Sovereign Immunity

• Author: International Law Group
• Pages: 114-116

Page 114

In this case, a Dariush Elahi, a private citizen (Respondent), seeks to attach an asset belonging to Iran's Ministry of Defense in order to help satisfy a judgment for money damages. The question raised is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S.C. ß 1602 et seq. (2000 ed. and Supp. III), stands in the way of that attachment.

Respondent obtained a federal default judgment against the Islamic Republic of Iran for about $300 million based on the allegation that the Republic had murdered his brother. Elahi v. Islamic Republic of Iran, 124 F. Supp.2d 97, 103 (D.D.C. 2000). To help satisfy this judgment, respondent sought to attach an Iranian asset consisting of an arbitration award (against a third party), which Iran's Ministry of Defense (Petitioner) had secured in Switzerland. The Petitioner successfully asked a California federal Court to confi rm the award.Page 115

Respondent then intervened in order to impose a lien upon the award. The Petitioner opposed the attachment on the ground that the FSIA grants it immunity from such a claim.

The District Court saw no merit in the Petitioner's immunity defense because, by suing to enforce the award, the Petitioner had waived any such immunity. On appeal, the U. S. Court of Appeals for the Ninth Circuit rejects the District Court's waiver theory. On the other hand, it rules against the Petitioner on a different ground -- one that the parties had not argued.

The Act provides that, under certain conditions, the property of an "agency or instrumentality" of a foreign government is "not ... immune from attachment" if the agency is "engaged in commercial activity in the United States." 28 U.S.C. ß 1610(b). The Court of Appeals fi nds that the Petitioner (1) does take part in commercial activity and (2) has met the other statutory conditions. Thus, it rules that this section of the Act did preclude the Petitioner's claim of immunity.

The Ministry then petitioned for certiorari, asking the Supreme Court to review that decision. The U. S. Solicitor General (as Amicus Curiae) agreed with the Petitioner that the Court should grant the writ but only as it pertains to petitioner's Question 1. This asks whether "the property of a foreign state stricto sensu, situated in the United States" is "immune from attachment ... as provided in the Foreign Sovereign Immunities Act." (see ßß 1603(a), 1610(a)).

Amicus also requested the Court to vacate the judgment of the Ninth...