Crystallex International Corp V Bolivarian Republic of Venezue 03cae-18-02797 13202359.0

Case: 18-2797 Document: 003113202359 Page: 1 Date Filed: 04/03/2019
18-2797, 18-3124
d
IN THE
United States Court of Appeals

FOR THE THIRD CIRCUIT
CRYSTALLEX INTERNATIONAL CORPORATION,

Plaintiff-Appellee,
—v.—
BOLIVARIAN REPUBLIC OF VENEZUELA,

Defendant-Intervenor,
PETRÓLEOS DE VENEZUELA, S.A.,
Intervenor-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE,
CASE NO. 1:17-MC-151-LPS, HON. LEONARD P. STARK
BRIEF OF INTERVENOR BOLIVARIAN REPUBLIC OF VENEZUELA
E. WHITNEY DEBEVOISE PAUL J. FISHMAN

STEPHEN K. WIRTH ARNOLD & PORTER KAYE SCHOLER LLP
SAMUEL F. CALLAHAN One Gateway Center, Suite 1025
ARNOLD & PORTER KAYE SCHOLER LLP Newark, New Jersey 07102
601 Massachusetts Avenue, N.W. (973) 776-1900
Washington, DC 20001 paul.fishman@arnoldporter.com
(202) 942-5000
KENT A. YALOWITZ
whitney.debevoise@arnoldporter.com
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55th Street
New York, New York 10019
(212) 836-8000
kent.yalowitz@arnoldporter.com
Counsel for Defendant-Intervenor Bolivarian Republic of Venezuela
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................. ii

INTRODUCTION ..................................................................................................1
STATEMENT ........................................................................................................3
A. Legal Background ................................................................................ 3
B. Factual Background and Proceedings Below ........................................ 5
STANDARD OF REVIEW ....................................................................................8
ARGUMENT..........................................................................................................9
I. Ex Parte Summary Proceedings Under 28 U.S.C. § 1963 Are Not
Available Against Foreign Sovereigns. ........................................................ 9
A. Section 1963 Does Not Confer Personal Jurisdiction Over
Foreign Sovereigns. .............................................................................. 9
B. Section 1963 Does Not Provide an Independent Basis for
Subject-Matter Jurisdiction in Suits Against Foreign Sovereigns. .......12
II. The District Court Lacked Subject-Matter Jurisdiction Under the
FSIA. ..........................................................................................................16
III. In the Alternative, this Court Should Reverse or Remand on the
Merits. ........................................................................................................22
CONCLUSION .................................................................................................... 25
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
STATUTORY APPENDIX
28 U.S.C. § 1330........................................................................................ A1
28 U.S.C. § 1602–1605 .............................................................................. A2
28 U.S.C. § 1606–1608 .............................................................................. A6
28 U.S.C. § 1963........................................................................................ A8
i
TABLE OF AUTHORITIES
Page(s)
Cases
Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428 (1989) ..................................................................... 5, 9, 11, 13–15
Aurelius Capital Partners, LP v. Republic of Argentina,

584 F.3d 120 (2d Cir. 2009) ............................................................................. 23
Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ......................................................................................... 24
Belhas v. Ya’alon,
515 F.3d 1279 (D.C. Cir. 2008) ....................................................................... 13
Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co.,

137 S.Ct. 1312 (2017) ................................................................................ 20, 21
Bridas S.A.P.I.C. v. Gov’t of Turkmenistan,

345 F.3d 347 (5th Cir. 2003) ............................................................................ 19
Clientron Corp. v. Devon IT, Inc.,

894 F.3d 568 (3d Cir. 2018) ......................................................................... 9, 22
Daimler AG v. Bauman,
134 S. Ct. 746 (2014) ....................................................................................... 20
Federal Insurance Co. v. Richard I. Rubin & Co.,

12 F.3d 1270 (3d Cir. 1993) ................................................................. 18, 19, 21
Frew ex rel. Frew v. Hawkins,

540 U.S. 431 (2004) ......................................................................................... 22
Guaranty Trust Co. v. United States,

304 U.S. 126 (1938) ......................................................................................... 24
Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc.,

252 F.3d 399 (5th Cir. 2001) ............................................................................ 10
Jesner v. Arab Bank PLC,

138 S. Ct. 1386 (2018) ............................................................................... 20, 21
ii
Karns v. Shanahan,
879 F.3d 504 (3d Cir. 2018) ............................................................................. 21
Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) ................................................................................... 19, 20
Lightfoot v. United States,

564 F.3d 625 (3d Cir. 2009) ...............................................................................9
Micula v. Gov’t of Romania,

104 F. Supp. 3d 42 (D.D.C. 2015) ................................................................... 11
Micula v. Gov’t of Romania,

714 F. App’x 18 (2d Cir. 2017) (unpublished) ................................................. 11
Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela,

863 F.3d 96 (2d Cir. 2017) ......................................................................... 11–14
National City Bank v. Banco Para el Comercio Exterior de Cuba,

462 U.S. 611 (1981) ................................................................................... 18, 23
Ohio Hoist Mfg. Co. v. LiRocchi,

490 F.2d 105 (6th Cir. 1974) ..................................................................... 13, 15
Philadelphia Welfare Rights Org. v. Shapp,

602 F.2d 1114 (3d Cir. 1979) ........................................................................... 22
Publicker Industries, Inc. v. Roman Ceramics Corp.,

603 F.2d 1065 (3d Cir. 1979) ........................................................................... 19
Republic of Sudan v. Harrison,

No. 16-1094, 2019 WL 1333259 (U.S. Mar. 26, 2019) ........................ 10, 15, 21
Rubin v. Islamic Republic of Iran,

138 S. Ct. 816 (2018) ....................................................................................... 16
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) ......................................................................................... 19
Stanford v. Utley,
341 F.2d 265 (8th Cir. 1965) .............................................................. 3, 4, 12, 15
iii
Stiller v. Hardman,
324 F.2d 626 (2d Cir. 1963) ............................................................................. 10
Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983) ............................................................................. 4, 5, 9, 14
Walters v. Indus. & Commercial Bank of China, Ltd.,

651 F.3d 280 (2d Cir. 2011) ............................................................................. 16
Wells Fargo Equip. Fin., Inc. v. Asterbadi,

841 F.3d 237 (4th Cir. 2016) ..............................................................................4
World Wide Minerals, Ltd. v. Republic of Kazakhstan,

