(iii) at the time of the FSIA’s enactment, the “vast majority of the litigation involving foreign [sovereign defendants] . . . was civil,” and thus, it is unlikely that “Congress sought to codify foreign sovereign immunity from criminal proceedings without saying a word about such proceedings”; and (iv) the fact that the FSIA is within Title 28, which mostly concerns civil procedure, and does not alter Title 18, which addresses criminal procedure, further supports the Court’s holding that the FSIA does not apply in criminal proceedings.The Court found Halkbank’s “mangled” reading of the FSIA unavailing. Halkbank argued that Section 1604 of the FSIA provided Halkbank with immunity from civil and criminal prosecutions, but Section 1605’s exceptions to Section 1604’s grant of immunity only applied in civil matters. The Court reasoned that, if read alone, Section 1604 could potentially be read that way; but the Court could not read Section 1604 in isolation. Reading Section 1604 alongside 28 U.S.C. § 1330(a)—which grants district courts jurisdiction over civil actions against a foreign state—and reading them in sequence, the “natural inference is that [Section] 1604 operates exclusively in civil cases.” In other words, Section 1330(a) provides the universe of cases against foreign sovereign defendants over which district courts have jurisdiction, i.e., civil cases and civil cases only, and Section 1604 explains how immunity applies within that universe. The Court stated that, to adopt Halkbank’s reading, would lead to an inconsistent reading of the FSIA where its “scope awkwardly flip-flops from civil [Section 1330(a)] to civil-and-criminal [Section 1604] back to civil [Section 1605] again in sequential provisions.”The Court rejected Halkbank’s remaining arguments. First, relying on the Court’s statement in Amerada Hess that the FSIA is the “sole basis for obtaining jurisdiction over a foreign state in federal court,” Halkbank argued that the FSIA immunizes foreign sovereign defendants in

tacts standard.”[13] In Gonzalez, the plaintiff relied on the commercial activity exception to sovereign immunity,[14] which “denies sovereign immunity when the action is based ‘upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.’”[15] The Ninth Circuit reasoned that the minimum contacts test was required because “[t]he words ‘direct effect’ . . . have been interpreted as embodying the minimum contacts standard. . . and the requirement that the defendant purposefully avail itself of the privilege of conducting business within the forum.”[16] It also concluded that the reach of the FSIA “does not extend beyond the limits set by the International Shoe line of cases” (which define the minimum contacts requirements), because the legislative history of the FSIA states, “[t]he requirements of minimum jurisdictional contacts and adequate notice are embodied in [28 U.S.C. § 1330(b)]” and cites International Shoe Co. v. Washington, 326 U.S. 310 (1945).[17]The reasoning underlying the Gonzalez decision was subsequently called into doubt when the Supreme Court in Republic of Argentina v. Weltover, Inc.[18] suggested that foreign states should be treated the same as domestic states, meaning no due process protection.[19] Despite the Supreme Court’s position, the Ninth Circuit concluded that the Gonzalez decision was not “clearly irreconcilable” with Weltover[20] because the Supreme Court only hinted at how it might rule on the issue and that the Ninth Circuit’s minimum-contacts inquiry in Gonzalez was based on a statutory interpretation of the FSIA and its legislative history, not on the Constitution. [21] Of the three-judge panel, two judges signed on to a concurring opinion, in which they cast doubt on the application of the minimum contacts test in Gonzalez, stating that it “has no foundation in the Constitution or the FSIA, and it is contrary to the views of oth

