Resolving these claims required the Court to first determine which law governed how a federal court should determine ownership of seized funds such that the assets could be attached by the Estates. In answering this question, the Court was tasked with determining whether the District Court erred in relying upon U.C.C. Article 4A § 4A-402—a state law—as a matter of federal common law, to determine whether Iran maintained a sufficient property interest in the blocked funds such that the Estate could attach them to collect their judgements against Iran under either § 201(a) of the Terrorism Risk Insurance Act of 2022 (“TRIA”) or 28 U.S.C. § 1610(g) of the Foreign Sovereign Immunities Act. (“FSIA”).

The district court and the Ninth Circuit allowed Elahi to intervene. The Ministry appealed to the U.S. Supreme Court.The Supreme Court vacated because the Ninth Circuit had held that exceptions to immunity from attachment in 28 U.S.C. § 1610(b) applied to Iran's Ministry of Defense, but it had not first determined that the Ministry was a "agency or instrumentality" of a foreign state, instead of the "foreign state." Where the exceptions to immunity from attachment 28 U.S.C. § 1610(a) apply to foreign states, the exceptions to immunity from attachment in 28 U.S.C. § 1610(b) apply only to an "agency or instrumentality" of a foreign state.

Id.Id. at 9. See 28 U.S.C. § 1610(a)(7). See Havlish v. 650 Fifth Ave. Co., 934 F.3d 174, 177 (2d Cir. 2019) (vacating turnover orders and remanding for further proceedings).

ICANN is based in California and works pursuant to a contract with the United States Department of Commerce. The global community voluntarily chooses to use ICANN as the manager of its Internet domain names.D.C. Circuit DecisionInitially, the D.C. Circuit determined that certain victims could bring claims under the “terrorist activity” exception to the FSIA, 28 U.S.C. § 1610(g). Although the FSIA protects foreign governments from litigation in U.S. courts, there is an exception for claims based on terrorism.

jurisdiction under FSIA is all that is required.”[8] It also noted that even if Antrix was entitled to due process protection, it would have had personal jurisdiction because Antrix possessed the requisite “minimum contacts” with the United States and had “purposefully availed itself of the privilege of conducting business activities in the United States” through its long-term negotiations with a Virginia-based consulting firm which resulted in establishing Devas and in the execution of the parties’ agreement.[9] On the merits, the District Court found no basis under the New York Convention to refuse recognition and entered a judgment confirming the $562.5 million award plus pre- and post-award interest.[10] Antrix appealed the decision.In January 2022, the District Court granted the motion filed by intervenor companies related to Devas to register the judgment in the Eastern District of Virginia, determining that a reasonable period time had elapsed since the entry of judgment under 28 U.S.C. § 1610(c) and finding good cause for registration in the Eastern District of Virginia, since Antrix was owed funds by a U.S. company in bankruptcy proceedings there.[11]The Ninth Circuit reversed the District Court’s decisions on August 1, 2023, holding that the District Court erroneously concluded that a minimum contacts analysis was unnecessary to exercise personal jurisdiction over a foreign state.[12] It found that the District Court was bound by the Ninth Circuit’s 1980 decision in Thomas P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica (“Gonzalez”), which held that personal jurisdiction under the FSIA “requires satisfaction of the traditional minimum contacts 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