296 F.3d 1154 (D.C. Cir. 2002) ....................................................................... 22
Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) .......................................................................................7
Statutory Provisions
22 U.S.C. § 1650a ........................................................................................... 13, 14
28 U.S.C.
§ 1330 ................................................................................................................9
§ 1330(a)................................................................................................ 5, 12, 17
§ 1330(b) ..................................................................................................... 5, 10
§ 1602 .................................................................................................... 5, 11, 13
§ 1604 ................................................................................................................5
§ 1605 .................................................................................................... 5, 12, 17
§ 1605(a)(6) ..................................................................................................... 17
§ 1606 .................................................................................................... 5, 12, 17
§ 1607 .................................................................................................... 5, 12, 17
§ 1607(c).......................................................................................................... 18
§ 1608 .................................................................................................... 5, 10, 12
iv
28 U.S.C.
§ 1610 .............................................................................................................. 16
§ 1963 ...................................................................................... 2–4, 9, 10, 12–16
Other Authorities
Const. of Venezuela, art. 233 ..................................................................................7
H.R. Rep. No. 94-1487 (1976) ...................................................................... 5, 9–12
S. Rep. No. 83-1917 (1954) ....................................................................................4
N.Y. C.P.L.R. § 5402 ............................................................................................ 11
The White House, Statement from President Donald J. Trump

Recognizing Venezuelan National Assembly President Juan
Guaido as the Interim President of Venezuela (Jan. 23, 2019) ..................... 7, 25
U.S. Dep’t of the Treasury, Press Release, Treasury Sanctions

Governors of Venezuelan States Aligned with Maduro (Feb. 25,
2019) ............................................................................................................... 23
U.S. Dep’t of the Treasury, Press Release, Treasury Sanctions

Venezuela’s State-Owned Oil Company Petroleos de Venezuela,
S.A. (Jan. 28, 2019) ............................................................................................8
1 W.M. Fletcher, Cyclopedia of the Law of Private Corporations § 41

(rev. perm. ed. 1974) ........................................................................................ 23
v
INTRODUCTION
This case concerns whether the Foreign Sovereign Immunities Act (FSIA)
permits ex parte summary proceedings against foreign sovereigns. It puts in issue
not only the text and structure of the FSIA, but also the fundamental policies un-
derlying the statute—U.S. foreign affairs and international comity.
Crystallex observes that, as of 2018, under Nicolás Maduro, “Venezuela
ha[d] become a rogue nation”—one that “completely disregarded PDVSA’s pur-
ported separateness to achieve the dictatorship’s political objectives—running
PDVSA’s day-to-day affairs … and treating it as the [Maduro] regime’s all-
purpose piggy bank.” Br. for Plaintiff-Appellee (“Crystallex Br.”) at 1-2. But new
circumstances arose on January 23, 2019, when the President of the United States
recognized Juan Guaidó as the Interim President of the Bolivarian Republic of
Venezuela (the “Republic”), denounced the Maduro regime as “illegitimate,” and
made it an urgent foreign policy objective to assist President Guaidó achieve the
restoration of a democratically elected government for the people of Venezuela.
This proceeding has thus endangered U.S. foreign policy, threatening a judi-
cial auction of highly visible strategic assets of the Republic—albeit assets indi-
rectly held. Such an auction would not just be unseemly; it would be dangerous,
undermining U.S. foreign policy by impeding President Guaidó’s ability to com-
plete the transition of the Republic to democracy.
1
By exercising jurisdiction over this action against Petróleos de Venezuela,
S.A. (PDVSA), the national oil company of Venezuela, the district court has estab-
lished a roadmap that others not only could follow but are following through law-
suits also claiming the right to PDVSA’s shares of PDV Holding, Inc. on alter ego
theories. If allowed to succeed, these suits will undermine the Republic’s transi-
tion to democracy, extend the humanitarian crisis, and impede the Republic’s abil-
ity to reach consensual arrangements with its creditors.
This Court’s application of well-settled law can avoid these disastrous con-
sequences, for the district court had no jurisdiction to enter its order of attachment.
Crystallex initiated this execution action by registering a previous judgment—
entered against the Republic in a different district court—pursuant to 28 U.S.C.
§ 1963. Section 1963 does not confer subject-matter jurisdiction or personal juris-
diction over sovereigns like the Republic or instrumentalities like PDVSA. Rather,
the Foreign Sovereign Immunities Act is the sole and exclusive method of obtain-
ing jurisdiction over sovereign entities like the Republic and PDVSA. The FSIA
imposes strict jurisdictional requirements for serving foreign sovereigns, which
Crystallex concededly did not follow. And the FSIA provides sovereign entities
immunity from suit unless one of its enumerated exceptions applies. None does.
The district court misread the FSIA and misapplied the alter ego doctrine to pro-
vide subject-matter jurisdiction.
2
Even were this Court to hold that the district court had jurisdiction—and it
should not—reversal or remand would still be required because circumstances
have so radically changed. The district court anticipated that the Republic could
“appear,” “seek to supplement the factual record,” and show that “additional evi-
dence materially alters the Court’s finding.” J.A. 89. The Republic has now ap-
peared, and both equity and international comity require consideration of the dra-
matic changes that have occurred since August 2018.
STATEMENT
A. Legal Background
This case involves the intersection of two federal statutes. The first is 28
U.S.C. § 1963, under which Crystallex registered its judgment and initiated this
proceeding. The second is the Foreign Sovereign Immunities Act (FSIA), under
which the district court asserted jurisdiction over the Republic and PDVSA.
1. Section 1963 provides in relevant part:
A judgment in an action for the recovery of money … entered in any

… district court … may be registered by filing a certified copy of the
judgment in any other district …. A judgment so registered shall have
the same effect as a judgment of the district court of the district where
registered and may be enforced in like manner.
Before Congress enacted § 1963, a judgment creditor seeking enforcement in an-
other jurisdiction had to bring a “second lawsuit”—an action seeking a judgment
on a judgment—and often encountered jurisdictional “impediments, such as diver-
3
sity of citizenship” that precluded bringing the second lawsuit in a federal court.
Stanford v. Utley, 341 F.2d 265, 270 (8th Cir. 1965) (Blackmun, J.);
see also S. Rep. No. 83-1917 (1954) (§ 1963 aimed to eliminate “further litigation
which would otherwise be required by way of an action on the judgment in a dis-
trict other than that where the judgment was originally obtained”). Although
§ 1963 authorizes a summary ex parte proceeding that would not otherwise be
available in its absence, the statute is not “a mere procedural device.” Stanford,
341 F.2d at 270. Rather, registering a judgment under § 1963 has “substantive”
consequences: it “provides … the equivalent of a new judgment of the registration
court.” Id. at 268, 271. For example, registration pursuant to § 1963 triggers a
new period of limitations for enforcement of the judgment based on the local law
of the new court, just as if the new court had entered a fresh judgment. See Wells
Fargo Equip. Fin., Inc. v. Asterbadi, 841 F.3d 237, 245–46 (4th Cir. 2016).
Neither § 1963 nor its sparse legislative history contains any mention of
judgments against foreign sovereigns. This omission is understandable: in 1948,
when Congress enacted § 1963, foreign sovereigns enjoyed nearly absolute im-
munity. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983). It
was not until 1952 that the United States began allowing suits against foreign sov-
ereigns in limited circumstances. Id. at 486–87 & n.9.
4
2. In 1976, Congress enacted the FSIA, creating a “comprehensive set of le-
gal standards governing claims of immunity in every civil action against a foreign
state or its political subdivisions, agencies, or instrumentalities.” Id. at 488.
Under the FSIA, foreign states and their agencies and instrumentalities have
immunity from suit, see 28 U.S.C. § 1604, except for “claim[s] for relief in perso-
nam” that fall within one of the specified exceptions outlined in §§ 1605 to 1607 or
an applicable international agreement. Id. § 1330(a). The FSIA expressly super-
seded all existing state and federal grants of jurisdiction over foreign sovereigns.
28 U.S.C. § 1602; see Argentine Republic v. Amerada Hess Shipping Corp., 488
U.S. 428, 434–35 (1989); H.R. Rep. No. 94-1487, at 12 (1976).
Federal subject-matter jurisdiction over sovereigns thus depends exclusively
on the FSIA’s specified in personam exceptions. H.R. Rep. No. 94-1487, at 24.
Critically, the FSIA eliminated in rem jurisdiction in suits against sovereigns be-
cause Congress concluded that such jurisdiction created “serious friction in United
States’ foreign relations.” H.R. Rep. No. 94-1487, at 27. The FSIA also imposes
strict service requirements, which are the exclusive means of obtaining personal
jurisdiction over sovereigns. See id. §§ 1330(b), 1608.
B. Factual Background and Proceedings Below

