Enforcement of Judgment in the United States

The FSIA and State-Sponsored Terrorism: Enforcement of Judgment

Execution of Judgments in § 1605A Cases

Many of the judgments rendered under the terrorism exception have been substantial, sometimes exceeding $100 million. Most have been default judgments. And most have remained unsatisfied. Despite the Foreign Sovereign Immunities Act’s specific provisions concerning the enforcement of terrorism judgments against state sponsors, successful plaintiffs have had great difficulty with actual execution. Problems result partly from the restrictive provisions of the law itself, but more generally from the fact that designated state sponsors of terrorism have taken steps to minimize or eliminate any property or assets in the United States that might be subject to execution.

In response, the Foreign Sovereign Immunities Act (FSIA) has been amended several times with regard to judgments against state sponsors of terrorism, and several separate but related statutes have also been enacted. This section provides a description of these developments and the specific issues relating to the enforcement of judgments rendered in cases brought under § 1605A. These issues are discussed within the context of the FSIA’s broader provisions concerning attachment and execution of judgments against foreign states and their agencies and instrumentalities, and in light of successive statutory amendments. With a changing legislative framework (which has in turn stimulated various judicial interpretations), this area of law remains complicated and continues to evolve.

Generally

Under the FSIA, the property of a foreign state (including its agencies and instrumentalities) in the United States is presumptively immune, and the lack (or waiver) of immunity of the state from jurisdiction under the FSIA does not guarantee that a resulting judgment will be enforceable against the foreign state’s assets. This is true because the statute provides broader immunity from execution than from jurisdiction. Under § 1609, even if a valid judgment has been entered, the property of a foreign state (or its agencies and instrumentalities) remains immune and can only be subject to attachment and execution as specifically provided in §§ 1610 and 1611. Accordingly, the burden remains on the judgment creditor to demonstrate that specific property is subject to attachment or execution. Limited discovery may be allowed to aid in the execution of judgments against foreign state property, but only with regard to specific property believed to be subject to attachment.

Protected properties

Section 1610 sets out the rules regarding attachment and execution, and they are discussed in detail in this section. However, additional limitations apply. Specifically, § 1611 exempts certain categories of property from those rules. These categories include:

• the property of international organizations that have been designated under the International Organizations Immunities Act;
• the property of a foreign central bank held for its own account (as well as funds held in the name of a central bank or monetary authority);
• property of a military character or used for a military activity; and
• in actions brought under § 302 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, a facility or installation used by an accredited diplomatic mission for official purposes.

In addition, certain types of property are protected by operation of other rules; for example, foreign embassies, consulates, and other missions, along with their bank accounts, are generally immune and inviolable under the Vienna Conventions on Diplomatic Relations and Consular Relations.

Section Added

§ 1610(a)(7) was added to permit execution of judgments related to claims for which foreign states were no longer immune under the new provision, but it allowed execution only against property of that state used for commercial purposes in the United States “regardless of whether the property in question was involved with the act on which the claim was based.”

Terrorism Risk Insurance Act of 2002 (TRIA)

For more information about FISA in relation to Terrorism Risk Insurance Act of 2002 (TRIA), click here.

Post-TRIA legislation

The most important changes were made by adoption of § 1610(g), in which Congress further expanded the category of property subject to attachment for cases involving state sponsors. The first major change was to eliminate (for judgment purposes) the distinction between the state itself and its agencies or instrumentalities.

Blocked assets

In Weininger v. Castro, the court stated, “[W]here a judgment against a terrorist party exists, not only its blocked assets, but the assets of its agencies and instrumentalities can be used to satisfy the judgment.”

Extent of property interest

One sharply contested set of questions concerns the extent of the terrorist party’s interest in the blocked assets required for attachment and the appropriate choice of law in making this determination.

Obtaining a Judgment

This section covers:

• Judgments: its definition in this context
• Final Judgments
• The Appeals Process (including some States, such as California, Massachusetts and New York)
• Effect of Amended Judgments on Finality and Appeal

Writs of Attachment and Their Foreign Equivalents

This section covers:

• Writs of Attachment (specially at State level)
• Provisional Remedies Beyond the United States

Amending the Judgment

This section covers:

• Amending the Judgment (in some States)
• Proceedings Supplementary (in some States)
• Actions to Reach and Apply (in some States)
• Restraining Notices (in some States)

Enforcing Judgments in the United States

This section covers:

• Procedure for the Enforcement of a Federal Judgment
• Procedure for the Enforcement of a State Judgment

Judgment Debtor Examinations

This section covers:

• Judgment Debtor Examinations Under Federal Law
• Judgment Debtor Examinations Under State Law

Asset Investigations and Ethical Challenges

This section covers:

• Limitations on Private Investigators: State Law Requirements for Private Investigators
• Limitations on Private Investigators: Federal Privacy Laws
• Limitations on Private Investigators: State Privacy Laws
• Fair Credit Reporting Act
• Fair Debt Collection Practices Act
• Gramm-Leach-Bliley Act
• Computer Fraud and Abuse Act
• Electronic Communications Privacy Act of 1986
• Telephone Records and Privacy Protection Act of 2006
• Limitations on Private Investigators: Professional Responsibility Rules for Lawyers
• Liability Risk Posed to Lawyers By Private Investigators