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The Foreign Sovereign Immunities Act of 1976: A Plea for Drastic Surgery
Published online by Cambridge University Press: 28 February 2017
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- Sovereign Immunity, Act of State, OPEC
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- Copyright © American Society of International Law 1980
References
1 The Act, Public Law 94-583, 90 Stat. 2891 (1976), was enacted on October 21, 1976, and, according to its Section 8, took effect “ ninety days after the date of its enactment.” The Act added Sections 1330,1391 (f), 1441 (d), and 1602-1611 to Title 28, U.S.C., and amended Section 1332 (2) and (3) of Title 28, U.S.C., by substituting subsections (2), (3), and (4).
2 For commentary on the Act, see generally Kahale & Vega, Immunity and Jurisdiction: Toward a Uniform Body of Law in Actions Against Foreign States, 18 COLUM. J. TRANSNAT'L L. 211 (1979); Brower, Bistline & Loomis, The Foreign Sovereign Immunities Act of 1976 in Practice, 73 AJIL 200 (1979); Carl, Suing Foreign Governments in American Courts: The United States Foreign Sovereign Immunities Act in Practice, 33 SW. L.J. 1007 (1979); Von Mehren, The Foreign Sovereign Immunities Act of 1976, 17 COLUM. J. TRANSNAT'L L 33 (1978); Delaume, Public Debt and Sovereign Immunity: The Foreign Sovereign Immunities Act of 1976, 71 AJIL 339 (1977); Simmons, The Foreign Sovereign Immunities Act of 1976: Giving the Plaintiff His Day in Court, 46 FORDHAML. REV. 543 (1977); Sklaver, Sovereign Immunity in the United States: An Analysis of S. 566, 8 INT'L LAW. 408 (1974); Note, Sovereign Immunity: Limits of Judicial Control: The Foreign Sovereign Immunities Act of 1976, 18 HARV. INT'L L.J. 429 (1977).
3 See authorities cited note 2 supra.
4 The term “adjudicatory authority” is used to describe judicial power in the constitutional as well as the statutory sense. The term “competence” denotes only statutory power. See generally Rosenberg, Weinstein, Smit & Korn, Elements of Civil Procedure 206-207 (3d ed. 1976). For authorities supporting the rules stated in the text, see id. 213-214; Fed. R. Civ. P. 12 (h) (3).
5 These are less fundamental, because they may all readily be waived. Fed. R. Civ. P. 12(hi (1), 38(d), and 28 U.S.C. § 1605(a) (1X1980).
6 In Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1963), Judge Friendly, in reversing a lower court order dismissing the action for failure to state a claim on the ground that the court should first have ruled on the motions to dismiss for want of competence and venue, stated (at 221):
Not only does logic compel initial consideration of the issue of jurisdiction over the defendant—a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim — but the functional difference that flows from the ground selected for dismissal likewise compels considering jurisdiction and venue questions first. A dismissal for lack of jurisdiction or improper venue does not preclude a subsequent action in an appropriate forum whereas a dismissal for failure to state a claim upon which relief can be granted is with prejudice.
The considerations expressed by Judge Friendly would appear to apply, mutatis mutandis, in determining the rational order of disposition of the defenses considered here.
7 In Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103 (2d Cir. 1966), cert, den., 385 U.S. 931 (1966). the Court stated (at 106):
The proper theoretical approach to the issues in this case is indicated by the brief of the United States as amicus curiae … . “Only after such jurisdiction [i.e., in personam or in rem] is acquired, does the sovereign immunity defense property [sic] come into consideration. Instead of being a “jurisdictional” matter in the same sense as acquiring jurisdiction over a person or property, sovereign immunity presents a ground for relinquishing the jurisdiction previously acquired.”
Regrettably, this proper and judicially approved analysis was disregarded by the drafters of the Act.
8 Questions of fact arising upon adjudication of issues of subject matter and in personam and in rem competence are traditionally resolved by the court, and not by the jury. See Reese, Smit, & Reese, The Role of the Jury in Choice of Law, 25 CASE W. RES. L. REV. 775 (1975).
