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past recognized an absolute immunity of foreign government property from execution to satisfy a final judgment. The Department does not contemplate changing this policy in the period before January 19, 1977. On or after that date, execution may be obtained against foreign government property only upon court order and in conformity with the other requirements of Section 1610 of P.L. 94-583.
Future Department of State interests. The Department of State will not make any sovereign immunity determinations after the effective date of P.L. 94-583. Indeed, it would be inconsistent with the legislative intent of that Act for the executive branch to file any suggestion of immunity on or after January 19, 1977.
After P.L. 94-583 takes effect, the executive branch will, of course, play the same role in sovereign immunity cases that it does in other types of litigation-e.g., appearing as amicus curiae in cases of significant interest to the Government. Judicial construction of the new statute will be of general interest to the Department of State, since the statute, like the Tate Letter, endeavors to incorporate international law on sovereign immunity into domestic United States law and practice. If a court should misconstrue the new statute, the United States may well have an interest in making its views on the legal issues known to an appellate court.
Finally, we wish to express appreciation for the continuous advice and support which your Department has provided during the ten years of work and consultation that led to the enactment of P.L. 94-593. We believe that the new statute will be a significant step in the growth of international order under law, to which the United States has always been committed.
Fed. Reg., Vol. 41, No. 224, Nov. 18, 1976, pp. 50883–50884; Dept. of State Bulletin, Vol. LXXV, No. 1952, Nov. 22, 1976, pp. 649–650.
Regulations were issued by the Department of State on January 19, 1977, pursuant to section 4 of the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. 1608(a)), prescribing the form of a "Notice of Suit" which, in certain circumstances, would accompany the service of a summons and complaint on a foreign state or its political subdivisions. Also included were regulations on the transmittal of certain papers through diplomatic channels in prescribed circumstances. The regulations constitute a new part 93-Service on Foreign State-of subpart J of title 22 of the Code of Federal Regulations.
The text of the new regulations is as follows:
Title 22 of the Code of Federal Regulations is amended by adding a new part 93 to subchapter J and by changing the title of subchapter J to read as follows:
SUBCHAPTER J-LEGAL AND RELATED SERVICES
PART 93-SERVICE ON FOREIGN STATE
AUTHORITY: Sec. 1608(a), Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583 (28 U.S.C. 1608(a)); sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658). § 93.1 Service through the diplomatic channel.
(a) The Director of the Office of Special Consular Services in the Bureau of Security and Consular Affairs, Department of State ("The Director of Special Consular Services"), shall perform the duties of the Secretary of State under section 1608(a) (4) of Title 28, United States Code.
(b) When the clerk of the court concerned sends documents under section 1608(a) (4), of Title 28, United States Code, the Director of Special Consular Services shall promptly ascertain if the documents include the required copies of the notice of suit and of the summons and complaint (or default judgment), and any required translations. If not, he shall promptly advise the clerk of the missing items.
(c) Upon receiving the required copies of documents and any required translations, the Director of Special Consular Services shall promptly cause one copy of each such document and translation ("the documents") to be delivered
(1) To the Embassy of the United States in the foreign state concerned, and the Embassy shall promptly deliver them to the foreign ministry or other appropriate authority of the foreign state, or
(2) If the foreign state so requests or if otherwise appropriate, to the embassy of the foreign state in the District of Columbia, or
(3) If (1) and (2) are unavailable, through an existing diplomatic channel, such as to the embassy of another country authorized to represent the interests of the foreign state concerned in the United States.
(d) The documents, when delivered under paragraph (c) of this section, shall be accompanied by a diplomatic note of transmittal, requesting that the documents be forwarded to the appropriate authority of the foreign state or political subdivision upon which service is being made. The note shall state that, under United States law, questions of jurisdiction and of state immunity must be addressed to the court and not to the Department of State, and that it is advisable to consult with an attorney in the United States.
(e) If the documents are delivered under paragraph (c) (1) of this section, the Embassy of the United States shall promptly transmit by diplomatic pouch, to the Director of Special Consular Services, a certified copy of the diplomatic note of transmittal. If the documents are delivered under paragraph (c) (2) or (3) of this section, the Director of Special Consular Services shall prepare a certified copy of the diplomatic note of transmittal. In each case, the certification shall state the date and place the documents were delivered. The Director of Special Consular Services shall then promptly send the certified copy to the clerk of the court concerned.
