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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 814

## Text

la

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

2a

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.’

1

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.

3a

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

4a

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.

Sa

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

6a

(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... .

Ta

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

82

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

© The district court treated OPEC as an unincorporated asso-

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-

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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.

8

No evidence has been presented by either party that any
waiver of service was “obtained and filed” from OPEC.

10a

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;
or

(C) unless prohibited by the law of the foreign
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

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,
(“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).

15

“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:

i

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.

21

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
a

rw

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,

m5

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.

I.

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:

(C) unless prohibited by the law of the
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

>
J

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
Copyright © 2004 Matthew Bender & Company, Inc.,
one of the LEXIS Publishing (TM) companies
All rights reserved

*** 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

(C) unless prohibited by the law of the foreign
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;

(c) “Secretary General” means the Secretary General of
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;

(c) Purchase through authorized channels, hold and
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

(c) Officials of OPEC, their families and other
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;

(c) Inviolability of all papers and documents;

(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-
vention on Diplomatic Relations and to the practice ©
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.

JM
SGO
25.4.2000

xc: DRDO
LO
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1713%3A2. Public record. Not legal advice.