9 See text at notes 79-85 infra.
10 A judgment in a contested case rendered by a court that lacks subject matter competence may be null and void and subject to collateral attack. Compare United States v. United States Fidelity & Guaranty Co., 309 U.S. 508 (1940) (yes, in case judgment improperly denying sovereign immunity); Kalb v. Feuerstein, 308 U.S. 433 (1940) (yes), with Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940) (no). Judgments in contested cases that improperly assume in personam or in rem competence or deny a trial by jury are subject only to direct attack. See, e.g., Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939).
11 28 U.S.C. §1330(a)(1980).
12 28U.S.C. §1330(b)(1980).
13 The traditional rule is that personal service on a person within the state creates competence. Such service performs the dual function of giving notice and creating in personam competence. See generally ROSENBERG, WEINSTEIN, SMIT & KORN, ELEMENTS OF CIVIL PROCEDURE 254-255 (3d ed. 1976).
14 28 U.S.C. §1330(b) (1980). Long-arm statutes, especially older ones, not infrequently reflect insufficient legislative awareness of the more limited role service plays under such statues. For example, Illinois Practice Act and Rules, Smith-Hurd 111. Am. Stat. c. 110 §17(2) (1979), in providing for service outside the state, states that such service shall have “the same force and effect as though summons had been personally served within this State.” However, while based on an erroneous notion of the function of service, these statutes do not let in personam competence depend on whether service has been made. Insofar as known, the Foreign Sovereign Immunity Act is the only statute that does this.
15 See text at notes 72-85 infra.
16 As properly noted in Petrol Shipping Corp. v. Kingdom of Greece, supra, note 7, the question of sovereign immunity does not arise until the court has decided that it has authority to hear the case.
17 See, e.g., Flota Maritima Browning de Cuba, S.A., v. M/V Ciudad de la Habana, 335 F.2d 619, 620 (4th Cir. 1964):
Consent to suit is manifested and waiver of sovereign immunity accomplished when the sovereign enters a general appearance, certainly if the general appearance is unaccompanied by a claim of immunity.
The Act, by providing in §1605(a) (1) that immunity may be waived “by implication,” affirms this holding. See also Kahale & Vega, supra note 2, at 230; Carl, supra note 2, at 1015.
18 Fed. R. Civ. P. 12(h) (3)
19 See note 10 supra. One cannot readily assume this to have been the legislative intent. However, the improper introduction of sovereign immunity into the definition of subject matter competence creates at least the opportunity for dispute.
20 This, again, is unlikely to have been the intent of the legislature, which reaffirmed that immunity should be waived at an early stage. See note 17 supra. But the improper linkage of immunity with subject matter competence again provides a premise for an argument that should have been avoided.
21 The answer to this question is, unfortunately, by no means clear. Under prior law, there was significant authority for the proposition that immunity had to be pleaded by the sovereign or suggested upon the record by the United States. RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §71 (1965). The Supreme Court had ruled in the The “Gul Diemal”, 264 U.S. 90 (1942), that a ship's master was not a proper person “to vindicate the owner's sovereignty” — a ruling that would have been irrelevant if the court could have raised the issue on its own motion. Both authorities appear irreconcilable with the possibility of the court's raising the defense of sovereign immunity on its own motion. However, now that sovereign immunity is wedded to subject matter competence, Fed. R. Civ. P. 12(h)(3) would appear to permit the court to raise the immunity defense ex proprio motu. This, indeed, was the conclusion reached in International Ass'n of Machinists and Aerospace Workers v. OPEC etalii, 477 F. Sup. 553, 565 CD. Cal., (1979). The practical importance of the question is illustrated by the difficulties encountered by the Mexican Government in Aquino Robels v. Mexicana de Aviacion, described in Carl, supra, note 2 at 1056-1057. The problem is aggravated by the Act's positing immunity as the general rule rather than the exception. As a result, if the court may raise the immunity question on its own motion, the premises for dismissal are present as soon as the defendant appears to be a foreign state. Since the sovereign immunity defense should properly be recognized only by way of exception, the Act should be amended to make clear that sovereign immunity must be pleaded by the sovereign. This does not mean that the sovereign need appear by counsel (see 28 U.S.C. §1654(1980)). Nothing in the Act prevents, and if necessary the Act should be amended not to prevent, the Department of State from acting as a channel for transmission of pleas of sovereign immunity. The Department of State has acted in this function before and, so long as it does not take a position in regard to the plea, it can so act conformably with the Act.