On June 19, 2017, Crystallex sent a letter to the Clerk of the District Court
for the District of Delaware, seeking registration of a certified judgment obtained
5
against the Republic in the U.S. District Court for the District of Columbia. J.A.
94. The Clerk filed the judgment and closed the case the next day. Id.
On August 14, 2017, Crystallex moved ex parte in the District of Delaware
for a writ of attachment fieri facias to attach the shares of PDV Holding, Inc.
(PDVH), which are wholly owned by PDVSA, the national oil company of Vene-
zuela. J.A. 110; D.I. 3-1. Through PDVH, PDVSA indirectly owns CITGO Petro-
leum Corp., a large U.S.-based oil company. D.I. 3-1 at 3.
Crystallex opted not to serve the request to register the judgment or the mo-
tion for attachment on the Republic or PDVSA. The Republic did not appear in
the district court. PDVSA intervened and moved to dismiss. J.A. 1206, 1215.
On August 10, 2018, the district court denied PDVSA’s motion and granted
Crystallex’s motion for attachment. J.A. 15–90. The court, acknowledging that
the Republic had not appeared, treated Crystallex and PDVSA as the “parties” for
the purpose of the motions and related proceedings. J.A. 16 & n.1. But the court
specifically contemplated that if the Republic later appeared, it could “seek to
quash the writ” by “argu[ing] that additional evidence materially alters the Court’s
findings.” J.A. 89.
PDVSA immediately appealed the order granting attachment. J.A. 1. After
the appeal was docketed, the district court purported to issue the writ of attach-
6
ment. This Court stayed all proceedings in the district court pending disposition of
the appeal.
The proceedings below all occurred while Nicolás Maduro controlled the
Republic. Since January 10, 2019, however, National Assembly President Juan
Guaidó has acted as interim President pursuant to Article 233 of the Venezuelan
Constitution. On January 23, 2019, following a public statement by President
Guaidó ratifying the application of Article 233, President Trump exercised his con-
stitutional authority to officially recognize Mr. Guaidó as interim President and to
reject the legitimacy of the Maduro regime.1
That recognition has not been mere window dressing. Within days, Treasury
Secretary Mnuchin announced that the United States would “use the full suite of its
diplomatic and economic tools to support Interim President Juan Guaidó, the Na-
tional Assembly, and the Venezuelan people’s efforts to restore their democracy.”2
To that end, the Treasury Department imposed new, comprehensive sanctions
1
The White House, Statement from President Donald J. Trump Recognizing
Venezuelan National Assembly President Juan Guaido as the Interim President of
Venezuela (Jan. 23, 2019), https://www.whitehouse.gov/briefings-statements/
statement-president-donald-j-trump-recognizing-venezuelan-national-assembly-
president-juan-guaido-interim-president-venezuela; see Zivotofsky v. Kerry, 135 S.
Ct. 2076, 2088 (2015).
2
See U.S. Dep’t of Treasury, Press Release, Treasury Sanctions Venezuela’s
State-Owned Oil Company Petroleos de Venezuela, S.A. (Jan. 28, 2019),
https://home.treasury.gov/news/press-releases/sm594.
7
against PDVSA, which Secretary Mnuchin explained would “prevent further di-
verting of Venezuela’s assets by Maduro and preserve these assets for the people
of Venezuela. The path to sanctions relief for PDVSA is through the expeditious
transfer of control to the Interim President or a subsequent, democratically elected
government.” Id.
The United States was not alone in its efforts to protect PDVSA’s assets. On
February 8, 2019, President Guaidó appointed an ad hoc administrative board to
represent PDVSA in its capacity as sole shareholder of PDVH for the purpose of
appointing a new, independent board of directors of PDVH. The administrative
board, acting as sole shareholder of PDVH, appointed new officers and directors.
In turn, new boards were appointed at CITGO Holding, Inc., and CITGO Petrole-
um Corporation. PDVH and its subsidiaries are thus no longer controlled by the
Maduro regime, and they have a different relationship with the Republic.
STANDARD OF REVIEW
This Court reviews de novo the district court’s determinations of personal ju-
risdiction and subject-matter jurisdiction. Lightfoot v. United States, 564 F.3d 625,
626 (3d Cir. 2009). This Court also exercises plenary authority to review the dis-
trict court’s equitable alter ego determination. Clientron Corp. v. Devon IT, Inc.,
894 F.3d 568, 575 (3d Cir. 2018).
8
ARGUMENT
I. Ex Parte Summary Proceedings Under 28 U.S.C. § 1963 Are Not

Available Against Foreign Sovereigns.
The FSIA contains the “comprehensive set of legal standards governing
claims of immunity in every civil action against a foreign state.” Verlinden, 461
U.S. at 488. The Act’s “text and structure … demonstrate Congress’ intention that
the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our
courts.” Amerada Hess, 488 U.S. at 434. In fact, the FSIA “preempt[s] any other
State or Federal law … for according immunity to foreign sovereigns.” H.R. Rep.
94-1487, at 12.
The conclusion is ineluctable: registration of a judgment against a foreign
sovereign under 28 U.S.C. § 1963 was preempted by the FSIA. Section 1963 is
not part of the FSIA, and Congress did not include it in 28 U.S.C. § 1330 as an au-
thorized means of securing personal and subject-matter jurisdiction in suits against
foreign sovereigns.
A. Section 1963 Does Not Confer Personal Jurisdiction Over

