Embassy Law Web Log   
Washington, DC, USA      




Foreign Nation Sanctioned $1.5 Million for Contempt

Failures to properly participate in litigation are routinely subject to sanctions, but they are not the norm in matters involving sovereigns. In Micula v. Government of Romania, the United States District Court for the District of Columbia granted the plaintiff's motion for sanctions. However, it limited the award to $1.5 million, half of the sanctions accrued, giving credit to the defendant nation's partial efforts at compliance.

The plaintiff had earned an arbitral award against the state as well as its confirmation in the federal court. The sanctioned actions occurred in the enforcement stage, during which the state refused to fully participate. The decision of November 8, 2021 explains the reasoning. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

IOIA Protects Inter-American Development Bank

On April 5, 2021, the United States District Court for the District of Columbia ruled in the matter of Noah J. Rosenkrantz v. Inter-American Development Bank that the defendant is protected under the International Organization Immunities Act and, therefore, the United States Federal court system has no jurisdiction in this case.

The plaintiffs assert that IADB is subject to jurisdiction in the United States because it had entered into a contract with the plaintiffs and, therefore, the relationship falls under the commercial activity exception in the Foreign Sovereign Immunities Act, which also governs International Organizations after the ruling in Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 768 (2019). The IADB counters that complaint is based upon the Office of Institutional Integrity. Therefore, the commercial relationship between the plaintiff and the defendant does not control and the case does not fall under the commercial activity exception. IADB has sanction-like powers in the community of international organizations; it acts as a regulator of their market and not a participant. For this reason, the IADB cannot fall under the commercial activity exception because their role in the market is not commercial in nature.

The plaintiffs also assert that under the waiver exception of FSIA, the IADB implicitly waived its immunity when entering into the contract. The court decided that because there would be a significant disadvantage to the IADB waiving its immunity in this case that Article XI Section 3 should not be construed to waive the Bank’s immunity in this case.

Thus, the court confirms that IADB is protected by the IOIA and the FSIA. As none of the exceptions to these acts apply in this case, the court lacks subject-matter jurisdiction and the IADB’s motion to dismiss is granted. — Emma Byrne, Legal Assistant at Berliner Corcoran & Rowe LLP, Washington, DC.

Taking France.com neither commercial nor expropriating

The United States Court of Appeals for the Fourth Circuit corrected a lower court that believed the immunity issue arising from the Foreign Sovereign Immunities Act should be addressed only after discovery. The case, France.com, Inc. v. The French Republic , involves the domain name FRANCE.COM that the American plaintiff registered and sought to enforce against an infringer in a French court. France intervened, and the court and court of appeals awarded the domain name to France.

The plaintiff sued France in the United States and asserted both commercial activity by France in using the domain promotionally, and expropriation. The decision of March 25, 2021 clarifies that the lower court should have addressed the FSIA promptly. It states that a seizure, if a judgment can be called that, is not a commercial activity but a sovereign act. As to an expropriation, the FSIA requires a violation of international law which is not the case here. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.