stee, accessed Nov. 6, 2023.RJR Nabisco Inc. v. European Cmty., 579 U.S. 325, 326 (2016). Id.; see also In re Picard, Trustee, 917 F.3d 85 (2d Cir. 2019) (focus of recovery actions under §550 against foreign transferees were transfers from BLMIS to feeder funds that were made within the US and avoidable by domestic application of §548. The decision essentially followed the analysis suggested by Professor Morrison in the article cited below). See, e.g., In re French, 440 F.3d 145, 150 (4th Cir 2006) (§548 applies extraterritorially); In re Zetta Jet USA Inc. 624 B.R. 461 (Bankr. C.D. Cal. 2020); Jay Lawrence Westbrook, “Avoidance of Pre-Bankruptcy Transactions in Multinational Bankruptcy Cases,” 42 Tex. Intnat’l L.J. (2007); Edward R. Morrison, “Extraterritorial Avoidance Actions: Lessons from Madoff,” Brooklyn Journal of Corporate, Financial & Commercial Law (2014).The Public Institution for Social Security v. Picard, 2023 WL 6143985 (S.D.N.Y. Sept. 20, 2023) (the “PIFSS Decision”). 28 U.S.C. §1330, §l332(a), §l39l(f), §§1602-1611, §1441(d).Id. at §1604. Id. at §1603(a). 28 U.S.C. § 1605(a)(2).See 2023 WL 6143985, at *1-2. See id. at *21. Id. at *6. Id. at *17.Consulting Concepts Int'l, Inc. v. Kingdom of Saudi Arabia, No. 21-941-cv, 2022 WL 2236946, at *2 (2d Cir. June 22, 2022) (summary order); see also Weltover, 504 U.S. 607 at 620 (concluding that the “rescheduling of the maturity dates” on certain bonds by the government of Argentina, rather than the “issuance of” those bonds, was the act that the plaintiff’s case was based upon, even though the issuance of the bonds was a predicate to any rescheduling). Shortly after the District Court’s decision was entered, the trustee appealed the decision. The appeal is still pending.Picard v. UBS Europe SE (f/k/a UBS (Luxembourg) S.A.), et al., No. 08-01789, Adv. Pro. No. 10-05311, Doc. Nos. 319 (the “ [View source.]

y noted, the FSIA does not contain any references to criminal proceedings.The majority further noted that the FSIA appears in Title 28 of the United States Code, which deals largely with civil procedure, and not in Title 18, which deals with crimes and criminal procedure.The majority found additional support for its conclusion in a prior case in which the Court held that the FSIA does not apply to suits against individual officials, reinforcing the conclusion that the FSIA does not extend to certain “discrete context[s],” such as criminal proceedings.Halkbank pointed to a provision of the FSIA, Section 1604, which states that “[s]ubject to existing international agreements,” a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” unless an exception to immunity applies. The majority held that this provision could not be read in isolation, but rather in the context of the entire statutory framework. Reading Section 1604 together with 28 U.S.C. §1330, which provides district courts with jurisdiction over “any nonjury civil action against a foreign state,” the majority held that “the natural inference is that §1604 operates exclusively in civil cases.”Halkbank acknowledged that the FSIA’s jurisdictional immunities only apply in civil cases. That only reinforced the majority’s conclusion that the FSIA did not apply to criminal proceedings, since it would be odd for most FSIA provisions to apply only in civil cases, but one, Section 1604, to apply in both civil and criminal cases. According to the majority, “[t]he better and more natural reading” is that all of the FSIA provisions “operate in tandem within a single universe of civil matters.”The majority noted Halkbank’s concern that if the FSIA does not apply, state prosecutors might bring criminal proceedings against foreign sovereigns and their agencies or instrumentalities. But the majority stated that it “must interpret the FSIA as written,” while noting that “it is not evident

