Appendix — Prewitt Enterprises, Inc. v. Organization of the Petroleum Exporting Countries

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-11580

D. C. Docket No. 00-00865-CV-C-S

PREWITT ENTERPRISES, INC., on its own behalf

and on behalf of all others similarly situated,

Plaintiff-Appellant,

—versus—

ORGANIZATION OF PETROLEUM

EXPORTING COUNTRIES,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Alabama

(December 18, 2003)

Oe ia ei

Before ANDERSON, BARKETT and RONEY, Circuit Judges.

BARKETT, Circuit Judge:

Prewitt Enterprises, Inc. (“Prewitt”) appeals from the

dismissal of its complaint against the Organization of the

Petroleum Exporting Countries (“OPEC”) for insuffi-

cient service of process and from the denial of its motion

for alternative service of process. Prewitt’s complaint

against OPEC alleged a violation of the Sherman Act, 15

U.S.C. § 1,' for illegal price-fixing agreements on pro-

duction and export of crude oil and claimed equitable

relief pursuant to the Clayton Act, 15 U.S.C. § 26.’

15 U.S.C § 1 states that:

Every contract, combination in the form of trust or otherwise,

or conspiracy, in restraint of trade or commerce among the

several States, or with foreign nations, is declared to be ille

gal. Every person who shall make any contract or engage in

any combination or conspiracy hereby declared to be illegal

shall be deemed guilty of a felony, and, on conviction

thereof, shall be punished by fine not exceeding $10,000,000

if a corporation, or, if any other person, $350,000, or by

imprisonment not exceeding three years, or by both said pun-

ishments, in the discretion of the court.

15 U.S.C. § 26 provides that:

Any person, firm, corporation, or association shall be entitled

to sue for and have injunctive relief, in any court of the

United States having jurisdiction over the parties, against

threatened loss or damage by a violation of the antitrust laws

. . when and under the same conditions and principles as

injunctive relief against threatened conduct that will cause

loss or damage is granted by courts of equity, under the rules

governing such proceedings, and upon the execution of

proper bond against damages for an injunction improvidently

granted and a showing that the danger of irreparable loss or

damage is immediate, a preliminary injunction may issue.

. . . In any action under this section in which the plaintiff

substantially prevails, the court shall award the cost of suit,

including a reasonable attorney’s fee, to such plaintiff.

Because OPEC initially did not respond to the com-

plaint, the district court entered a default final judgment

against OPEC enjoining it from entering into, imple-

menting or enforcing any agreements to fix and control

the production and export of crude oil for one year.

OPEC then appeared and moved to vacate the default

judgment and injunction on the grounds that OPEC had

never been properly served with process, and thus, the

court lacked jurisdiction over it. The district court con-

cluded that, because OPEC resides in Austria and the

applicable Austrian law prohibits service without

OPEC’s consent, Prewitt’s complaint must be dismissed

for lack of jurisdiction. We agree and affirm the dis-

missal of Prewitt’s complaint for lack of jurisdiction

because service of process on OPEC has not been effec-

tuated. We also affirm the district court’s denial of alter-

native service of process because, in this case, there are

no means available for service upon OPEC under the

Federal Rules of Civil Procedure.

I. BACKGROUND

Prewitt is a corporation organized and existing under

the laws of Alabama with its principal place of business

in Birmingham, Alabama. Prewitt purchases substantial

quantities of gasoline and other refined petroleum prod-

ucts for resale at its Eastwood Texaco Service Center

gasoline station.

OPEC is an intergovernmental organization originally

established in 1969 via resolutions promulgated at the

Conference of the Representatives of the Governments

of Iran, Iraq, Kuwait, Saudi Arabia and Venezuela in

_ Baghdad, Iraq. The principal aim of OPEC is “the co-

ordination and unification of the petroleum policies of

Member Countries and the determination of the best

means for safeguarding their interests, individually and

collectively.” OPEC Stat. art. 2(A) (2000). Presently,

OPEC’s membership consists of: Algeria, Indonesia,

Iran, Iraq, Kuwait, Libya, Nigeria, Qatar, Saudi Arabia,

the United Arab Emirates and Venezuela. Since Septem-

ber 1, 1965, OPEC has been headquartered in Vienna,

Austria. Its relationship with the Austrian government is

governed by the Agreement Between the Republic of

Austria and the Organization of the Petroleum Exporting

Countries Regarding the Headquarters of the Organiza-

tion of the Petroleum Exporting Countries, February 18,

1974, BGBL 1974/382 (“Austrian/OPEC Headquarters

Agreement” or “Headquarters Agreement”).

Prewitt filed a complaint with the district court against

OPEC on behalf of itself and as the representative of all

persons or entities who have indirectly purchased

petroleum or petroleum products in the United States

since idarch 1999. Prewitt claimed that OPEC has been

coordinating an international conspiracy through agree-

ments among its Member States and non-OPEC members

to limit the production and export of oil in order to fix

world oil prices above competitive levels. Prewitt argued

that these agreements constitute violations of United

States antitrust laws, specifically the Sherman and Clay-

ton Acts, and have resulted in a substantial and adverse

impact on United States trade and commerce. Prewitt

claimed that as a result of OPEC’s illegal conduct, its

Own acquisition and inventory costs for gasoline have

increased significantly. Consequently, Prewitt requested

that the court declare the OPEC-coordi: ated agreements

illegal under United States law, enjoin implementation

of the agreements, grant any other appropriate equitable

relief, and award costs of the suit against OPEC for

injuries sustained by Prewitt.

Prewitt attempted service us OPEC by requesting that

the trial court send a copy of the complaint to OPEC by

international registered mail, return receipt requested.

The court clerk did so, mailing Prewitt’s summons and

complaint to OPEC at its headquarters in Vienna. The

pleadings were signed for, stamped “received” by

OPEC’s Administration and Human Resources Depart-

ment, and forwarded to the Director of CPEC’s Research

Division as well as other departments including the Sec-

retary General’s office. Ultimately, the Secretary Gen-

eral decided that the OPEC Secretariat would not take

any action with regard to the summons and complaint.

Without the participation of OPEC, the district court

certified a class defined as all persons o. entities who

purchased refined petroleum products in the United

States from March 1999 to the present and entered a

default final judgment and order of injunction against

OPEC. The court found that there was a conspiracy

between OPEC, its Member States, and non-OPEC mem-

bers, namely Norway, Mexico, the Russian Federation

and Oman, to fix and control crude oil prices; that the

agreements coordinated and implemented by OPEC were

illegal under United States antitrust laws; that OPEC’s

illegal conduct has resulted in substantial and adverse

impact on United States trade and commerce of approx-

imately $80-120 million per day; and that OPEC and

those acting in concert with OPEC should be enjoined

from entering into, implementing, and enforcing any fur-

ther oil pricefixing agreements for a period of twelve

months. Copies of the court’s orders were delivered to

each of the United States embassies for the Member

States of OPEC.

In response, OPEC made a special appearance and

filed a motion to set aside the default judgment and stay

its enforcement pursuant to Rule 60(b)(1), (4), (5) and

(6)° of the Federal Rules of Civil Procedure (“Fed. R.

Civ. P.”), which the district court granted, vacating the

default judgment and injunction.* OPEC then filed a

motion to dismiss Prewitt’s complaint on various grounds

including insufficient service of process pursuant to Fed.

R. Civ. P. 12(b)(5).5 The district court dismissed the case

without prejudice, finding that Prewitt had failed to

serve OPEC its summons and complaint properly under

the Federal Rules. Prewitt then filed a motion to pursue

alternative means of effecting service or to amend the

judgment. The district court denied the motion finding

that, in this case, OPEC cannot be effectively served

with process.

Fed. R. Civ. P. 60(b) provides. in pertinent part:

On motion and upon such terms as are just, the court may

relieve a party or a party’s legai representative from a final

judgment, order, or proceeding, for the following reasons: (1)

mistake, inadvertence, surprise, or excusable neglect;. . .

(4) the judgment is void; (5). . . it is no longer equitable

that the judgment should have prospective application; or (6)

any other reason justifying relief from the operation of the

- judgment.

4 Prewitt also appeals the district court’s decision to vacate the

default judgment and injunction. We need not reach that issue in light

_ of our disposition of this case.

5 Fed. R.Civ. P. 12(b)(5) provides that:

Every defense, in law or fact, to a claim for relief in any

pleading, whether a claim, counterclaim, cross-claim, or

third-party claim, shall be asserted in the responsive plead-

ing thereto. . . except that the following defenses may at the

option of the pleader be made by motion: . . . (5) insuffi-

ciency of service or process... .

II. DISCUSSION

We review the district court’s grant of a motion to dis-

miss for insufficient service of process under Fed. R.

Civ. P. 12(b)(5) by applying a de novo standard to the

law and a clear error standard to any findings of fact.

S & Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292,

1298 (11th Cir. 2000). We generally review the district _

court’s interpretation of Fed. R. Civ. P. 4 on service of

process as a matter of law de novo. Vencor Hosp., Inc. v.

Standard Life & Accident Ins., 279 F.3d 1306, 1308

(11th Cir. 2002). Likewise, the district court’s inter-

pretation of foreign law in determining sufficiency of

service of process is subject to de novo review. United

States v. McNab, 331 F.3d 1228, 1240 (11th Cir. 2003)

(citing United States v. Gecas, 120 F.3d 1419, 1424 (11th

Cir. 1997) (en banc)). However, we join our sister circuit

in holding that the district court’s denial of a motion for

alternative service of process under Fed. R. Civ. P.

4(f)(3) is subject to an abuse of discretion standard

because the plain language of the rule stipulates that the

district court “may” direct alternative means of service.

Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007,

1014 (9th Cir. 2002).

The threshold issue in this case is whether OPEC has

been effectively served under the Federal Rules of Civil

Procedure. If it has not, we must then determine whether

extraterritorial service of process on OPEC may be

effectuated at a!! under the circumstances here. By def-

inition, “service of summons is the procedure by which

a court having venue and jurisdiction of the subject mat-

ter of the suit asserts jurisdiction over the person of the

party served.” Miss. Publ’g Corp. v. Murphree, 326 U.S.

438, 444-45 (1946). A court is required to have personal

jurisdiction under the Due Process Clauses of the Fifth

and Fourteenth Amendments to the United States Con-

stitution “as a matter of individual liberty” so that “the

maintenance of the suit. . . [does] not offend ‘tradi-

tional notions of fair play and substantial justice.’ ” Jns.

Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702-03 (1982) (quoting Int’! Shoe Co. v. Wash-

ington, 326 U.S. 310, 316 (1945)).

There are two rules of federal civil procedure that

apply to service of process upon an international entity

located outside of United States jurisdiction: Fed. R.

Civ. P. 4(f) (Service Upon Individuals in a Foreign

Country) and Fed. R. Civ. P. 4(h) (Service of Process

Upon Corporations and Associations). The latter governs

service on unincorporated associations located outside of

the United States and provides that:

Unless otherwise provided by federal law, service

upon a[n] . . . unincorporated association that is

subject to suit under a common name, and from

which a waiver of service has not been obtained and

filed, shall be effected: . ..

(2) in a place not within any judicial district of

the United States in any manner prescribed for

individuals by subdivision (f) except personal

delivery . . . . (emphasis added).

