INTERNATIONAL LAW
W.B. Fisch, Fall 2008
Assignment #26

[Ch. 12. INTERNATIONAL CONFLICT OF LAWS]

C. Foreign Sovereign Immunity

THE SCHOONER EXCHANGE, p. 830 (1812)

1. What relief is being sought by the plaintiffs?

2. What procedural device is employed to obtain that relief? What is a “libel”?

3. What defense is being asserted? By whom?

a. What kind of jurisdiction is challenged (prescribe, adjudicate, enforce)?

b. Does France assert that the ship was legally seized according to the international law of prize?

c. Does it matter how the ship got to be “in the service of” France?

d. What is the role of the Attorney General in this proceeding?

e. Is the defense based on a rule of international law, or U.S. domestic law??

4. Would the result have been different, if the French government had sold the ship to a private French citizen engaged in merchant shipping, and the ship had arrived in Philadelphia with commercial cargo?

VICTORY TRANSPORT, INC. V. COMISARIA GENERAL, p. 834 (2d Cir. 1964)

1. What claim is being asserted, and what relief is being sought? (Editors edited this part out!)

a. Plaintiff’s ship, chartered by defendant, sustained damage and was delayed in Spanish port; defendant refused to pay damages demanded by plaintiff and refused to submit to arbitration pursuant to contract clause

b. Plaintiff sought an order compelling arbitration

2. What defense is asserted?

3. What role does the State Department play in this litigation?

4. What is the TATE LETTER, and what role does it play in this litigation?

a. Does it declare a rule of international law?

b. Does it declare a rule of U.S. foreign policy?

5. How does the court know that the Comisaria was acting in a commercial and not a sovereign capacity?

6. What would the result have been in 1812, as of the time The Schooner Exchange was decided?

7. What would the result have been, if the State Department had suggested that the Comisaria General was immune from the jurisdiction of U.S. courts?

FOREIGN SOVEREIGN IMMUNITIES ACT of 1976, p. 839

1. Essential structure

a. §1604: foreign state (as defined in §1603(a,b) is immune,from the jurisdiction of the courts of the United States and of the States unless an exception applies

b. §1605(a): principal exceptions

i. waiver

ii. commercial activity (with qualifications)

iii. title to wrongfully expropriated property owned by US citizens

iv. rights to immoveable property in US

v. tortious act causing injury in US

vi. "terrorism": note the preconditions!

(1) designation of FS as state sponsor of terrorism

(2) U.S. national as victim

c. rest of statute: compensatory damages only (1606), counterclaims (1607), service (1608), immunity of property of foreign state from attachment or execution (1609-1611, same basic format as with personal immunity)

2. applicable law: is §1602 as “mixed” or ambiguous as to the source of law as the editors claim in note 1 p. 842? Is the reference to international law an invitation to apply it, or a justification for §1605(a)(2)?

TEXAS TRADING & MILLING CO. V. NIGERIA, p. 843 (2d Cir. 1981)

1. what is the “commercial activity” allegedly engaged in by Nigeria?

a. purchase of goods (cement)?

b. obtaining a letter of credit?

2. how does the court know what is “commercial”? does §1603(d) help?

3. did this activity have a “direct effect in the United States”? How so?

ARGENTINE REPUBLIC V. AMERADA HESS SHIPPING CORP., p. 851 (US 1989)

1) what is the basis for jurisdiction of federal court in this case?

2) why doesn’t the Alien Tort Statute (28 U.S.C. 1350) work here?

3) does the claim asserted here fit into any of the exceptions provided for in FSIA §1605?