Foreign Sovereigns.
The FSIA provides for personal jurisdiction only if the plaintiff serves pro-
cess on a foreign state using one of four methods set out in 28 U.S.C. § 1608. See
28 U.S.C. § 1330(b). These methods of service, which are construed strictly and
applied sequentially, are “the exclusive procedures” for doing so. H.R. Rep. No.
9
94-1487, at 24. There is no dispute that Crystallex employed none of these meth-
ods in the District of Delaware. Crystallex instead relied on 28 U.S.C. § 1963 and
served no process at all.
In ordinary cases, § 1963 “provid[es] a speedier and more efficient mecha-
nism for the enforcement of federal judgments” than a new action on the original
judgment and “eliminates th[e] jurisdictional problem[s]” that can arise in such ac-
tions. Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir. 1963); see Home Port Rent-
als, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d 399, 404 (5th Cir. 2001).
The FSIA, by contrast, contains carefully calibrated procedures that serve a
set of objectives rooted in foreign policy. See Republic of Sudan v. Harrison, No.
16-1094, 2019 WL 1333259, at *9 (U.S. Mar. 26, 2019). Ex parte procedures for
obtaining personal jurisdiction do not serve those objectives, so the FSIA does not
authorize them. Instead, § 1330(b) limits personal jurisdiction over foreign sover-
eigns to cases brought “in personam,” in which service is made pursuant to § 1608.
Thus, other courts have held that the FSIA leaves no room for “summary ex parte
proceedings” because such proceedings “are, by nature, conducted without re-
quired service on the foreign state.” E.g., Micula v. Gov’t of Romania, 714 F.
App’x 18, 21 (2d Cir. 2017) (unpublished); see Micula v. Gov’t of Romania, 104 F.
Supp. 3d 42, 49 (D.D.C. 2015). In Mobil Cerro Negro, Ltd. v. Bolivarian Republic
of Venezuela, the Second Circuit held that a foreign arbitral award-creditor could
10
not enforce an award using New York’s ex parte summary procedures for recog-
nizing foreign judgments. 863 F.3d 96, 124 (2d Cir. 2017). Those procedures—
which mirror the federal registration statute, cf. N.Y. C.P.L.R. § 5402—are
preempted in suits against a foreign sovereign by the “affirmative and sweeping
provisions in the FSIA’s comprehensive statutory scheme,” which “makes no pro-
vision for summary procedures in any instance.” Id. at 116.3
That reasoning applies here. The FSIA is “the sole basis for obtaining juris-
diction over a foreign state.” Amerada Hess, 488 U.S. at 434. Congress preempt-
ed all other state and federal statutes conferring jurisdiction over foreign sover-
eigns. 28 U.S.C. § 1602. It expressly eliminated in rem “attachments for jurisdic-
tional purposes” in order to avoid “serious friction in United States’ foreign rela-
tions.” H.R. Rep. 94-1487, at 26-27. And it did not include any shortcut proce-
dure like § 1963 for registering judgments against sovereigns. In short, “nowhere
in the FSIA did Congress provide an expedited procedure to enter a federal judg-
ment against a foreign sovereign in any circumstance.” Mobil Cerro Negro, 863
3
The United States as amicus curiae in that case explained that “the district
court was not permitted to ‘borrow’ state-law procedures that permit ex parte pro-
ceedings to recognize an arbitral award against a foreign state and enter a U.S.
judgment against that foreign state” because “ex parte proceedings with no notice
to the foreign state defendant conflict with the FSIA.” Brief of the United States as
Amicus Curiae at 15, Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezue-
la, No. 15-707 (2d Cir. 2017), ECF No. 87.
11
F.3d. at 116.
Section 1963 thus may not be used to obtain personal jurisdiction over a for-
eign sovereign. Because Crystallex elected not to serve the Republic as required to
establish personal jurisdiction under the FSIA, the district court never had personal
jurisdiction over the Republic. Its order of attachment is void.
B. Section 1963 Does Not Provide an Independent Basis for Subject-

Matter Jurisdiction in Suits Against Foreign Sovereigns.
In ordinary cases, § 1963 grants subject-matter jurisdiction where it would
not otherwise exist. For example, a federal court may not entertain a traditional
action seeking a judgment on a judgment absent complete diversity of citizenship
at the time of commencement of the new action, or if the judgment does not meet
the minimum amount in controversy. See Stanford, 341 F.2d at 270. Section 1963
allows the judgment creditor to “avoid the impediments, such as diversity of citi-
zenship, which new and distinct federal litigation might otherwise encounter.” Id.;
see also Ohio Hoist Mfg. Co. v. LiRocchi, 490 F.2d 105, 109 (6th Cir. 1974) (“aris-
ing under” jurisdiction available under § 1963).
The FSIA, by contrast, grants subject-matter jurisdiction in only limited cat-
egories of cases. 28 U.S.C § 1330(a). Those categories, which are specifically de-
lineated in 28 U.S.C. §§ 1605–1607, do not include registration actions under
§ 1963. Id. § 1330(a). And by not incorporating § 1963, the FSIA supersedes that
statute as a basis for subject-matter jurisdiction in proceedings against foreign sov-
12
ereigns. Courts have held that the FSIA has the same superseding effect on other
similar statutes. For example, in Amerada Hess, the Supreme Court held that the
FSIA superseded the Alien Tort Statute (ATS) to the extent that the ATS had once
conferred federal jurisdiction over foreign sovereigns. 488 U.S. at 438, 443. The
Court explained:
In light of the comprehensiveness of the statutory scheme in the FSIA,