Fed. R. Civ. P. 4(h)(2). Thus, an “unincorporated asso-

ciation’’® headquartered outside of the United States that

ciation pursuant to Fed. R. Civ. P. 17(b)(1). Under this Circuit's

jurisprudence, an unincorporated association is defined as “a body of

persons acting together, without a charter, but upon the methods and

forms used by corporations, for the prosecution of some common

enterprise.” Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (Sth

Cir. 1969) (holding that labor unions, agricultural societies, co-ops,

banking associations, charitable associations, news associations, and

religious societies may all be considered unincorporated associa-

is (1) subject to suit under a common name’ and (2) has

not waived service*® may be served in any manner autho-

rized under Fed. R. Civ. P. 4(f) for individuals in a for-

eign country except for personal delivery.

Turning to Fed. R. Civ. P. 4(f), the first relevant sec-

tion provides that:

Unless otherwise provided by federal law, service

upon an individual from whom a waiver has not

been obtained and filed, other than an infant or an

incompetent person, may be effected in a place not

within any judicial district of the United States:

(1) by any internationally agreed means rea-

sonably calculated to give notice, such as those

tions). But see Dean v. Barber, 951 F.2d 1210, 1215 n.4 (11th Cir.

1992) (holding that a government unit, subdivision or agency may not

be considered an unincorporated association). Cf. Hennessey v. Nat’l

Collegiate Athletic Ass'n, 564 F.2d 1136 (Sth Cir. 1977) (treating a

college athletic association in an antitrust suit as an unincorporated

association even where some of its members were state institutions

rather than individuals).

In this case, OPEC is an administrative body joined together for the

common purpose of acting on behalf of the business and political inter-

ests of its members with regard to their petroleum resources. While its

members are sovereign nation states rather than private individuals,

OPEC is not a governmental unit or subdivision and is not incorporated

under the laws of any one Member State. Thus, under the facts of this

case, we agree that it is amenable to the designation of “unincorporated

association.” As the court in Penrod has found, the term unincorporated

association is one that is “generic” and of “vague meaning” with few

“sharp legal boundaries.” Penrod Drilling Co., 414 F.2d at 1222-23.

. In this case, it is clear that suit was brought against OPEC,

the common name for this international organization of sovereign oil-

producing foreign states.

No evidence has been presented by either party that any

waiver of service was “obtained and filed” from OPEC.

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means authorized by the Hague Convention on

the Service Abroad of Judicial and Extrajudi-

cial Documents. .

Fed. R. Civ. P. 4(f)(1). In this case, no other means of

service has been “otherwise provided by federal law”

nor is there an “internationally agreed means reasonably

calculated to give notice such as those means authorized

by the Hague Convention on the Service Abroad of Judi-

cial and Extrajudicial Documents. . . .” The federal

laws pertaining to service of process on a foreign entity

are codified in 28 U.S.C. §§ 1602 et seq., the Foreign

Sovereign Immunities Act (“FSIA”), and 22 U.S.C.

§§ 288 et seq., the International Organizations Immuni-

ties Act (“IOIA”). The parties agree that neither of these

federal laws apply to OPEC in this case.’ The parties

% It is clear that OPEC is not a foreign state or political sub-

division of a foreign state pursuant to § 1608 of the FSIA. OPEC also

fails to qualify under § 288 of the IOIA because the statute only

applies to international organizations in which the United States par-

ticipates pursuant to a treaty or an act of Congress. Cf. Jnt’] Assoc. of

Machinists & Aerospace Workers v. OPEC, 477 F.Supp. 553 (C.D.

Cal. 1979), aff'd 649 F.2d 1354 (9th Cir. 1981) (dismissing OPEC as

a party to the case because it held that OPEC could not be legally

served under the FSIA or IOIA). We note that under the current state

of our federal laws, the individual Member States of OPEC are

afforded immunity from suit brought for damage caused by their com-

mercial activities when they act through OPEC. However, acting indi-

vidually, a country would be subject to suit under the commercial

activity exception of the FSIA § 1605(a)(2) which provides that a for-

eign state has no immunity from suit in cases “in which the action is

based upon a commercial activity carried on in the United States by

the foreign state; or upon an act performed in the United States in

connection.with a commercial activity of the foreign state elsewhere;

or upon an act outside the territory of the United States in connection

with a commercial activity of the foreign state elsewhere and that act

causes a direct effect in the United States.”

lla

likewise agree that there is no international agreement

that stipulates the appropriate means of service.'°

Thus, we must look to the remainder of Fed. R. Civ. P.

4(f), which provides for other methods by which an

unincorporated association may be served in the absence

of relevant federal law or international agreements:

(2) if there is no internationally agreed means of

service or the applicable international agreement

allows other means of service, provided that service

is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the

foreign country for service in that country in an

action in any of its courts of general jurisdic-

tion; or

(B) as directed by the foreign authority in

response to a letter rogatory or letter of request;

country, by

(i) delivery to the individual personally of

a copy of the summons and the complaint;

(ii) any form of mail requiring a signed

receipt, to be addressed and dispatched by

10 The Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters Done at The

Hague, the Netherlands, November 15, 1965, 658 U.N.T.S. 163

(“Hague Service Convention”), provides rules governing service of

process between signatory states. However, while the United States

is party to the Hague Service Convention, Austria is not. Austria is

party to the Hague Convention on Civil Procedure, entered into force

March 1, 1954, 286 U.N.T.S. 265, 1 Am. J. Comp. L. 282 (1952)

(translation), but the United States is not.

12a

the clerk of the court to the party to be

served; or

(3) by other means not prohibited by international

agreement as may be directed by the court.

Fed. R. Civ. P. 4(f)(2) and (3).

Prewitt originally chose to attempt service of process

on OPEC under Fed. R. Civ. P. 4(f)(C)(ii). However, the

method set forth under that provision applies only if it is

not prohibited by the law of the foreign country. Based

on the evidence presented," the district court correctly

found that service on OPEC was prohibited by the law of

Austria. Article 5(2) of the Austrian/OPEC Headquarters

Agreement provides that: “the service of legal process

Evidence on service of process in Austria under Austrian and

international law was considered by the district court pursuant to Fed.

R. Civ. P. 44.1 (Determination of Foreign Law), which provides that:

A party who intends to raise an issue concerning the law of

a foreign country shall give notice by pleadings or other rea-

sonable written notice. The court, in determining foreign law,

may consider any relevant material or source, including tes-

timony, whether or not submitted by a party or admissible

under the Federal Rules of Evidence. The court's determi-

nation shall be treated as a ruling on a question of law.

The evidence before the district court included: sections of Austrian law

from the Austrian Constitution, the Austrian Service Act, and the Aus-

trian Code of Civil Procedure; articles of international treaties such as the

Vienna Convention on the Law of Treaties, entered into force January 27,

1980, 1155 U.N.T.S. 331, and the Austrian/OPEC Headquarters Agree-

ment; expert affidavits and testimony from Austrian lawyers and pro-

fessors on Austrian law; correspondence between Austrian law experts;

“Notes Verbales” between the Austrian Ministry of Foreign Affairs and

OPEC; correspondence from the Austrian Embassy to the District Court

for the Northern District of Alabama on service of process in Austria; the

United States State Department circular on service of process abroad; the

Austrian Foreign Ministry website on Austrian law; and academic trea-

tises On transnational litigation.

13a

. shall not take place within the [OPEC] headquarters

seat except with the express consent of, and under con-

ditions approved by, the Secretary General.”'’ Since the

Headquarters Agreement was enacted into law by reso-

lution of the Austrian Pariiament and published in the

Austrian Official Gazette pursuant to the Austrian Con-

stitution, the district court found it to be an integra! part

of Austrian law.'* Thus, because service was prohibited

42 As noted in some of the amicus curiae briefs submitted to

this Court, this provision is cou:monly found in numerous other

Headquarters Agreements between sovereign states and international

organizations around the world. See e.g. Headquarters Agreement

between the Organization of American States and the Government of

the United States of America, signed May 14, 1992, art. IX, §1,

<http://www.oas.org/legal/english/docs/BilateralAgree/us/

sedeusa.htm> (“The service and execution of legal process. . . may

take place within the Headquarters only with the consent of and under

conditions approved by the Secretary General.”); Agreement Regard-

ing the Headquarters of the Food and Agriculture Organization of the

United Nations, signed October 31, 1950, art. III, § 7(a), 1409

U.N.T.S. 23602 (“The service of legal process. . . may take place

within the headquarters seat only with the consent of, and under con-

ditions approved by, the Director-General.”); and the Agreement

Relating to the Headquarters of the International Bauxite Association

between the International Bauxite Association and Jamaica, signed

November 5, 1975, art. III], § 4, 1021 U.N.T.S. 15000 (“The service

of legal process . . . may take place within the Headquarters

premises only with the express prior consent of and under conditions

approved by the Secretary General.”)

3 We reject Prewitt's argument that because the Headquarters

Agreement is not a criminal statute with criminal sanctions but

merely a “diplomatic accommodation,” it does not actually “prohibit”

service upon OPEC within the meaning of Fed. R. Civ. P.

4(f)(2)(C)(ii). The Headquarters Agreement has been incorporated

into Austrian law and need not provide for criminal sanctions to

enforce its prohibition of service upon OPEC without OPEC’s con-

sent. We also reject Prewitt’s argument that Article 5(2) of the Head-

quarters Agreement only bars physical intrusions into the OPEC

l4a

by Austrian law, Prewitt could not have effectively

served OPEC under Fed. R. Civ. P. 4(f)(C)(ii).

Prewitt nonetheless suggests that we should liberally

construe the formal requirements for service under the

Federal Rules because OPEC received actual notice but

simply chose to “ignore the whole thing.” Br. of Appel-

lant at 23. However, we find no support for such an

argument.'* Due process under the United States Con-

headquarters seat by the Republic of Austria or by persons exercis-

ing public authority within Austria and thus does not apply to service

by international mail from someone outside of Austria. Nothing in the

plain language of Article 5(2) of the Headquarters Agreement indi-

cates that the drafters intended for such a narrow interpretation.

'4 It is true that receipt of actual notice is an important factor in

considering whether service of process is adequate. Hanna v. Plumer,

380 U.S. 460, 463 n.1 (1965) (dictum); Milliken v. Meyer, 311 U.S.

457, 463 (1940). However in all of the cases cited by Prewitt, the

courts were careful to determine that service of process was in sub-

stantial compliance with the formal requirements of the Federal

Rules; actual notice alone was not enough to allow the court personal

jurisdiction over the defendant. See Sanderford v. Prudential Ins. Co.

of America, 902 F.2d 897 (11th Cir. 1990) (holding that service of

process was in substantial compliance with Fed. R. Civ. P. 4(b) even.

though it did not include a return date for the responsive pleading);

Direct Mail Specialists, Inc. v. Eclat Computerized Tech. Inc., 840

F.2d 685 (9th Cir. 1988) (finding that a corporation's receptionist had

sufficient authority to receive service of process as a “managing or

general agent” under Fed. R. Civ. P. 4(d)(3) and noting that the pres-

ident of the company received actual notice of the summons and com-

plaint a day later); United Food & Commercial Workers Union v.

Alpha Beta Co., 736 F.2d 1371 (9th Cir. 1984) (holding that service

was effective under Fed. R. Civ. P. 4(b) even though the summons had

a typographical error stating that the defendant had 10 rather than 20

days to answer the complaint); Banco Latino, S.A.C.A. v. Gomez

Lopez, 53 F.Supp. 2d 1273 (S.D. Fla. 1999) (finding that personal

delivery of service of process on the defendant in Spain was suffi-

cient because it was authorized under Spanish law as required by the

Hague Convention and Fed. R. Civ. P. 4(f)(1) and the defendant had

15a

stitution requires that “before a court may exercise per-

sonal jurisdiction over a defendant, there must be more

than notice to the defendant. . . [t]here also must be a

basis for the defendant's amenability to service of sum-

mons. Absent consent, this means there must be autho-

rization for service of summons on the defendant.” Omni

Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104

(1987) (emphasis added).'° In other words, an individual

or entity “is not obliged to engage in litigation unless

[officially] notified of the action. . . under a court's

authority, by formal process.” Murphy Bros., Inc. v.

Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999).

In this case, Fed. R. Civ. P.(f)(2)(C)(ii) clearly states that

service of process by registered mail is only authorized

where it is not prohibited by foreign law. Here, the

Headquarters Agreement constitutes Austrian law and,

under Article 5(2), expressly prohibits all service of pro-

cess upon OPEC within the headquarters seat that has

not been consented to by its Secretary General. Thus, we

agree with the district court that even though OPEC had

actual notice of the filing of the suit, service of process

was ineffective because it was clearly not in substantial

compliance with the requirements of Fed. R. Civ. P.

4(f)(2)(C)(ii).

Alternatively, Prewitt argues that even if service failed

under Fed. R. Civ. P. 4(f)(2)(C)(ii), service by registered

mail upon OPEC nonetheless complied with Fed. R. Civ.

P. 4(f)(2)(A), which permits service if it is effectuated

“in the manner prescribed by the law of the foreign

actual notice even though he only received a copy of the summons

and not the complaint because he departed hastily).

“Personal jurisdiction is a composite notion of two separate

ideas: amenability to jurisdiction, or predicate, and notice to the

defendant through valid service of process.” DeMelo v. Toche Marine,

Inc., 711 F.2d 1260, 1264 (Sth Cir.1983).

l6a

country for service in that country in an action in any of

its courts of general jurisdiction.” The provisions of

Austrian law that Prewitt references from Austria’s Civil

Procedure Code and regulations for service of process by

mail relate to service by Austrian courts on persons res-

ident in Austria and abroad. None of these Austrian law

provisions directly pertain to service mailed from abroad

upon international organizations resident in Austria. Pre-

witt argues that we should look only to the approved

“method” of service within the foreign jurisdiction and

not to the substance of Austrian law. However, the sub-

stance of the law specifically relating to service of pro-

cess cannot be divorced from the “method” of service.

Indeed, §§ 12(1) and 11(2) of the Austrian Service Act

specifically address service from authorities abroad upon

residents in Austria and trump the more general provi-_

sions cited by Prewitt from the Austrian Code of Civil

Procedure and regulations for service of process by Aus-

trian courts on residents in Austria or abroad.'® More-

over, the Regulation Regarding the Service of Process by

Mail upon Persons Abroad in Civil Proceedings that Pre-

witt argues applies in this case specifically states that it

does not apply to service on entities specified under

§ 11(2) of the Austrian Service Act. Dist. Ct. Doc. 87,

Exh. 4B. Section 12(1) (as amended 1990) of the Aus-

trian Service Act requires that:

The service of documents generated by authorities

abroad to recipients in Austria shall be carried out

in accordance with the existing international con-

ventions, in the absence of which it has to be done

in accordance with this law... . (emphasis added).

16 Expert Decl. of Dr. Wolfgang Hahnkamper, Dist. Ct. Doc. 56,

Exh. 8 at 4.

17a

Section 11(2) (as amended 1998) of the Austrian Service

Act directly addresses service from abroad upon inter-

national organizations such as OPEC requiring that:

the mediation of the Federal Ministry for Foreign

Affairs shall be enlisted in undertaking service of

process on foreigners or international organizations

that enjoy privileges and immunities under inter-

national law, regardless of their place of .esidence

or headquarters.

There would be no way for Prewitt to serve OPEC under

§ 11(2) of the Austrian Service Act because we must

assume that if it had gone to the Austrian Federal Min-

istry of Foreign Affairs, the Ministry would have applied

the laws of its own country and obeyed the dictates of

the Austrian/OPEC Headquarters Agreement prohibiting

service without OPEC’s consent.

In response, Prewitt again argues that actual notice

can cure defective service of process pursuant to Section

7 of the Austrian Service Act, which provides:

Should defects in service of process occur, service

shall be deemed effectuated at the time when the

document has actually reached the recipient desig-

nated by the authority.

Section 7 (as amended January 1, 1991) of the Austrian

Service Act. However, this section has specifically been

interpreted in Austria not to apply to defects in service

of process that are in breach of the requirements for ser-

vice under an international agreement such as the Austrian/

OPEC Headquarters Agreement.'’ Moreover, Section 7

17 The Austrian Administrative Court (“Verwaltungsgericht-

shof”) has held that a breach of a rule in an international agreement

on service of process was not a “simple defect of service” that could

be cured by Section 7 of the Austrian Service Act. The court stated

the rule that:

18a

may not cure a failure to obtain OPEC’s express consent

because under the Austriaa law of lex specialis, the more

specific provision in the Headquarters Agreement for

service of process upon OPEC takes precedence over the

more general language of the Austrian Service Act.

Expert Decl. of Dr. Wolfgang Hahnkamper, Dist. Ct.

Doc. 80, Exh. 5 at 416-17, 420-21.'* Finally, Prewitt

contends that even if its service by registered mail on

OPEC could not be effectuated pursuant to any of the

provisions of Fed. R. Civ. P. 4(f)(2), the district court

still had the discretion to order service of process pur-

suant to Fed. R. Civ. P. 4(f)(3), which provides that ser-

vice may be effected “by other means not prohibited by

international agreement as may be directed by the court.”

(emphasis added). We agree with Prewitt that a district

[S]imple consideration of the generally acknowledged rules

of public law, which apply according to Art. 9(1) B- VG [Fed-

eral Constitutional Act] as constituents of Federal law, and

which include the principle that contracts are to be performed

in good faith. . . prohibits § 7 of the Service Act from being

afforded the content that it should also reform breaches of

explicit prohibitions on service contained in international

agreements... .

Verwaltungsgerichtshof [VwGH] Beschlul3, December 18, 1997, No.

97/11/0274 (Aus.).

= Prewitt similarly argues that because OPEC failed to imme-

diately reject the pleadings sent to it by international registered mail,

return them, or lodge diplomatic protests with the United States, its

actual receipt of the pleadings constituted constructive consent or

waiver of the protection under Article 5(2) of the Headquarters

Agreement that OPEC may only be served where it has expressly

consented to service of process. Br. of Appellant at 31 n.9. We reject

this argument because Article 5(2) must be read together with Article

9 of the Headquarters Agreement, which provides that “OPEC. . .

— shall enjoy immunity from every form of legal process except in so

far as in any particular case OPEC shall have expressly waived its

immunity. . . (emphasis added).”

ssa, re Aad

19a

court’s denial of relief under 4(f)(3) is reviewed under

an abuse of discretion standard. However, there is no

abuse of discretion here; on the contrary, any circum-

vention of 4(f)(2)(C)(ii) by the district court in directing

service again by registered mail would constitute such an

abuse. On these facts, we cannot read 4(f)(3) as per-

mitting that which has already been specifically pro-

hibited under 4(f)(2). .

Prewitt then argues that, even if service by registered

mail is prohibited by 4(f)(Z), other means of giving

actual notice, such as fax or e-mail, that are not men-

tioned in the rule or prohibited by international agree-

ment could be employed to serve OPEC under Fed. R.

Civ. P. 4(f)(3), even if the service is contrary to the laws

of Austria.'? However, the 1993 Advisory Committee

Notes to Fed. R. Civ. P. 4(f)(3) instruct that:

Paragraph (3) authorizes the court to approve other

methods of service not prohibited by international

agreements. . . . Inasmuch as our Constitution

‘9 In support of its argument, Prewitt cites to Umbenhauer v.

Woog, 969 F.2d 25, 34 (3d Cir. 1992), which held that “Rule 4(i)(1)

neither explicitly or implicitly requires any deference to foreign gov-

ernments or the U.S. Department of State in the manner by which ser-

vice shall be made.” However, Fed. R. Civ. P. Rule 4(i)(1) was the

predecessor to the current Fed R. Civ. P. 4(f)(2)(C)(ii) for service of

process by registered mail, not Fed. R. Civ. P. 4(f)(3), which is at

issue here. In any event, the Umbenhauer court pointed out that the

1993 amendments to the Federal Rules on service specifically pro-

vided for greater deference generally to foreign law. As the court

noted, “the Standing Rules Committee of the Judicial Conference of

the United States recently drafted relevant proposed revisions to

Fed.R.Civ.P. 4” and that “[i]f proposed Rule 4(f)(2)(C) were in effect

today, then contrary to our holding here, the new Rule would preclude

a district court clerk from serving process by signed receipt mail on

a defendant in a country whose laws forbid that method of service.”

Id. at 33.

20a

requires that reasonable notice be given, an earnest

effort should be made to devise a method of com-

munication that is consistent with due process and

minimizes offense to foreign law.

(emphasis added). Rather than minimizing offense to

Austrian law, the failure to obtain OPEC’s consent

would constitute a substantial affront to Austrian law.

We can find no support permitting such a consequence in

the face of Austria’s direct prohibition of service on

OPEC without its consent.”° The case relied upon as per-

suasive by Prewitt, Rio Properties, Inc. v. Rio Int’l Inter-

link, 284 F.3d 1007, 1014 (9th Cir. 2002), is not at all

applicable to the circumstances here. In Rio, the court

held that the district court did not abuse its discretion by

ordering service by email upon an international corpo-

ration based in Costa Rica. However, the primary issue

in that case was whether Fed. R. Civ. P. 4(f) should be

read to create a hierarchy of preferred methods of ser-

vice of process, requiring a party to attempt service by

the methods enumerated in Fed. R. Civ. P. 4(f)(2) before

petitioning the court for alternative relief under Fed. R.

Civ. P. 4(f)(3). More importantly, the facts supporting

the district court’s direction of alternative service in Rio

are completely different from the facts here. In Rio, the

20 Prewitt also cites to Jn re Ski Train Fire in Kaprun, Austria

on Nov. 11, 2000, 2003 WL 21659368 (S.D.N.Y. July 15, 2003)

(unpublished), where again there was no Austrian law explicitly pro-

hibiting service of process on the defendant, an Austrian corporation,

without its consent. We do not find this case applicable. But see May-

oral-Amy v. BHI Corp., 180 F.R.D. 456 (S.D. Fla.1998) (declining to

authorize service of process by facsimile under Fed. R. Civ. P. 4(f)(3)

where doing so would be in contravention of Belize law); Lord v. Liv-

ing Bridges, 1999 WL 528833 (E.D. Pa. 1999) (unpublished) (order-

ing plaintiffs to serve defendants under Fed. R. Civ. P. 4(f)(3) in a

manner that was not prohibited by international agreement or appli-

cable Mexican law).

a at

ae “4 i

2la

court determined that the defendant, an international

internet company doing business in the United States,

had a viable presence in the United States; that physical

personal service had been legally attempted by actually

serving a legitimate agent of the defendant in the United

States; and that the defendant had evaded the attempted

service. The most important distinction, however, is that

in Rio, there was no discussion of Costa Rican law at all,

much less of any prohibitions relating to service of pro-

cess and thus, no need to take into account the advisory

note to Fed. R. Civ. P. 4(f)(3) directing that alternative

service of process should minimize offense to foreign

law.?!

Austrian law clearly provides protection to OPEC as

an international organization from all methods of service

of process without its consent and also requires that any

service of process from abroad be effected through Aus-

trian authorities. In this case, OPEC has made clear that

it refuses to consent expressly to service of process by

Prewitt; thus, the district court did not abuse its discre-

tion in denying Prewitt’s motion to authorize alternative

means of service.

