Sovereign Immunity

• Pages: 69-71

69

international law update Volume 17, July–September 2011

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costs and eciencies and contractors’ availability,

it would also present the possibility that military

commanders could be hauled into civilian courts

for the purpose of evaluating and dierentiating

between military and contractor decisions.” 658

F.3d 418.

 “e nature of the conict in this case is

somewhat dierent from that in Boyle—a sharp

example of discrete conict in which satisfying

both state and federal duties (i.e., by designing

a helicopter hatch that opens both inward and

outward) was impossible. In the context of the

combatant activities exception, the relevant

question is not so much whether the substance of

the federal duty is inconsistent with a hypothetical

duty imposed by the state or foreign sovereign.

Rather, it is the imposition per se of the state or

foreign tort law that conicts with the [Federal Tort

Claims Act]’s policy of eliminating tort concepts

from the battleeld. e very purposes of tort law

are in conict with the pursuit of warfare. us,

the instant case presents us with a more general

conict preemption, to coin a term, ‘battle-eld

preemption’: the federal government occupies the

eld when it comes to warfare, and its interest

in combat is always ‘precisely contrary’ to the

imposition of a non-federal tort duty.” 658 F.3d

419.

One judge dissents, stating that the Court

does not have jurisdiction over the appeal and

preemption would not relieve CACI of its potential

liability. “No federal interest implicates the torture

and abuse of detainees. To the contrary, the

repeated declarations of our executives, echoed by

the Congress, expressly disavow such practices.”

658 F.3d 430.

Since this case involves misconduct in

connection with the military task of interrogation

in a war zone military prison by contractors working

closely with the U.S. military, the Court holds

that the tort claims arising out the contractors’

engagement in wartime combatant activities are

preempted. “What we hold is that conduct carried

out during war and the eects of that conduct

are, for the most part, not properly the subject

of judicial evaluation. e Commander in Chief

and the military under him have adopted policies,

regulations, and manuals and have issued orders

and directives for military conduct, and they have

established facilities and procedures for addressing

violations and disobedience.” 658 F.3d 420.

: Shimari v. Caci Int’l, 658 F.3d 413 (4th

Cir. 2011).

SOVEREIGN IMMUNITY

S C   ’

  A’  

      U S,

     

   F S

I A

In 2001, the President of Argentina declared

a temporary moratorium on any principal and

interest payments on any money borrowed from

foreign creditors more than $80 billion. In 2001,

Argentina’s economy had deteriorated, causing it

to transfer about $20 billion held in the Federal

Reserve Bank of New York (“FRBNY”) and buy

Argentine pesos to defend the value of the peso.

Due to the failing economy, Argentina defaulted

on its payments to the Plaintis, EM Ltd. and

NML Capital, Ltd., which are benecial owners of

the debt instruments owned by the country. As of

the date of the default, Argentina has not made any

payments on the principal or debt instruments on

which the Republic defaulted.

Instead of entering into new debt agreements

with the Republic, the Plaintis decided to seek

recovery of the debt through litigation in the

United States federal courts. ey received a

judgments in the about of $2.4 billion in the

United States District Court for the Southern

District Court of New York. e Plaintis sought

to attach and restrain the FRBNY funds in a Banco