we doubt that even the most meticulous draftsman would have conclud-
ed that Congress also needed to amend pro tanto the Alien Tort Statute
and … other grants of subject-matter jurisdiction in Title 28 …. Con-
gress provided in the FSIA that “[c]laims of foreign states to immunity
should henceforth be decided by courts of the United States in conform-
ity with the principles set forth in this chapter,” and very likely it
thought that should be sufficient.
Id. at 437–38 (emphasis in original) (quoting 28 U.S.C. § 1602).
Similarly, the Second Circuit in Mobil Cerro Negro held in the arbitration
context that the FSIA supersedes 22 U.S.C. § 1650a, which vests federal courts
with “exclusive jurisdiction over actions and proceedings” to enforce arbitral
awards “arising under a treaty of the United States.” 863 F.3d at 112. Relying on
Amerada Hess, the court held that “[t]he comprehensiveness of the FSIA’s frame-
work suggests that Section 1650a should not be read as providing an independent
basis for courts to exercise subject matter jurisdiction over foreign sovereigns, or,
at the very least, should no longer be read as providing such a basis, even if it once
did.” Id. at 113–14. The court emphasized that § 1650a, like the ATS, “ ‘does not
distinguish among classes of defendants,’ and therefore continues to have ‘the
13
same effect after the passage of the FSIA as before with respect to defendants oth-
er than foreign states.’ ” Id. (emphasis in original) (quoting Amerada Hess, 488
U.S. at 438).4
The same reasoning requires the conclusion that the FSIA forecloses
§ 1963’s application to foreign sovereigns. Like § 1650a and the ATS, § 1963
predates the FSIA and “does not distinguish among classes of defendants.” Id. In-
deed, Congress enacted § 1963 when foreign sovereigns enjoyed nearly absolute
immunity in U.S. courts, see Verlinden, 461 U.S. at 486; Congress could not have
intended or anticipated that § 1963 would apply in proceedings against a foreign
sovereign. Section 1963 has continued effect after the passage of the FSIA, but
only with respect to defendants other than foreign states. See Amerada Hess, 488
U.S. at 438.
Just as § 1963 does not create subject-matter jurisdiction over a foreign sov-
ereign, it cannot be used to piggyback on subject-matter jurisdiction of an earlier
action against a foreign sovereign. Section 1963 is, in part, “substantive” because
it “provides … the equivalent of a new judgment of the registration court.” Stan-
4
The United States likewise urged that “following the enactment of the FSIA,
[§ 1650a] cannot be the basis for a federal court’s exercise of jurisdiction over a
foreign sovereign” because “the FSIA’s grant of jurisdiction supplants earlier-
enacted grants of subject matter jurisdiction that might have applied to an action
against a foreign state.” Brief of the United States as Amicus Curiae, supra, at 10.
14
ford, 341 F.2d at 268, 271. The authority to grant “the equivalent of a new judg-
ment” was one that Congress had to provide by statute; the Supreme Court could
not have done so through a mere rule of procedure. See Ohio Hoist Mfg. Co., 490
F.2d at 109 (suggesting that § 1963 was beyond the power granted by the Rules
Enabling Act because it “affect[s] substantive rights”). While Congress plainly has
the power to lift sovereign immunity from proceedings to obtain “the equivalent of
a new judgment” in a sister court, it did not do so in the FSIA.
To be sure, courts (and litigants) have historically proceeded against foreign
states under § 1963 without addressing whether there is an independent basis for
subject-matter jurisdiction under the FSIA. E.g., Harrison, 2019 WL 1333259, at
*3. Indeed, there appears to be no decision considering whether reliance on § 1963
would be consistent with the FSIA’s designation as the sole basis for obtaining ju-
risdiction over a foreign state in our courts. Tellingly, Crystallex cites no authority
to support its cryptic statement that § 1963 “confer[s] jurisdiction over the judg-
ment.” Crystallex Br. 6.
The temptation to continue ignoring the FSIA in favor of § 1963 is under-
standable. Without recourse to § 1963, there may be situations in which the FSIA
prevents plaintiffs from executing valid judgments against some assets of foreign
sovereigns. This is not to say that Crystallex is left entirely without any power to
execute its judgment; it has remedies permitted by § 1610 of the FSIA and appli-
15
cable law in the district court that issued the original judgment. But to the extent
that the FSIA would in some cases prevent execution, that is the balance struck by
Congress. The FSIA reflects a “deliberate congressional choice to create a ‘right
without a remedy’ in circumstances where there is jurisdiction over a foreign state
for purposes of obtaining a judgment, but its property is immune from attempts to
execute the judgment.” Walters v. Indus. & Commercial Bank of China, Ltd., 651
F.3d 280, 289 (2d Cir. 2011); see also Rubin v. Islamic Republic of Iran, 138 S. Ct.
816, 827 (2018). Any such gap is one for Congress to fill, for our Constitution al-
locates to Congress the role of regulating the judicial power of the United States
and making foreign-policy determinations. See infra pp. 19–22.
II. The District Court Lacked Subject-Matter Jurisdiction Under