22 See note 21 supra.
23 Except perhaps indirectly, by making sovereign immunity an element of subject matter competence. 28 U.S.C. §1330(a)(1980). In any event, the Act does not address the issue in a suit against a foreign sovereign in a state court.
24 See note 21 supra.
25 As stated in note 21 supra, if this were not clear, the Act should be amended to make it so.
26 This rule is based on the commonsensical notion that the distribution of subject matter adjudicatory authority among the state and federal courts involves political questions affecting the body politic at large and should not be subject to disposition by private parties. The Act should have adhered to this notion, which is equally applicable to the situation at hand.
27 This has typically been true in diversity cases. See e.g., WRIGHT, LAW OF FEDERAL COURTS §28 (3d ed. 1976). However, the Supreme Court has also ruled that a nondiversity case cannot be turned into a federal question case by the defendant's interposing a defense based on federal law. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908). And this is, in effect, what a defendant sovereign state might do by waiving its immunity defense by answer.
28 As Judge Friendly noted in Arrowsmith v. United Press International, supra, note 6, a dismissal for lack of competence does not preclude a subsequent action in an appropriate forum. Normally, rulings on procedural questions, such as lack of subject matter competence, are given only direct, and not collateral, estoppel effect. See, e.g., RESTATEMENT (SECOND) OF JUDGMENTS §48.1,(Tent. Draft No. 1, 1973).
29 On the present status of this form of adjudicatory authority, see Smit, The Enduring Utility of In Rem rules: A Lasting Legacy ofPennoyer v. Neff, 43 BROOKLYN L. REV. 600 (1977); Smit, The Importance of Shaffer v. Heitner; Seminal or Minimal ?, 45 BROOKLYN L. REV. 519 (1979).
30 After all, since the 1963 amendments to Fed. R. Civ. P. 4, in rem and quasi-in-rem actions may be brought as original actions in the federal district courts. See also note 32 infra.
31 On whether attachment is an indispensable prerequisite to the exercise of in rem and quasi-in-rem adjudicatory authority, see notes 35-36 infra.
32 See Advisory Committee's Note to Proposed Rule 4(e).
33 For more detailed criticism, see text at notes 108-120 infra.
34 It permits such attachments only if (1) the defendant has waived its immunity from attachment explicitly, and (2) the purpose of the attachment is to secure satisfaction of the judgment, and not to obtain competence.
35 See, e.g., Martin v. Better Taste Popcorn Co., 89 F. Supp. 754 (S.D. Iowa 1950). See also Note, Quasi-in Rem Jurisdiction Without Attachment, 39.U.MO.K.C.L. REV. 103 (1970).
36 As, in fact, the Act does in §1605(b).
37 Because the Act permits prejudgment attachment in such cases. 28 U.S.C. §1610(d).
38 Of course, an amendment to this effect would by no means remedy all defects in that provision. For proposals seeking to achieve that, see text at notes 47-53 infra.
39 The Senate Report on the Bill, SEN.REP.NO. 94-1310, 94th Cong. 2d Sess. 12 (1976), states, “As in suits against the U.S. Government, jury trials are excluded.” However, the circumstance that a jury trial is not constitutionally guaranteed in a suit against the U.S. Government does not necessarily justify the conclusion that it is not constitutionally guaranteed in a suit against a foreign sovereign. As the restrictive doctrine, which is not applied to the U.S. Government, itself proves, the considerations that determine the immunity from suit of the U.S. government are different from those that determine the immunity of foreign states. Since, until recently, suits against foreign states were ordinarily of an equitable in rem or quasi-in-rem nature, the issue of trial by jury did not arise. Now t h a t suits in personam are possible, and in fact have almost been elevated to exclusive status, the question does arise. While, as a practical matter, it would appear desirable to try cases against foreign states to the bench rather than to the jury, a functional application of the historical test may, on reasonable grounds, be argued to require recognition of a constitutional right to trial by jury. Cf. Damsky v. Zavatt, 289 F.2d 46 (2d Cir. 1961). And a particularly close question is presented when the action is against a foreign corporation, the majority of whose shares are owned by a foreign state or political subdivision thereof in the sense of §1603(b). Significantly, in regard to the latter question, it has already been held that a constitutional right to trial exists, Icenogle v. Olympic Airways, S.A., 82 F.R.D. 36 (D.D.C. 1979).
