Sovereign immunity

• Pages: 62-69

62 Volume 21, April–June 2015 international law update

© 2015 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

in FOGADE, we held that the Amendment

overruled Sabbatino only to the extent that the latter

held that the act of state doctrine would apply even

when a foreign state had violated international law.

263 F.3d at 1293. Yet, as noted supra, FOGADE

concluded that a foreign nation’s conscation of the

property of one of its own nationals does not, as a

rule, constitute a violation of international law, id.

at 1294, and therefore ‘the Second Hickenlooper

Amendment does not preclude application of the

act of state doctrine.’ 263 F.3d at 1295. e same

is true here.”

“Mezerhane argues that the conscation of

his property violated international treaties and

therefore ‘violat[ed . . .] principles of international

law’ for purposes of the Second Hickenlooper

Amendment. 22 U.S.C. § 2370(e)(2). However,

to apply the act of state doctrine consistently with

the FSIA—a reading supported by the similarity

of the language in 28 U.S.C. § 1605(a)(3) and 28

U.S.C. § 2370—a ‘violation of the principles of

international law’ must be interpreted in the same

way in both provisions. In Part II of this opinion,

we concluded that a violation of a treaty is not a

violation of international law for FSIA purposes

and we reach the same conclusion for the act of

state doctrine.” [Slip op. 8]

“In conclusion, notwithstanding the Second

Hickenlooper Amendment, because in this case a

foreign plainti is protesting a taking by a foreign

sovereign that took place outside of the United

States, the act of state doctrine bars a U.S. court

from questioning the sovereign’s act. erefore,

both that doctrine and the inapplicability of the

statutory exception to sovereign immunity found

in 28 U.S.C. § 1605(a)(3) preclude our review of

plainti’s claim that the government of Venezuela

wrongfully expropriated his property.” [Slip op. 9]

e Court arms the district court’s dismissal

of Mezerhane’s complaint.

citation: Mezerhane v. Republica Bolivariana de

Venezuela, 785 F.3d 545 (11th Cir. 2015).

SOVEREIGN IMMUNITY

In alleged expropriation of U.S. assets

by Venezuela, D.C. Circuit holds that

Venezuela can be sued in the U.S. if

the expropriation was motivated by

discriminatory animus; discriminatory

takings violate international law

For more than 50 years, Helmerich & Payne

International Drilling Co. (H&PIDC), an

Oklahoma-based company, operated an oil-drilling

business in Venezuela through a series of subsidiaries.

Helmerich & Payne de Venezuela (H&P-V),

H&PIDC’s subsidiary incorporated under

Venezuelan law, provided drilling services for the

Venezuelan government. In the mid-70s Venezuela

nationalized its oil industry. Today, Venezuela

controls exploration, production, and exportation

of oil through two state-owned corporations:

Petróleos de Venezuela, S.A. (PDVSA), and PDVSA

Petróleo, known collectively as PDVSA. In 2007,

ten contracts were executed between H&P-V and

PDVSA for use of H&P-V’s drilling rigs. ese rigs

were capable of reaching depths of more than four

miles and were originally purchased by H&P-IDC

and then transferred to its subsidiary H&P-V.

Soon after signing the contracts, PDVSA fell

behind in its payments. PDVSA never denied its

contractual debt, but no payments were made. After

overdue receivables topped $100 million, H&P-V

announced in January 2009 that it would not renew

the contracts absent “an improvement in receivable

collections.” By November 2009, H&P-V had

fullled all of its contractual obligations. As the

payment from PDVSA was still pending, H&P-V

disassembled its drilling rigs, and stacked the

equipment in its yards.

In June 2010, PDVSA employees, assisted by

armed soldiers of the Venezuelan National Guard,

blockaded H&P-V’s premises in Western and

Eastern Venezuela, acknowledging that it erected

the blockade to prevent H&P-V from removing

its rigs and other assets from its premises, and to

force H&P-V to negotiate new contract terms

immediately.