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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.

Mon, 15:00:48 25 Mar 2024 / 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, 16:24:23 10 Jan 2024 / 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, 12:58:27 27 Oct 2023 / 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, 13:59:00 28 Jan 2023 / 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, 14:28:00 28 Mar 2022 / 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, 10:00:00 5 Feb 2022 / 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, 20:19:11 9 Nov 2021 / 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, 13:48:06 4 May 2021 / 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, 14:00:00 25 Mar 2021 / Embassy Law Link


Embassy May Lose Its Building

In TIG Insurance Co. v. Republic of Argentina, the United States Court Appeals for the District of Columbia Circuit ruled on July 30, 2020, that the lower court must look at the totality of circumstances when assessing whether real estate owned by a foreign state is immune from jurisdiction and execution. The plaintiff sought to execute a judgment into such a property in Washington, DC, arguing that it was used commer­ci­al­ly when the embassy put it up for sale. The embassy countered that it was not com­mer­cially used because (1) it held embassy files, and (2) it was removed from the mar­ket before the court ruled on the registration of the judgment in Wa­sh­ing­ton and issued a writ of execution.

The appellate court found that the lower court based its dismissale of the plaintiff's motion on too narrow grounds. It explains the factors in the analysis of the ex­cep­ti­ons of a state from foreign sovereign immunity under the Foreign Sovereign Im­mu­nities Act which range from jurisdictional immunity to execution immunity. After considering the standards proposed by the parties, it sent the case back to the Uni­ted States District Court for the District of Columbia, ordering an assessment of the totality of circumstances. Ultimately, the embassy may lose its property to the creditor. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Thu, 17:34:28 30 Jul 2020 / Embassy Law Link


FSIA Effect of Joining European Union

In Micula v. Government of Romania, the United States Court of Appeals for the Di­strict of Columbia looked at the arbitration exception in the Foreign Sovereign Im­munities Act in the context of an arbitration agreement signed by an E.U. member state. The member now be­longs to the E.U. but did not when it signed. The E.U. Com­mission joined the matter as an amicus to state that the court lacked jurisdiction over the foreign sovereign under the FSIA. On May 20, 2020, the court held:

A U.S. court lacks jurisdiction over a foreign sovereign unless an exception to so­ve­reign immunity applies. 28 U.S.C. §§1330(a); 1604. As Romania now ag­re­es, the district court properly invoked the exception for actions to enforce ar­bitration awards. Id. § 1605(a)(6). The European Commission questions whe­ther Ro­mania's agreement to arbitrate was nullified by its ascension to the Euro­pe­an Union. But as the district court carefully explained, Romania did not join the EU until after the underlying events here, so the arbitration agree­ment applied. See Micula v. Gov't of Rom., 404 F. Supp. 3d265, 276-80(D.D.C. 2019).
The United States District Court for the District of Columbia had granted a petition of the plaintiff and three affiliated corporations to confirm an arbitration award against the Government of Romania. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Wed, 15:53:00 20 May 2020 / Embassy Law Link


Ammunition in Employment Disputes Over FSIA

On October 23, 2019, the United States Court of Appeals for the First Circuit in Boston provided plaintiffs and defendants with more ammunication in disputes over employment terms governing local hires at consulates and, possibly, embassies, with its interpretation of the Foreign Sovereign Immunities Act in the matter Merlini v. Canada. In the latest release, a minority opinion argues that the FSIA must be construed by its text, not merely the legislative history. As such, the opinion finds certain restraints of foreign missions incompatible with the FSIA, congressional intent as well as the interests of U.S. missions abroad:

The majority's conclusion that Canada's administration of its own statutory workers' compensation scheme here is not protected by its sovereign immunity leads to the conclusion that our government's similar actions as to employees, foreign or American, of its consulates and embassies will not be granted immunity. … By denying Canada's choice to implement a federal workers' compensation scheme the respect and deference it is entitled to, the consequences of the opinion will likely be that FECA--Congress's choice of comprehensive workers' compensation--will not be given that deference.
-- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Wed, 17:36:04 23 Oct 2019 / Embassy Law Link


China Diplomats under OFM Scrutiny: Restraints

On October 21, 2019, the Federal Register will publish two special restraints on Chinese diplomats. Under the title Determination Pursuant to the Foreign Missions Act, the State Department subjects travel plans of military staff to a prior notice requirement if the travel would exceed a distance 25 miles from Washington.