40 Especially since, under the present version of 28 U.S.C. §1330(a) (1980), the court, when it finds that there is a right to a jury, may have to dismiss for want of subject matter competence rather than simply direct a bench trial. See also note 42 infra.
41 For an example, See Icenogle v. Olympic Airways, S.A. 82 F.R.D. 36 (D.D.C. 1979).
42 Inlcenogle, id., the court managed to avoid this result by holding, in the teeth of persuasive legislative history to the contrary, that §1330(a) does not provide the exclusive basis of subject matter competence in actions against a foreign state. The court made clear that it embraced this construction to avoid having to rule the Act unconstitutional, and that, under §1441(d), it could not have managed to do this if the action had originally been brought in a state court and then removed to the district court. In any event, when competence cannot be based on § 1332(a) (2), the court would have to dismiss for want of subject matter competence. This will be the case when the action is brought by an alien or against the foreign state itself, rather than a citizen or subject thereof. On whether a noncitizen can bring an action under §1330(a), see text at notes 48-51 infra.
43 Under 28 U.S.C. §1441(d) (1980), the action may be removed only “by the foreign state.”
44 See note 28 supra.
45 It is well-settled that the Seventh Amendment does not extend to civil actions brought in state courts. Minneapolis & St. Louis Ry. v. Bombolis, 241 U.S. 211 (1916); GREEN, BASIC CIVIL PROCEDURE 173 (2d ed. 1979). As a result, application of any doctrine of estoppel may be unwarranted on the ground that the issues are not the same.
46 Apparently, the question of whether the right to a jury should also be excluded in actions brought by foreign states was not considered by the drafters of the Act, although the Act, in §1332(a) (4), does create subject matter competence in such actions. If, as may be defended on historical grounds, the United States has no right to trial by jury in actions brought by it, the drafters of the Act should at least have considered whether also to extend this rule to foreign states. Indeed, a provision outlawing trial by jury in cases involving foreign states (as distinguished perhaps from foreign state-owned corporations) may well be argued to be so desirable as to warrant assumption of the risk that the Supreme Court might rule it unconstitutional.
47 Since the Act deals with a subject that is typically of federal concern, there appears to be no doubt that the Act could properly address itself to this issue when it arises in state court actions. It also does so in 28 U.S.C. §1605-1611 (1980).
48 § 1330(a) in no way makes subject matter competence dependent on the citizenship of the plaintiff, as does§1332(a)(2)(3). Nevertheless, it has already been held that Section 1330(a) creates competence only on behalf of a U.S. citizen. Santos Miranda v. Transportes Acreos Portugueses, No. 78-2143 (N.D. Ill Nov. 22, 1978), cited in Kahale & Vega, supra note 2, at 225 n. 66.
49 Although it may persuasively be argued that, since an action by a noncitizen could reach the federal court upon removal pursuant to 28 U.S.C. §1441(d) 1980, the Act's draftsmen did intend to base the Act's competence provisions not only on diversity, but also on federal question, jurisdiction. See further Kahale & Vega, supra note 2, at I.e.
50 The legislative history confirms that the drafters of the Act relied on the federal power over foreign relations. See H.R. REP. No. 1487, 94th Cong., 2d Sess. 12 (1976).
51 If it was the legislative intent to create competence under the federal power over foreign relations, § 1330(a) would, at least in the situation discussed here, create “protective jurisdiction” and thus introduce another novelty. On the uncertain constitutional status of this form of adjudicatory authority, See WRIGHT, LAW OF FEDERAL COURTS §20 (3d ed. 1976).
52 See text at notes 39-46 supra.
53 See text at notes 29-38 supra.
54 28 U.S.C. §1330(b) (1980) provides:
Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.
Since jurisdiction under subsection (a) exists only as to claims with respect to which the foreign state is not entitled to immunity, the bases for nonimmunity are simultaneously the bases for in personam competence.
55 See note 14 supra.
56 Of course, service upon a person present within the state may continue to have a competence-creating function. However, presence or doing business is not recognized as a basis of competence by the Act. See notes 61-61 infra.
