Embassy Law Web Log   
Washington, DC, USA      

Arbitral Award Against Sovereign Confirmed

In an abundance of caution, the United States District Court for the District of Columbia on December 10, 2013 examined the foreign sovereign immunity claim made by the defendant in the matter Belize Social Development Ltd. v. Government of Belize. The dispute involves a run-of-the-mill confirmation of an arbitral award under the New York Convention which had also occupied courts in Belize and the United States Court of Appeals for the District of Columbia. Although the defendant argued that the award was void ab initio under its laws and the D.C. court lacked subject-matter jurisdiction under the Foreign Sovereign Immunities Act to adjudicate the award, the court ultimately relied on the recent announcement that there is no authority for a claim that the Court must conduct [] an independent, de novo determination of the arbitrability of a dispute to satisfy the FSIA's arbitration exception. Chevron Corp. v. Republic of Ecuador, _ F. Supp.2d _, 2013 WL 2449172 (DDC June 6, 2013). The court found no immunity bar to enforcement and granted the motion to confirm the award. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

Local Hire Discriminated at Embassy

The denial of summary judgment in favor of an embassy in the matter Ashraf-Hassan v. Embassy of France sheds light on the factors for discrimination of local hires evaluated by the United States District Court for the District of Columbia. The court in Washington, DC, found against the embassy on November 20, 2013.

The employee found her position after studying in the United States, was not seconded to the embassy by the Foreign Ministry, and worked on an extendable contract with responsibilities for cultural exchange and internship matters. She suffered under a hostile supervisor who equated her with terrorists based on her religion, race and headscarf worn only outside the embassy. In addition, her supervisor lectured her on birth control when she became pregnant and did not similarly lecture two white pregnant French employees.

The plaintiff local hire had sought the intervention of various French official but eventually her contract ran out without a renewal. The court denied the embassy's motion to dismiss the case on the grounds that:

(1) no reasonable jury would find the evidence in this case sufficient to constitute a hostile work environment under Title VII;
(2) Ashraf Hassan's testimony should not be believed;
(3) [The supervisors'] actions were nondiscriminatory or the result of business necessity; and
(4) even if there were a viable claim for harassment here, the Embassy should not be held liable for the discriminatory acts of its employees. Id at 9.
The court considered the supervisors' conduct frequent, severe and offensive, affecting the employee's performance: A reasonable jury could find the conduct so "extreme [as] to amount to a change in the terms and condictions of employment." Id. at 13. The former embassy employee may proceed with her case. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

Embassy Construction Issue: Copyright

In construction matters, many legal pitfalls await embassies and consulates. A dispute over architectural designs should not be one of them. That is, however, the gist of the decades-old action before the United States District Court for the District of Columbia in the matter Sturdza v. United Arab Emirates.

On November 5, 2013, the UAE embassy won an important battle. The plaintiff architect, who accuses the embassy of having given her architectural plans to the winner of a bid who then based his plans on hers, produced two expert witnesses. The experts' reports favor her allegation of a similarity of the plans in violation of American copyright law. The embassy opposed the use of the reports.

The court concurred in a 12-page decision. The plaintiff had failed to meet the deadlines under Rule 26 of the Federal Rules of Civil Procedure in producing the reports. The court explained, in reliance on precedent from the United States Court of Appeals for the Second Circuit, that the comparison of basic architectural elements can be performed by a jury without the aid of expert witnesses. As a result, the plaintiff may proceed with her case. However, she may not rely on the favorable reports which would likely influence the jury. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

German Law and Treaties on Art Find

As details become known about the German discovery of likely expropriated or stolen art valued by some at a billion dollars or more, the United States has reportedly encouraged Germany to reveal more information about the trove. Treaties and complex details of German civil, criminal and administrative law have become important factors in the handling of the art which the Third Reich called degenerated. In the past, Germany has made meticulous efforts to return art from public possessors, such as public museums, to owners. These efforts were often deemed too meticulous, burdensome and not transparent. In light of an investigation into tax, customs or other offenses by the current private possessor of the art and the accompanying data protection issues under German and European law, the German authorities need to avoid pitfalls that could prejudice claims from owners of the lost art. In U.S. Pushes Germany for Details of Art Cache, Mary Lane and Harriet Torry of the Wall Street Journal delve into many of the legal issues. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

Service of Process on Foreign State

The four-step approach to service of process on a foreign state under the Foreign Sovereign Immunities Act is well explained in an October 22, 2013 order issued by the United States District Court for the District of Columbia.

In the matter Monica Opati v. Republic of Sudan, the plaintiffs obtained the court's permission to add two alleged victims to an amended complaint but lost their quest to bypass the stict statutory rules for service of the complaint and summons on the Republic of Sudan. Since the initial steps required by the FSIA, service under special arrangement or international agreement, were unavailable, they had attempted service by transmission from the court via mail with a return receipt which the Republic refused to provide.

The court advised the plaintiffs to strictly comply with the requirements of 28 USC §1608--no shortcuts. Without service properly obtained, the court would not be able to exercize its jurisdiction over the foreign state defendant.

