Embassy Law Web Log   
Washington, DC, USA      




No Solace Found in Sovereign Immunity

On December 23, 2014, the United States Court of Appeals for the Second Circuit in New York City dumped an ice bucket over Argentina's renewed sovereign immunity claims against efforts to explore its assets in response to various post-judgment discovery actions. In NML Capital, Ltd. v. Republic of Argentina, the court upheld the lower court but closed with this advice on the management of the process:

Although we affirm the district court's order in all respects, we stress that Argentina--like all foreign sovereigns--is entitled to a degree of grace and comity. Cf. Republic of Austria v. Altmann, 541 U.S. 677, 689 (2004). These considerations are of particular weight when it comes to a foreign sovereign’s diplomatic and military affairs. Accordingly, we urge the district court to closely consider Argentina’s sovereign interests in managing discovery, and to prioritize discovery of those documents that are unlikely to prove invasive of sovereign dignity.
Despite the adverse outcome for Argentina, the reasoning of the appellate court provides a useful introduction into the various immunity issues arising in the post-judgment discovery process. Argentina had raised objections based on the Foreign Sovereign Immunities Act as well the two Vienna conventions on diplomatic and consular immunity of 1961 and 1963 and on international law. The court addressed these claims from several perspectives, including information held by third parties affiliated with, or independent of, Argentina, military assets and inviolable documents. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.