No Immunity Despite Diplomatic Protocol
A precedential decision by the United States Court of Appeals for the Second Circuit dated September 11, 2024 rejects an embassy argument that it should not lose its foreign sovereign immunity in the case of a former embassy driver against the embassy over a wage dispute. The embassy argued that the commercial exception under the Foreign Sovereign Immunities Act should not apply because the driver was subject to diplomatic protocol rules, had to obtain a high-level security clearance and was required to follow special protocols at diplomatic events. In addition,
[Plaintiff] pledged in his employment contract, for example, that any knowledge he acquired in the course of his job as a driver for the Mission "is deemed nationally classified information of the Republic of Korea" and that Nam would "not divulge it to anyone in any manner."The decision illustrates the factors leading to the court's analysis and conclusion. The matter is Hyunhuy Nam v. Permanent Mission of the Republic of Korea to the United Nations. -- Clemens Kochinke, Berliner Corcoran & Rowe LLP, Washington, DC.
Wed, / Embassy Law Link
Embassy Construction Under Commercial Exception
On March 25, 2024, the United States Court of Appeals analyzed the immunity claimed by an embassy for damages from construction that are alleged to cause harm to the embassy's neighbor. The court below had held that two exceptions in the Foreign Sovereign Immunities Act govern, namely the commercial exception and the tortious activity exception. In the matter Harvey v. Permanent Mission of the Republic of Sierra Leone, the appellate court agreed and provided a detailed analysis, holding hat the commercial activity exception applies because the Harveys' claims are based upon the Mission's allegedly faulty contractual renovations, and renovating a building is something that a private party can, and often does, do.. -- Clemens Kochinke, of counsel, Berliner Corcoran & Rowe LLP, Washington, DC.
Tue, / Embassy Law Link
Chinese Liability for Pandemic Damages?
In the matter of State of Missouri v. The People's Republic of China, the United States Court of Appeals for the Eighth Circuit published an interesting analysis of the Foreign Sovereign Immunities Act on January 10, 2024, which begins with this introduction:
The COVID-19 pandemic led to a tragic loss of life and had financial effects worldwide. Missouri seeks to recover from various Chinese defendants, including the government itself, for the impact the disease had on its own economy and the health and economic security of its citizens. It turns out that the Foreign Sovereign Immunities Act stands in the way of most of its claims. Just one survives: the allegation that China hoarded personal-protective equipment while the rest of the world was in the dark about the disease. We reverse the dismissal of Missouri's hoarding claim, but otherwise affirm.
Wed, / Embassy Law Link
Expropriation of de facto Stateless Person
The United States Court of Appeals for the District of Columbia Circuit analyses in Peter Toren v. The Federal Republic of Germany on October 27, 2023 plaintiff's argument that the expropriation by a foreign nation falls within the expropriation exception of the Foreign Sovereign Immunities Act if the nation was so hostile to citizens that they became de facto stateless.
The court disagrees after citing Supreme Court and appelate precedent and reviewing the Restatement (Second) of Foreign Relations Law (Am. L. Inst. 1965) and articles 8 and 13 of the United Nations Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 11.
The Restatement had properly articulated the applicable standard, and the Convention only indicates, as does the "authoritative" Second Restatement, that a sovereign generally bears the same responsibility for property-related injuries to stateless persons as it does for such injuries to aliens, the court in Washington, DC, concluded. -- Clemens Kochinke, of counsel, Berliner Corcoran & Rowe LLP, Washington, DC.
Fri, / Embassy Law Link
BIT not commercial? Court disagrees.
Chinese entities established and operated a free trade zone in Nigeria in conjunction with a Nigerian state which kicked it out, resulting ultimately in an arbitral award which the petitioner in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria seeks to have confirmed in Washington, DC. Nigeria opposed the action with immunity arguments. No exception to the Foreign Sovereign Immunities Act would apply because the proceeding under the New York Convention and the Federal Arbitration Act does not relate to a commercial activity. The action is supposedly based on the Bilateral Investment Treaty which is argued to be non-commercial in nature, as it relates to the bilateral relations between Nigeria and China. The United States District Court for the District of Columbia analyzed and debunked the argument and allowed the case to proceed on January 26, 2023. -- Clemens Kochinke, of counsel, Berliner Corcoran & Rowe LLP, Washington, DC.
Sat, / Embassy Law Link
FSIA Expropriation: Commingled Funds
In Ambar v. Federal Republic of Germany, The United States District Court for the District of Columbia Circuit analyzes two important elements in the expropriation exception to immunity under the Foreign Sovereign Immunities Act. First, it needs to determine the relevant citizenship of an expropriated building owner in order to assess whether the expropriation by the Nazi government violated international law.
On March 15, 2022, the court found that the expropriation following the annexation of Austria, of which the owner was a citizen, to Germany, was international in nature. The defendant argued that the expropriation was domestic rather than international due to the Reich issuing German citzenship to Austrians following the annnexation and, therefore, was not in violation of international law under the FSIA. Both parties presented decent arguments, the court held when examining the complex factual setting, but the plaintiff heirs of the expropriated owner had the stronger ones.
Secondly, these heirs had also alleged that Germany commingled the proceeds of the expropriation with its general funds which were then used for commercial purposes within the United States. Their argument won the day by sufficiently establishing the required United States nexus that enables the court to deny Germany's motion for dismissal on the grounds of sovereign immunity. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.
Mon, / Embassy Law Link
Exceptions to Sovereign Immunity
After nearly a decade of litigation, the United States Court of Appeals for District of Columbia explains in Wye Oak Technology, Inc. v. Republic of Iraq why its sister court in Richmond, Virginia, wrongly denied the defendant foreign state its immunity defense under the Foreign Sovereign Immunities Act in 28 USC 1602 et seq. That court had rejected the commercial activities exception which the DC Circuit analyzed in the context of a post-trial judgment.
The defendant state had defended itself in the trial before the United States District Court for the District of Columbia. The DC Circuit held that the participation in the trial did not cause the defendant state to lose any immunity claim by an implicit waiver. The Court disagrees with the sister court on the second clause of the commercial activities exception.
Examining the law of the case doctrine, it determines that it is not bound by the Fourth Circuit's assessment. In its opinion, it explores other exceptions to sovereign immunity and concludes that the third exception in 28 USC 1605(a)(2) may apply "if the action is 'based upon … an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States'". It returns that issue to the District Court for its evualation or development of its case record and a ruling. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.
Sat, / Embassy Law Link
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.
Tue, / Embassy Law Link
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.
Tue, / Embassy Law Link
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.
Thu, / Embassy Law Link