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Ambassador not to be Deposed
An ambassador party to a lawsuit initiated by his nation and his embassy may not be deposed without a waiver of sovereign immunity, the United States District Court for the District of Columbia decided in Great Socialist People's Libyan Ara Jamahiriy et al. v. Ahmad Miski, docket number 06-2046, on January 25, 2010.
The defendant had responded to the complaint with a counterclaim and sought the ambassador's deposition. The court also ruled that Libya cannot rely on its sovereign immunity to defeat the counterclaim.
The memorandum and opinion is instructive and detailed. The case involves trademark and domain name law under the Lanham Act, 15 USC §1125(a)(1)(A) and (B) (2006), and the AntiCybersquatting Consumer Protection Act, 15 USC §1125(d) (2006), as well as counterclaimed compensation under tort law. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / / Embassy Law Link
California Statute Steps into Federal Territory
On January 14, 2010 the United States Court of Appeals for the Ninth Circuit refused to rehear an appeal en banc involving a women's claims to two paintings alleged looted during the Holocaust in Marei Von Saher v. Norton Simon Museum of Art, docket no. 07-56691.
The primary issue of the case revolves the validity of §354.3 of the California Code of Civil Procedure in regard to possible infringement of the federal government's exclusive power designated under the Foreign Affairs doctrine to redress war injuries. §354.3 extends the statue of limitations until 2010 for actions for the recovery of Holocaust-era art, id. 1018. The Court also examines an alleged contradiction of a well-established policy of external restitution enacted under the Truman administration post WWII.
As far as the code infringing on the national government's exclusive power in foreign affairs the court held that it does. The intention, according to the analysis of the Court, was to help Holocaust victims rather than regulate the State's museums and galleries. Although the Court deems this as a noble goal, the humanity underlying the State statute could not give the State the benefit of any doubt in resolving the conflict with national policies, id. 1032. California is in essence creating a distinct juristic personality one that overlaps into the realm of the foreign affairs doctrine, a power designated for the national rather than state government.
The United States government post WWII began external restitution efforts to return looted art under the Plunder and Restitution at SR-143 to its original country of origin--not to individual owners. The State Department recommended this plan of action to allow newly liberated governments to handle the specifics of claims of individuals. Over three million pieces were returned under this policy that ended in 1948, including the paintings in question. Had §354.3 been enacted during the 1940's it would have directly contradicted this external restitution policy since it offers a competing method of resolving restitution claims id 1029. However since the policy is no longer in effect, §354.3 cannot conflict with it.
The Court of Appeals affirms the position of the District court claiming that §354.3 intrudes on the power to make and resolve war, id. 1034. Petitions for rehearing have been denied, and the case has been remanded to the District Court for further proceedings. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
Attach Diplomatic Buildings Based on Use?
In DOJ: Iranian Property Protected from Civil Judgment Enforcement, Mike Scarcella summarizes points made in a hearing in the United States Court of Appeals for the District of Columbia Circuit regarding the attachment of diplomatic properties to satisfy a judgment against a foreign nation.
His January 15, 2010 report addresses the use of properties owned by Iran but administered under the Vienna Convention on Diplomatic Relations of April 18, 1961 by the United States Department of State; see also Beam, What happens to an embassy's staff when the building closes?.
Some such real estate is tenant-used and, therefore, should not be considered diplomat-used, the plaintiff argues. That view is shared by neither the United States nor Iran, Scarcella reports. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / / Embassy Law Link
China Not Liable for Damages from Terrorism
On January 14, 2010, the United States District Court for the District of Columbia dismissed the complaint in the matter of Zhenxing v. The Government of the People's Republic of China, docket no. 08-2228 because the plaintiff failed to meet the minimum requirements of Rule 8 of the Federal Rules of Civil Procedure, FRCP.
In addition to the premature filing of the original complaint, the court stated that the pro se plaintiff had filed a complaint so unclear that it utterly fail[ed] to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests, quoting Conley v. Gibson, 355 U.S. 41, 47-48 (1957). While the court noted that the standards to which pro se litigants are held are often more lenient than those for attorneys, it ruled that in this case, even those standards had not been met.