57 See text at notes 22-27 supra.
58 See text at note 28 supra.
59 Apparently, prior to the Act, U.S. courts had managed to apply long-arm statutes to foreign state-owned corporations, but had found it difficult to apply them to foreign states. See Carl, supra note 2, at 1013; Note, Obtaining Personal Jurisdiction over Alien Corporations — A Survey of U.S. Practice, 9 VAND. J. TRANSNATX L. 345 (1976); Note, Amenability of Foreign Sovereigns to Federal In Personam Jurisdiction, 14 VA. J. INT'L L. 487 (1974). The principal difficulties in applying such statutes to foreign states were that of construing words such as “foreign corporation” or “association” so as to embrace a foreign state or its agency or instrumentality and that of identifying the “officer” or “managing or general agent” to whom process could properly be delivered. It would appear that proper teleological interpretation should enable the courts to overcome these difficulties. See, e.g., Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103 (2d Cir. 1966); Republic Int'l Corp. v. Ansco Engineers, Inc., 516 F.2d 161 (9th Cir. 1975). However, if this were not possible, it would appear far preferable to eliminate the causes for the difficulties that have arisen rather than introduce a whole set of new rules creating new, and unnecessary, problems. This is true especially, since the problems that have arisen could be eliminated by simple provisions including foreign states in the description of persons subject to competence and identifying the persons to whom process could be delivered. See also text at note 92 infra.
60 Because, by waiving merely sovereign immunity, the defendant has done nothing to make it reasonable that he be sued in an American court.
61 481 F. Supp. 1056, 1065 (E.D.N.Y. 1979).
62 Id. at 1064-1065. A solution permitting a different result, but rejected by Judge Weinstein, would be to read the Act's enumeration of bases of competence as not being exhaustive and to permit supplementation by recourse to state law bases of competence.
63 It may be noted that this generally acclaimed provision is less straightforward than it has been said to be. It states merely that claims of sovereign immunity are to be decided by U.S. courts in conformity with the Act, but does not prevent U.S. courts from taking into account views communicated to them by the Executive. Significantly, the Executive has already indicated that it will feel free to communicate its views on the Act to the courts. Department of State, Public Notice No. 507, F.R. Doc. 76-34083, filed Nov. 17, 1976. More importantly, in the Iranian cases pending before Judge Duffy in the Southern District of New York, the Department of State intervened and requested that the court stay its decisions because of the sensitive nature of the issues. If the Act had wanted to exclude such approaches, more direct language would have been desirable.
64 28U.S.C. §1602(1980).
65 28 U.S.C. §§1610-1611 (1980).
66 See generally L. HENKIN, R. PUGH, O. SCHACHTER & H. SMIT, INTERNATIONAL LAW c. 9 (2d ed. 1980) hereinafter, INTERNATIONAL LAW].
67 In Dunhill of London v. Republic of Cuba, 425 U.S. 682, (1976), a majority of the members of the Supreme Court indicated that they would not consider themselves bound by the views of the Executive in applying the act of state doctrine. Because of the close affinity between sovereign immunity and act of state, it would appear reasonable to assume that the same conclusion would have been reached in sovereign immunity cases.
While U.S. courts, guided by the Executive, had continued to refuse to permit execution, it seems reasonable to assume that the courts would have followed the Executive, if the latter had communicated its change of policy to the court in another “Tate” kind of letter. After all, foreign courts have already taken this step on their own. See, e.g., Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, [1951] BRIT. Y.B.I. L. 220, 241-243.
68 In both cases, the provisions now in the Act could have been considerably improved. First, the role of the Executive could have been better defined. Second, the principle of nonimmunity from enforcement jurisdiction could have been posited generally, with the exceptions narrowly defined. See also text at note 85 infra.
69 26 DEPT. STATE BULL. 984 (1952).
70 See note 67 supra.
71 See INTERNATIONAL LAWC.9, §1(G) supra, note 66.
72 See Id. at§l(D).
73 See note 71 supra.
74 132 F. Supp. 684 (S.D.N.Y. 1955).
75 28 U.S.C. §1605(a)(2)(3)(4)(1980).
76 For the view that these specific bases are more appropriate than general bases such as presence and doing business, see Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79H.ARV.L. REV. 1121 (1966).