the FSIA.
Perhaps recognizing § 1963’s unavailability as a basis for subject-matter ju-
risdiction in cases against sovereigns, the district court held that the FSIA itself
conferred subject-matter jurisdiction to enter an order of attachment against
PDVSA. The court’s assertion of jurisdiction over PDVSA rested on two conclu-
sions: first, that one of the FSIA’s exceptions to sovereign immunity gave the court
subject-matter jurisdiction over the Republic and, second, that the court had sub-
ject-matter jurisdiction over PDVSA as the Republic’s alter ego. Both of these
conclusions were wrong, and each independently demands reversal.
1. The court’s conclusion that this proceeding against the Republic fell
16
within the exception to sovereign immunity in 28 U.S.C. § 1605(a)(6) cannot be
reconciled with the text of that provision. Section § 1605(a)(6) covers only an “ac-
tion” “brought, either [1] to enforce an agreement . . . to submit to arbitration . . .
or [2] to confirm an award made pursuant to such an agreement to arbitrate” under
specified conditions. This action is neither. It is not an action to “enforce an
agreement…to submit to arbitration,” for the arbitration has already concluded.
And it is not an action to “confirm an award” because the award has already been
confirmed. Indeed, Crystallex itself characterizes the Delaware proceedings as an
“ordinary judgment enforcement proceeding,” Crystallex Br. 2, or a “garnishment
proceeding,” id. at 34. But the FSIA is narrow and specific: only those exceptions
from immunity in “sections 1605–1607” permit subject-matter jurisdiction over a
foreign sovereign. 28 U.S.C. § 1330(a). Nothing in those sections lifts sovereign
immunity for a “judgment enforcement” or “garnishment” proceeding.
2. The district court independently erred by relying on the alter ego doctrine
to find subject-matter jurisdiction. The court held that “if Crystallex further
demonstrates that PDVSA is the alter ego of Venezuela, then Crystallex will also
necessarily have established that the Court may exercise subject-matter jurisdiction
with respect to PDVSA as well.” J.A. 32. This was an error of law. Courts should
not disregard the presumption of corporate separateness of a state’s instrumentality
to obtain subject-matter jurisdiction over a case.
17
The district court applied an alter ego test that it derived from National City
Bank v. Banco Para el Comercio Exterior de Cuba (“Bancec”), 462 U.S. 611
(1981). See J.A. 36–69. Bancec held that a state’s formally separate commercial
instrumentality can, in rare circumstances, be held substantively liable for the
state’s acts. Id. at 628–30. But Bancec does not approve the use of alter ego theo-
ries to assert subject-matter jurisdiction over a foreign sovereign. In Bancec, there
was no dispute that the district court had subject-matter jurisdiction because the lit-
igation was commenced by an instrumentality of a foreign state. 462 U.S. at 615;
see 28 U.S.C. § 1607(c). And because the case raised no jurisdictional question,
the Court did not interpret the FSIA—a statute that concerns jurisdiction and not
the “substantive law determining liability.” 462 U.S. at 620. Since Bancec, the
Supreme Court has never held that courts can disregard the separateness of a
state’s instrumentality to obtain subject-matter jurisdiction over a case.
This Court’s prior decisions provide no definitive guidance either. In Fed-
eral Insurance Co. v. Richard I. Rubin & Co., 12 F.3d 1270 (3d Cir. 1993), the
Court accepted without independent analysis the conclusion of other circuits that
alter ego theories can support subject-matter jurisdiction under the FSIA. Id. at
1287. That portion of the opinion can fairly be read as dicta, because the Court
held that the presumption of corporate separateness had not been overcome. Id. at
1291. And that dicta was inconsistent with what this Court said previously in Pub-
18
licker Industries, Inc. v. Roman Ceramics Corp., 603 F.2d 1065 (3d Cir. 1979):
courts do not “disregard the corporate existence of a wholly owned subsidiary, by
application of an alter ego theory or otherwise, so that diversity jurisdiction may be
retained over a case.” Id. at 1070 n.5.
Now the issue is squarely presented. This Court should recognize that the
freewheeling and open-ended equitable standard governing corporate veil-piercing,
see, e.g., Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F. 3d 347, 359–60 &
n.11 (5th Cir. 2003), is inimical to the purposes of the FSIA and creates serious
dangers of international friction.
Recent Supreme Court cases teach that circumspection must guide the con-
struction of jurisdictional statutes (including the FSIA) that touch on foreign af-
fairs. In Sosa v. Alvarez-Machain, the Court sharply constrained courts’ ability to
recognize claims under the ATS, explaining that “many attempts by federal courts
to craft remedies for the violation of new norms of international law would raise
risks of adverse foreign policy consequences,” and those attempts need to “be un-
dertaken, if at all, with great caution.” 542 U.S. 692, 727–28 (2004). In Kiobel v.
Royal Dutch Petroleum Co., the Court halted “unwarranted judicial interference in
the conduct of foreign policy” by overturning decades of lower-court decisions that
permitted ATS jurisdiction over claims having no connection to the United States.
569 U.S. 108, 111–15 (2013). In Daimler AG v. Bauman, the Court jettisoned a
19
century’s worth of general-jurisdiction jurisprudence in part because of “the risks
to international comity” posed by an “expansive view of general jurisdiction.” 134
S. Ct. 746, 763 (2014). And in Jesner v. Arab Bank PLC, the Court overruled the
majority of circuits to hold that courts categorically lack jurisdiction under the
ATS over claims against foreign corporations, because that sensitive judgment is
“a decision that Congress must make.” 138 S. Ct. 1386, 1407 (2018). Giving
courts the “discretion” to expand the ATS’s reach would have made “empty rheto-
ric” of Sosa’s principle of “judicial caution” in areas with “serious foreign policy
consequences.” Id.
The Court applied these principles to the FSIA in Bolivarian Republic of
Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S.Ct. 1312, 1321 (2017).
The Court refused to allow subject-matter jurisdiction to rest on a “nonfrivolous”
argument that an FSIA exception applies, for doing so would create “a standard
limited only by the bounds of a lawyer’s (nonfrivolous) imagination” and “create
increased complexity in respect to a jurisdictional matter where clarity is particu-
larly important.” Id. The Court added that “clarity is doubly important … where
foreign nations and foreign lawyers must understand our law.” Id. at 1321–22.
These cases reflect strong reluctance to allow judge-made expansion of ju-
risdiction over disputes that implicate foreign relations. They recognize that “[t]he
political branches, not the Judiciary, have the responsibility and institutional capac-
20
ity to weigh foreign-policy concerns.” Jesner, 138 S. Ct. at 1403. If these princi-
ples mean anything, surely they forbid courts from asserting jurisdiction by strip-
ping sovereigns of their immunity based only on application of a judge-made, mul-
ti-factor, equitable alter-ego standard. Instead, it is the role of Congress to “weigh
foreign-policy concerns.” Id. at 1407. Congress did just that in the FSIA, and it
did so without authorizing alter ego jurisdiction over foreign states and instrumen-
talities.5
* * *
Just last month, the Supreme Court acknowledged that courts must unblink-
ingly enforce the FSIA’s “highly technical” requirements, even when strict appli-
cation would be “the height of unfairness.” Harrison, 2019 WL 1333259, at *9.
This Court must not hesitate to enforce the FSIA’s requirements here. The FSIA
does not authorize subject-matter jurisdiction in standalone actions to garnish a
foreign sovereign’s property. Nor does it authorize subject-matter jurisdiction
based on alter ego theories. None of the FSIA’s exceptions strips the Republic of
immunity in this case.
5
To the extent that this Court concludes that Federal Insurance Co., 12 F.3d
1270, permits the use of alter ego theories to exercise subject-matter jurisdiction
over a case against a corporation owned by a foreign sovereign, the Court should
read that case in light of the Supreme Court cases described above, which reflect a
“shift in … analytical framework” since Federal Insurance was decided in 1993.
See Karns v. Shanahan, 879 F.3d 504, 504-15 (3d Cir. 2018).
21
III. In the Alternative, this Court Should Reverse or Remand on the Merits.
Even if the district court had jurisdiction, this Court should exercise its ple-
nary equitable powers to reverse the district court’s decision to pierce the corporate
veil, or, at minimum, remand.
Piercing the corporate veil is an “equitable remedy,” and this Court exercises
“plenary review over the District Court’s ultimate legal determination of whether
to pierce the corporate veil.” Clientron, 894 F.3d at 575. A court of equity always
retains its “traditional power … to modify its decree in light of changed circum-
stances.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 441 (2004); accord Phila-
delphia Welfare Rights Org. v. Shapp, 602 F.2d 1114, 1120–21 (3d Cir. 1979). Ju-
dicious employment of these equitable powers is especially important in cases with
profound international comity considerations, where “judicial scrutiny of sovereign
decisions” could “embarrass the political branches of our government in the con-
duct of foreign policy.” World Wide Minerals, Ltd. v. Repub. of Kazakhstan, 296
F.3d 1154, 1165–66 (D.C. Cir. 2002). Here, the Executive Branch is unequivocal:
“The United States fully supports the efforts of Interim President Juan Guaidó to
address the endemic corruption, human rights abuses, and violent repression that
has become the hallmark of the illegitimate Maduro regime, and looks forward to
22
the restoration of a democratically elected government for the people of
Venezuela.”6
As stated in a leading treatise discussed with approval in Bancec, courts
generally do not disregard corporate separateness without a showing that “control
and breach of duty proximately caused the [alleged] injury or unjust loss.” 1 W.M.
Fletcher, Cyclopedia of the Law of Private Corporations § 41 (rev. perm. ed.
1974); see 462 U.S. at 628 n.19. There is no good reason to discard the typical
causation requirement here. But even if control alone were enough, such control
would have to be evaluated in light of current circumstances, consistent with the
FSIA’s command that the time to evaluate the status of property is when “the writ
of attachment or execution is issued.” Aurelius Capital Partners, LP v. Republic of
Argentina, 584 F.3d 120, 130 (2d Cir. 2009). Consistent with this rule, the district
court recognized that its order granting the equitable remedy of piercing the veil
would not be the last word in this case, explaining that the “the record may be sup-
plemented in the next stage of the proceedings…which could potentially lead to
different findings.” J.A. 88. The district court specifically anticipated that the Re-
public may “appear and seek to supplement the factual record” and “argue that ad-
6
U.S. Dep’t of the Treasury, Press Release, Treasury Sanctions Governors of
Venezuelan States Aligned with Maduro (Feb. 25, 2019), https://home.treasury.
gov/news/press-releases/sm616.
23
ditional evidence materially alters the Court’s finding.” J.A. 89.
As PDVSA explained in its mandamus papers, upon the filing of PDVSA’s
appeal the district court was divested of jurisdiction to issue the writ, and this
Court preserved its power to take account of new circumstances by issuing a stay.
D.I. 129. Now, the Court is faced with radically changed circumstances. The rec-
ognized government of the Republic is not the Maduro regime, but a nascent de-
mocracy under the leadership of President Guaidó. President Guaidó and the Na-
tional Assembly do not control PDVSA inside Venezuela—a fact that renders ob-
solete the district court’s extensive findings about the relationship between
PDVSA and the Maduro-led Republic. And Maduro’s post-recognition control of
PDVSA inside Venezuela is legally irrelevant to the courts of the United States:
What government is to be regarded here as representative of a foreign