Aside from the ambiguity of the complaint itself, the court stated that the plaintiff's attempt to sue China under the U.S. Code which designates civil remedies for American victims of international terrorism, 18 U.S.C. §2333(a), did not apply to foreign states as was clearly stated in 18 U.S.C. § 2337(2), see also Lawton v. Republic of Iraq, 581 F. Supp. 2d 43, 46 (D.D.C. 2008).
Under federal law in the United States, the jurisdictional basis for a victim of international terrorism against a foreign state is the State Sponsored Terrorism Exception to the FSIA. Had the plaintiff in this case met the minimum requirement of Rule 8 of the FRCP, the case may still have been dismissed since the People's Republic of China is not currently designated as a state sponsor of terrorism. -- Laura P. Valle, Legal Assistant, Berliner, Corcoran & Rowe, LLP.
Thu, / / Embassy Law Link
Slate: What Happens when an Embassy Closes?
In Closed for Jihad--What happens to an embassy's staff when the building closes? Christopher Beam explains the consequences for staffers, visa services and the two nations affected. He provides valuable historical balance. As a bonus, he puts it, he adds information on the ownership of the land where embassies are built. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC, whom the Slate author consulted.
Mon, / / Embassy Law Link
IRS Announcement re Local Hires
A continuing and global problem relates to the taxation of local hires at embassies, consulates and similar missions. The number of nationalities and tax regimes governing them seems unlimited. Confusion abounds, and good faith actions may insufficiently protect against penalties.
The Inernal Revenue Bulletin 2010-2 of January 11, 2001 seeks to clarify the situation at German missions in the United States and correspondingly at U.S. missions in Germany by way of a competent authority agreement.
By taking into consideration the potentially conflicting provisions of the Convention Between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital and to Certain Other Taxes, signed at Bonn on August 29, 1989, as amended by the Protocol, signed at Berlin on June 1, 2006, as well as Article XIX of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed at Washington on December 8, 1923 and the Vienna Convention on Consular Relations, the agreement provides for the application of certain exemptions in one nation which correspond to tax liability in the other. Thus, taxation is assured while double taxation is avoided. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
Lloyds v. Libya: Settlement Controls
The settlement treaty between the United States and Libya governs the immunity of Libya from suit in United States courts, and it does not authorize the U.S. court to hold a matter in abeyance until the plaintiff finds a suitable alternative forum, the United States District Court for the District of Columbia held on January 7, 2010 in Certain Underwriters at Lloyds London et al. v. Great Socialist People's Libyan Arab Jamahiriya et al., docket number 06-731. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / / Embassy Law Link
Vacated Default Judgment Against Foreign Sovereign
Default judgments against foreign sovereigns are especially disfavored, the United States District Court for the District of Columbia explained in a 20-page memorandum opinion on December 28, 2009. In Reuven Gilmore et al. v. Palestinian Interim Self-Government Authority et al., docket number 01-853, the court examined the default of the Authority in case alleging acts of terrorism.
The sovereign suffered a default but after consultation with the United States Department of State understood that such complaints deserve a proper response, and it launched its defense. The Authority is not recognized by the United States as a sovereign nation, but they maintain diplomatic relations.
Therefore, the court decided to apply the precedential reasoning from Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1551 n. 19 (D.C. Cir. 1987), to the instant case. An important factor for the leniency afforded the Authority is its accommodation of plaintiffs in certain regards to mitigate undue hardship to them. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / / Embassy Law Link
Sean Goldman Return Under Hague Convention
The United States Secretary of State has a brief note on the Sean Goldman return to his American father from Brazil under the Hague Convention on International Child Abduction. There are no details on the efforts of the embassy in what has been called the Miracle in Rio.
Sat, / / Embassy Law Link
Waiver Implied in Garnishment?
When it completed a form in a garnishment matter and objected to the personal jurisdiction, did the
Japan Bank for International Cooperation imply a waiver of its immunity from subject matter jurisdiction? On December 3, 2009, the United States District Court for the District of Columbia held in Inversora Murten S.A. v. Energoproject Holding Co., docket number 03-73, that the bank did not.
The court explains the reasons in its detailed opinion. Most importantly, the garnishment form does not constitute one of the pleadings where a failure to object would be harmful. In addition, the court emphasizes the intent standard that bars an inadvertent waiver from becoming effective under the Foreign Sovereign Immunities Act. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / / Embassy Law Link
