Germany: Dismissed Sua Sponte
On April 14, 2011, the United States Court of Appeals for the Second Circuit affirmed the May 4, 2010 judgment issued by the United States District Court for the Eastern District of New York in the case of Zapolski v. Federal Republic of Germany, docket number 10-2018. The District Court's dismissal was based on the Federal Rules of Civil Procedure, which states that if a court "determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action," Rule 12(h)(3) FRCP. The Court reviewed these findings under the Foreign Sovereign Immunities Act, 28 U.S.C. §1604 for clear error and its legal conclusions de novo and found that the District Court's sua sponte determination was correct. -- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
The Sad Lot of Local Hires
In Canada, local hires at foreign missions do not enjoy all of the benefits of the Ontario Human Rights Code, Ed Canning explains in Diplomacy Trumps Labour Laws for Pregnant Secretary, on April 3, 2011. The article relates unequal treatment experienced by local hires employed by consulates, embassies and foreign military installations and questions whether the equal protection rules have been sufficiently tested under section 15 of the Canadian Charter of Rights and Freedoms. Canning advocates an adjustment of the State Immunity Act in order to accommodate the requirements of the Employment Standards Act, unless a court would interpret the acts in favor of local hires. -- by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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What are Disputes, Negotiations: ICJ
What are disputes between nations? Are negotiations required from them before the International Court of Justice obtains jurisdiction to settle a dispute under the International Convention on the Elimination of All Forms of Racial Discrimination of December 21, 1965?
In dismissing a complaint by Georgia against Russia over armed hostilities and alleged ethnic cleansing in 2008, the ICJ explored these issues in an opinion of April 1, 2010. The court rejected Russia's position that no dispute existed. Georgia's complaint was dismissed because the preconditions of article 22 CERD were not met.
In the matter Case Concerning the Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), docket number 140, the court defined the term dispute as well as those preconditions which it determined to include negotiations between the parties before the litigation. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / Embassy Law Link
Victory for Sovereign Immunity and Cultural Heritage
Victims of terrorism found justice and a judgment for damages which they sought to enforce in Iranian antiquities lent to American research institutions by way of their attachment. When the owner-government attempted to block the attachment, the court granted the victims' motion to force the government into the disclosure of all of its assets in the United States and to require it to appear before the court and affirmatively plead immunity under §1609 of the Foreign Sovereign Immunities Act, 28 USC §1609.
On March 29, 2011, the United States Court of Appeals for the Seventh Circuit in Chicago reversed the district court with a detailed 41-page opinion in the matter Rubin et al. v. Iran et al., docket number 08-2805. The court noted the interest of the United States which happens to be aligned with that of the global community of nations.
Most importantly, the appellate judges found the FSIA to presume sovereign immunity. Exceptions are the exception and have to be pled. States do not need to plead the rule. It should be determined by the court. The decision limits the participation of governments in discovery to the property at issue. The court explains that victims can receive assistance from the government to learn about additional assets a foreign government may own in the United States. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Note: The author's colleagues represent the defendant-appellant.
Wed, / Embassy Law Link
State Bank Enjoys FSIA Immunity
Without direct effects in the United States, the United States Court of Appeals for the Second Circuit in New York City held on January 21, 2011 in the matter Gosain v. State Bank of India, New York Branch, docket number 10-711, the court cannot exercise jurisdiction over the defendant foreign state-owned bank. The opinion analyzes the direct effects-prong of the commercial activity exception to foreign sovereign immunity in 28 USC §1605(a)(2). -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Greece Joins Italy Against Germany in ICJ
By way of intervention, Greece joined Italy in its defense of a case brought by Germany for the recognition of sovereign immunity from the enforcement of an Italian judgment into German government property located in Italy. The International Court of Justice published a status update on January 17, 2011. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Mission Employee: Status for Immunity Purposes
On December 22, 2010, the United States Court of Appeals for the Second Circuit in New York City affirmed the ruling of the District Court for the Southern District of New York to dismiss the case of Gulnar Hijazi v. Permanent Mission of Saudi Arabia to the United Nations, docket number 10-0904, due to a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA).
Hijazi had been employed as an Advisor to the Permanent Mission of Saudi Arabia to the United Nations, and had filed suit, claiming she had been subjected to sexual harassment, discrimination by reason of her gender and national origin, and unlawful retaliation. Hijazi asserted that the work she did for the mission was generally clerical, and consequently private or commercial in character. Therefore, Hijazi argued that under the Foreign Sovereign Immunities Act, the Mission of Saudi Arabia should not enjoy immunity according to the commercial activity exception to the FSIA.
The mission contended that the question of immunity was dependent upon its activities and functions rather than an individual employee. The court noted that
It is undisputed that Hijazi attended and took notes at diplomatic meetings, conducted research, wrote memoranda, and, on one occasion, spoke on behalf of the Mission. Her duties were thus in service of the Mission's governmental function.As a result, the court determined that the matter did not meet the commercial activity exception to the FSIA, and rejected Hijazi's complaint for lack of subject matter jurisdiction. -- Sara Harr, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / Embassy Law Link
Attached Diplomatic Premises Released
At the request of the U.S. government, Iran's diplomatic properties in the United States were released from attachment by the United States Court of Appeals for the District of Columbia Circuit. Section 201 of the Terrorism Risk Insurance Act precluded the attachments, the court determined in December 3, 2010 with a detailed opinion and concurring opinion.
