Since the enactment of the FSIA, plaintiffs have repeatedly attempted to serve foreign states via their embassies in Washington, D.C. That is the wrong approach. The FSIA does not provide for service via an embassy (cf. 28 U.S.C. § 1608(a)), and indeed such service is inconsistent with international law. As demonstrated by a recent case from the United States District Court for the Eastern District of California, any attempt to serve via a foreign state’s embassy will be quashed by the court. See Rhuma v. Libya, 2:13-CV-2286 LKK AC, 2014 WL 1665042, at *4 (E.D. Cal. Apr. 24, 2014) (“personal service on a foreign state’s embassy fails to comply with Section 1608(a)”); see also, e.g., BPA Intern., Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73, 84 (D.D.C. 2003) (personal service on Embassy of Sweden was insufficient under 28 U.S.C. § 1608(a)); Ibiza Business Ltd. v. U.S., 2010 WL 2788169, at *2 (D.D.C. 2010) (personal service on Brazilian Embassy was insufficient pursuant to 28 U.S.C. § 1608(a)).
NML, a Cayman Islands hedge fund, obtained numerous federal judgments against Argentina arising out of Argentina’s default on payment of its public debt. Argentina refuses to satisfy any of the judgments. Because NML has had little success in finding Argentinian assets in the United States subject to execution under the Foreign Sovereign Immunities Act (FSIA), the district court granted NML broad discovery from non-party banks relating to Argentina’s assets overseas. The discovery dispute between NML and Argentina is currently pending in the United States Supreme Court, with oral argument scheduled for April 21, 2014.
The FSIA has been called a “statutory labyrinth” with “many deliberately vague provisions.” While that characterization may hold true regarding certain sections of the FSIA, the statute is a model of clarity and simplicity with respect to the threshold issue in this case: whether foreign assets are accorded a statutory presumption of immunity from execution. Section 1609 provides that only a foreign state’s property “in the United States” is presumptively immune from execution. Nowhere does the FSIA confer presumptive immunity on a foreign state’s assets held outside the United States.
Notwithstanding section 1609’s plain language, the central contention advanced in the Supreme Court by Argentina and the United States (as amicus) is that Argentina’s assets overseas are entitled to presumptive statutory immunity and, as a result, are immune from discovery under the FSIA. Because Argentina and the United States’ argument cannot be squared with section 1609 itself, it is wrong as a matter of law.
Since the FSIA does not accord presumptive sovereign immunity upon a foreign state’s assets overseas, the discovery dispute between Argentina and NML should not be analyzed under the FSIA. Instead, the Supreme Court’s decision in Société Nationale Industrielle Aérospatiale v. USDC, 482 U.S. 522 (1987), controls. The district court and the Second Circuit should have reviewed NML’s discovery requests under the comity analysis set forth in Société Nationale, which is broad enough to accommodate all of the interests and policy considerations raised by the parties and the United States.
With regard to NML’s main argument in the Supreme Court, NML fails to recognize the protections afforded by immunity under United States law. NML contends that because the text of the FSIA does not mention “discovery,” the FSIA does not limit the discovery available to plaintiffs in post-judgment proceedings. With respect to domestic assets, NML’s contention is contrary to settled law. Under Supreme Court and circuit precedent, protection from discovery inheres in the very concept of immunity itself. Moreover, with regard to foreign assets, NML does not undertake the comity analysis required under the Supreme Court’s decision in Société Nationale.
In the end, while the discovery dispute between NML and Argentina may be of critical importance to the parties, this case does not belong in the Supreme Court. There is no circuit split with regard to the threshold issue, namely whether foreign assets are protected from execution under the FSIA. Instead, the NML case simply involves the lower courts’ erroneous failure to apply the Société Nationale comity analysis to NML’s discovery requests targeting Argentina’s assets overseas. To avoid issuing an unnecessary decision in the sensitive area of foreign sovereign immunity law, the Supreme Court should consider remanding the matter with instructions to analyze the requested discovery under Société Nationale.
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Although this site focuses on developments in FSIA law, I will also occasionally address legal issues relating to head-of-state immunity, official immunity and diplomatic immunity. Today, I address an unusual issue: the proper method of service of process upon a diplomatic agent.
While a sitting diplomatic agent is immune from criminal jurisdiction under Article 31 of the Vienna Convention on Diplomatic Relations (“VCDR”), there are three narrow exceptions to immunity from civil jurisdiction. See VCDR, art. 31(1)(a)-(c). In the (unlikely) event that a plaintiff’s attorney files an action against a diplomatic agent that falls within one of the three limited exceptions to diplomatic immunity, the issue arises of service of process upon a sitting diplomatic agent. It is a matter not addressed by statute or rule, and it has received little attention in the commentary. In this post, I conclude that international law requires that service upon a diplomatic agent may only be accomplished via diplomatic channels.
