No Immunity Despite Diplomatic Protocol
A precedential decision by the United States Court of Appeals for the Second Circuit dated September 11, 2024 rejects an embassy argument that it should not lose its foreign sovereign immunity in the case of a former embassy driver against the embassy over a wage dispute. The embassy argued that the commercial exception under the Foreign Sovereign Immunities Act should not apply because the driver was subject to diplomatic protocol rules, had to obtain a high-level security clearance and was required to follow special protocols at diplomatic events. In addition,
[Plaintiff] pledged in his employment contract, for example, that any knowledge he acquired in the course of his job as a driver for the Mission "is deemed nationally classified information of the Republic of Korea" and that Nam would "not divulge it to anyone in any manner."The decision illustrates the factors leading to the court's analysis and conclusion. The matter is Hyunhuy Nam v. Permanent Mission of the Republic of Korea to the United Nations. -- Clemens Kochinke, Berliner Corcoran & Rowe LLP, Washington, DC.
Wed, / Embassy Law Link
Embassy Construction Under Commercial Exception
On March 25, 2024, the United States Court of Appeals analyzed the immunity claimed by an embassy for damages from construction that are alleged to cause harm to the embassy's neighbor. The court below had held that two exceptions in the Foreign Sovereign Immunities Act govern, namely the commercial exception and the tortious activity exception. In the matter Harvey v. Permanent Mission of the Republic of Sierra Leone, the appellate court agreed and provided a detailed analysis, holding hat the commercial activity exception applies because the Harveys' claims are based upon the Mission's allegedly faulty contractual renovations, and renovating a building is something that a private party can, and often does, do.. -- Clemens Kochinke, of counsel, Berliner Corcoran & Rowe LLP, Washington, DC.
Tue, / Embassy Law Link
Chinese Liability for Pandemic Damages?
In the matter of State of Missouri v. The People's Republic of China, the United States Court of Appeals for the Eighth Circuit published an interesting analysis of the Foreign Sovereign Immunities Act on January 10, 2024, which begins with this introduction:
The COVID-19 pandemic led to a tragic loss of life and had financial effects worldwide. Missouri seeks to recover from various Chinese defendants, including the government itself, for the impact the disease had on its own economy and the health and economic security of its citizens. It turns out that the Foreign Sovereign Immunities Act stands in the way of most of its claims. Just one survives: the allegation that China hoarded personal-protective equipment while the rest of the world was in the dark about the disease. We reverse the dismissal of Missouri's hoarding claim, but otherwise affirm.
Wed, / Embassy Law Link