Foreign sovereign immunity
| Pages | 85-86 |
85
international law update Volume 17, October–December 2011
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
jurisdiction in the United States for this case, there
is still authority to reject that jurisdiction due to
convenience.
e Court then considers the factor of
adequacy of an alternative forum in Peru. “It is
no doubt true that only a United States court may
attach a defendant’s particular assets located here,
but that circumstance cannot render a foreign
forum inadequate. If it could, every suit having the
ultimate objective of executing upon assets located
in this country could never be dismissed because of
FNC.” [Slip op. 10]
In order for an alternate forum to be adequate
for lawsuits to obtain judgments, the court must
determine whether the defendant has some assets
in the alternate forum, but the fact that the plainti
may recover less in another form will not render the
forum inadequate.
Next, the Court considers the public interests
in determining the proper forum. Agreeing with the
Republic of Peru, the Court nds that the statutory
cap was a signicant public factor that warranted
FNC dismissal. “Although it obviously has special
signicance for one of the parties in this litigation,
Peru, . . . there is nonetheless a public interest in
assuring respect for a sovereign nation’s attempt to
limit the rate at which its funds are spent to satisfy
judgments.” [Slip op. 13]
Further, citing to the Supreme Court, the
Court notes that deferring to litigation in another
jurisdiction is appropriate where the litigation is
“intimately involved with sovereign prerogative.”
Louisiana Power & Light Co. v. City of ibodaux,
360 U.S. 25, 28-29 (1959); [Slip op. 13]. e Court
holds that the rate at which a country can disperse
public funds to satisfy an arbitration award is surely
intimately involved with sovereign prerogative
and “the Peruvian courts are the only tribunals
empowered to speak authoritatively on the meaning
and operation of the cap statute.” [Slip op. 13]
“[T]he public factor of permitting Peru to apply
its cap statute to the disbursement of governmental
funds to satisfy the Award tips the FNC balance
decisively against the exercise of jurisdiction in the
United States.” [Slip op. 14] erefore, the Court
reverses the denial of the Appellants’ motion to
dismiss for FNC.
Dissenters agree with the reasoning and
conclusions of the district court, stating “[t]he
merits of the underlying dispute have already
been decided, and Figueiredo comes to us with
the specic and narrow intent of enforcing its
arbitration award against Peru’s assets in the United
States, as it is entitled to do under the Panama
Convention. e resolution of that issue is not
amenable to jurisdiction elsewhere. I therefore agree
with the district court’s conclusion that Peru is not
an adequate alternative forum.” [Slip op. 42]
: Figueiredo Ferraz E Engenharia De
Projeto Ltda. v. Republic of Peru, 665 F.3d 384 (2d
Cir. 2011).
FOREIGN SOVEREIGN
IMMUNITY
A P’
C
, E C
K
Appellant, Community Finance Group, Inc.
(CFG) and its representative Andrew Vilehchik
entered into discussions with John Saina, a United
States citizen and former Kenyan national, about
purchasing gold. Saina explored opportunities
in Kenya, and CFG ultimately contracted with
Zilicon Freighters, Ltd. for the purchase of $6
million in gold. rough Zilicon’s representative
Illunga Ngoei, CFG agreed to put $350,000 in
escrow with Miller & Company; however, CFG
placed the money in an account with Zilicon’s
holding company Great Lakes Auto Tech Int’l Ltd.
On June 16, 2009, the Kenya Central Bank
veried the transaction. However, due to increased
suspicion, CFG retained a Kenyan lawyer and led
a complaint with the Kenya Central Bank Fraud
Investigations Department (BFID), which resulted
in the arrest of Illunga Ngoei.
During BFID’s investigation of Ngoei, his bank
accounts were frozen and CFG’s $350,000 was never
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