Under the principle of personal inviolability, it is without question that a diplomatic agent may not be personally served with legal process. See VCDR, art. 29 (“The person of a diplomatic agent shall be inviolable.”); see also Tachiona v. United States, 386 F.3d 205, 221-24 (2d Cir. 2004); Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 979-81 (D.C. Cir. 1965). Moreover, because the premises of a diplomatic mission are inviolable under Article 22 of the VCDR, a plaintiff’s attorney may not send a process server onto the premises of a mission to serve process upon an ambassador or any other individual. See VCDR, art. 22(1) (“The premises of the mission shall be inviolable.”); see also 767 Third Ave. Assoc. v. Permanent Mission of Republic of Zaire to United Nations, 988 F.2d 295, 300 (2d Cir. 1993) (stating that the VCDR “recognized no exceptions to mission inviolability”); Harvard Research in International Law, Diplomatic Privileges and Immunities, 26 Am. J. Int’l L. Supp. 15, 55 (1932) (“Customary international law, recognized by municipal legislation, prohibits the serving of any writ, summons, order, or process within the premises of a mission.”).
Whether or not a diplomatic agent may be served by mail poses a more difficult question. However, four decades ago, the United States Department of State concluded that service by mail would run afoul of Article 22’s inviolability provision. The Department determined that “countries party to the Convention on Diplomatic Relations . . . would have a basis for objection to the propriety of process served [by mail] under Article 22, section 1, of that Convention, as interpreted in light of the negotiating history of that Convention (Official Records, Volume I, page 141).” Diplomatic Premises – Inviolability, 69 Am. J. Int’l L. 146, 146-47 (1975); see also 1974 Digest of United States Practice in International Law 171, 171-72 (same). The Vienna Convention negotiating history cited by the State Department consisted of the following statement by the Japanese representative, made upon withdrawal of an amendment prohibiting service by a process server on mission premises:
Mr. Takahashi (Japan) said that the purpose of the Japanese amendment was to establish a uniform rate concerning the service of judicial documents. He was prepared to withdraw the amendment, on the understanding that it was the unanimous interpretation of the Committee that no writ could be served, even by post, within the premises of a diplomatic mission.
United Nations Conference on Diplomatic Intercourse and Immunities (Vienna – 2 March – 14 April 1961), Official Records, Vol. I: Summary Records of Plenary Meetings and of Meetings of the Committee of the Whole (1962), A.Conf.20/14, at 141 (emphasis added).
The few commentators who have addressed the issue agree that Article 22 of the Vienna Convention prohibits service by mail. See, e.g., Brownlie, Principles of Public International Law 357 (7th ed. 2008) (“It follows from Article 22 that writs may not be served, even by post, within the premises of a mission.”); Dembinski, The Modern Law of Diplomacy 193 (1988) (stating that Article 22 “protects the mission from receiving by messenger or by mail any notification from the judicial or other authorities of the receiving State”); Salmon, Manuel de Droit Diplomatique § 302 (1994) (stating that service of process is not permitted by mail under Article 22).
As the same commentators recognize, the sole remaining method of service upon a diplomatic agent is via diplomatic channels. See Brownlie, Principles of Public International Law 357 (stating that writs may be served “only through the local Ministry of Foreign Affairs”); Dembinski, The Modern Law of Diplomacy 193 (“If absolutely necessary such documents have to be transmitted through the Foreign Ministry.”); Salmon, Manuel de Droit Diplomatique § 302 (1994) (stating that service of process is permitted only via diplomatic channels under Article 22).
There are several important policy reasons underlying the requirement of service via diplomatic channels. First, such service ensures that the head of the diplomatic mission and the foreign sovereign are apprised of the attempted service of process. Notice in an international case with unique constitutional status (cf. U.S. Const. art. III, § 2, cl. 1) and potential serious foreign relations implications should not depend upon mere service by mail.
Second, service by diplomatic channel guarantees notice to the receiving state’s foreign ministry – important under Article 22, given the receiving state’s “special duty” to “take all appropriate steps to protect the premises of the mission against any intrusion . . . and to prevent any . . . impairment of its dignity.” VCDR, art. 22(3).
Third, requiring service by diplomatic channel helps ensure similar treatment for U.S. diplomatic missions overseas. See, e.g., 767 Third Ave. Assoc., 988 F.2d at 300 (in Article 22 case, stating that “the United States recognizes the privileges of foreign diplomats in the U.S. with the understanding that American diplomats abroad will be afforded the same protections from intrusions by the host state. The most secure way to guarantee this protection, the United States tells us, is through blanket immunities and privileges without exception.”); see also The Schooner Exchange v. McFaddon, 11 U.S. 116, 138-39 (1812).
In short, if a plaintiff’s attorney files a lawsuit against a diplomatic agent falling into one of the exceptions set forth in Article 31(1) of the Convention, the only acceptable means of service under international law is via diplomatic channels. All other methods of service would be subject to challenge under Federal Rule of Civil Procedure 12(b)(5).