§ 93.2 Notice of suit (or of default judgment).
(a) A Notice of Suit prescribed in section 1608(a) of Title 28, United States Code, shall be prepared in the form that appears in the Annex to this section.
(b) In preparing a Notice of Suit, a party shall in every instance supply the information specified in items 1 through 5 of the form appearing in the Annex to this section. A party shall also supply information specified in item 6, if notice of a default judgment is being served.
(c) In supplying the information specified in item 5, a party shall in simplified language summarize the nature and purpose of the proceeding (including principal allegations and claimed bases of liability), the reasons why the foreign state or political subdivision has been named as a party in the proceeding, and the nature and amount of relief sought. The purpose of item 5 is to enable foreign officials unfamiliar with American legal documents to ascertain the above information. (d) A party may attach additional pages to the Notice of Suit to complete information under any item.
(e) A party shall attach, as part of the Notice of Suit, a copy of the Foreign Sovereign Immunities Act of 1976 (Pub. L. 94-583; Stat. 2891).
NOTICE OF SUIT
(OR OF DEFAULT JUDGMENT)
1. Title of legal proceeding; full name of court; case or docket number. 2. Name of foreign state (or political subdivision) concerned:
3. Identity of the other Parties:
4. Nature of documents served (e.g., Summons and Complaint; Default Judgment):
5. Nature and purpose of the proceedings; why the foreign state (or political subdivision) has been named; relief requested:
6. Date of default judgment (if any):
7. A response to a "Summons" and "Complaint" is required to be submitted to the court, not later than 60 days after these documents are received. The response may present jurisdictional defenses (including defenses relating to state immunity).
8. The failure to submit a timely response with the court can result in a Default Judgment and a request for execution to satisfy the judgment. If a default judgment has been entered, a procedure may be available to vacate or open that judgment. 9. Questions relating to state immunities and to the jurisdiction of United States courts over foreign states are governed by the Foreign Sovereign Immunities Act of 1976, which appears in sections 1330, 1391(f), 1441 (d), and 1602 through 1611, of Title 28, United States Code (Pub. L. 94-583; 90 Stat. 2891).
Fed. Reg., Vol. 42, No. 22, Feb. 2, 1977, p. 6367.
By a circular note dated December 10, 1976, the Department of State informed all foreign embassies in Washington of the enactment of the Foreign Sovereign Immunities Act and called their attention to significant aspects of the legislation, as follows:
1. The legislation will not make substantial changes in United States law on the question of when a foreign state has immunity from suit. The legislation incorporates the restrictive doctrine of sovereign immunity which the United States has consistently followed since the Tate Letter of 1952, as the appropriate rule of modern international law. It has been the practice of the United States Government, since 1973, not to claim immunity for itself in foreign courts in any case when immunity would not be accorded to a foreign state under the new legislation.
2. The new legislation will eliminate the current practice in the United States of seizing or attaching foreign government property, as a method for obtaining jurisdiction against a foreign state or its entities. Section 1609 of the statute affords an absolute immunity from such jurisdictional attachments.
3. In addition to questions of state immunity, the new legislation will also prescribe the jurisdiction of Federal courts in the United States over foreign states and their agencies and instrumentalities. Under the statute, jurisdiction does not arise from the attachment of property, or from the service of process. Instead, jurisdiction depends on the existence of some connection (or contact) between the United States and the events giving rise to the litigation. These required connections (or contacts) are mentioned in the text of section 1605 of the statute. They are also incorporated by reference into the jurisdictional provisions of section 1330.
4. The statute also requires that adequate notice of a suit be given to the foreign state. This notice must be given by the service of judicial documents (in particular, a summons and complaint) in accordance with section 1608 of the statute. This service of notice, again, does not confer jurisdiction, but is intended to inform the foreign state of the existence of the legal proceeding. It should also be noted that section 1608(a) (4) of the statute requires the Department of State to deliver this notice through diplomatic channels, in cases where other methods of service are unavailable.