Ill. CONCLUSION

Based on the foregoing, we AFFIRM the district

court’s motion to dismiss this case for insufficient ser-

vice of process and its denial of alternative service of

process on OPEC.

We do not say that a district court never has discretion to

direct service of process under Fed. R. Civ. P. 4(f)(3) that is in con-

travention of a foreign law. Rather, we are satisfied that under the

facts and circumstances of this case, directing service of process

would constitute a clear abuse of discretion.

22a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-11580

FILED March 2, 2004

PREWITT ENTERPRISES INC., on its own behalf

and on behalf of all others similarly situated,

Plaintiff-Appellant,

—versus—

ORGANIZATION OF PETROLEUM

EXPORTING COUNTRIES,

Defendant-Appellee.

On Appeal from the United States District Court

for the Southern District of Alabama

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion , [lth Cir., 19__, _ F.2d

23a

Before: ANDERSON, BARKETT and RONEY, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appel-

late Procedure; Eleventh Circuit Rule 35-5), the Peti-

tion(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

[ILLEGIBLE] BARKETT

UNITED STATES CIRCUIT JUDGE

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action Number 00-C-0865-S

FILED August 2, 2002

PREWITT ENTERPRISES, INC., on its own behalf

and on behalf of all others similarly situated,

iia Plaintiff,

ORGANIZATION OF THE PETROLEUM

PETROLEUM EXPORTING COUNTRIES,

Defendent.

ORDER OF DISMISSAL

Consistent with the accompanying Memorandum

Opinion, Plaintiff’s claims are hereby DISMISSED, with-

out prejudice. :

Costs are taxed as paid.

DONE this 2d day of August, 2002.

U. W. CLEMON

Chief United States District Judge

U. W. Clemon

25a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DISTRICT

Civil Action Number 00-C-0865-S

FILED August 2, 2002

PREWITT ENTERPRISES, INC., on its own behalf

and on behalf of all others similarly situated,

Plaintiff,

oY 5

eas ot Ah Sa PMN anata 2 beam

ORGANIZATION OF THE PETROLEUM

PETROLEUM EXPORTING COUNTRIES,

Defendant.

MEMORANDUM OPINION ON DEFENDANT'S

MOTION TO DISMISS FOR INADQUATE

SERVICE OF PROCESS

This case implicates one of the pillars of American

jurisprudence. “Service of process, under longstanding

tradition in our system of justice, is fundamental to any

procedural imposition on a named defendant.” Murphy

° Brothers, Inc. v. Mitchell Pipe Stringing, Inc., 526 U.S.

344, 350 (1999). The question before the Court in this

important case is thus fairly straightforward: Has the .

26a

Plaintiff Prewitt Enterprises, Inc. (“Prewitt”) properly

served process on Defendant Organization of Petroleum

Exporting Countries (“OPEC”). For the reasons which

follow, the Court concludes that the question must be

answered in the negative.

Prewitt is an Alabama corporation with its principal

place of business in Birmingham, Alabama. It purchases

substantial quantities of gasoline for resale to the public

at its gasoline stations. On April 4, 2000, Prewitt filed

this action against OPEC, alleging that OPEC fixes

prices and sets quotas for the crude oil produced by its

member nations, and that OPEC’s practices violate the

antitrust laws of the United States.'

OPEC is an international organization formed in Bagh-

dad, Iraq in 1960, and presently headquartered in Vienna,

Austria. OPEC’s current members are: Iraq, the Socialist

Peoples Libyan Arab Jamahiriya, the Islamic Republic of

Iran, Saudi Arabia, the United Arab Emirates, Qatar,

Algeria, Nigeria, Indonesia, and Venezuela. None of

OPEC’s member nations are named in this action.? OPEC

is here sued as an unincorporated association.

: Plaintiff’s law firm also filed an action against OPEC in the

Superior Court of the District of Columbia, asserting claims under the

local anti-trust laws of the District of Columbia and seventeen states.

That action was dismissed on August 22, 2000. Melnitchenko v.

OPEC, No. 000A3173 (D.C. Super. Ct.) Plaintiff filed a motion for

reconsideration, which is still pending.

2 The State of Kuwait, The United States Saudi Arabian Busi-

ness Council, the Ministry of Petroleum and Mineral Resources For

the Kingdom of Saudi Arabia, The Ministry of Middle East Institute,

The American Business Association—Eastern Province, the Federal

Republic of Nigeria, and the Ministry of Energy have been granted

leave to file amicus briefs.

27a

OPEC has moved to dismiss the action on a number of

procedural and substantive grounds, including insuffi-

ciency of service of process. The resolution of the ser-

vice of process issue makes it unnecessary to consider

the other grounds of the Motion to Dismiss.

Service of Process

In its complaint, Prewitt specifically requested service

on OPEC by registered mail. Accordingly, on April 6,

2002, the Clerk of the this Court sent to OPEC at its

headquarters in Austria a copy of the summons and com-

plaint via registered mail, return receipt requested.

The summons and complaint were delivered to OPEC's

headquarters, and one of its employees signed the return

receipt on April 17, 2000. On the same date, the summons

and complaint were stamped “received” by OPEC’s

Administration and Human Resources Department

(“HRD”). The HRD delivered the pleadings to Dr. Shokri

Ghanem, Director of OPEC’s research division. After

consulting with Dolores Dobarro (a “legal officer”), Dr.

Ghanem forwarded the documents to Dr. Lukman, then

Secretary General for OPEC. Dr. Ghanem and Dr. Luk-

man ultimately decided that “the Secretariat should ignore

the whole thing.” (Doc. 80, Pl.’s Evid. Materials at Ex. 1,

OPEC Bates # 00032, 15.)

Prewitt never sought the assistance of the Austrian

Ministry for Foreign Affairs in effecting service on

OPEC.

The Default Judgment and Injunction

OPEC failed to answer Prewitt’s motion within the

twenty-day period fixed by Fed.R.Civ.P. 12(a)(1)(A).

The Clerk of the Court entered a default judgment

against OPEC on May 19, 2000.

28a

District Judge Sharon L. Blackburn, to whom this case

was initially assigned, set aside the default judgment on

September 15, 2000, questioning whether OPEC had

been properly served with process.

The case was subsequently assigned to Senior District

Judge Charles R. Weiner of the Eastern District of Penn-

sylvania, sitting by designation. On Prewitt’s supple-

mental motion, the Court entered a setond default

judgment against OPEC and certified a class on Decem-

ber 11, 2002. The Court then ordered OPEC to appear at

the Hugo L. Black Courthouse in Birmingham, Alabama,

on March 8, 2001, and show cause why the relief sought

by the Prewitt and the certified class should not be

granted. A copy of the Show Cause Order was mailed to

and received by OPEC at its headquarters. OPEC again

failed to respond.

On March 22, 2001, the Court entered its Findings of

Fact and Conclusions of Law. It found that OPEC was

created and exists for the express purpose of controlling

crude oil production and export; that there is a conspir-

acy between OPEC, its members, and non-OPEC mem-

bers to fix and control crude oil prices; that OPEC’s

activities have a substantial and adverse impact on

United States trade and commerce; that there is a daily

impact of between $80 to $100 million in excess costs

paid by United States consumers as a result of OPEC’s

actions; and that uniess enjoined, the threat of continued

injury from OPEC’s restraints of trade would continue

unabated. The Court concluded that it has subject matter

jurisdiction under the Sherman and Clayton Acts; that

OPEC is an “unincorporated association” within the

meaning of Rule 17(b)(1) and thus may be sued in this

Court; that it has in personam jurisdiction over OPEC

because it was served with process by international reg-

istered mail and filed no response, and OPEC has the

SE.

Sad AL hea wh nS SAB atta Leh eae,

reg

AAS ae) eta Fee Rs mei

29a

requisite minimum contacts with the United States; and

that the agreements coordinated and implemented by

OPEC to fix and control the production and export of

crude oil by its members are illegal per se under the

Sherman and Clayton Acts.

Based on its Findings and Conclusions, the Court

entered a Final Judgment and Order of Injunction (the

“Injunction’’) against OPEC. It enjoined OPEC and those

acting in concert and participation with OPEC, for a

period of twelve months, from entering into any agree-

ments to fix and control the production and export of

crude oil, and from implementing and enforcing any

agreements which do so. A copy of the Court’s orders

were delivered to the U.S. embassies for the foreign

member countries.

Post-Judgment Relief

Unsurprisingly, the injunction captured OPEC’s atten-

tion and apparently convinced it that the “whole thing”

could no longer be ignored. On April 16, 2001, OPEC

entered a special appearance and moved for post-judg-

ment relief. OPEC’s requested stay of enforcement of

the judgment was granted.

Because of a conflict of interest, Judge Weiner recused

himself from this case, and it was subsequently reas-

signed to the undersigned judge.

Thereafter, the default judgment and Final Judgment

and Order of Injunction were vacated. The Court then

requested briefs and heard arguments on the threshold

issue of the validity of service of process. It is to this

question that the Court now turns.

30a

II.

The very concept of service of process stems from the

due process clauses of the Fifth and Fourteenth amend-

ments to the United States Constitution. Due process

demands “notice reasonably calculated under all the cir-

cumstances, to apprise interested parties of the pendency

of the action and to afford them an opportunity to pre-

sent their objections.” Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306, 314 (1950) (citing Milliken

v. Meyer, 311 U.S. 457 (1940)).

The Supreme Court in Murphy Brothers recently

emphasized the important role that formal service of

process plays in the attainment of due process. Before

the Court was question of whether the time to remove a

state court action begins to run from informal receipt of

the complaint or from official service of process. 526

U.S. 344. In addressing the question, the Supreme Court

Stated:

We read Congress’ provisions for removal in light

of a bedrock principle: An individual or entity

named as a defendant is not obliged to engage in lit-

igation unless notified of the action, and brought

under a court’s authority, by formal process.

Id. at 347. So significant is the formality of notice, the

Court held, that a party’s time to remove a case cannot

be triggered even by actual notice when there has not

been proper service of official process.

Rule 4 of the Federal Rules of Civil Procedure

describes the manner in which service of process must

be made in order to subject the defendant to the juris-

diction of the court. Rule 4(h)(2) governs service on cor-

porations and associations outside the United States. It

generally states that service may be effected on an unin-

3la

corporated association such as OPEC in any manner pre-

scribed for individuals under Rule 4(f).?

Rule(f) (2) (C) (ii)provides:

(f) Service Upon Individuals in a Foreign Country.

Unless otherwise provided by federal law, service

upon an individual from whom a waiver has not

been obtained and filed. . . may be effected in a

place not within any judicial district of the United

States: .

(2) if there is no internationally agreed means

of service or the international agreements

allows other means of service, provided that the

service is reasonably calculated to give notice:

foreign country, by

(ii) any form of mail requiring a signed

receipt, to be addressed and dispatched by

the clerk of the court to the party to be

served; .

(emphasis added).

Relevant Austrian Law

The establishment of OPEC’s headquarters in Vienna

is predicated on a “Headquarters Agreement” between

Specifically, the rule provides that service upon a foreign

corporation or association in a place not within any judicial district

_ Of the United States shall be done “in any manner prescribed for indi-

viduals by subdivision (f) except personal delivery. . .” Fed.R.Civ.P.

4(h)(2).

32a

the Republic of Austria and OPEC. Article 5(2) of the

Headquarters Agreement provides that service of legal

process upon OPEC “shall not take place within the

headquarters seat except with the express consent of and

under conditions approved by the Secretary General.”