A second rule, Designation and Determination Pursuant to the Foreign Missions Act imposes a prior notification requirement for all diplomatic interactions with U.S. officials and other institutions.. Both restraints are based on the Foreign Missions Act, 22 U.S.C. 4301, et seq., and require notification of the Office of Foreign Missions. The latter scrutiny is extensive:

1. All official meetings with representatives of state, local, and municipal governments in the United States and its territories;
2. All official visits to educational institutions (public or private) in the United States and its territories; and
3. All official visits to research institutions (public or private), including national laboratories, in the United States and its territories.
The second notice requirement covers all Chinese members of the PRC's missions in the United States, including its representatives temporarily working in the United States, and accompanying Chinese dependents and members of their households. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Sat, 15:41:29 19 Oct 2019 / Embassy Law Link


Terrorism Pierces Sovereign Immunity for State Assets

On August 9, 2019, the United States Court of Appeals for the Second Cir­cuit af­fir­med the judgment of the United States District Court for the Southern District of New York in the case of Kirschenbaum v. Assa Corp., which classifies the De­fen­dants as a "for­eign sta­te" and "terrorist party" under two statutes, the FSIA and the TRIA. The Plain­tiffs-Appellees are victims of direct and indirect ter­rorism and ob­tained de­fault judg­ments in federal court against the Islamic Republic of Iran over the cour­se of a few decades. In an effort to execute their judgments, the victims tar­get­ed Iranian assets located in the United States by claiming they are subject to attachment and exe­cu­ti­on under these statutes.

Since the Defendant is owned and controlled by Iran through Bank Melli and acts as the alter ego of the Government of Iran, as the court determined, it qualifies as a "foreign state" under the FSIA definition of the term. The court concluded that it lacks immunity, subjecting it to the District Court's jurisdiction and its assets to attachment and execution. Additionally, as the alter ego of the Government of Iran--a state spon­sor of terrorism and therefore a "terrorist party" for TRIA purposes--Assa qualifies as a "terrorist party" under the TRIA, the court agreed. Finally, the court also found Assa to be an "agency or instrumentality" of Iran since it is ow­ned, controlled or directed by a terrorist party, meaning its property constitutes blocked assets and is subject to attachment and execution. -- Marco Stewart Lopez, legal assistant, Berliner Corcoran & Rowe LLP, Washington, DC.

Wed, 10:17:22 14 Aug 2019 / Embassy Law Link


SOFA Waiver of Sovereign Immunity?

In the case of James R. Moriarty v. Hashemite Kingdom of Jordan on August 6, 2019, three U.S. Special Forces members were killed while entering a Jordanian air base on November 4, 2016; the Plaintiffs, the surviving family of the service members claim that the Defendant, a service member of the Jordanian Air Force committed an act of terrorism by wrongfully killing the service members, and that the Kingdom aided and abetted the terrorist attack. In the United States District Court for the District of Columbia, the Defendant entered a motion to dismiss, claiming that the court lacks jurisdiction due to Jordan's sovereign immunity.

To establish that defendant Jordan implicitly waived it’s sovereign immunity, the plaintiffs rely on the Status of Forces Agreement between the United States and Jordan; under SOFA, United States military personal are afforded the same status to that of technical and administrative staff of the U.S. Embassy. This is a reference to the Vienna Convention in which technical staff are members of the mission, see Vienna Convention on Diplomatic Relations, art. 1(b) and 1(c), 500 U.N.T.S. 95. Members of the mission are to be given due respect by the receiving state. The plaintiffs argue that the Kingdom did not give them due respect as it did not take all appropriate steps to prevent any attack on their person, freedom or dignity under the admonition of customary international law, Vienna Convention, art. 29.

The plaintiffs offered several arguments to prove Defendant Jordan waived its immunity from suit. However, the arguments failed to prove a waiver of immunity by virtue of SOFA. The court declared that although SOFA sets fourth rules of conduct, how service members are to be treated by the receiving state and defines the status of individuals within the foreign state, SOFA fails to show that violations of these rules result in waived immunity and that suit should be brought in the U.S. -- Thomas Nelson IV, legal assistant, Berliner Corcoran & Rowe LLP, Washington, DC.

Mon, 17:06:36 12 Aug 2019 / Embassy Law Link