesh to amend the complaint. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

A victory in the United States District Court left Argentina with a loss of legal certainty. After winning against a party seeking to confirm an attachment into property of Argentina, Argentina removed the property from the country while the loser sought a reconsideration of the decision.

Both parties appealed. The United States Court of Appeals for the Second Circuit ordered the lower court to vacate the decision, thus leaving both parties without precedent for their respective claims.

The appellate review in the matter NML Capital, Ltd. v. Republic of Argentina, docket number 11-4248, resulted in a finding of mootness, and on September 20, 2012 the court fought off attempts by both parties to obtain a final decision on the merits with persuasive arguments. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

The confirmation of an arbitral award against a state and allegations of ambiguity characterize the case of Duke Energy International Peru Investments No.1 Ltd. v. Republic of Peru, docket number 11-1602, before the United States District Court for the District of Columbia. Peru lost before International Centre for Settlement of Investment Disputes.

The winner seeks confirmation of the award. Peru has paid the principal award but disputes the interest sought in the confirmation proceeding. Among other things, the state argues that the interest determination in the award is ambiguous and that the case needs to be referred to the courts of Peru under the forum non conveniens doctrine.

On September 14, 2012, the court finds in favor of the winner and persuasively explains its rationale in a ten-page decision. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Lawyers at embassies in the United States may be surprised to discover that non-embassies can legally own domains like EmbassyOf....com. Some nations flat out prohibit misleading designations, whether as companies names, domain names, trademarks or otherwise. Under United States law, such lawyers' attention would focus on federal trademark law, the Lanham Act, 15 USC §1125(a)(1)(A), (B), and the AntiCybersquatting Consumer Protection Act, 15 USC §1125(d).

In a dispute with the Libyan embassy in Washington, DC, however, the owner of such domains won before the United States District Court for the District of Columbia. In its September 6, 2012 decision in the matter Great Socialist People's Libyan Arab Jamahiriya v. Miski, docket number 06-2046, the court carefully analyzed the facts and law underlying Libya's claim to the domains and found the term embassy in conjunction with a country descriptive.

In turn, that determination meant Libya needed to prove a secondary meaning attached to the descriptive designation. Absent such evidence, Libya suffered a well-reasoned defeat, and the non-embassy owner of the domains may continue its misleading use. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

The sovereign immunity of nations is subject to many exceptions. In the United States, they are governed by the Foreign Sovereign Immunities Act. The act has been amended frequently in order to permit victims of foreign terrorism to pierce the immunity of state sponsors of terrorism by giving the federal courts subject matter jurisdiction over foreign states and their instrumentalities, both for the principal litigation and for the enforcement of judgments, including default judgments, against states linked to terrorists.

The complex network of statutory opportunities for victims is explained in the August 31, 2012 decision in the matter Heiser v. Islamic Republic of Iran, docket number 00-2329, from the United States District Court for the District of Columbia.

Chief Judge Lamberth discusses the means of piercing sovereign immunity in a ruling on motions by banks holding state-owned funds where the banks seek to interplead third parties with claims to bank-held funds that partially involve OFAC-blocked EFT transfers. These pose their own problems which the court also addresses. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

An arbitration clause in a contract with Bulgaria provides for the execution of an eventual award in Bulgaria under its laws. The United States Court of Appeals for the Second Circuit in New York City agreed with the lower court that the confirmation of the award must also be sought in Bulgaria, not in the United States under Article V of the Convention on the Recognation and Enforcement of Foreign Arbitral Awards of 1958. The August 24, 2012 decision on venue for the confirmation, when the clause uses the term execution and is silent on confirmation, under the New York Convention in the matter Zeevi Holdings Ltd. v. Republic of Bulgaria, docket number 11-1705, approves the lower court's analysis of the arbitration clause. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Was the district court required to make an independent determination of the arbitrability of an investment dispute under the Germany - Thailand bilateral investment treaty in the matter Schneider v. The Kingdom of Thailand , docket number 11-1458, the United States Court of Appeals for the Second Circuit in New York City explored in great detail, on August 8, 2012.

Thailand had opposed the arbitration initiated by a German construction company for a tollway project in Thailand. It argued the BIT arbitration clause required an approved investment which the tollway project were not. The tribunal determined, however, that the project had been approved and certified under the treaty by various Thai government agencies, and proceeded with the arbitration.

