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Afghanistan: Limited Jurisdictional Discovery
Factual allegations sufficient to permit jurisdiction within the limits of the Foreign Sovereign Immunities Act led the United States District Court for the District of Columbia to allow limited jurisdictional discovery on September 30, 2008. The Doe plaintiff claims that the government of Afghanisten enabled the klling of his wife by Osama bin Laden and others, in the matter John Doe et al. v. Sheikh Usama Bin-Muhammad Bin Laden et al., docket number 01-2516. - Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / / Embassy Law Link
Libya Settles U.S. Terror Cases
On August 14, 2008, the United States and Libya reached a bilateral comprehensive claims settlement agreement compensating victims of bombings attributed to Libya in Lockerbie, Scotland (1988) and Berlin, Germany (1986) and settling Libyan claims arising from U.S. military action in Tripoli and Benghazi (1986).
The nearly $2 billion deal settles 26 terrorism lawsuits pending against Libya in U.S. courts and provides immunity against future suits of this kind. According to Assistant Secretary of State David Welch, the agreement will permit Libya and the US to develop their relations, which have thawed considerably since Libya was removed from the U.S. State Sponsors of Terrorism list in 2006.
BBC News reports that although the agreement does not constitute an admission of fault by either party, it is an important step toward restoring U.S.-Libyan relations. The agreement, according to the Chicago Tribune may be a model for others seeking to restore diplomatic relations with the United States. Additional information on the agreement is available from the U.S. State Department and the Associated Press. -- Christina Mason, legal assistant, Berliner, Corcoran & Rowe, LLP.
Tue, / / Embassy Law Link
International Treaties Not Issues for Domestic Courts
The latest judicial decision in the 26-year long case McKesson Corporation et al., v. Islamic Republic of Iran was released August 26, 2008 from the United States District Court of Appeals for the D.C. Circuit.
The dispute surrounds an allegation by McKesson that Iran illegally expropriated McKesson's stake in an Iranian dairy company and blocked its receipt of dividends. In this appeal, Iran challenged the district court's decision upholding McKesson's argument that the 1955 Treaty of Amity, Economic Relations and Consular Rights provided a course of action for securing its due.
The appeals court, finding for Iran, reversed the district court on that issue, stating that generally, international agreements do not create private rights or provide for a private cause of action in domestic courts.
Additionally, because the Treaty of Amity does not explicitly call upon the courts for enforcement, it would be involving the judiciary in matters outside its competence and authority. Without a cause of action, McKesson's complaint cannot continue.
The appeals court remanded for the district court to consider whether McKesson may have a cause of action under Iranian law or under the Customary International Law and whether the act of state doctrine applies to this case. -- Genevieve Cohoon, law student, formerly legal assistant at Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / / Embassy Law Link
Saudi Immunity Affirmed
Seven Saudi Arabian defendants who may have played a critical role in the 9/11 terrorist attacks cannot be sued in the United States, according to the U.S. Court of Appeals for the Second Circuit. On August 14, 2008, the Second Circuit ruled that the Foreign Sovereign Immunities Act renders the Kingdom of Saudi Arabia, four Saudi princes, a Saudi banker, and the Saudi High Commission for Relief to Bosnia and Herzegovina immune from litigation in U.S. courts; In re Terrorist Attacks on September 11, 2001, 2008 U.S. App. LEXIS 17223.
While acknowledging that plaintiffs' allegations include a wealth of detail … that, if true, reflect close working arrangements between ostensible charities and terrorist networks, including al Qaeda, the court nevertheless held that defendants retain their immunity because they do not fall under any of the FSIA's statutory exceptions. Those exceptions include (1) designation as a State Sponsor of Terrorism by the U.S. government, (2) personal injury or death resulting from a foreign sovereign's tortious act, and (3) commercial activity.
The decision sets a precedent in the Second Circuit with its holding that an individual official of a foreign state acting in his official capacity is the agency or instrumentality of the state, and is thereby protected under the FSIA. Judges Jacobs, Cabranes and Vitaliano agreed with similar decisions in the 4th, 5th, 6th, 9th, and D.C. Circuits and rejected the narrow[] construction of FSIA immunity held in the 7th Circuit.
Also noteworthy is the court's argument that applying the torts exception in this case would violate an important procedural safeguard--the formal designation of a defendant as a terror sponsor. The court reasoned that to apply the Torts Exception where the conduct alleged amounts to terrorism within the meaning of the Terrorism Exception would evade and frustrate that key limitation on the Terrorism Exception. Additional
analysis of the decision is available at the New York Law Journal.
-- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP.
Wed, / / Embassy Law Link
Direct Effect Exception Under FSIA
The United States Court of Appeals for the Tenth Circuit upheld a prior ruling of the United States District Court of Utah on July 15, 2008 in Big Sky v. Sichuan Provincial Government et al., docket number 07-4014. Big Sky, a British Virgin Islands corporation, and a Chinese company had entered into a joint venture which was dissolved due to subsequently issued Chinese government mandates.
