Foreign Immunities Attachment and Execution in the United States

Post-judgment Attachment and Execution

Section 1610 sets forth limited exceptions to immunity for attachments in aid of execution and for execution of judgments obtained under the statute against foreign states (§ 1610(a)) and their agencies and instrumentalities (§ 1610(b)), respectively. In all cases, the property against which execution is sought must be “in the United States.” Moreover, under § 1610(c), no attachment or execution against either foreign states or their agencies or instrumentalities is permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under § 1608(e).

Pre-judgment Attachment

Under § 1610(d), pre-judgment attachment of a foreign state’s property used for a commercial activity in the United States is available only if the foreign state in question has explicitly waived its immunity from such attachment and the purpose of the attachment is to secure satisfaction of an eventual judgment, not to obtain jurisdiction.193 This provision has been held to prohibit writs of garnishment.

States vs. Agencies and Instrumentalities

In respect of enforcing judgments (as with jurisdictional issues), courts have generally taken care to respect the distinction (codified in § 1610(a) and (b)) between the foreign state or government and its agencies and instrumentalities.

Procedure

In actions under the FSIA, courts will generally apply the relevant procedures under applicable state law. However, § 1610(c) provides that “[n]o attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required” under § 1608(e).

Post-judgment Discovery

A court may order limited discovery of a foreign sovereign defendant for purposes of identifying assets against which a judgment might be executed. The same considerations that apply at the initial jurisdictional stage also apply here as a function of the presumptive immunity of those assets, even where the sovereign may have waived its jurisdictional immunities. There is some debate about the permissible scope of postjudgment discovery in aid of execution.

Property of a Foreign State

Under § 1610(a), in order to be subject to attachment or execution, the property of a foreign state must be (a) located in the United States and (b) “used for a commercial activity.” (In contrast, under the separate test of § 1610(b)(2), it is sufficient if the agency or instrumentality itself is “engaged in commercial activity in the United States.”) Moreover, the property must be in the United States when the court authorizes execution.

Location of the Property

The FSIA does not apply to the property and assets of a sovereign defendant located outside the United States.211 The Ninth Circuit has held that the situs of an intangible right to payment, under applicable state law, was the location of the debtor, so that a debt obligation of a French corporation to the government of Iran did not constitute “property in the United States” for purposes of § 1610(a)(7).

Used for a Commercial Purpose

In a commercial activity case, the property of the foreign state must be “used for the commercial activity upon which the claim is based.” Accordingly, the statutory definition of “commercial activity” under § 1603(d) (discussed above) is applicable. This requirement excludes such property as embassies and consulates, and military vessels and aircraft.

Other Requirements

In addition, for foreign state property to be amenable to execution, the moving party must also satisfy one of the subsidiary requirements in § 1610(a)(1)–(7), which correspond roughly to the exceptions from jurisdictional immunity set forth in § 1605. Thus, § 1610(a)(1) addresses waivers. As in the case of jurisdiction, express waivers with respect to attachment and execution are sometimes found in the relevant underlying contracts but must be clearly made on behalf of the foreign state in question.220 Under § 1610(a)(6), property of a foreign state in the United States which is “used for a commercial activity in the United States” may be attached upon a judgment “based on an order confirming an arbitral award rendered against the foreign state.

State Sponsors of Terrorism

As discussed at greater length in the Addendum in Part VII infra, execution of judgments against designated state sponsors of terrorism based on § 1605A (which has replaced § 1605(a)(7)) is governed by the provisions of § 1610(f). Execution of such judgments against certain “blocked assets” is permitted by § 201 of the Terrorism Risk Insurance Act of 2002 (TRIA).222 In Ministry of Defense and Support for Armed Forces of the Islamic Republic of Iran v. Elahi, the U.S. Supreme Court held that a judgment creditor of Iran could not execute against a separate entity because (a) the latter judgment did not constitute a “blocked asset” for TRIA purposes at the time of the lower court decision and (b) in any event, the judgment creditor had waived his right to attachment by electing to take partial payment under the Victims of Trafficking and Violence Protection Act of 2000 judgment in favor of Iran.

Agency or Instrumentality

Under § 1610(b), which applies to execution against property of an agency or instrumentality located in the United States, the agency or instrumentality itself must be “engaged in commercial activity in the United States.”224 Moreover, § 1610(b) provides that the property of a foreign agency or instrumentality engaged in commercial activity in the United States is subject to execution, or attachment in aid of execution, if that agency or instrumentality has specifically waived its immunity or if the judgment relates to a claim for which the agency or instrumentality is not immune, “regardless of whether the property is or was involved in the act upon which the claim is based. Judgments against agencies and instrumentalities may, of course, also be enforced in any way that a judgment could be enforced against the concerned foreign state itself.

Exceptions

Under 28 U.S.C. § 1611, certain categories of property are immune from attachment and execution. These categories include property of international organizations that have been designated under the International Organizations Immunities Act226 (for example, funds being disbursed by the World Bank to a foreign state), property of a foreign central bank held for its own account, and property of a military character or used for a military activity.