transportation system would have collapsed.Instead of suing Russia directly for expropriation, the U.S. aviation leasing companies whose aircraft and engines were expropriated chose to sue their insurance carriers, notwithstanding that political risk — including expropriation — are excluded from their policies. (As expected, the insurance companies are vigorously opposing these claims on the basis that, among other defenses, expropriation is not covered under their policies.)U.S. aviation companies (and only U.S. entities) have an alternative way to recover because they can directly sue Russia in U.S. courts for expropriation under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3) (“FSIA”). Importantly, the Russian Federation has significant assets in the U.S. (frozen by the U.S. Government) that could be attached to satisfy a judgment issued by a U.S. court.The FSIA also authorizes enforcement against specified categories of foreign government assets in the United States. 28 U.S.C. § 1610(a) or (b). In passing the FSIA in 1976, Congress specifically intended to provide relief from the very type of expropriation engaged in by Russia.In many cases involving expropriation, the offending government will do whatever it can to avoid providing compensation to foreign parties whose property was expropriated. In the case of Russia, however, recent events appear to indicate that the Russian government may be willing to provide compensation to leasing companies for expropriation.Recently, Russia authorized NSK Insurance Company, a Russian insurance company, to pay $645,000,000 to Aercap Holdings, a major Irish aircraft leasing company, as compensation for the loss of aircraft and engines that the Russian Federation expropriated. The receipt of insurance payment of $645,000,000 was also approved by the U.S. Department of Commerce and the U.S. Department of Treasury. (The U.S. Government’s approval is necessary because U.S. sanctions restrict Russia’s use of the international financia

Rubin v Islamic Republic of IranRubin sought reviewed the 7th Circuit decision holding 28 USC 1610(g) does not create an independent exception to sovereign immunity for attachment and execution purposes. Resolving a circuit split on the issue, the Court, with Kagan recused, affirmed.

PEM Entities LLC v. Levin, No. 16-492: Whether bankruptcy courts should apply a federal rule of decision (as five circuits have held) or a state rule of decision (as two circuits have held, expressly acknowledging a split of authority) when deciding to characterize a debt claim in bankruptcy as a capital contribution.Rubin v. Iran, No. 16-534: Whether 28 U.S.C. §1610(g) provides a freestanding attachment immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether the assets are otherwise subject to execution under §1610.Marinello v. United States, No. 16-1144: Whether the residual clause in §7212(a) of the Internal Revenue Code requires that there was a pending IRS action or proceeding, such as an investigation or audit, of which the defendant was aware when he engaged in the purportedly obstructive conduct.

The court rejected an argument by Petitioners that the intermediary was a branch of one of the Respondents such that the transfer was effectively a direct transaction between El Nilein and the Respondents. The court’s holding is a positive development for global banks that fear that the judiciary might broaden the scope of entities that qualify as an agency or instrumentality of a foreign state or a terrorist party.1 OFAC requires financial institutions to “block” certain assets by promulgating regulations that prohibit, among other things, the transfer of property or interest belonging to certain foreign entities and terrorist organizations.2Harrison v. Republic of Sudan, No. 13-cv-3127 (PKC) (S.D.N.Y. Feb. 10, 2017) (order on cross-motions for summary judgment).3 28 U.S.C. § 1610(g).4 Pub. L. No. 107-197, 116 Stat.

To recap, Rubin, written by Circuit Judge Diane Sykes and joined by Senior Circuit Judge William Bauer and District Judge Michael Reagan (of the Southern District of Illinois, sitting by designation), stems from a long-running dispute involving the victims of a 1997 Hamas bombing in Jerusalem and the victims’ attempts to collect default judgments entered against Iran as a state sponsor of terrorism. The Seventh Circuit held that a provision of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1610(g), does not create a freestanding exception to the general prohibition on executing a judgment against a foreign state, thus limiting the plaintiffs to executing against property that Iran uses commercially in the U.S. Certain artifacts, owned by Iran, that are in the care of some Chicago museums are not “used commercially,” so Iran secured a victory (of sorts) in the decision.Rubin overruled a prior panel decision in the Seventh Circuit and created a split with a recent Ninth Circuit decision, which meant that the opinion would normally have had to be circulated before publication to the other judges of the Seventh Circuit in regular active service, under Seventh Circuit Rule 40(e). What was remarkable about Rubin is that Chief Judge Wood and Circuit Judges Posner, Flaum, Easterbrook, and Rovner (five of the nine active judges on the Seventh Circuit) had to recuse themselves from the Rule 40(e) process.