When no financial compensation was forthcoming, Big Sky brought suit against two provincial governments. While the court's first decision of enlarging the FSIA removal period was affirmed, the substantive issue of subject-matter jurisdiction of the Utah court under the exceptions to the FSIA remained unresolved. Big Sky claimed that the Chinese governments' actions directly affected commercial activity in the United States. The company claimed the application of the commercial activity exception clause in 28 U.S.C. §1441(d).
The Court held, however, that the mere financial loss to Big Sky's American mother company, though real, was felt prominently overseas and does not constitute a direct effect on American commerce. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / / Embassy Law Link
Subrogation and Immunity
On July 25, 2008, the United States District Court of Appeals for the District of Columbia Circuit decided against Libya's Foreign Sovereign Immunities Act claim in La Reunion Aerienne v. Socialist People's Libyan Arab Jamahiriya et al., docket number 07-7050. A French insurer who had stepped into the shoes of Americans it paid under a policy covering the bombing of a French airliner over Africa could successfully plead subject-matter jurisdiction under the terrorism exception to the FSIA, the court held. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Constitutional Challenge to Terror Exception
Generally, sovereignty shields states from litigation. There are exceptions, however. In the United States, the Foreign Sovereign Immunities Act lays down the general principles and exceptions under which lawsuits against sovereign states can be filed with courts in the United States.
In James Owens et al. v. Repubic of the Sudan et al., docket no. 06-5079, the United States Court of Appeals for the District of Columbia explains the constitutionality of 28 USC §1605(a)(7), which contains an exception to sovereign immunity: Nations found to be sponsors of terrorism by the Secretary of State may not invoke their immunity in litigation.
Sudan contests the constitutionality of 28 USC §1605(a)(7) on grounds that it violates the separation of powers. The court does not follow Sudan's logic that Congress unconstitutionally delegated its power to define the jurisdiction of the federal courts to the Executive.
Instead, the court explains on July 11, 2008, Congress assigned the Executive the authority to make a factfinding upon which jurisdiction partially rests and provided sufficient guidance to the Secretary of State to make the finding of the facts upon which the jurisdiction of federal courts over sovereign states depends. Therefore, 28 USC §1605(a)(7) meets the requirements of the intelligible principle standard of review, supra at 16. -- Michael J. Warning, International Fellow with Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
ICJ Clarifies Avena
On July 16, 2008, the International Court of Justice provided the United States with a clarification to take all measures necessary to ensure that five Mexican nationals are not executed pending its final judgment in The Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Its order is timely as Jose Medellin, one of the Mexicans concerned in the case, is scheduled to be executed on August 5, 2008 in Texas. According to the Houston Chronicle, Texas governor, Rick Perry, intends to execute Avena despite the World Court order. -- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Al-Bashir ICC Prosecution
The International Criminal Court published a press release on the Al-Bashir prosecution on July 14, 2008. The application against the President of Sudan was filed by the ICC prosecution and will be reviewed by the Pre-Trial Chamber. In controlling a counter-insurgency in Darfur, the president is alleged to have used genocidal means outside of the means available to sovereign nations to protect their territory. President Al-Bashir is the first sitting president to face such ICC charges, Times Online adds. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Iraq Complaint Justiciable
On June 24, 2008, the United States Court of Appeals for the District of Columbia Circuit remanded the matter of Robert Simon et al. v. Republic of Iraq et al., docket number 06-7175, to the district court for further proceedings.
Relying on an exception in the Foreign Sovereign Immunities Act, FSIA, the plaintiffs sued Iraq, the Iraqi intelligence service and Saddam Hussein alleging they had been tortured and taken hostage during the Gulf War. Although foreign sovereigns are normally protected from lawsuits, the exception in the FSIA, 28 USC §1605(a)(7), allows for lawsuits against state sponsors of terrorism. The district court dismissed the lawsuit, however, on the basis that the actions were untimely, coming two years after the ten year limitation.
On appeal, Iraq newly contended that the §1083 of the National Defense Authorization Act for Fiscal Year 2008, NDAA, which revised the terrorism exception by repealing §1605(a)(7) of Title 28 and adding §1605A of Title 28, required dismissal of the cases. The new section mostly strengthened plaintiffs' ability to seek damages from state sponsors of terrorism, though §1083(d) allowed the President to waive §1083 with respect to Iraq, which he promptly did in order to protect its reconstruction.
Based on the text and structure of the NDAA, circuit judge Ginsberg wrote that the appeals court concluded that the courts retained jurisdiction over cases pending pursuant to former §1605(a)(7) when the Congress enacted the NDAA. The court found the actions to be timely and liable to be tried in court and, therefore, reversed the district court's dismissal. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
