Sovereign immunity

• Pages: 87-89

87

international law update Volume 21, July–September 2015

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assets. ese allegations simply do not establish that

the recognition of BCRA’s separate status would

work a ‘fraud or injustice’ within the meaning of

Bancec.”

“Because the TAC fails to counter, much

less overcome, the presumption that BCRA and

Argentina are legally separate entities, BCRA does

not constitute Argentina’s ‘alter ego’ for the purposes

of this suit. Argentina’s express waiver of its own

sovereign immunity in the FAA, therefore, may not

be imputed to BCRA. Accordingly, we conclude

that the express waiver exception— § 1605(a)(1)—

does not apply to this case.”

e Court reversed the District Court’s order

and remanded the cause with instructions to dismiss

the ird Amended Complaint with prejudice.

citation: EM Ltd. v. Banco Central de La Republica

Argentina, 800 F.3D 78 (2nd Cir. 2015).

SOVEREIGN IMMUNITY

Second Circuit affirms $314 million

default judgment against Sudan

resulting from terrorist attack on

U.S.S. Cole in the Port of Aden, Yemen;

service through Sudanese Embassy in

U.S. was proper

e plaintis—appellants in this case are sailors

and spouses of sailors injured in the bombing of

the U.S.S. Cole, on October 12, 2000, in the port

of Aden, Yemen. In 2010, they brought suit in the

United States District Court for the District of

Columbia (the “D.C. District Court”) under the

Foreign Sovereign Immunities Act (the “FSIA”),

28 U.S.C. §§ 1330, 1602 et seq., alleging that al

Qaeda was responsible for the attack and that the

Republic of Sudan (“Sudan”) had provided material

support to al Qaeda.

Plaintis led an Adavit Requesting Foreign

Mailing, pursuant to 28 U.S.C. § 1608(a)(3),

and requested that the Clerk of Court mails the

summons and complaint via registered mail, return

receipt requested, to Republic of Sudan’s Minister

of Foreign Aairs at the time, through the Embassy

located in Washington DC. On November 17,

2010, the Clerk of Court entered a Certicate of

Mailing certifying that the summons and complaint

were sent via domestic certied mail at the Sudanese

Embassy in Washington, D.C., and that the return

receipt was returned to the Clerk of Court and

received on November 23, 2010. Sudan failed to

serve an answer or other responsive pleading within

sixty days after plaintis’ service, and the Clerk of

Court entered a default against Sudan.

On March 30, 2012, the D.C. District Court

entered a default judgment against Sudan in the

amount of $314,705,896, and found that service on

Sudan had been proper. Plainti then led a second

Adavit Requesting Foreign Mailing, requesting the

Clerk to mail notice of the Order and Judgment and

the Memorandum Opinion entered by the D.C.

District Court, by registered mail, return receipt

requested. e Clerk certied in April 2012 that the

documents had been mailed, however Sudan failed

to appear or contest the judgment.

On October 2, 2012, plaintis registered the

judgment in the Southern District of New York,

seeking to execute against respondent bank holding

Sudanese frozen assets, while on May 9, 2013, led

a Notice of Pending Action.

Following a motion by plaintis, the D.C.

District Court entered an order nding that post-

judgment service had been eectuated, and that

sucient time had elapsed following the entry

of judgment and the giving of notice of such

judgment to seek attachment and execution; and

a few months later, entered an order nding that

sucient time had passed since entry of the default

judgment, and that service of the default judgment

had been properly eectuated. Sudan failed to

challenge both orders.

When the plaintis led a series of petitions in

the Southern District seeking turnover of Sudanese

assets, the District Court granted the petitions,

issuing turnover orders. Plaintis then served all

three petitions, as well as their § 1610(c) motion, by

U.S. mail addressed to Sudan’s Minister of Foreign

Aairs via the Embassy of Sudan in Washington.

Sudan then led its notice of appearance, and the

same day appealed.