Sovereign immunity

• Pages: 84-87

84 Volume 21, July–September 2015 international law update

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

violation of a crime set out in Title 18 or in one

of the other statutes dening federal crimes, that

is the end of the jurisdictional inquiry.’) (internal

quotation marks omitted).”

“[…] [T]he Hostage Taking Act. Section

1203(b)(1)(A) criminalizes hostage-taking that

occurs outside the United States if ‘the person seized

or detained is a national of the United States.’ A

‘national of the United States’ is, in turn, dened by

reference to the Immigration and Nationality Act as

‘a citizen of the United States.’ 18 U.S.C. § 1203(c);

8 U.S.C. § 1101(a)(22). By its plain language,

then, section 1203 broadly protects United States

citizens. e statute imposes no restriction on this

protection. It does not, for example, exclude citizens

who, in retrospect, are unworthy of the honor. Nor

does it exclude persons whose citizenship might

at some later time be invalidated. In other words,

section 1203 protects victims according to their

status at the time of the hostage-taking.”

“True, section 1203 is written in the present

tense—the statute applies if ‘the person seized or

detained is a national of the United States.’ But that

clause appears in a criminal statute that requires

examination of past events—whether the victim

was seized or detained. See Cullen v. Pinholster,

131 S. Ct. 1388, 1398 (2011) (use of backward-

looking language such as ‘resulted in’ and ‘involved’

in federal habeas statute, 28 U.S.C. § 2254(d),

requires examination of the state-court decision at

the time it was made). […]Determining whether

an American citizen was seized or detained under

the Hostage Taking Act requires examination of the

victim’s status at the time of the abduction.”

e Court conclude that “Congress has vested

sole naturalization authority in the Attorney

General, 8 U.S.C. § 1421(a), and a certicate of

naturalization represents conclusive evidence of

the Attorney General’s determination, Tutun v.

United States, 270 U.S. 568, 577 (1926); 8 U.S.C.

§ 1443(e). […] [W]hether the Attorney General,

acting through INS, should have issued a certicate

to Maharaj—as opposed to whether the certicate

was itself authentic—is irrelevant under the Hostage

Taking Act”, and armed district court’s decision.

citation: U.S. v. Straker, 800 F.3d 570 (D.C. Cir.

2015).

SOVEREIGN IMMUNITY

After Argentina defaulted on bonds,

creditors seek to satisfy $2.4 billion

judgment through funds held by the

Argentine Central Bank through

declaratory judgment that the Central

Bank is an alter ego; Second Circuit

reviews whether district court erred

in denying the Central Bank’s motion to

dismiss based on sovereign immunity

In 1994, the Republic of Argentina (“Argentina”)

began issuing debt securities pursuant to a Fiscal

Agency Agreement (“FAA”). e FAA included a

waiver of Argentina’s foreign sovereign immunity as

to “any suit, action, or proceeding against it or its

properties, assets or revenues with respect to the”

FAA bonds, and any suit brought “for the purpose

of enforcing or executing” a judgment obtained in

a related proceeding.

In December 2001, Argentina declared a

moratorium on principal and interest payments for

more than $80 billion in sovereign debt, including

the bounds issued under the FAA, and since then

did not make principal or interest payments on these

bonds. In 2005 and 2010, Argentina restructured

over 91% of its debt by launching “global exchange

oers”, pursuant to which creditors holding the

defaulted bonds could exchange them for new

securities with modied terms that substantially

reduced their value. EM Ltd. (“EM”) and NML

Capital Ltd. (“NML”) (jointly, “plaintis”) own

FAA bonds that were not restructured.

In an eort to recover the full amounts due

on their defaulted bonds, beginning in 2003,

plaintis led multiple actions against Argentina in

the Southern District of New York and obtained

numerous nal judgments against Argentina,

totaling in $2.4 billion. Argentina did not dispute

that its sovereign immunity had been waived in the

FAA, but the judgments remained unpaid.

In their third amended complaint (“TAC”),

plaintis seek to satisfy their judgments against

Argentina by attaching funds held by Argentina’s

central banking authority, the Banco Central de