Foreign states and their instrumentalities are well advised to examine the decision and statute as well as to carefully analyze all service documents in the event of a lawsuit filed against them in a United States court. The legal adviser to the embassy in Washington, DC, or the consulate receiving such court documents should be familiar with these rules. They are a staple of embassy law. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

President's Kin anti-SLAPPed

The libel suit by Presidential kin in the matter Abbas v. Foreign Policy Group LLC involved an amicus brief from the District of Columbia but none from the plaintiff's embassy, in this case the PLO Delegation in Washington, DC. The United States District Court for the District of Columbia decided on an early motion invoked under the new District of Columbia anti-SLAPP statute against the plaintiff.

The plaintiff raised concerns with statements in a foreign policy magazine, available on the internet, that questioned the propriety of gains by the Presidential family, one of whose members sued the publication. The court granted the defendants' special motion to dismiss the case under the statute designed to protect freedom of speech under the First Amendment to the United States Constitution on these grounds:

[T]he Court concludes that the defendants have made a prima facie showing that Mr. Abbas's defamation claim arises from an act in furtherance of the right of advocacy on issues of the public interest, and that Mr. Abbas has failed to demonstrate a likelihood of success on the merits of his defamation claim because the contested statements are either not capable of defamatory meaning or are protected statements of opinion.
The 37-page opinion dated September 27, 2013 contains a valuable analysis of the new anti-SLAPP statute, the private and public roles of the plaintiff as they affect libel and the qualification of questions on matter of public concern as defamatory. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

Ten Years Embassy Law

Today, the coverage of embassy law completes ten years. Topics in the first internet journal devoted to the law relating to embassies and consulates have been varied. Sovereign immunity, in particular the defense of embassies, consulates and diplomats in litigation in host country courts, is a main topic.

Other issues revolve around property, tax, construction, leases and local hires at embassies and consulates. Some embassies assign responsibility for all issues to consuls. Others devide them among to administrative attaches and legal counsellors and consuls. Issues of embassy law relating to cultural matters, from the exchange of antiques to modern art, or intellectual property matters in the distribution of country information, fall into the realm of cultural or PR departments.

Embassy Law will continue to inform in these sometimes routine and often exciting fields, with gratitude to its faithful readers and contributors. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

FSIA Exceptions for Torture by Cuba

The Republic of Cuba tortured the plaintiff, and the victim won a default judgment in a Florida court. When attempting to enforce it into Cuban trademarks, the United States District Court for the District of Columbia examined the foreign sovereign immunity issues.

On August 29, 2013, the court discussed the two possible exceptions from immunity claimed by the plaintiff. It found 28 USC §1605(a)(5) for non-commercial torts to not apply. The exception is principally directed at liability from traffic accidents involving diplomats, the court explained, and requires a tort in the United States. The fact that the plaintiff's illness became noticed in the United States and resulted from the torture in Cuba does not meet the required statutory standard, the court ruled in Jerez v. Republic of Cuba.

The exception for sponsors of terrorism in 28 USC §1605(a)(7) also does not apply, the court decided. At the time Cuba tortured the plaintiff, the Republic was not a designated sponsor of terrorism. The 19-page opinion is very informative and concludes that American courts lack subject-matter jurisdiction under the Foreign Sovereign Immunities Act. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

Confirmation of Assigned ICSID Award

On August 19, 2013, the United States Court of Appeals for the Second Circuit decided two issues in the matter Blue Ridge Investments, LLC v. Republic of Argentina and ruled twice against the Republic. At issue is the confirmation of an ICSID award which the Republic opposed on sovereign immunity grounds.

After dismissal of its motion in the District Court, the Republic appealed. The appellate court agreed with the lower court and explained in detail that two immunity exceptions apply:

(1) the so-called implied waiver exception, described in 28 U.S.C. §1605(a)(1), and
(2) the so-called arbitral award exception, described in 28 U.S.C. §1605(a)(6).
While it held that it could exercise under jurisdiction under the collateral order doctrine to review the immunity issue, the court ruled against Argentina in determining that it had no pendent appellate jurisdiction to examine whether the plaintiff, an assignee of the ICSCID award, had properly raised a claim. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.

Ukraine Prosecution Service Not Immune in U.S.

On August 12, 2013, the United States Court of Appeals for the First Circuit in Boston ruled in the matter Universal Trading & Investment Co., Inc. v. Bureau for Representing Ukrainian Interests in International and Foreign Courts et al. in favor of an asset recovery service company. Through its prosecutorial agency, the Ukraine had engaged the company to assist her in her international investigations. The company sued the agency in the United States, to collect the fees earned for services provided. As government entities, the defendants believed in their sovereign immunity under the Foreign Sovereign Immunities Act and claimed not to have waived the immunity defense. The court examined the three core arguments of the defendants against the application of the commercial exception to FSIA immunity. The decision ends with the court's determination that the foreign government's commercial activities caused sufficient effects in the United States. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.