sovereign state is a political rather than a judicial question, and is to
be determined by the political department of the government …. Its
action in recognizing a foreign government and in receiving its diplo-
matic representatives is conclusive on all domestic courts, which are
bound to accept that determination ….
Guaranty Trust Co. v. United States, 304 U.S. 126, 137–38 (1938); see also Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). The President has con-
clusively determined that the Maduro regime is illegitimate. As the President ex-
plained in exercising that authority, “We continue to hold the illegitimate Maduro
24
regime directly responsible for any threats it may pose to the safety of the Vene-
zuelan people.”7 The time for evaluating alter ego issues has not yet passed under
the district court’s standard. And using the district court’s stale findings to strip
the Guaidó government of strategic assets (albeit indirectly held), would be to at-
tribute the post-recognition conduct of Maduro to the Republic, in contravention of
the President’s exclusive recognition authority and to ignore the fact that PDVH is
no longer under the control of the Maduro regime.
In short, events have overtaken the facts found by the district court, and
there is no equitable basis to pierce PDVSA’s corporate veil under the circum-
stances that exist today even under the district court’s erroneous legal standard. At
a minimum, if this Court concludes that jurisdiction to do so is possible under
some set of facts, it should remand to allow the district court to consider the Re-
public’s changed circumstances.
CONCLUSION
The Court should reverse the district court’s decision or, at a minimum,
remand for further proceedings.
7
Statement from President Donald J. Trump, supra note 1.
25
Dated: April 3, 2019 Respectfully submitted,
/s/ Paul J. Fishman

PAUL J. FISHMAN
One Gateway Center, Suite 1025
Newark, NJ 07102
Telephone: +1 973.776.1900
paul.fishman@arnoldporter.com
KENT A. YALOWITZ
250 West 55th Street
New York, NY 10019
Telephone: +1 212.836.8000
kent.yalowitz@arnoldporter.com
E. WHITNEY DEBEVOISE
STEPHEN K. WIRTH
SAMUEL F. CALLAHAN*
601 Massachusetts Ave., N.W.
Washington, DC 20001
Telephone: +1 202.942.5000
whitney.debevoise@arnoldporter.com
*Admitted outside the District of

Columbia; practicing law in D.C.
under the supervision of Firm principals
who are D.C. Bar members.
26
CERTIFICATE OF COMPLIANCE
1. I certify that the foregoing brief complies with the Court’s order of
March 20, 2019, because the body of the brief is 25 pages.
2. I further certify that this brief complies with the typeface and type-
style requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6),
respectively, because this brief has been prepared in a proportionately spaced type-
face using Microsoft Word 2007 in Times New Roman 14-point font.
3. Pursuant to Local Rule 31.1(c), I certify that the text of the electronic
brief is identical to the text in the paper copies. The digital submissions have also
been scanned for viruses with the most recent version of a commercial virus scan-
ning program, Microsoft System Center Endpoint Protection, Antimalware Client
Version 4.10.209.0, last updated April 2, 2019, and according to that program, the
submissions are free of viruses.
4. Pursuant to Local Rule 28.3(d), I certify that at least one of the attor-
neys whose names appear on the brief is a member of the bar of this court.
Dated: April 3, 2019 /s/ Stephen K. Wirth

Stephen K. Wirth
CERTIFICATE OF SERVICE
I hereby certify that on April 3, 2019, I caused the foregoing document to be
electronically filed using the appellate CM/ECF system. I certify that all partici-
pants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Dated: April 3, 2019 /s/ Stephen K. Wirth