The Headquarters Agreement is an integral part of Aus-

trian law 4

Additionally, the Austrian law on the Service of Legal

Documents provides that the service of legal documents

to foreign citizens or international organizations who are

entitled to privileges and immunities shall be carried out

with the assistance of the Federal Ministry for Foreign

Affairs.

Standard for Dismissal under Rule 12(b)(5)

On a motion to dismiss for insufficiency of service

under Rule 12(b)(5), the plaintiff bears the burden of

establishing the validity of process. Banco Latino,

S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1277

(S.D. Fla. 1999) (citing Aetna Bus. Credit, Inc. v. Uni-

versal Decor & Interior Design, Inc., 635 F.2d 434, 435

(Sth Cir. 1981)). Prewitt thus bears the burden of estab-

lishing that process was served upon OPEC in a manner

consistent with Rule 4(f)(2)(C)(ii).

. Plaintiff argues that the Headquarters Agreement is a “spe-

cial” law that falls outside the ambit of the phrase “the law of the for-

eign country” in Rule 4(f)(2)(C) and should not be “given effect by

the Court” even if it falls within the boundaries of foreign “law” as

intended by the Rule. Plaintiff fails, however, to provide the Court

with any substantive support, for these claims. The only evidence on

point is that the Headquarters Agreement was passed by the Austrian

Parliament, and was published in the Austrian Gazette. Furthermore,

on January 1, 2002, the Embassy of Austria sent a letter to this Court,

in which it characterized the Headquarters Agreement as “an integral

part of Austrian law.”

Biiake nn dvaaSlie od

33a

Ml.

Until recently, the question of the validity of process

served by mail upon an individual in a foreign country

was an area of ambiguity for the courts. Up until 1993,

the manner of service upon an individual in a foreign

nation was prescribed by Rule 4(i)(1)(D), which pro-

vided for service, “by any form of mail, requiring a

signed receipt, to be addressed and dispatched by the

clerk of the court to the party to be served.” Without

explicit congressional direction to the contrary, courts

were left to determine whether service was adequate

where it complied with American norms of fairness, but

did not comport with the methods prescribed as appro-

priate by the foreign national. Though courts inevitably

differed in their approaches to the issue, most courts in

the United States permitted use of the service methods

even if such methods violated the law of the country in

which service was effected. See e.g., SEC v. Interna-

tional Swiss Investment Corp., 895 F.2d 1272 (9th Cir.

1990); Bersch v. Drexel Firestone, Inc., 389 F. Supp. 446

(S.D.N.Y. 1974), modified, 519 F.2d 974 (2d Cir. 1975);

ALCO Standard Corp. v. Benalal, 345 F. Supp. 14 (E.D.

Pa. 1972).°

In the wake of diplomatic protest and conflicting court

rulings, Congress amended Rule 4 in 1993. Among the

changes was a clarification of Rule 4(i) through the

addition of a requirement that service under the methods

of the previous section (i) not be made in violation of

foreign law. The replacement rule was designated as

5 A few lower court decisions indicated that service in viola-

tion of foreign law would not be valid for the purposes of domestic

law. See, e.g., Aries Ventures Ltd. v. AXA Finance S.A., 729 F. Supp.

2894S.D.N.Y. 1990); R.M.B. Electrostat, Inc. v. Lectra Trading AG,

1983 WL 13711 (E.D. Pa. Jan. 20, 1983).

34a

“Rule 4(f).” As noted earlier, it authorizes service by

mail on a foreign unincorporated association unless

“prohibited” by the law of the foreign country in which

service is sought to be effected.

This Court recognizes that ambiguities exist even

under the revised Rule 4(f). A number of courts have

already undertaken to divine, with differing results, the

draftspersons’ intended meaning of the word “prohib-

ited” in Rule 4(f)(2)(C)(ii).° Additionally, the Court rec-

6 Plaintiff argues that the “prohibited by” clause of Rule 4(f)

(2)(C)(ii) refers only to means of service expressly disallowed by the

law of the foreign national and that Plaintiff's method of service must

be deemed valid because there is no Austrian law declaring the

method invalid. Conversely, Defendant interprets the “prohibited by”

clause of the Rule as referring to all means of service not expressly

allowed by the law of the foreign national. Defendant argues that

Plaintiff’s method of service must be deemed invalid because there

is no Austrian law declaring that service by mail may be used.

The question of the intended meaning of the “prohibited by” clause

has been considered by a number of courts. Though a few courts have

adopted the approach employed by Defendant, see, e.g., Proctor & Gam-

ble Cellulose Co. v. Viskova-Loznica, 33 F. Supp.2d 644, 664-65 (W.D.

Tenn. 1998); Graval v. P.T. Bakrie & Bros., P.T., 986 F. Supp. 1326 (C.D.

Cal 1996), courts have more commonly interpreted the clause in the man-

ner suggested here by Plaintiff. See Dee-K Enterprises, Inc. v. Heveafil

SDN, BHD, 174 F.R.D. 376 (E.D. Va. 1997); see also Emery v. Wood

Industries, Inc., 2001 WL 951579, at *2 (D.N.H. Aug. 20, 2001); Carni-

gal v. Kartria Shipping, Ltd., 2000 WL 1036224, at *2 (E.D. La. July 25,

2000); Banco Latino S.A.C.A. v. Gomez Lopez, 53 F. Supp. 1273, 1277

(S.D. Fla. 1999); Resource Ventures, Inc. v. Resources Management Int'l,

Inc., 42 F. Supp.2d 423 (D. Del. 1999). Courts that have read the clause

in this manner have rested their analysis on the idea that this is the only

reading that gives subsection (f)(2)(C) operative effect. Were subsection

(f)(2)(C) inapplicable where a form of return receipt mail is simply not

prescribed by the laws of a foreign country, the subsection would be

superfluous to subsection (f)(2)(A), which allows service in a foreign

country in any matter “prescribed” by the law of that country.

Given that the Court finds statutory language expressly prohibiting the

method of service employed by Prewitt, this finding is not dispositive of

Nim ant te

35a

Ognizes that there may be cases in which the correct

interpretation of foreign law is problematic. However,

this case falls into neither of these categories. Even

assuming that the draftspersons intended the term “pro-

hibited” to require clear statutory language by the leg-

islative body of the foreign national, this case reflects an

example of such clear language.

The Austrian government, as a sovereign, has declared

expressly—through both its legislative and treaty-mak-

ing powers—that-certified mail service directly upon

OPEC is prohibited. Thus, there is no plausible basis for

Prewitt’s argument that the Headquarters Agreement is

not a “part” of Austrian law. Not only have Austrian

government officials declared the Agreement to be

the case at bar, and the Court, therefore, need not issue a final ruling on

it. However, based on the evidence before the Court, the Court is inclined

to interpret the “prohibited by” clause in a way not argued by either

party. .

While Plaintiff and courts, such as Dee-K, correctly point out that

reading the clause as prohibiting all that is not expressly allowed under

local law is to deem the clause inoperative, the logical result of a deter-

mination that some nonprescribed means of service must be potentially

allowable is not that all non-prescribed means are actually allowable.

Rather, the Court is of the opinion that there are likely, in many nations,

some non-prescribed methods of service that are judicially valid and

some that are judicially invalid. Validity of a given method of service

depends on whether or not the method complies with the judicial norms

established by the foreign national itself. Indeed, this is an interpretation

that most naturally applies to an analysis of the validity of a means of

service employed in the United States. While there is no American law

disallowing skywriting as a means of serving process, this is most

assuredly a method of service that would be deemed unacceptable in any

court. At the same time, methods such as service via facsimile are often

deemed acceptable by courts despite the fact that there are no laws

expressly allowing such means. See, e.g., Wilkens v. Johnson, 238 F. 3d

328 (Sth Cir. 2001); In re Town of Amenia, 200 F.R.D. 200 (S.D.N.Y.

2001); In re International Telemedia Associates, Inc., 245 B.R. 713

(Bankr. N.D. Ga. 2000).

36a

legally binding, but the Headquarters Agreement was

actually enacted into law by the Austrian Parliament.

The Court therefore concludes that OPEC was not

effectively served even though it actually received the

summons and complaint, as unconsented to service by

registered mail on OPEC is prohibited by Austrian law.

IV.

Economic globalization has fostered increasingly

global litigation. As travel has become easier, and the

prospect of production, asseinbly, distribution, and mar-

keting each taking place in a different nation common-

place, the number of potential dispute-resolving fora and

the rules that regulate these fora have multiplied rapidly.

However, while international economic barriers are

falling, political barriers remain. The world is one of

separate sovereigns with distinct norms and rules, each

mandating courtesy and periodic deference. Though the

rapidity and frequency with which this eco-political ten-

sion has arisen has often left courts attempting to navi-

gate complex questions of policy, such questions are

properly reserved only for the Legislature.

The notion of wholly insulating from service of pro-

cess an entity such as OPEC—whose decisions surely

affect the daily lives of most Americans—is, for many,

a bitter pill to swallow. But the Court must apply the

rules as they are written. The rules reflect a clearly

expressed diplomatic policy choice of Congress to

respect the normative and, ultimately, the legislative,

decisions of foreign sovereigns.

By separate order, Defendant’s Motion to Dismiss

shall be granted, without prejudice, to the right of Plain-

tiff to pursue an alternate means of effecting service on

Defendant.

37a

Done this 2nd day of August, 2002.

U. W. Clemon

Chief United States District Judge

U. W. Clemon

38a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action Number 00-C-0865-S

FILED March 4, 2003

PREWITT ENTERPRISES, Inc., on its own behalf

and on behalf of all others similarly situated,

Plaintiff,

—vs.—

ORGANIZATION OF THE PETROLEUM

EXPORTING COMPANIES,

Defendant.

QRDER DENYING MOTION FOR ALTERNATIVE

SERVICE OF PROCESS OR AMENDMENT

OF THE JUDGMENT

Because of the Court’s view that the Defendant cannot

in this case be effectively served with process, Plaintiff's

Motion For Alternative Service of Process, or, in the

alternative, its Motion to Amend the Judgment is hereby

DENIED.

39a

Done this 4th day of March, 2003.

U. W. Clemon

Chief United States District Judge

U. W. Clemon

40a

USCS Fed Rules Civ Proc R 4

UNITED STATES CODE SERVICE

one of the LEXIS Publishing (TM) companies

*** CURRENT THROUGH CHANGES RECEIVED

APRIL, 2004 ***

FEDERAL RULES OF CIVIL PROCEDURE

Il. COMMENCEMENT OF ACTION; SERVICE OF

PROCESS, PLEADINGS, MOTIONS, AND ORDERS

USCS Fed Rules Civ Proc R 4 (2004)

Rule 4. Summons

(f) Service Upon Individuals in a Foreign Country.

Unless otherwise provided by federal law, service upon

an individual from whom a waiver has not been obtained

and filed, other than an infant or an incompetent person,

may be effected in a place not within any judicial district

of the United States:

(1) by any internationally agreed means reasonably

calculated to give notice, such as those means authorized

by the Hague Convention on the Service Abroad of Judi-

cial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of ser-

vice or the applicable international agreement allows

other means of service, provided that service is reason-

ably calculated to give notice:

(A) in the manner prescribed by the law of the

foreign country for service in that country in an action in

any of its courts of general jurisdiction; or

4la

(B) as directed by the foreign authority in

response to a fetter rogatory or letter of request, or

country, by

(i) delivery to the individual personally of a

copy of the summons and the complaint; or

(ii) any form of mail requiring a signed

receipt, to be addressed and dispatched by the clerk of

the court to the party to be served; or

(3) by other means not prohibited by international

agreement as may be directed by the court.

