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Alberti v. Empresa Nicaraguense de la Carne
Published online by Cambridge University Press: 27 February 2017
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- Type
- Judicial Decisions
- Information
- Copyright
- Copyright © American Society of International Law 1983
References
1 705 F.2d 250, 254.
2 The court noted, however, that plaintiffs were free to file a counterclaim and raise the § 1607(c) argument in a pending lawsuit in Florida, which had been brought by defendant ENCAR to recover on the commercial debt. Ibid.
3 Id. at 255.
4 Ibid.
5 Id. at 256 (quoting H.R. Rep. No. 1487, 94th Cong., 2d Sess. 17, reprinted in 1976 U.S. Code Cong. & Ad. News 6604, 6616 [hereinafter cited as House Report]).
6 705 F.2d at 256.
7 Ibid.
8 The court of appeals also vacated for lack of jurisdiction the district court’s decision that the act of state doctrine precluded recovery. In addition, the court expressly affirmed the lower court’s holding that service of process by mail upon the Nicaraguan Ambassador to the United States in Washington, D.C was defective under §1608 of the FSIA.
9 Cf. Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1378 (5th Cir. 1980), in which the U.S. Court of Appeals for the Fifth Circuit noted, without close discussion, the foreign state’s burden of proving the “non-applicability of specified exceptions.” Lower courts have imposed the burden of producing evidence on the foreign state. See, e.g., Matter of Sedco, Inc., 543 F. Supp. 561 (S.D. Tex. 1982); De Sanchez v. Banco Central de Nicaragua, 515 F. Supp. 900 (E.D. La. 1981); Jet Line Services, Inc. v. M/V Marsa El Hariga, 462 F. Supp. 1165 (D.Md. 1978).
10 See House Report, supra note 5, at 6616.