The post-judgment attachment was intended to satisfy an award under terrorism legislation which removes some of the jurisdictional protections afforded by the Foreign Sovereign Immunities Act. In Bennett v. Iran, docket no. 09-5147, the court noted:
The United States has held Iran's diplomatic and consular properties for the past thirty years pursuant to Article 45 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, which requires signatory states to "respect and protect" the premises and property of a mission if diplomatic relations are severed or a mission is recalled, and the Foreign Missions Act, 22 U.S.C. § 4305(c)(1) (2006), which authorizes the Secretary of State to "protect and preserve" the property of a foreign mission that has ceased conducting diplomatic activities in the United States.The judgment creditor believed that the rental of the properties by their custodian, the United States, should remove them from the protection under the Vienna Convention. The court rejected that notion. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link
German Embassy Washington Moves
Over the extended Thanksgiving weekend, the German Embassy in Washington, DC moves to its new interim location at 2300 M Street, NW. The move affects also the Legal and Consular Section which handles visas, among other things. Telephone numbers remain unchanged, the embassy reports at its website. All buildings at the existing facility on Reservoir Road and Foxhall Road, except for Ambassador Scharioth's residence, will be refurbished. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
Banks Drop Embassies Over Legal Hurdles
Banks have forced embassies out of their customer base for years but the effects of the Partiot Act, enhanced OFAC enforcement and Know Your Customer rules are turning up the heat on embassies. Even the Wall Street Journal goes into detailed reporting on the issue.
The State Department is providing new guidance to embassies, the paper reports in a comprehensive analysis Banks Exit From Embassy Business
-- Moves By Largest Lenders Could Strain Relations Between U.S. Government and Other Countries on November 20, 2010. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Disclosure: The author's firm has assisted affected foreign entities and financial institutions in such matters.
Sat, / Embassy Law Link
Swiss Accused of Violating U.S. Constitution
The facts in the United States Court of Appeals for the Ninth Circuit's unpublished decision in the matter Hilsenrath v. The Swiss Confederation et al., docket number 07-17127, surprise:
The Hilsenraths alleged that the Swiss Confederation, the Federal Attorney General of Switzerland and an employee of the Swiss Attorney General violated the Hilsenraths' constitutional rights when they froze the Hilsenraths' Swiss bank assets during the course of a criminal investigation into allegedly illicit financial dealings.The violation of American constitutional rights alleged in a U.S. court against a foreign sovereign nation protected by the Foreign Sovereigns Immunities Act? No wonder the lower court dismissed the complaint, as the Circuit Court explains:
The district court properly dismissed the action for lack of subject matter jurisdiction because the Swiss government and its employees are immune from this action under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 etseq. ("FSIA") and the Hilsenraths did not establish the applicability of any of the FSIA's exceptions to sovereign immunity.The explanation of the unusual case is found in the first line of the decision filed on November 2, 2010: Hana Hilsenrath and Oliver Hilsenrath appeal pro se … -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link
U.S. Embassies Defend Surveillance
Scandinavian allegations of U.S. embassies spying in host countries without coordination with the host ministries are being refuted by the embassies in Oslo and Stockholm. The Stockholm embassy statement of November 6, 2010 notes that the embassy in Sweden welcomes opportunities to respond to questions and regrets inflammatory and inaccurate press reporting which began in Norway. Tim Moore, U.S. Embassy Oslo spokesperson, explained on November 4, 2010 that his embassy works very closely with host country authorities to ensure the safety and security of U.S. Embassies and all our visitors around the world. On November 7, 2010, CNN observed that similar surveillance programs exist in Copenhagen and Berlin. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / Embassy Law Link
Difficulty Convicting Embassy Bombers
The difficulties facing courts in convicting embassy bombers is the topics of Pakistan Danish embassy bombing suspects acquitted. The Reuters report of the September 25, 2010 acquittal of attackers on the embassy of Denmark in Islamabad notes the production of 32 witnesses, including eye witnesses of the event, and the government's plans to appeal the ruling.
Sun, / Embassy Law Link
State Liable for Diplomats' Torts?
Model behavior by diplomats contrasts with a few bad apples. May mistreated domestic personnel of foreign diplomats in the United States sue the foreign sending state in a United States court?
The United States Court of Appeals for the Second Circuit explored the exposure of both the diplomatic employer and the foreign nation, under doctrines ranging from the Foreign Sovereign Immunities Act to the Alien Tort Claims Statute.
With respect to the state, the court held on September 24, 2010, that neither the tortious activity exception nor the commercial activities exception removed the state's FSIA immunity, in the matter Swarna v. Al-Awadi, docket number 09-2525. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Popular Notions of Embassy Soil and Immunity
In the context of an attack on the embassy of Malaysia in Jakarta, Salleh Buang explores on September 6, 2010 various sovereignty and immunity issues under the Vienna Convention on Diplomatic Relations. In Assault on our embassy a heinous act, she also touches upon the popular misconception that embassies stand on foreign soil. Their property forms part of the host nation's territory while that nation's jurisdiction ends at the gates to the embassy. Buang's New Straits Times report finally explains the history of locations such as Guantanamo and Vatican City. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link