5. The new legislation will provide, under limited circumstances, for execution against certain commercial and commercially related property, in order to satisfy a final judgment against a
foreign state or its entities. These limited circumstances are prescribed in sections 1610 and 1611 of the statute. It should be noted that under section 1610(c), a foreign state or its entities must be afforded a reasonable opportunity to satisfy a judgment before execution can be accorded.
6. The new statute precludes the Department of State from making decisions on state immunity. Such decisions must be made exclusively by the courts. Thus, when the legislation takes effect on January 19, 1977, the Department will not be able to continue its prior practice of entertaining diplomatic requests to determine questions of sovereign immunity, or of conveying such determinations of immunity to an American court.
Dept. of State File No. P77 0014-208.
Department of State Determinations
The Department of State, at the request of the Canadian Embassy in Washington, issued on February 20, 1976, a suggestion of sovereign immunity in the case of Semonian v. Crosbie, et al., Civil Action No. 74-4893-T, in the U.S. District Court for the District of Massachusetts. The suggestion was filed with the Court by the Department of Justice on February 27, 1976. The Embassy had requested a suggestion of immunity on behalf of the following defendants: the Province of Newfoundland ("the Province"); a crown corporation named Labrador Linerboard, Ltd.; Frank Moores. Premier and First Minister of the Province, and John C. Crosbie, Minister of Intergovernmental Relations and Minister of Fisheries of the Province.
The action concerned the exploitation of timber resources on public lands owned by the Province; decisions by the Province and its officials concerning how the resources should be exploited; and agreements between the Province and a Canadian corporation, Canadian Javelin, Ltd., relating to the exploitation of these resources. In a letter of February 20, 1976, to the Attorney General, Mark B. Feldman, Deputy Legal Adviser of the Department of State, described the pending case and the Department's determination as follows:
The amended complaint sets forth five causes of action: (1) alleged breach by the Province of a May 1, 1972, settlement agreement between it and Canadian Javelin, by failing to pay money said to be owing under the agreement; (2) alleged fraud and coercion by the Province and its officials in causing Canadian Javelin to enter into this settlement agreement; (3) alleged willful misrepresentation by the Province and its officials, in inducing Canadian Javelin to enter into an earlier agreement dated November 21, 1969, through representations that certain timber reserves existed; (4) alleged willful misrepresentation and fraud by
the Province and its officials, in inducing Canadian Javelin to enter into the November 21, 1969, agreement, through representations that certain licenses and grants would be issued to Canadian Javelin; and (5) alleged unjust enrichment of the Province and of Labrador Linerboard, Ltd., by virtue of the acts alleged in some or all of the other causes of action. There is no allegation that the officials of the Province of Newfoundland acted other than in their official capacities and on behalf of the Province.
The Department recognizes and allows the immunity of defendants Moores and Crosbie from suit in this action.
With respect to the Province of Newfoundland and its crown corporation, Labrador Linerboard, Ltd., the Department recognizes and allows the immunity of these defendants from suit with respect to:
(a) the second, third and fourth causes of action, and
(b) the fifth cause of action, but only insofar as it is based upon transactions or events underlying the second, third or fourth causes of action.
These decisions relate only to the immunity issues raised with the Department. The Department, of course, takes no position with respect to questions of jurisdiction, the appropriateness of the forum or other procedural claims raised in the case, or the merits of the litigation.
On March 16, 1976, the Department of State, in a note to the Canadian Embassy, pointed out that the immunity recognized by the Department extended to several aspects of the case, but not to the entire litigation. It added:
The Department was of the view that in accordance with international law as applied by the United States under the "Tate Letter," 26 Dept. State Bulletin 984 (1952), immunity is not appropriate with respect to the first cause of action, because it is based on alleged acts which are private or commercial in nature (jure gestionis) rather than public in nature (jure imperii).
The Department of State similarly issued a suggestion of immunity on February 20, 1976, in the case of Greenspan et al. v. Crosbie et al., No. 74 Civ. 4734 (JMC), then pending in the U.S. District Court for the Southern District of New York and involving similar facts plus the disposition by the Province of Newfoundland, allegedly in the United States, of certain shares of Canadian Javelin stock. The suggestion was filed in that Court by the Department of Justice on March 9, 1976. In addition to recognizing the immunity of defendant government officials, the Department of State's letter stated: