concluding that by using a letter of credit provided by a United States bank to secure the services of a United States company, the foreign sovereign used the letter of credit for a commercial activity in the United States
How later courts described this case
- concluding that by using a letter of credit provided by a United States bank to secure the services of a United States company, the foreign sovereign used the letter of credit for a commercial activity in the United States
- concluding that New York court’s order was entitled to same preclusive effects in federal court that it would have had in New York
- "Under the FSIA, courts may attach only a foreign state's property . . ."
- observing that under FSIA, immunity from execution is narrower than jurisdictional immunity
Written by the judges who cited it.
The opinion
ON PETITION FOR PANEL REHEARING
PER CURIAM:
IT IS ORDERED that the Republic of Congo’s motion for leave to file its petition for rehearing out of time is GRANTED.
IT IS FURTHER ORDERED that the Republic of Congo’s petition for panel rehearing is DENIED. In the petition, the Congo points out that the majority opinion in this case neglected to address explicitly one of the two prongs of analysis under 28 U.S.C. § 1610 (a). Section 1610(a) provides that, under certain circumstances, a judgment creditor may execute against the “property in the United States of a foreign state ... used for a commercial activity in the United States.” The majority opinion addressed the second of these clauses, but not the first. That is, it addressed whether the royalty and tax obligations at issue were “used for a commercial activity in the United States,” but not whether the obligations were “property in the United States” within the meaning of the statute.
In our view, this omission does not require any change to the mandate of the majority opinion. The factual question of what the royalty and tax obligations are “used for” appears much less difficult on this record than the legal question of determining the situs of the intangible royalty obligations. Moreover, despite the Congo’s arguments to the contrary, we continue to believe that the district court is the appropriate forum to resolve the factual question of how the Congo uses its property.
The petition for panel rehearing is therefore DENIED.