courts with subject-matter jurisdiction over criminal actions against foreign states or their agencies or instrumentalities and (2) whether the FSIA (a) grants foreign sovereigns immunity from criminal actions, and if it does, (b) whether the Section 1605 exceptions apply to both criminal and civil actions.ConclusionThe Supreme Court’s decision will provide clarity on whether and how foreign states or their agencies or instrumentalities are “indictable” in federal court. The Court’s ultimate decision will be of great interest to foreign government-owned institutions, specifically those that conduct USD transactions or have a U.S. nexus. A decision in this case is expected before the Court breaks for its summer recess in July 2023.United States v. Turkiye Halk Bankasi A.S., 16 F.4th 336 (2d Cir. 2021), cert. granted, 2022 U.S. Lexis 4151 (U.S. Oct. 3, 2021) (No. 21-1450). Petition for a Writ of Certiorari, Turkiye Halk Bankasi A.S. v. United States (No. 21-1450) at I. 18 U.S.C. § 3231. 28 U.S.C. § 1330(a) (emphasis added). 28 U.S.C. § 1603(a). 28 U.S.C. § 1603(b). 28 U.S.C. § 1604. 28 U.S.C. § 1605. 28 U.S.C. § 1605(a)(2) (emphasis added).Press Release, U.S. Dep’t of Justice, Turkish Bank Charged in Manhattan Federal Court for Its Participation in a Multibillion-Dollar Iranian Sanctions Evasion Scheme (Oct. 15, 2019).Press Release, U.S. Dep’t of Justice, Turkish Banker Convicted of Conspiring to Evade U.S. Sanctions Against Iran and Other Offenses (Jan. 3, 2018).Press Release, U.S. Dep’t of Justice, Turkish Banker Mehmet Hakan Atilla Sentenced to 32 Months for Conspiring to Violate U.S. Sanctions Against Iran and Other Offenses (May 16, 2018).United States v. Halkbank, No. 15-cr-867, 2020 U.S. Dist. LEXIS 182312, at *1 (S.D.N.Y. Oct. 1, 2020).Id. at *10–12.Id. at *11.Id. at *11–16.United States v. Halkbank,No. 15-cr-867, October 9, 2020 (ECF No. 679) (Notice of Appeal).United States v. Turkiye Halk Bankasi A.S., 16 F.4th 336, 347 (2d Cir. 2021) (“We think that the District Court plainl

The Ministry and the Kyrgyz Republic, both named as respondents, sought to dismiss the petition based upon, among other things, the doctrine of forum non conveniens. See id.The D.C. federal court had jurisdiction under 28 U.S.C. § 1330 and the Foreign Sovereign Immunity Act’s arbitration exception (28 U.S.C. § 1605(a)(6)). See id. at *6.

Only then may a U.S. court exercise jurisdiction over a foreign sovereign and the case proceed. 1The FSIA is codified at 28 U.S.C. §§1330, 1132, 1391(f), 1441(d), 1602-1611. Foreign states are immune from suit in U.S. courts, unless an exception to immunity provided by the FSIA applies.

If a suit falls within one of these exceptions, FSIA provides for personal jurisdiction “where service has been made under section 1608.” 28 U.S.C. §1330(b). In particular, it sets out in hierarchical order the methods by which “[s]ervice . . . shall be made.”

The plaintiffs also had alleged claims under the federal Racketeer Influenced and Corrupt Organizations Act (“civil RICO”), but the district court previously had dismissed those claims, finding that they were impermissibly extraterritorial under the Supreme Court’s 2016 decision in RJR Nabsico, Inc. v. European Cmty. Anyone interested in federal procedure and the ability to sue foreign defendants in U.S. court for foreign (mis)conduct should read the entire opinion, which provides a comprehensive discussion of many complex issues. For our more general purposes here, we note the court’s following conclusions: Even though it previously had dismissed the sole federal claim, the court still had original subject-matter jurisdiction under 28 U.S.C. §§ 1330, 1441(d) because plaintiff City of Almaty was a “foreign state.” Dismissal under the doctrine of forum non conveniens was not appropriate, even though the defendants preferred to litigate in Switzerland, in part because of the centrality of the plaintiffs’ allegations regarding money laundering using New York City real estate.

Bi based his argument on the fact that under the FSIA, federal courts “have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state.” 28 U.S.C. § 1330(a). While this is true, the court also noted that the FSIA provides that any civil action brought in state court against a foreign state “may be removed by the foreign state” to federal court pursuant to 28 U.S.C. § 1441(d).