Tag Archives: Sovereign Immunity

Ninth Circuit Reverses FSIA Exception; No Commercial Activity in the U.S. in Iraq’s Oil for Food Program

Terenkian v. Republic of Iraq, No. 10-56708 (9th Cir. 2012), addresses the important international practice question of whether activity by a non-U.S. sovereign satisfies the “commercial activity” exclusion to the application of the Foreign Sovereign Immunities Act, thus permitting the federal courts to exercise subject matter jurisdiction over a matter.   The case concerned alleged breaches … Continue Reading

Second Circuit Affirms FSIA Tort Exception in Claim Against Namibia, Using New York State Law To Define the Tortious Behavior

USAA Casualty Ins. Co. v. Permanent MIssion of the Republic of Namibia, Dkt. No. 10-4892-cv (2d Cir. 2012), involves an appeal from an order we posted on in 2010 (see our discussion here).  In the district court, Namibia claimed immunity under the Foreign Sovereign Immunities Act.  On a motion to dismiss, the District Court rejected the … Continue Reading

Eight Circuit Court of Appeals Affirms Dismissal under the Foreign Sovereign Immunities Act

Community Finance Group, Inc., et al. v. Republic of Kenya, et al., No. 11-1816 (8th Cir. 2011), decided an FSIA case with practical implications for international dispute resolution practitioners.  The transaction involved the purchase and release of gold from Kenya.  CFG paid, but there was no delivery, allegedly on the basis that there was more … Continue Reading

Fourth Circuit Holds that “Foreign State” and Its Army Are Not Separate for Jurisdictional Purposes

Wye Oak Technology v. Republic of Iraq, No. 10-1874 (4th Cir. 2011), addressed the question under the Foreign Sovereign Immunities Act, 28 U.S.C. sec. 1602 et seq., whether claims against the Republic of Iraq were jurisdictionally distinct from claims against the Iraqi armed forces.  For jurisdictional purposes, held the Court, they are not.  The Court … Continue Reading

New York’s Highest Court Affirms Dismissal of Suit In Deference to Philippines Sovereign Immunity

Osqugama Swezey v. Merrill Lynch, et al., No. 88 (NY 2012), is a decision of New York’s highest court on the issue of how to balance the claims of deserving litigants before the court and those of the absent non-U.S. sovereign.  The issue is one we have posted on previously (e.g., here) Merrilly Lynch brought an … Continue Reading

U.S. Government Settles International “Trading with Enemy” Act Claims Against ING Bank

The U.S. government settled an international investigation and threatened prosecution against ING Bank N.V. in a case highlighting the international nature of modern banking as well as governmental investigations and regulatory enforcement.  The U.S. passed laws prohibiting trade with certain countries.  Two statutes embodying those prohibitions are the Trading with the Enemy Act and the … Continue Reading

Court Upholds Counterclaim Against the U.S. on Political Question Grounds — Only To Dismiss It for Failure to Exhaust Administrative Procedures and for Failure To State A Claim

U.S. v. Kellogg Brown & Root Services, Inc., 10-cv-530 (RCL) (D.D.C. 2012), presents the interesting case whether a defendant in an international litigation can or should counterclaim litigation, in this case against the U.S. government.  The U.S. sued KBR for over $100 million in allegedly false claims arising from the war in Iraq.  The government is … Continue Reading

District Court Dismisses Claim by U.S. Citizen Against the U.S. Arising on Non-U.S. Soil On Sovereign Immunity Grounds

Cottonham v. United States Embassy, Bankok, Thailand, No. C-11-3131 (N.D. Cal. 2011), is almost a more brief decision than this posting, but the issue is one worth consideration for those in international practice. Plaintiff Cottonham alleged that when he went to the U.S. Embassy in Bangkok, Thailand to obtain more pages for his passport, his … Continue Reading

Southern District of New York Refuses To Permit Electronic Funds Transfers To Be Attached To Satisfy Judgment Against North Korea