HEADQUARTERS AGREEMENT

BETWEEN

THE REPUBLIC OF AUSTRIA

AND

OPEC

Effective 10th June 1974

WITH AMENDMENTS

effective Ist October 1985

43a

AGREEMENT

BETWEEN THE ORGANIZATION OF THE

PETROLEUM EXPORTING COUNTRIES AND

THE REPUBLIC OF AUSTRIA REGARDING THE

HEADQUARTERS OF THE ORGANIZATION OF

THE PETROLEUM EXPORTING COUNTRIES

The Organization of the Petroleum Exporting Countries

and the Republic of Austria, desiring to conclude a new

agreement regarding the seat of the Organization of the

Petroleum Exporting Countries in the City of Vienna and

to regulate questions connected therewith, have agreed

as follows:

ARTICLE I

When used in this Agreement,

(a) “OPEC” means the Organization of the Petroleum

Exporting Countries;

(b) “The Government” means the Federal Government

of the Republic of Austria;

OPEC or any officer designated to act on his behalf;

(d) “Member Country” means a State which is a Mem-

ber of OPEC;

(e) “Governor” means a member of the Board of Gov-

ernors of OPEC, as defined in the Statute of OPEC;

(f) “Representatives of Member Countries” means

accredited representatives of Member Countries and

members of their delegations, but does not include

administrative and technical or other auxiliary staff;

(g)

(h)

Gj)

(k)

44a

“Meeting convened by OPEC” means any meeting

of the Conference of OPEC or of the Board of Gov-

ernors of OPEC, or any international conferences or

other gatherings convened by OPEC or under its

sponsorship;

“Archives of OPEC” means records and correspon-

dence, documents, manuscripts, still and moving

pictures, films and sound recordings belonging to or

held by OPEC;

“Officials of OPEC” means the Secretary General

and all members of the staff of OPEC, except those

who are locally recruited and assigned to hourly

rates;

“Property” means all property, including Funds and

other assets, belonging to OPEC or held or admin-

istrated by OPEC in furtherance of its statutory

functions and all income of OPEC; and

“Headquarters” means the headquarters area with

the building or buildings upon it, as defined in a

supplemental agreement between OPEC and the

Government, and the Secretary General’s Resi-

dence, and, as the case may be, any other land or

building which may from time to time be included,

temporarily or permanently, therein in accordance

with the provisions of Article 2(2).

ARTICLE 2

(1)

The permanent headquarters of OPEC, as approved

by Resolution of the Conference of OPEC and as

defined in the supplemental agreement between

OPEC and the Government referred to in Article 1(k),

shall be in the headquarters seat.

(2)

45a

Any building outside the headquarters seat which is

used with the concurrence of the Government for

meetings convened by OPEC shall be temporarily

included in the headquarters seat.

ARTICLE 3

(1)

(2)

(3)

The Government recognizes the extraterritoriality of

the headquarters seat, which shall be under the con-

trol and authority of OPEC as provided in this

Agreement.

Except as otherwise provided in this Agreement and

subject to any regulation enacted under Article 4,

the laws of the Republic of Austria shall apply

within the headquarters seat.

Except as otherwise provided in this Agreement, the

courts or other appropriate organs of the Republic of

Austria shall have jurisdiction, as provided in appli-

cable laws, over acts done and transactions taking

place in the headquarters seat.

ARTICLE 4

(1)

OPEC shall have the power to make regulations,

operative within the headquarters seat, for the pur-

pose of establishing therein conditions in all

respects necessary for the full execution of its func-

tions. No law of the Republic of Austria which is

inconsistent with a regulation of OPEC authorized

by this article shall, to the extent of such inconsis-

tency, be applicable within the headquarters seat.

Any dispute between OPEC and the Republic of

Austria as to whether a regulation of OPEC is

authorized by this article or as to whether a law of

the Republic of Austria is inconsistent with any reg-

46a

ulation of OPEC authorized by this article, shall be

promptly settled by the procedure set out in Article

29. Pending such settlement, the regulation of

OPEC shall apply and the iaw of the Republic of

Austria shall be inapplicable in the headquarters

seat to the extent that OPEC claims it tobe incon-

sistent with the regulation of OPEC.

OPEC shall from time to time inform the Govern-

ment, as may be appropriate, of regulations made by

it in accordance with paragraph (1).

This article shall not prevent the reasonable appli-

cation of fire protection or sanitary regulations of

the appropriate Austrian authorities.

ARTICLE 5

(1)

The headquarters seat shall be inviolable. No offi-

cer or official of the Republic of Austria, or other

person exercising any public authority within the

Republic of Austria, shall enter the headquarters

seat to perform any duties therein except with the

consent of, and under conditions approved by, the

Secretary General. The consent of the Secretary

General may, however, be assumed in case of fire or

other disaster requiring prompt protective action.

The service of legal process, including the seizure

of private property, shall not take place within the

headquarters seat except with the express consent

of, and under conditions approved by, the Secretary

General.

47a

ARTICLE 6

(1)

(3)

The appropriate Austrian authorities shall exercise

due diligence to ensure that the tranquillity of the

headquarters seat is not disturbed by any person or

group of persons attempting unauthorized entry into

or creating disturbances in the immediate vicinity of

the headquarters seat, and shall provide on the

boundaries of the headquarters seat such police pro-

tection as may be required for these purposes.

If so requested by the Secretary General, the appro-

priate Austrian authorities shall provide a sufficient

number of police for the preservation of law and

order in the headquarters seat.

The appropriate Austrian authorities shall take all

reasonable steps to ensure that the amenities of the

headquarters seat are not prejudiced and that the

purposes for which the headquarters seat is required

are not obstructed by any use made of the land or

buildings in the vicinity of the headquarters seat.

OPEC shall take all reasonable steps to ensure that

the amenities of the land in the vicinity of the head-

quarters seat are not prejudiced by any use made of

the land or buildings in the headquarters seat.

ARTICLE 7

The Government recognizes the juridical personality of

OPEC and, in particular, its capacity:

(a)

(b)

(Cc)

To contract;

To acquire and dispose of movable and immovable

property; and

To institute legal proceedings.

48a

ARTICLE 8

The Government recognizes the right of OPEC to con-

vene meetings within the headquarters seat or, with the

concurrence of the Government, elsewhere in the Repub-

lic of Austria. |

ARTICLE 9

OPEC and its property, wherever located and by whom-

soever held, shall enjoy immunity from every form of

legal process except insofar as in any particular case

OPEC shall have expressly waived its immunity. It is,

however, understood that no waiver of immunity shall

extend to any measure of execution.

ARTICLE 10

The property of OPEC, wherever located and by whom-

soever held, shall enjoy immunity from search, requisi-

tion, confiscation, expropriation and any other form of

interference, whether by executive, administrative, judi-

cial or legislative action.

ARTICLE 11

The archives of OPEC shall be inviolable wherever

located.

ARTICLE 12

(1) OPEC, its assets, income and other property shall be

exempt from all forms of taxation, provided, how-

ever, that such tax exemption shall not extend to the

owner or lessor of any property rented by OPEC.

(2)

(3)

(4)

(3)

(6)

49a

Insofar as the Government, for important adminis-

trative considerations, may be unable to grant to

OPEC exemption from indirect taxes which consti-

tute part of the cost of goods purchased by or ser-

vices rendered to OPEC, including rentals, the

Government shall reimburse OPEC for such taxes

by the payment, from time to time, of lump sums to

be agreed upon by OPEC and the Government. It is,

however, understood that OPEC will not claim

reimbursement with respect to minor purchases.

With respect to such taxes, OPEC shall at all times

enjoy at least the same exemptions and facilities as

are granted to Austrian governmental administra-

tions or to chiefs of diplomatic missions acéredited

to the Republic of Austria, whichever are the more

favourable. It is further understood that OPEC will

not claim exemptions from taxes which are in fact

no more than charges for public utility services.

All transactions to which OPEC is a party, and all

documents recording such transactions, shall be

exempt from all taxes, recording fees, and docu-

mentary taxes.

Articles imported or exported by OPEC for official

purposes shall be exempt from customs duties and

other levies, and from prohibitions and restrictions

on imports and exports.

OPEC shall be exempt from customs duties and

other levies, prohibitions and restrictions on the

importation of service automobiles, and spare parts

thereof, required for its official purposes.

The Government shall, if requested, grant allot-

ments of gasoline or other fuels and lubricating oils

for each such automobile operated by OPEC in such

50a

quantities as are required for its work and at such

special rates as may be established for diplomatic

missions in the Republic of Austria.

(7) Articles imported in accordance with paragraphs (4)

and (5) or obtained from the Government in accor-

dance with paragraph (6) of this article, shall not be

sold by OPEC in the Republic of Austria within two

years of their importation or acquisition, unless oth-

erwise agreed upon by the Government.

ARTICLE 13

OPEC shall enjoy, as far as may be compatible with any

international conventions, regulations and arrangements

to which the Government is a party, for its official com-

munications, treatment not less favourable than that

accorded by the Government to any other organization or

government, including diplomatic missions of such other

government, in the matter of priorities and rates for

mails, cables, telegrams, radiograms, telephotos, tele-

vision, telephone and other communications, and press

rates for information to press and radio.

ARTICLE 14

(1) All official communications directed to OPEC, or to

any of its officials at the headquarters seat, and all

outward official communications of OPEC, by what-

ever means or in whatever form transmitted, shall be

immune from censorship and from any other form of

interception or interference with their privacy.

(2) OPEC shall have the right to use codes and to dis-

patch and receive correspondence and other official

communications by courier or, in sealed bags, which

Sla

Shall have the same privileges and immunities as

diplomatic couriers and bags.

ARTICLE 15

(1) Without being subject to any controls or regulations

of any kind, OPEC may freely for official purposes:

(a) Purchase any currencies through authorized

channels and hold and dispose of them;

(b) Operate accounts in any currency;

dispose of funds and securities; and

(d) Transfer its funds, securities and currencies to

or from the Republic of Austria, to or from any

other country, or within the Republic of Aus-

tria.

(2) The provisions of paragraph (1) shall not apply to

amounts in Austrian currency, which are subject to

the Austrian regulations concerning blocked accounts,

nor shall they affect any international payments

agreements of the Republic of Austria, which are in

force.

ARTICLE 16

Any pension fund or provident fund established by or

conducted under the authority of OPEC shall enjoy legal

capacity in the Republic of Austria if OPEC so requests,

and shall enjoy the same exemptions, immunities and

privileges as OPEC itself.

52a

ARTICLE 17

OPEC shall be exempt from all compulsory contribu-

tions to, and officials of OPEC shall not be required by

the Government to participate in, any social security

schem: of the Republic of Austria.

ARTICLE 18

The Government shall make such provision as may be

necessary to enable any official of OPEC who is not

afforded social security coverage by OPEC to partici-

pate, if OPEC so requests, in any social security scheme

of the Republic of Austria. OPEC shall, insofar as pos-

sible, arrange, under conditions to be agreed upon, for

the participation in the Austrian social security system

of those locally recruited or temporarily employed mem-

bers of its staff to whom it does not grant social security

protection at least equivalent to that offered under Aus-

trian law.

ARTICLE 19

(1) The Government shall take all necessary measures

to facilitate the entry into, and sojourn in Austrian

territory and shall place no impediment in the way

of the departure from Austrian territory of the per-

sons listed below, shall ensure that no impediment is

placed in the way of their transit to or from the

headquarters seat and shall afford them any neces-

sary protection in transit:

(a) Representatives of Member Countries and their

families;

(b) Governors and their families;

53a

members of their households;

(d) Persons, other than officials of OPEC, per-

forming missions authorized by OPEC or serv-

ing on specialized organs of OPEC, working

parties or other subsidiary bodies of OPEC, and

their spouses;

(e) Representatives of States which are not Mem-

bers of OPEC who are sent as observers, in

accordance with rules adopted by OPEC, to

meetings convened by OPEC; and

(f) Representatives of other organizations or other

persons invited by OPEC to the headquarters

seat on official business.

