I only have time for a short post today, but — especially in light of my article about the NML case last week (“NML Article”) — I wanted to share my thoughts about the reply brief filed by Argentina yesterday.
Argentina repeats its claim that “the FSIA make all foreign-state property presumptively immune from judgment execution.” Reply Brief for Petitioner (“Arg. Reply”) at 3 (emphasis added); see also id. at 14. As I explained in my article, Argentina’s contention is untenable given the plain language of the FSIA. NML Article at 5-9. Section 1609, the statutory provision that confers presumptive execution immunity on a foreign state’s property, is expressly limited to property “in the United States.” 28 U.S.C. § 1609 (emphasis added). Contrary to Argentina’s argument, nothing in the FSIA confers presumptive immunity upon foreign state property throughout the world.
Argentina’s response to section 1609’s clear limitation appears to be relegated to a footnote in the middle of its brief, where it states the following: “NML is wrong that foreign-state property outside the United States is not ‘immune,’ but in any event does not dispute that U.S. courts may not execute on such property, and acknowledged as much to the Second Circuit.” Arg. Reply at 10 n.4 (emphasis in original) (citations omitted). The fact that Argentina did not even repeat the full argument it made to the Second Circuit on the issue does not, in my opinion, bode well for its position in the Supreme Court. Cf. NML Article at 7-8. Moreover, as I stated last week, section 1609’s “in the United States” limitation means that it “neither provides immunity to foreign property nor empowers U.S. courts to order execution against assets held abroad.” NML Article at 8. That the FSIA fails to accord United States courts with the power to execute upon property located in foreign jurisdictions does not mean that such property receives “presumptive immunity” under the statute. Instead — and as Argentina has previously conceded in this litigation — the status of foreign state property overseas is simply a matter of foreign law properly resolved by foreign courts. Cf. NML Article at 7-8.
Argentina also appears to argue that the pre-FSIA common law should govern with respect to a foreign state’s property overseas. Arg. Reply at 4-5, 11. But principles of statutory construction — including those relating to adherence to pre-statutory common law — do not trump a statute’s plain language. Cf. Sebelius v. Cloer, — U.S. —, 133 S. Ct. 1886, 1895-96 (2013). Moreover, Argentina nowhere shows that the pre-FSIA regime accorded immunity to a foreign state’s property abroad. In the absence of such a showing, it is just as likely that immunity issues relating to foreign property were treated as matters of foreign law before the FSIA’s enactment, just as they are now.
Finally, Argentina’s waiver argument (Arg. Reply at 20-23) — which disregards that the issue of waiver with respect to foreign assets is a question of foreign law — fails for the reasons I explained more fully in my article last week. See NML Article at 10-11.