Calderon-Cardona, et al. v. JP Morgan Chase Bank, N.A., et al., 11 Civ. 3283 (S.D.N.Y. 2011)(DLC), presents an extended discussion of the requirements, and pitfalls, of a judgment-creditor’s efforts to collect on a judgment.  We posted on the earlier decision on liability in the case, which was decided by the District of Puerto Rico federal court. The … Continue Reading

Fourth Circuit Upholds “Derivative” Sovereign Immunity, following the D.C. Circuit

Suhail Najim Abdullah Al Shimari, et al. v. CACI Int’l, No. 09-1335 (4th Cir. 2011), addresses the issue of “derivative sovereign immunity”, which deserves another look.  According to the allegations, four Iraqi citizens were seized by the U.S. military in the Iraq war zone and detained by the military in Iraq.   They allege that, while detained, … Continue Reading

Second Circuit Affirms Right to Claim Against A Non-U.S. Sovereign under the Noncommercial Tort Exception to the FSIA Despite the Inapplicability of the FSIA’s “Terrorism” Exception

Doe v. Usama Bin Laden, Islamic Emirate of Afghanistan, Dkt. No. 09-4958-cv (2d Cir. 2011), addresses the issue whether civil tort claims against Afghanistan could be asserted under the noncommercial tort exception to the Foreign Sovereign Immunities Act.  The issue is important to more than the highly technical aspects of FSIA jurisprudence and implicates statutory … Continue Reading

Non-U.S. Sovereign Entitled to FSIA Immunity on Attachment of Assets Post-Judgment

Aurelius Capital Partners LP, et al. v. The Republic of Argentina, presents the important international practice issue of how and when can assets of a non-U.S. sovereign be attached to satisfy a monetary judgment.  Aurelius owns beneficial interest in defaulted bonds issued by the Republic of Argentina.  The Court granted ex parte orders of attachment.  One … Continue Reading

Claims Against Kenya Disimssed on Foreign Sovereign Immunity Grounds

Community Finance Group, Inc., et al. (CFG) v. Republic of Kenya, et al., Civil No. 10-838 (DSD/JJG) (D. Minn. 2011), presents an issue in international litigation that arises when a U.S. person or entity does business with a non-U.S. sovereign.  CFG sought to purchase gold from Kenya.  Funds were wired for the gold, the funds … Continue Reading

Class Certification Granted in International Cartel Antitrust Litigation in Which China Itself Has Intervened To Support the Claimed Price-Fixing

We have previously posted on this interesting example of international litigation (here).  The case is captioned In re Vitamin C Antitrust Litigation, 05-CV-0453 (E.D.N.Y), and is pending in the United States District Court for the Eastern District of New York.  In the most recent decision, the court granted motions for class certification (Vit C class action … Continue Reading

Second Circuit Exercises “Hypothetical Jurisdiction” To Dismiss Claim Rather than Address Subject Matter Jurisdiction Over Corporation in Alien Tort Statute Claim

Liu Bo Shan v. China Construction Bank Corp., No. 10-2992-cv (2d Cir. 2011)(summary order), reviewed on appeal claims alleging torture against China Construction Bank in alleged violation of the Torture Victim Protection Act, 28 U.S.C. Sec. 1350 note,  as well as claims of torture, cruel, inhuman, and degrading treatment and arbitrary detention in China in … Continue Reading

Court Refuses To Permit Plaintiffs To Pursue the “New” Cause of Action under Section 1605A of the FSIA

Avinesh Kumar v. Republic of Sudan, Civil Action no. 2:10cv171 (E.D. Vir. 2011), presents an interesting case of judicial resistance to the resurrection of prior claims in the context of an international litigation, even where Congress has sought to enlarge plaintiffs’ rights arguably to embrace such resuscitation. In earlier litigation, the Court addressed the terrorist … Continue Reading

Insurers Entitled To Judgment On Default Against Syria for International Act of Terrorism Under New U.S. Statute