(2) Visas which may be required by persons referred to

in this article shall be granted without charge as

promptly as possible.

ARTICLE 20

Representatives of Member Countries, Governors and

representatives of States which are not Members of

OPEC who are sent as observers, in accordance with

rules adopted by OPEC to meetings convened by OPEC

shall, without prejudice to any other privileges and

immunities which they may enjoy while exercising their

functions and during their journeys to and from the head-

quarters seat, enjoy within and with respect to the Repub-

lic of Austria, the following privileges and immunities:

(a) Immunity in respect of themselves, their spouses

and dependent children from personal arrest or

detention and from seizure of their personal bag-

gage;

54a

(b) Immunity from legal process of any kind in respect

of words spoken or written, and of all acts done by

them in the performance of their official function,

such immunity to continue notwithstanding that the

persons may no longer be engaged in the perfor-

mance of such fufictions;

(d) The right to use codes and to dispatch or receive

papers and correspondence by courier or in sealed

bags;

(e) Exemption, in respect of themselves, their spouses

and dependent children from immigration restric-

tions, alien registration and national service obli-

gations;

(f) The same privileges with respect to currency and

exchange restrictions as the Government accords to

representatives of foreign Governments on tempo-

rary official missions; and

(g) The same immunities and facilities with respect to

their personal and official baggage as the Govern-

ment accords to members, having comparable rank,

of diplomatic missions in the Republic of Austria. -

ARTICLE 21

The privileges and immunities accorded by Article 20

are conferred, not for the personal benefit of the indi-

viduals themselves, but in order to safeguard the inde-

pendent exercise of their functions in connection with

OPEC. Consequently, it is incumbent upon a Member

Country as well as upon any State sending observers to

waive the immunity of any of its representatives or of

the Governor nominated by the respective State, in any

55a

case where, in the judgement of the Member Country,

the immunity would impede the course of justice and

where it can be waived without prejudice to the purpose

for which it was accorded.

ARTICLE 22

Officials of OPEC shall enjoy within and with respect to

the Republic of Austria the following privileges and

immunities:

(a)

(b)

(c)

(d)

(e)

(f)

Immunity from legal process of any kind in respect

of words spoken or written, and of acts performed

by them, in their official capacity; such immunity to

continue notwithstanding that the persons concerned

may have ceased to be officials of OPEC;

Immunity from seizure of their personal and official

baggage;

Immunity from inspection of official baggage, and,

if the official comes within the scope of Article 23,

immunity from inspection of personal baggage;

Exemption from taxation in respect of the salaries,

emoluments, indemnities and pensions paid to them

by OPEC for services past or present or in connec-

tion with their service with OPEC;

Exemption from any form of taxation on income

d .ved by them from sources outside the Republic

of Austria;

Exemption, with respect to themselves, their

spouses, their dependent relatives and other mem-

bers of their households from immigration restric-

tions and alien registration;

56a

(g) Freedom to acquire or maintain within the Republic

(h)

(i)

of Austria or elsewhere foreign securities, foreign

currency accounts, and other movable and under the

same conditions applicable to Austrian nationals

immovable property; and at the termination of their

OPEC employment, the right to take out of the

Republic of Austria through authorized channels

without prohibition, or restriction, their funds in the

same currency and up to the same amounts as they

had brought into the Republic of Austria;

The same protection and repatriation facilities with

respect to themselves, their spouses, their dependent

relatives and other members of their households as

the Government accords in time of international cri-

sis to members, having comparable rank, of diplo-

matic missions in the Republic of Austria; and

The right to import for personal use, free of duty

and other levies, prohibitions and restrictions on

imports:

(i) Their furniture and effects in one or more sep-

arate shipments and thereafter to import nec-

essary additions to the same;

(ii) At the a time of first installation two cars; how-

ever, customs duties are to be paid if they are

sold in the Republic of Austria within a period

of two years, the lapse of time being counted

from the date of importation;

(iii) Limited quantities of certain articles for per-

sonal use or consumption and not for gift or

sale; OPEC shall enjoy the right to establish a

commissary of its own or its officials shall have

access to one of the existing “ommissaries in

57a

Vienna; a supplemental agreement shall be con-

cluded to regulate the exercise of these rights.

ARTICLE 23

In addition to the privileges and immunities specified in

Article 22:

(a)

(b)

The Secretary General shall be accorded in respect

of himself, his spouse and his dependent children,

the privileges and immunities, exemptions and facil-

ities accorded to ambassadors who are chiefs of

missions;

The Deputy Secretary General, the Chiefs of the

Departments, Senior Officers and such additional

categories of officials as may be designated, in

agreement with the Government, by the Secretary

General on the ground of the responsibilities of their

positions in OPEC the same privileges and immu-

nities, exemption and facilities as the Government

accords to members, having comparable rank, of

diplomatic missions in the Republic of Austria.

ARTICLE 24

(1)

Persons, other than officials of OPEC, performing

missions authorized by OPEC or serving on spe-

cialized organs of OPEC, working parties or other

subsidiary bodies of OPEC and representatives of

other organizations or other persons invited by

OPEC to the headquarters seat on official business

shall, without prejudice to any other privileges and

immunities which they may enjoy for other reasons,

enjoy immunity from legal process of any kind in

respect of words spoken or written, and of acts per-

(2)

(3)

58a

formed by them in direct connection with their offi-

cial business.

They shall further enjoy the same protection and

repatriation facilities with respect to themselves,

their spouses, their dependent relatives and other

members of their households as the Government

accords in time of international crises to members,

having comparable rank, of diplomatic missions in

the Republic of Austria.

Where the incidence of any form of taxation depends

upon residence, periods during which the persons

referred to in paragraph (1) may be present in the

Republic of Austria for the discharge of their duties

shall not be considered as periods of residence.

ARTICLE 25

(1)

The privileges and immunities accorded by Articles

22, 23 and 24 are conferred in the interest of OPEC

and not for the personal benefit of the individuals

themselves. Consequently, it is incumbent upon the

Organization to waive the immunity of any of its

officials or of any person covered by the provision

of Article 24 in all cases where the immunity

impedes the course of justice and where it can be

waived without prejudice to the interest of OPEC.

In any case where these privileges and immunities

arise, the official or other person involved shall

immediately report to the Secretary General, who

shall decide, in consultation, where appropriate,

with the Board of Governors, whether they shall be

waived. In the case of the Secretary General, the

Conference of OPEC shall have the right to waive

immunities.

59a

(2) OPEC and its officials shall co-operate at all times

with the appropriate Austrian authorities to facili-

tate the prompt execution of the laws of the Repub-

lic of Austria and to prevent the occurrences of any

abuses in connection with the privileges and immu-

nities accorded by this Agreement.

ARTICLE 26

All persons of Austrian citizenship and all stateless per-

sons resident in Austria and employed by OPEC shall

enjoy the privileges and immunities, exemptions and

facilities accorded by this Agreement to the extent rec-

ognized by international] law as accepted by the Gov-

ernment, provided, however, that Article 17 shall not and

Article 22(d) shall, in any event, apply to officials of

OPEC who are Austrian citizens or who are stateless

persons resident in Austria. They shall also have access

to the commissary established in accordance with Arti-

cle 22 paragraph (i) sub-paragraph (ili), the exercise of

this right being regulated by the supplemental agreement

provided for in that sub-paragraph.

ARTICLE 27

(1) OPEC shall communicate to the Government a list

of persons within the scope of Articles 20, 22 and

24 and shall revise such list from time to time as

may be necessary.

(2) The Government shall furnish persons within the

scope of Article 22 with an identity card bearing the

photograph of the holder. This card shall serve

to identify the holder in relation to all Austrian

authorities.

ARTICLE 28

The Secretary General shall take every precaution to

ensure that no abuse of a privilege or immunity con-

ferred by this Agreement shall occur. Should the Gov-

ernment consider that abuse of a privilege or immunity

conferred by this Agreement has occurred, the Secretary

General shall upon request, consult with the Federal

Minister for Foreign Affairs of the Republic of Austria

to determine whether any such abuse has occurred. If

such consultations fail to achieve within a reasonable

time a result satisfactory to the Secretary General and to

the Government, the matter may be referred by either

party for final decision to a tribunal of three arbitrators:

one to be chosen by the Secretary General, one to be

chosen by the Federal Minister for Foreign Affairs of the

Republic of Austria and the third, who shall be chairman

of the tribunal, to be chosen by the first two arbitrators.

If the tribunal is not constituted within three months

from the date of the request made for the submission of

the dispute to arbitration, the appointment of the arbi-

trators not yet designated shall be made by the President

of the International Court of Justice at the request of

OPEC or the Government.

ARTICLE 29

Any dispute which may arise between OPEC and the

Government as to the interpretation or application of this

Agreement, shall, at the request of either of them, be

referred to arbitration. The arbitration tribunal shall con-

sist of three arbitrators: one to be chosen by the Secre-

tary General, one to be chosen by the Federal Minister

for Foreign Affairs of the Republic of Austria and the

third, who shall be chairman of the tribunal, to be cho-

sen by the first two arbitrators. If the tribunal is not con-

6la

stituted within six months from the date of the request

made for the submission of the dispute to arbitration, the

appointment of the arbitrators not yet designated shall be

made by the President of the International Court of Jus-

tice at the request of OPEC or the Government.

ARTICLE 30

(1)

(2)

(3)

(4)

This Agreement shall enter into force upon an

exchange of notes between the Secretary General

duly authorized thereto by Resolution of the Con-

ference of OPEC and the Federal Minister for For-

eign Affairs of the Republic of Austria.

Upon the entry into force of this Agreement the

“Agreement between the Organization of the

Petroleum Exporting Countries and the Republic of

Austria regarding the Headquarters of the Organi-

zation of the Petroleum Exporting Countries” of

24th June 1965, ceases to be in force.

Consultations with respect to modification of this

Agreement shall be entered into at the request of

OPEC or the Government. Any such modification

shall be by mutual consent.

This Agreement shall be construed in the light of its

primary purpose of enabling OPEC at its head-

quarters in the Republic of Austria fully and effi-

ciently to discharge its responsibilities and fulfil its

purposes.

IN WITNESS THEREOF, the respective representatives of

the Organization of the Petroleum Exporting Countries

and the Republic of Austria have signed this Agreement.

62a

DONE in duplicate in Vienna, this day of 18th February

of 1974, in the English and German languazes, both

texts being equally authoritative.

