Expropriation of de facto Stateless Person
The United States Court of Appeals for the District of Columbia Circuit analyses in Peter Toren v. The Federal Republic of Germany on October 27, 2023 plaintiff's argument that the expropriation by a foreign nation falls within the expropriation exception of the Foreign Sovereign Immunities Act if the nation was so hostile to citizens that they became de facto stateless.
The court disagrees after citing Supreme Court and appelate precedent and reviewing the Restatement (Second) of Foreign Relations Law (Am. L. Inst. 1965) and articles 8 and 13 of the United Nations Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 11.
The Restatement had properly articulated the applicable standard, and the Convention only indicates, as does the "authoritative" Second Restatement, that a sovereign generally bears the same responsibility for property-related injuries to stateless persons as it does for such injuries to aliens, the court in Washington, DC, concluded. -- Clemens Kochinke, of counsel, Berliner Corcoran & Rowe LLP, Washington, DC.
Fri, / Embassy Law Link
BIT not commercial? Court disagrees.
Chinese entities established and operated a free trade zone in Nigeria in conjunction with a Nigerian state which kicked it out, resulting ultimately in an arbitral award which the petitioner in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria seeks to have confirmed in Washington, DC. Nigeria opposed the action with immunity arguments. No exception to the Foreign Sovereign Immunities Act would apply because the proceeding under the New York Convention and the Federal Arbitration Act does not relate to a commercial activity. The action is supposedly based on the Bilateral Investment Treaty which is argued to be non-commercial in nature, as it relates to the bilateral relations between Nigeria and China. The United States District Court for the District of Columbia analyzed and debunked the argument and allowed the case to proceed on January 26, 2023. -- Clemens Kochinke, of counsel, Berliner Corcoran & Rowe LLP, Washington, DC.
Sat, / Embassy Law Link