Certain Underwriters at Lloyd’s, London, et al. v. Great Socialist People’s Libian Arab Jamahiriya, et al., Civil Action No. 06-cv-731 (JMF) (D.D.C. 2011), are two actions.  The primary remaining defendants include Syria and seek damages for acts of state-sponsored terrorism that resulted in the hijacking of EgyptAir Flight 648 on Nov. 23, 1985.  The aircraft … Continue Reading

Sovereign Immunity Not Waived for Non-Extreme, Even Highly Unfair Results, Absent Express and Unambiguous Waivers by Statute or Regulation

In prior postings we have tried to identify cases where courts have drawn distinctions between U.S. and non-U.S. citizens in terms of according them rights and entitlements in connection with international disputes.  In the area of application of the Foreign Sovereign Immunities Act in particular there has been a growing debate concerning whether U.S. citizens … Continue Reading

Non-U.S. Corporation, “Independent” But Wholly Owned By Non-U.S. Sovereign, Entitled to Avoid U.S. Jurisdiction To Enforce Non-U.S. Arbitral Award Under the New York Convention When Its Parent Could Not

GSS Group v. National Port Authority (NPA), Civil Action No. 09-1322 (PLF) (D.D.C. Mar. 2011), presents another example of how the corporate lawyer or draftsman might have avoided a conundrum that prevented a non-U.S. arbitral award from getting the significant benefits of the New York Convention’s provisions permitting enforcement in the U.S. of international arbitral … Continue Reading

Declaratory Nature of Suit Does Not Create Sovereign Immunity Waiver; Case Can Proceed Against Individuals Only If They Acted Outside Their Statutory Powers

In our recent posting we discussed the fact that a declaratory judgment action does not confer independent federal jurisdiction on an international controversy.   What effect does the federal Declaratory Judgment Act have on another important issue in international litigation:  the existence of sovereign immunity?  The District Court in Pollack v. Duff, Civil Action No. 10-cv-0866 (ABJ) … Continue Reading

The Arduous Journey of Collecting on a Judgment Against A Non-U.S. Sovereign

Estate of Michael Heiser v. Islamic Republic of Iran, 00-cv-2329 (D.D.C. Aug. 2011)(RCL), addresses claims arising from the 1996 bombing of the residential facility house U.S. Air Force personnel in Saudi Arabia, which, as the District Court chillingly reminds us, was at the time the largest non-nuclear explosion ever recorded on Earth.  The international practice … Continue Reading

Non-U.S. Arbitral Award Confirmed Against Non-U.S. Sovereign Under FSIA Exception

Thai-Lao Lignite (Thailand) Co., et al v. Government of the Lao People’s Democratic Republic, 10 Civ. 5256 (S.D.N.Y Aug. 2011), presents a recent analysis of cross-motions to vacate and confirm arbitral awards, a mainstay in the international dispute resolution play book.  The decision provides learning on several timely topics that we address more fully in … Continue Reading

Claim Alleging Derivative Possession of Good Allegedly “Taken” in Violation of International Law Still Precluded by FSIA

We discuss briefly the final installment (in the District Court) of the attempt to recover possession of a Van Gogh drawing allegedly sold away from the plaintiff’s great-grandmother “under duress during the Nazi era in Germany for fraction of its fair value”, Orkin v. The Swiss Confederation, 09 Civ. 10013 (S.D.N.Y. Mar. 2011) (LAK).  An … Continue Reading

Seventh Circuit Agrees with D.C. Circuit Dissent that U.S. Citizens Must Be Able to Sue U.S. Officials for Alleged Torture Overseas

Vance, et al. v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Cir. Aug. 2011), alleges that Secretary of Defense Rumsfeld bears personal involvement and responsibility for alleges torture of U.S. citizens in Iraq.  The District Court denied the motion to dismiss, and the Seventh Circuit affirmed, finding that under the … Continue Reading
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