For the Organization of the For the Republic

Petroleum Exporting Countries of Austria

(signed) (signed)

Dr A. Khene Rudolf Kirchschlager

63a

The Federal Minister

for Foreign Affairs

Vienna, 18th February 1974

Excellency,

With reference to the Agreement between the Organi-

zation of the Petroleum Exporting Countries and the

Republic of Austria regarding the Headquarters of the

Organization of the Petroleum Exporting Countries, to

which I have this day affixed my signature, I have the

honour to propose that:

(1)

(2)

(7)

The articles mentioned in paragraph (7) of Article

12 of the Agreement may be disposed of without

charge only for the benefit of international organi-

zations or charitable institutions;

Having regard to Article 38(*) of the Vienna Con-

vention on Diplomatic Relaticns and to the practice

of Austria, the Republic of Ai stria will accord per-

sons referred to in Article 2¢ of the Agreement—

persons of Austrian citizenship and stateless persons

resident in Austria—only the immunity from legal

process of any kind in respect of words spoken or

written, and of acts performed by them in direct

connection with their official business;

In accordance with the practice of the Republic of

Austria which is in conformity with Article 42 of

the Vienna Convention on Diplomatic Relations to

which Austria is a party, diplomatic agents accred-

ited to the Republic of Austria may not practise for

personal profit any professional or commercial

activity. It is understood that the same restriction

shall apply to all persons to whom the Agreement

accords the same privileges and immunities as are

(4)

(3)

64a

accorded to members, having comparable rank, of

diplomatic missions in the Republic of Austria;

Persons to whom the Agreement applies, who are

not Austrian nationals or stateless persons resident

in Austria, shall not benefit from Austrian regula-

tions governing family and maternity allowances;

Without prejudice to the provision of Article 22(g)

of the Agreement, officials of OPEC and persons,

other than officials of OPEC, performing missions

authorized by OPEC or serving on specialized

organs of OPEC, working parties or other subsidiary

bodies of OPEC shall be allowed, over and above

the facilities granted by the Agreement, to make

transfers to other countries up to a maximum

amount of one thousand US dollars (US$1,000.00)

per year, to the debit of accounts in Austrian Schi-

ilings held in their names at Austrian credit insti-

tutions; if the aforementioned persons wish to make

Austrian currency transfers exceeding the amount

mentioned above, such transfers shall be authorized

by the Austrian authorities up to the amount of all

salary previously received in Austrian currency by

the person concerned from OPEC, provided that

OPEC agrees that the amount to be transferred shall

be deducted from transferable Austrian currency

balances of OPEC.

If OPEC agrees to this proposal, I have the honour to

propose that this note and your note of confirmation

shall constitute an Agreement between OPEC and the

Republic of Austria, entering into force on the same day

as the Headquarters Agreement.

Accept, Excellency, the assurances of my highest con-

sideration.

65a

(signed)

Rudolf Kirchschlager

His Excellency

Dr. Abderrahman Khene

Secretary General of the

Organization of the Petroleum

Exporting Countries

Vienna

66a

Organization of the Petroleum

Exporting Countries

Secretary General Vienna, 18th February 1974

Excellency,

I have the honour to acknowledge receipt of your note of

18th February 1974, which reads as follows:

“With reference to the Agreement between the Organi-

zation of the Petroleum Exporting Countries and the

Republic of Austria regarding the Headquarters of the

Organization of the Petroleum Exporting Countries, to

which I have this day affixed my signature, I have the

honour to propose that:

(1) The articles mentioned in paragraph (7) of Article

12 of the Agreement may be disposed of without

charge only for the benefit of international organi-

zations or charitable institutions;

(2) Having regard to Article 38(1) of the Vienna Con-

of Austria, the Republic of Austria will:accord per-

sons referred to in Article 26 of the Agreement—

persons of Austrian citizenship and stateless persons

resident in Austria — only the immunity from legal

process of any kind in respect of words spoken or

written, and of acts performed by them in direct

connection with their official business;

(3) In accordance with the practice of the Republic of

Austria which is in conformity with Article 42 of

the Vienna Convention on Diplomatic Relations to

which Austria is a party, diplomatic agents accred-

ited to the Republic of Austria may not practice for

67a

personal profit any professional or commercial

activity. It is understood that the same restriction

shall apply to all persons to whom the Agreement

accords the same privileges and immunities as are

accorded to members, having comparable rank, of

diplomatic missions in the Republic of Austria;

(4) Persons to whom the Agreement applies, who are

not Austrian nationals or stateless persons resident

in Austria, shall not benefit from Austrian regula-

tions governing family and maternity allowances;

(5) Without prejudice to the provision of Article 22(g)

of the Agreement, officials of OPEC and persons,

other than officials of OPEC, performing missions

authorized by OPEC or serving on specialized

organs of OPEC, working parties or other subsidiary

bodies of OPEC shall be allowed, over and above

the facilities granted by the Agreement, to make

transfers to other countries up to a maximum

amount of one thousand US dollars (US$1,000.00)

per year, to the debit of accounts in Austrian

Schillings held in their names at Austrian credit

institutions; if the aforementioned persons wish to

make Austrian currency transfers exceeding the

amount mentioned above, such transfers shall be

authorized by the Austrian authorities up to the

amount of all salary previously received in Austrian

currency by the person concerned from OPEC, pro-

vided that OPEC agrees that the amount to be trans-

ferred shall be deducted from transferable Austrian

currency balances of OPEC.

If OPEC agrees to this proposal, I have the honour to

propose that this note and your note of confirmation

shall constitute an Agreement between OPEC and the

68a

Republic of Austria, entering into force on the same day

as the Headquarters Agreement.”

I have the honour to confirm that OPEC agrees with the

above proposal and that your note and this reply will

constitute an Agreement between OPEC and the Repub-

lic of Austria, entering into force on the same day as the

Headquarters Agreement.

Accept, Excellency, the assurances of my highest con-

sideration.

(signed)

Dr. Adberrahman Khene

(Secretary General)

His Excellency

Dr. Rudolf Kirchschlager

Federal Minister for Foreign Affairs

Vienna

69a

Exchange of Notes between the Republic of Austria and

the Organization of the Petroleum Exporting Countries

concerning the amendment to the Agreement between the

Republic of Austria and the Organization of the Petroleum

Exporting Countries regarding the Headquariers of the

Organizat‘on of the Petroleum Exporting Countries

Organization

of the Petroleum Exporting Countries

Obere Donaustrasse 93

1020 Vienna II, Austria

Vienna, 8th February 1985

Excellency,

I have the honour to propose that the Agreement

between the Organization of the Petroleum Exporting

Countries (hereinafter referred to as ‘OPEC’) and the

Republic of Anstria regarding the Headquarters of OPEC

(hereinafter referred to as ‘Headquarters Agreement’ )

shall be amended as follows: .

I. Sub-paragraph (ii) of paragraph (i) of Article 22 of

the Headquarters Agreement shall read:

‘One automobile every four years’.

II. Without prejudice to the provisions of the Head-

quarters Agreement the following additional privi-

leges shall be granted to officials of OPEC and

members of their families forming part of their house-

holds, provided they are not Austrian nationals or

stateless persons permanently resident in Austria:

(1) Exemption from taxation on all income and

property of officials and members of their fam-

70a

ilies forming part of their households, insofar

as such income and property do not come under

the limited tax liability of the Austrian legis-

lation on taxation of income or property.

(2) Exemption from inheritance and gift taxes,

insofar as such arise solely from the fact that

the officials and members of their households

reside or maintain their usual domicile in

Austria.

III. If and to the extent that the Republic of Austria

shall enter into any agreement with any inter-gov-

ernmental organization containing terms or condi-

tions more favourable to that organization than

similar terms or conditions of the Headquarters

Agreement, the Republic of Austria shall extend

such more favourable terms or conditions to OPEC

by means of a supplemental agreement.

If the Republic of Austria agrees to this proposal, I have

the honour to propose that this Note and your Note of

confirmation shall constitute an Agreement between

OPEC and the Republic of Austria amending the Head-

quarters Agreement which shall enter into force on the

first day of the third month following the day the Gov-

ernment of the Republic of Austria has notified OPEC

that the necessary constitutional requirements for its

entry into force have been met.

Accept, Excellency, the assurances of my highest con-

sideration.

(signed)

Fadhil J. Al-Chalabi (Dr)

Deputy Secretary General

Acting for the Secretary General

Tla

His Excellency

Leopold Gratz

Federal Minister of Foreign Affairs

Vienna

72a

1 m~-z~

The Federal Minister

for Foreign Affairs

Vienna, 8th February 1985

Excellency,

I have the honour to acknowledge receipt of your note of

8th February 1985, which reads as follows:

“IT have the honour to propose that the Agreement

between the Organization of the Petroleum Exporting

Countries (hereinafter referred to as ‘OPEC’) and the

Republic of Austria regarding the Headquarters of OPEC

(hereinafter referred to as ‘Headquarters Agreement’)

shall be amended as follows:

I. Sub-paragraph (ii) of paragraph (i) of Article 22 of

the Headquarters Agreement shall read:

“One automobile every four years’.

II. Without prejudice to the provisions of the Head-

quarters Agreement the following additional privi-

leges shall be granted to officials of OPEC and

members of their families forming part of their

households, provided they are not Austrian nation-

als or stateless persons permanently resident in Aus-

tria:

(1) Exemption from taxation on all income and

property of officials and members of their fam-

ilies forming part of their households, insofar

as such income and property do not come under

the limited tax liability of the Austrian legis-

lation on taxation of income or property.

73a

(2) Exemption from inheritance and gift taxes,

insofar as such arise solely from the fact that

the officials and members of their households

reside or maintain their usual domicile in

Austria.

III. If and to the extent that the Republic of Austria

shall enter into any agreement with any inter-gov-

ernmental organization containing terms or condi-

tions more favourable to that organization than

similar terms or conditions of the Headquarters

Agreement, the Republic of Austria shall extend

such more favourable terms or conditions to OPEC

by means of a supplemental agreement.

If the Republic of Austria agrees to this proposal, I have

the honour to propose that this Note and your Note. of

confirmation shall constitute an Agreement between

OPEC and the Republic of Austria amending the Head-

quarters Agreement which shall enter into force on the

first day of the third month following the day the Gov-

ernment of the Republic of Austria has notified OPEC

that the necessary constitutional requirements for its

entry into force have been met.”

I have the honour to confirm that the Republic of Austria

agrees to the above proposal and that your Note and this

Note of reply shall constitute an Agreement between

OPEC and the Republic of Austria amending the Head-

quarters Agreement which shall enter into force on the

first day of the third month following the day the Gov-

ernment of the Republic of Austria has notified OPEC

that the necessary constitutional requirements for its

entry into force have been met.

Accept, Excellency, the assurances of my highest con-

sideration.

74a

(signed)

Leopold Gratz

His Excellency

Dr. Fadhil J. Al-Chalabi

Deputy Secretary General of the

Organization of the Petroleum

Ex; orting Countries

Vienna

The notification referred to in the last paragraph of the

opening Note having been communicated to OPEC by

Austria in its Note of 9th July 1985, this Exchange of

Notes therefore enters into force on Ist October 1985.

Sinowatz

75a

NOTE FOR RECORD

The Secretary General spoke on the telephone today to

the Director, Research Division, during which they dis-

cussed the question of the notice of complaint filed by

Prewitt Enterprises Inc., in the United States District

Court for the Northern District of Alabama, alleging that

the price-setting practices of OPEC violated the US anti-

trust laws. In this regard, Dr. Lukman confirmed to Dr..

Ghanem that he is also of the opinion that the Secretariat

should ignore the whole thing.

SGO

25.4.2000

xc: DRDO

SGO

76a

17 April, 2000

To: Dr. Sh. Ghanem

Director, Research Division

In Charge of the Secretariat

Subject: Summons —- US District Court

Please find attached a letter from a US District Court,

notifying us of a plaintiff demanding a trial by jury

according to the Federal Rules of Civil Procedure and

requesting that an answer be mailed or delivered within

20 days from the date of delivery of this summons.

As this letter appears to be originating from a genuine

court office, I would suggest to involve our Legal Offi-

cer in order to examine the legality of this matter.

The above and attached are for your kind attention,

please. Thank you.

HUDDIE DEWANTO

Huddie Dewanto

Budget & Accounts Officer

In charge of

Administration & Human Resources Department

Encl.

/goe

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.