77 Clearly, in the situation contemplated by §1605(a)(3), the question of whether the foreign state can claim immunity from legislative jurisdiction in regard to its entitlement to the property is different from, and may be unrelated to, the question of whether the foreign state can claim immunity from judicial jurisdiction premised on the state's commercial activity in the United States. Similarly, a maritime lien could be based upon a commercial activity different from the use of the vessel or cargo against which the lien is sought to be enforced.
78 For a provision that would address this problem, see text at note 85 infra.
79 See generally Smit, Common and Civil Law Rules of In Personam Adjudicatory authority: An Analysis of Underlying Policies, 21 INT.& CoMP.L. Q. 335 (1972).
80 See, most recently, World-Wide Volkswagen Corporation v. Woodson, 48 U.S. L. W. 4079, (U.S. Jan. 21, 1979)(No. 73-1078) and Rush v. Savchuk, 48 U.S. L. W. 4088 (U.S. Jan. 21, 1980)(No. 78-952).
81 See generally Smit, supra note 79, at 350-54.
82 See note 7 supra.
83 28 U.S.C. §§1602, 1605 (1980). Only in the case of counterclaims, may the nature of the act not be decisive. See 28 U.S.C. §1607 (c)(1980).
84 See text at notes 86-101 infra.
85 §1604 of the Act proclaims sovereign immunity to be the general rule and nonimmunity to be the exception. It thus reverses the approach taken in Victory Transport Inc. v. Comisaria General, 336 F.2d 354, 360 (2d Cir. 1964), in which the court stated:
… we are disposed to deny a claim of sovereign immunity … unless it is plain that the activity in question falls within one of the categories of strictly political or public acts about which sovereigns have traditionally been quite sensitive.
The drafters of the Act have not advanced a satisfactory reason for this reversal, and there appears to be none. The Act should therefore be amended to provide that a foreign state cannot claim immunity from legislative, judicial, or enforcement jurisdiction unless the act with regard to which immunity is involved is of a public nature. The cases contemplated by §1605 (4) and (5) can continue to be dealt with in separate subsections.
86 See generally ROSENBERG, WEINSTEIN,SMIT & KORN.ELEMENTS OF CIVIL PROCEDURE 335-43 (3d ed. 1976).
87 In federal question cases, the district court can generally use both the state bases of competence and the federal bases that may be specifically provided for in the applicable federal statute. United States v. First National City Bank, 379 U.S. 378 (1965).
88 § 1330(b) makes clear that it regulates only personal competence in the district courts.
89 This becomes especially significant in cases in which the basis for nonimmunity is not a proper basis of competence under the applicable state law.
90 See note 87 supra.
91 See note 59 supra.
92 See note 59 supra. In addition, uncertainty may have existed which foreign official could properly be regarded as an “officer” or “managing or general agent.“
93 This has already been noted as leading to an unfortunate result by Judge Weinstein in Harris v. VAO Intourist, Moscow, 481 F.2d 1056 (S.D.N.Y. 1979).
94 See text at note 60 supra. It may be conceded, however, that the courts will be inclined to read a waiver of immunity as a consent to be sued.
95 See note 93 supra.
96 28 U.S.C. §1605(b)(1980).
97 See text at notes 108-120 infra.
98 In the litigation between Matropico Compania Naviera S.A. v. Pertamina, in addition to seeking in vain to vacate prejudgment attachments laid before the effective date of the Act, the foreign state made extensive efforts, including renegotiation of agreements with large oil companies, to ensure that it would have no assets within the United States. Sovereign states have, of course, a considerable arsenal of persuasive powers to induce their contract partners to be duly co-operative. See, for another aspect of this litigation, 428 F. Supp. 1035 (S.D.N. Y. 1977).
99 See generally Smit, The Enduring Utility of In Re,m Rules: A Lasting Legacy ofPennoyer v. Neff, 43 BROOKLYNL. REV. 600 (1977).
100 See notes 35,36,96 supra.
101 This would achieve the uniformity that is the purported goal of the Act — namely, uniformity of treatment of private litigants and foreign states who cannot claim immunity.
102 For the text of these amendments, see H. SMIT, INTERNATIONAL CO-OPERATION IN LITIGATION: EUROPE432-35 (1965).
103 For a discussion of the reforms introduced, see Smit, International Aspects of Federal Civil Procedure, 61 COLUM.L. REV. 1031, 1032-43 (1961).
104 They are contained in the Uniform Interstate and International Procedure Act, Art. II, 9B U. L. A. 305 (1966).
105 Significantly, The Convention on the Service Abroad of Judicial Documents in Civil or Commercial Matters, done at The Hague on Nov. 15,1965, to which the United States is a party, does so in Articles 8 & 10. T.I.A.S. 6638 (Feb. 10,1969).
106 The United States Commission on International Rules of Judicial Procedure and the Advisory Committee on Civil Rules, which jointly prepared Rule 4 (i), deliberately rejected this limitation upon U.S. methods of service.
107 A provision to that effect would also eliminate the special requirement that the process be translated. This preferential treatment of foreign states, which may occasion undue expense (reported to be approximately $12,000 in the OPEC case, 477 F. Supp. 553 (CD. Cal. 1979)), is unnecessary, since foreign states are unlikely to experience difficulties in coping with such widely spoken, a language as English.
The proposed revision would also avoid the many problems described by Professor Carl, supra note 2, at 1022-28.
108 See text at notes 59 & 62 supra.
109 See note 99 supra.
110 See text at notes 35-36 supra.
111 And to achieve this, they will not only plead sovereign immunity from all forms of jurisdiction, but also seek to deprive the plaintiff of all security he can obtain by a prejudgment attachment.
112 See note 98 supra.
113 Attachment is the traditional, although not necessarily constitutionally required, means of commencing an in rem or quasi-in-rem case. See note 35 supra.
114 This section requires the waiver to be explicit. Its precise meaning is unclear. It may be that, as its plain meaning imports, it is sufficient if the waiver is explicit. Under that construction, an explicit waiver of all claims to sovereign immunity might suffice. But if the legislative intent, although deficiently expressed, is to require that the waiver state explicitly that it extends to immunity from prejudgment attachment, the problem stated in the text arises. It might then be argued that, since the contractual waiver effectively waived immunity from attachment before the Act entered into force, the Act's giving it a different meaning thereafter would constitute an unconstitutional impairment of the obligation of contract.
115 This is less likely to be a danger if only U.S. citizens were able to bring suit against foreign states. On this aspect, see text at notes 48-50 supra.
116 There are reported to be pending before Judge Duffy in the Southern District of New York more than 100 such cases.
117 See, e.g., Reading & Bates Corp. v. National Iranian Oil Co., 478 F. Supp. 724 (S.D.N.Y. 1979, Judge Duffy).
118 See, e.g., Behring Int'l, Inc. v. Imperial Iranian Air Force, 475 F. Supp. 383 (D.N.J. 1979). See also Electronic Data Systems Corp. Iran v. Social Security Organization of the Government of Iran, No. 79-7696 (2d Cir. Nov. 28, 1979). In the Behring International case, the court ruled that the waiver provision of the United States-Iran Treaty of Amity prevailed over 81610(d)(1). This solution was, however, rejected by Judge Duffy in the Reading & Bates Corp. case, supra note 117. This difference may be resolved by taking the proviso in §1604 out of this section and putting it in a separate section to the effect that the whole of the Act gives way to either existing or future international agreements.
119 Because the White House statement of November 14, 1979, accompanying the Order states explicity that the Order is designed to promote the orderly disposition of claims against Iran. 15 WEEKLY COMP. OF PRES. DOC. 2117 (Nov. 14, 1979). On this aspect, see also the per curiam decision of the Second Circuit in the Electronic Data Systems Corp. Iran case, supra note 118.
120 This would also eliminate questions as to the permissibility of other forms of judicial relief seeking to ensure satisfaction of the judgment to be rendered, such as an injunction or lis pendens. On this aspect, see Carl, supra note 2, at 1043-47.
121 On the desirability of such a provision, see note 118 supra. A party to an international agreement with the United States should be able to rely on the United States honoring the agreement and not changing it by subsequent unilateral legislation.
122 See note 67 supra.
123 For a proposal to this effect, see Carl, supra note 2, at 1067.
124 The individual litigant would still have to prove his claim, and the United states might be afforded an opportunity to defend the action, so that litigants would not be encouraged to interpose unfounded claims.