The Kingdom sought review of the same issue in the recognition proceeding in the United States and lost when the United States District Court applied a deferential review. The appellate court noted that the lower court should have initially assessed whether there was clear and unmistakable evidence of an agreement in favor of the tribunal's authority to find its own jurisdiction. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

A great salary in the host nation may not seem that good to an expatriate. The relativity of salaries for local hires at diplomatic mission is evident in a report from India. In Indian staff may sue Italy embassy over bias in wages, Dhananjay Mahapatra of the Times of India reports on the stark contrast in pay for local hires at the Italian embassy to India, some of whom are Italian expatriates, while others are nationals of India.

The disparity in pay leads to allegations of discrimination on the basis of nationality and race. The report quotes the Indian nationals' attorney as believing that the only option available to his clients is a law suit in the Delhi high court. Mediation or consensual arbitration may also be options, all of which raise foreign sovereign immunity issues. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Courts applying the Foreign Sovereign Immunities Act undermine the protections for the international art exchange by museums that the Immunity from Seizure Act, 22 USC §2459, is intended to afford, Kathryn Hines and Manuel Gomez argue in Lend us Your Ears on July 24, 2012. The act provides the United States’ guarantee to foreign art lenders that their art is immune from judicial seizure while in [the USA]. An example of the FSIA piercing the this immunity is the decision by the United States District Court for the District of Columbia in Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (2005). The authors favor a bill in the United States Senate, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, S. 2212, which would effectively override such rulings. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Without much fanfare or explanation, the United States District Court for the District of Columbia noted on July 16, 2012 that the French embassy in Washington, DC had conceded jurisdiction of an American court over the civil rights claim of a French embassy employee.

The plaintiff alleges mistreatment by colleagues and Title VII discrimination. She lost her claim for retaliatory termination but may seek compensation for disparate treatment based on race and origin. In the matter Ashraf-Hassan v. Embassy of France, docket number 11-0805, the court found her complaint to meet the requirements of Rule 12(b)(6) FRCP. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Foreign nations and their agencies may be sued in United States court for commercial activities but there are limits. These limits are outlined in a Ninth Circuit decision of July 16, 2012, Terenkian v. Iraq, docket number 10-56708.

Under a United Nations humanitarian program permitting the sale of oil and the purchase of necessities for the Iraqi population, Cyprus companies had concluded contracts with Iraq which they later claim breached the contracts. They sued in the United States although the contracts provided for arbitration.

The court analyzed whether their commercial activity claim for an exception from FSIA immunity held up. It does not, the Court explained, because the commercial activity had not direct effect in the United States under 28 USC §1605(a)(2). -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Unsurprisingly, and with a concise ruling, the United States Court of Appeals for the Second Circuit in New York City cut short the reviews of an arbitral award the government of Laos sought to challenge in the matter Thai-Lao Lignite v. Government of the Lao People's Democratic Republic. First, the court explained that the Republic had bindingly submitted to UNCITRAL arbitration and accepted the tribunal's authority to determine its jurisdiction under UNCITRAL Arbitration Rules, art. 21. Secondly, the challenge of certain damages awarded despite an express contractual provision against that type of damages was not an abuse and, instead, reflected a valid construction of the contract. A court may not second-guess the contract interpretation by the panel, the court confirmed on July 13, 2012. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

A column in Ghanaweb by Kofi Ata, Are Embassies Engaged in Dual Citizenship Fraud? points to the delay common in implementing at embassies new rules of law and, in this instance, the resulting outrage. The June 23, 2012 contribution explains in detail, and distributes to affected readers, a Ghana Supreme Court constitutional ruling of May 22, 2012. The court held that certain provisions of the Citizenship Act 2002 (Act 591) do not require citizen Ghana who hold a second citizenship to obtain an expensive dual citizenship certificate. The London and Washington, DC, embassies contacted by the columnist continue to provide the certificate which the court held to contravene Article 17 of the constitution of 1992, according to the article. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

A translation of treaties between the Vatican and Italy on the internet holds some clues to the inviolability of Vatican-owned real estate in Italy, papal documents located or in transit in Italy and the special status of diplomats accredited, and staff employed, by the Vatican but operating outside Vatican City.

The embassy-law issues of immunity and inviolability become important in the relations between Italy and the Vatican. According the various reports, Italy gained possession of documents prepared for the Vatican head of state, Pope Benedict XIV, in the search of a dismissed Vatican executive's house in Italy by Italian officials.

The two nations are reportedly embroiled in a conflict over the seizure. The Conciliation Treaty, one of the Lateran Pacts of 1929, offers solutions in several articles beginning with Article X. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.