The Supreme Court of the United States issued two decisions this morning:Republic of Sudan v. Harrison, No. 16-1094: Under the Foreign Sovereign Immunities Act (“FSIA”), a foreign state may be served by means of mailing that is “addressed and dispatched . . . to the head of foreign affairs of the foreign state concerned.” 28 U.S.C. §1608(a)(3). Respondents, who are victims (and their family members) of the USS Cole bombing in Yemen by al Qaeda, sued the Republic of Sudan alleging that it provided material support to al Qaeda.

5Specifically, section 1608 sets out, in hierarchical order, four methods to accomplish service: first, by special arrangement for service between the complainant and the foreign state; second, if no special arrangement is available, then by the rules in an applicable convention on service of judicial documents; third, if service cannot be made under the foregoing two methods, by mail requiring signed receipt to the ministry of foreign affairs; or, fourth, if service cannot be made within 30 days under the third method, then by mail requiring a signed receipt to the Director of Special Counselor Services and through diplomatic channels. See 28 U.S.C. §1608(a) (emphasis added).6A service packet includes a copy of the summons and complaint.

On March 26, 2019, the U.S. Supreme Court decided Republic of Sudan v. Harrison et al., No. 16-1094, holding that the Foreign Sovereign Immunities Act of 1976 (FSIA) requires a mailing to be sent directly to the foreign minister’s office in the foreign state to perfect service. 28 U.S.C. §1608(a)(3). Under the FSIA, a foreign state is immune from the jurisdiction of courts in this country unless one of several enumerated exceptions to immunity applies.

Brian P. Maloney, and Laura Miller acted as counsel for CME in the underlying arbitration, at the trial court on confirmation of the arbitral award, and on appeal to the Second Circuit.The Second Circuit’s decision breaks new ground with respect to the recognition and enforcement of international commercial arbitration awards governed by the Federal Arbitration Act (FAA) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), where – as in this case – an arbitral award is made against an entity claiming immunity under the Foreign Sovereign Immunities Act (FSIA).In the case, the Court resolved an important open question concerning service, and held in relevant part that a party applying to a court to confirm a foreign arbitral award under Chapter 2 of the FAA and the New York Convention is not required to serve a summons on the adverse party to satisfy the FAA’s service of notice requirement, despite the FSIA’s apparent instruction in 28 U.S.C. § 1608(b) to serve a “summons and complaint” in order to obtain jurisdiction over a an agency or instrumentality of a foreign state. The Second Circuit also found that the district court properly enforced the arbitration award on the merits, because appellant CVG Ferrominera Orinoco C.A. (Ferrominera) failed to establish that the arbitration agreement was invalid under U.S. maritime law, the Panel did not exceed its authority under the arbitration agreement in issuing the award, and the award is not contrary to U.S. public policy.After reviewing the competing statutory schemes, the Court held that the New York Convention and the FAA require service of only “notice of the application” to confirm a foreign arbitral award, and not also a summons. The Court reasoned that “(1) the FAA itself defines the documents to be served, and cross-references other provisions (including Rule 4 [of the Federal Rules of Civil Procedure] and the FSIA) only to fill gaps in the permissible manner of serving those do

deadline under Federal Rule of Civil Procedure 23(f).Washington State Department of Licensing v. Cougar Den Inc., No. 16-1498: Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.Dawson v. Steager, No. 17-419: Whether the doctrine of intergovernmental tax immunity, as codified in 4 U.S.C. §111, prohibits the State of West Virginia from exempting from state taxation the retirement benefits of certain former state law-enforcement officers, without providing the same exemption for the retirement benefits of former employees of the United States Marshals Service.Republic of Sudan v. Harrison, No. 16-1094: Whether the Second Circuit erred by holding—in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States—that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C §1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.Bistek v. Berryhill, No. 17-1183: Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. §404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.