On April 14, 2011, the United States Court of Appeals for the Second Circuit affirmed the May 4, 2010 judgment issued by the United States District Court for the Eastern District of New York in the case of Zapolski v. Federal Republic of Germany, docket number 10-2018. The District Court's dismissal was based on the Federal Rules of Civil Procedure, which states that if a court "determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action," Rule 12(h)(3) FRCP. The Court reviewed these findings under the Foreign Sovereign Immunities Act, 28 U.S.C. §1604 for clear error and its legal conclusions de novo and found that the District Court's sua sponte determination was correct. -- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
In Canada, local hires at foreign missions do not enjoy all of the benefits of the Ontario Human Rights Code, Ed Canning explains in Diplomacy Trumps Labour Laws for Pregnant Secretary, on April 3, 2011. The article relates unequal treatment experienced by local hires employed by consulates, embassies and foreign military installations and questions whether the equal protection rules have been sufficiently tested under section 15 of the Canadian Charter of Rights and Freedoms. Canning advocates an adjustment of the State Immunity Act in order to accommodate the requirements of the Employment Standards Act, unless a court would interpret the acts in favor of local hires. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link
What are Disputes, Negotiations: ICJ
What are disputes between nations? Are negotiations required from them before the International Court of Justice obtains jurisdiction to settle a dispute under the International Convention on the Elimination of All Forms of Racial Discrimination of December 21, 1965?
In dismissing a complaint by Georgia against Russia over armed hostilities and alleged ethnic cleansing in 2008, the ICJ explored these issues in an opinion of April 1, 2010. The court rejected Russia's position that no dispute existed. Georgia's complaint was dismissed because the preconditions of article 22 CERD were not met.
In the matter Case Concerning the Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), docket number 140, the court defined the term dispute as well as those preconditions which it determined to include negotiations between the parties before the litigation. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / Embassy Law Link
Victory for Sovereign Immunity and Cultural Heritage
Victims of terrorism found justice and a judgment for damages which they sought to enforce in Iranian antiquities lent to American research institutions by way of their attachment. When the owner-government attempted to block the attachment, the court granted the victims' motion to force the government into the disclosure of all of its assets in the United States and to require it to appear before the court and affirmatively plead immunity under §1609 of the Foreign Sovereign Immunities Act, 28 USC §1609.
On March 29, 2011, the United States Court of Appeals for the Seventh Circuit in Chicago reversed the district court with a detailed 41-page opinion in the matter Rubin et al. v. Iran et al., docket number 08-2805. The court noted the interest of the United States which happens to be aligned with that of the global community of nations.
Most importantly, the appellate judges found the FSIA to presume sovereign immunity. Exceptions are the exception and have to be pled. States do not need to plead the rule. It should be determined by the court. The decision limits the participation of governments in discovery to the property at issue. The court explains that victims can receive assistance from the government to learn about additional assets a foreign government may own in the United States. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Note: The author's colleagues represent the defendant-appellant.
Wed, / Embassy Law Link
State Bank Enjoys FSIA Immunity
Without direct effects in the United States, the United States Court of Appeals for the Second Circuit in New York City held on January 21, 2011 in the matter Gosain v. State Bank of India, New York Branch, docket number 10-711, the court cannot exercise jurisdiction over the defendant foreign state-owned bank. The opinion analyzes the direct effects-prong of the commercial activity exception to foreign sovereign immunity in 28 USC §1605(a)(2). -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Greece Joins Italy Against Germany in ICJ
By way of intervention, Greece joined Italy in its defense of a case brought by Germany for the recognition of sovereign immunity from the enforcement of an Italian judgment into German government property located in Italy. The International Court of Justice published a status update on January 17, 2011. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link