Embassy Law Web Log   
Washington, DC, USA      

Absolute Immunity Dies in Supreme Court

Under the International Organizations Immunities Act of 1945, such organizations were believed, under 22 USC §288a(b), to enjoy absolute immunity from suit in United States courts. On February 27, 2019, the Supreme Court of the United States declared the absolute standard outdated and modified by the subsequent enactment of the Foreign Sovereign Immunities Act of 1976. That act abolished absolute immunity and enacted a restrictive immunity standard in 28 USC §1602, and its original protections have been greatly weakened since its enactment.

The IOIA provides for the same immunity granted states, embassies and consulates. The issue before the Supreme Court was whether same means the equivalance existing when the IOIA was enacted, or the same as the standard for states, embassies and consulates as it evolved before and after the enactment of the FSIA. In Jam v. IFC, the court decided that it is the latter. Therefore, the absolute immunity standard does not apply, and the test for the immunity of international organizations in U.S. courts will be the same as the standard applied today under the FSIA. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Court imposes Sanctions on Foreign Sovereign Nation

In a matter involving arbitration and the confirmation of an award under the New York Convention, the United States Court of Appeals for the District of Columbia Circuit imposed a sanction on the foreign sovereign defendant for procedural misconduct

Venezuela committed a second misdeed, one meriting sanctions. On January 8, 2019, Venezuela filed an emergency motion to hold this case in abeyance. The motion represented that Crystallex had requested Venezuela to seek a stay based on the purported settlement agreement. That representation was misleading. At the time Venezuela filed the emergency motion, Crystallex had declared in the press and in Third Circuit filings that Venezuela had breached the agreement. … Andrew Scurria, Bankers Hired for Citgo Auction Following Scrapped Deal With Venezuela, Wall St. J. (Dec. 12, 2018) … Venezuela's emergency motion was thus misleading and meritless. As a sanction, we believe Venezuela should pay Crystallex's reasonable attorneys' fees and costs incurred in responding to the emergency motion. D.C. Cir. R. 38.
As lies pour out of the current White House, it is good to know that courts do not tolerate them, as explained in the matter on February 14, 2019. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Embassy Loses, Then Appears in Court and Wins

A solid lesson to embassies and foreign sovereigns sued in an American court is found in the January 25, 2019 decision in Dahman v. Qatar. An embassy terminated the employment of an accountant after he remained in his embassy position for many more years than his contract provided for. The employee claimed age discrimination under federal and District of Columbia law and obtained a default against the embassy and the foreign state. The defendants had not responded to the court or taken de­fen­sive action.

When the court set a hearing to determine damages, the defendants reacted, re­que­sting that the court vacate the default, and the court has now dismissed the action. The United States District Court for the District of Columbia took note of the foreign sovereign immunity defense, the forum non conveniens defense and the arbitration clause in the employment contract. Ultimately, the validity of the arbitration clause and its forum selection as well as the public-interest factors caused the court to dismiss the action from the forum non conveniens. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Disclaimer: The author's firm assists embassies with employment and other matters and represented the defendants on the record in this matter.

Another Scalp on the Dotard's Belt: E.U. Mission

Just before Christmas, all research supported the status of the Delegation of the European Union to the United States in Washington as a diplomatic mission under international and American law. Deutsche Welle first reported on January 8, 2019 that its status has been changed. Voice of America confirms that the change is a downgrade. On its website, VOA states: VOA is part of the U.S. Agency for Global Media (USAGM), the government agency that oversees all non-military, U.S. international broadcasting. It is funded by the U.S. Congress. The tone of VOA's report indicates that the propaganda agency appears startled by the news.

That tone may reflect that perhaps Congress is as surprised as the Delegation and the international diplomatic community. The alleged dotard in the White House has completed another chaotic move.

The legal implications of the change--if it turns out to be permanent--are many. Will the Foreign Sovereign Immunities Act and the Vienna Convention on Diplomatic Relations continue to govern the Delegation's immunity? Or will the International Organizations Act apply? Is the Office of Foreign Mission the proper contact for administrative matters? Will the tax regime governing local hires change? From a legal perspective, the development is fascinating. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.