Stephen K. Wirth
STATUTORY APPENDIX
Case: 18-2797
Page 361
Document: 003113202359 Page: 36
TITLE 28-JUDICIARY AND JUDICIAL
Date Filed: 04/03/2019
PROCEDURE § 1332
1962-Pub. L. 87-748, § l(b), Oct. 5, 1962, 76 Stat. 744, Changes were made in arrangement and phraseology.
added item 1361.
1958-Pub. L. 85-554, §4, July 25, 1958, 72 Stat. 415, in- AMENDMENTS
serted "costs" in items 1331 and 1332. 1980-Pub. L. 96-486 struck out "; amount in con-
1953--Act Aug. 15, 1953, ch. 505, §3, 67 Stat. 589, added troversy; costs" in section catchline, struck out mini-
item 1360. mum amount in controversy requirement of $10,000 for
§ 1330. Actions against foreign states original jurisdiction in federal question cases which ne-
cessitated striking the exception to such required mini-
(a) The district courts shall have original ju- mum amount that authorized original jurisdiction in
risdiction without regard to amount in con- actions brought against the United States, any agency
troversy of any nonjury civil action against a thereof, or any officer or employee thereof in an offi-
cial capacity, struck out provision authorizing the dis-
foreign state as defined in section 1603(a) of this
trict court except where express provision therefore
title as to any claim for relief in personam with was made in a federal statute to deny costs to a plain-
respect to which the foreign state is not entitled tiff and in fact impose such costs upon such plaintiff
to immunity either under sections 1605-1607 of where plaintiff was adjudged to be entitled to recover
this title or under any applicable international less than the required amount in controversy, com-
agreement. puted without regard to set-off or counterclaim and ex-
(b) Personal jurisdiction over a foreign state clusive of interests and costs, and struck out existing
shall exist as to every claim for relief over subsection designations.
which the district courts have jurisdiction under 1976-Subsec. (a). Pub. L. 94-574 struck out $10,000 ju-
risdictional amount where action is brought against
subsection (a) where service has been made
the United States, any agency thereof, or any officer or
under section 1608 of this title. employee thereof in his official capacity.
(c) For purposes of subsection (b), an appear- 1958-Pub. L. 85-554 included costs in section catch-
ance by a foreign state does not confer personal line, designated existing provisions as subsec. (a), sub-
jurisdiction with respect to any claim for relief stituted "$10,000" for "$3,000", and added subsec. (b).
not arising out of any transaction or occurrence
enumerated in sections 1605-1607 of this title. EFFECTIVE DATE OF 1980 AMENDMENT; APPLICABILITY
Pub. L. 96-486, §4, Dec. 1, 1980, 94 Stat. 2370, provided:
(Added Pub. L. 94-583, § 2(a), Oct. 21, 1976, 90 Stat.
"This Act [amending this section and section 2072 of
2891.) Title 15, Commerce and Trade, and enacting provisions
EFFECTIVE DATE set out as a note under section 1 of this title] shall
apply to any civil action pending on the date of enact-
Section effective 90 days after Oct. 21, 1976, see sec- ment of this Act [Dec. 1,1980]."
tion 8 of Pub. L. 94-583, set out as a note under section
1602 of this title. EFFECTIVE DATE OF 1958 AMENDMENT
§ 1331. Federal question Pub. L. 85-554, §3, July 25, 1958, 72 Stat. 415, provided
that: "This Act [amending this section and sections
The district courts shall have original juris- 1332 and 1345 of this title] shall apply only in the case
diction of all civil actions arising under the Con- of actions commenced after the date of the enactment
stitution, laws, or treaties of the United States. of this Act [July 25, 1958]."
(June 25, 1948, ch. 646, 62 Stat. 930; Pub. L. 85-554, § 1332. Diversity of citizenship; amount in con-
§1, July 25, 1958, 72 Stat. 415; Pub. L. 94-574, §2, troversy; costs
Oct. 21, 1976, 90 Stat. 2721; Pub. L. 96-486, §2(a),
Dec. 1, 1980, 94 Stat. 2369.) (a) The district courts shall have original ju-
risdiction of all civil actions where the matter
HISTORICAL AND REVISION NOTES
in controversy exceeds the sum or value of
Based on title 28, U.S.C., 1940 ed., §41(1) (Mar. 3, 1911, $75,000, exclusive of interest and costs, and is be-
ch. 231, §24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, §1, tween-
48 Stat. 775; Aug. 21, 1937, ch. 726, § 1, 50 Stat. 738; Apr. (1) citizens of different States;
20, 1940, ch. 117, 54 Stat. 143).
Jurisdiction of federal questions arising under other (2) citizens of a State and citizens or sub-
sections of this chapter is not dependent upon the jects of a foreign state, except that the dis-
amount in controversy. (See annotations under former trict courts shall not have original jurisdic-
section 41 of title 28, U.S.C.A., and 35 C.J.S., p. 833 et tion under this subsection of an action be-
seq., §§30-43. See, also, reviser's note under section 1332 tween citizens of a State and citizens or sub-
of this title.) jects of a foreign state who are lawfully ad-
Words "wherein the matter in controversy exceeds
mitted for permanent residence in the United
the sum or value of $3,000, exclusive of interest and
costs," were added to conform to rulings of the Su- States and are domiciled in the same State;
preme Court. See construction of provision relating to (3) citizens of different States and in which
jurisdictional amount requirement in cases involving a citizens or subjects of a foreign state are addi-
Federal question in United States v. Sayward, 16 S.Ct. tional parties; and
371, 160 U.S. 493, 40 L.Ed. 508; Fishback v. Western Union (4) a foreign state, defined in section 1603(a)
Tel. Co., 16 S.Ct. 506, 161 U.S. 96, 40 L.Ed. 630; and Halt of this title, as plaintiff and citizens of a State
v. Indiana Manufacturing Co., 1900, 20 S.Ct. 272, 176 U.S.
or of different States.
68, 44 L.Ed. 374.
Words "all civil actions" were substituted for "all (b) Except when express provision therefor is
suits of a civil nature, at common law or in equity" to otherwise made in a statute of the United
conform with Rule 2 of the Federal Rules of Civil Pro- States, where the plaintiff who files the case
cedure.
originally in the Federal courts is finally ad-
Words "or treaties" were substituted for "or treaties
made, or which shall be made under their authority," judged to be entitled to recover less than the
for purposes of brevity. sum or value of $75,000, computed without regard
The remaining provisions of section 41(1) of title 28, to any setoff or counterclaim to which the de-
U.S.C., 1940 ed., are incorporated in sections 1332, 1341, fendant may be adjudged to be entitled, and ex-
1342, 1345, 1354, and 1359 of this title. clusive of interest and costs, the district court
A1
§ 1584 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE Page 416
the Customs Court, prior to repeal by Pub. L. 91-271, fore such date, see section 416 of Pub. L. 103-182, set out
title I, § 111, June 2, 1970, 84 Stat. 278. as an Effective Date note under section 3431 of Title 19.
EFFECTIVE DATE EFFECTIVE AND TERMINATION DATES
Section applicable with respect to civil actions com- Section effective on date United States-Canada Free-
menced on or after Nov. 1, 1980, see section 701(b)(1)(A) Trade Agreement enters into force (Jan. 1, 1989), and to
of Pub. L. 96-417, set out as an Effective Date of 1980 cease to have effect on date Agreement ceases to be in
Amendment note under section 251 of this title. force; see section 501(a), (c) of Pub. L. 100-449, set out
in a note under section 2112 of Title 19, Customs Duties.
§ 1584. Civil actions under the North American
EFFECT OF TERMINATION OF NAFTA COUNTRY STATUS
Free Trade Agreement or the United States-
Canada Free-Trade Agreement For provisions relating to effect of termination of
NAFTA country status on sections 401 to 416 of Pub. L.
The United States Court of International 103-182, see section 3451 of Title 19, Customs Duties.
Trade shall have exclusive jurisdiction of any
civil action which arises under section 777(f) of § 1585. Powers in law and equity
the Tariff Act of 1930 and is commenced by the The Court of International Trade shall possess
United States to enforce administrative sanc- all the powers in law and equity of, or as con-
tions levied for violation of a protective order or ferred by statute upon, a district court of the
an undertaking. United States.
(Added Pub. L. 100-449, title IV, §402(d)(1), Sept. (Added Pub. L. 96-417, title II, §201, Oct. 10, 1980,
28, 1988, 102 Stat. 1884; amended Pub. L. 103-182, 94 Stat. 1730.)
title IV, §414(a)(2), Dec. 8, 1993, 107 Stat. 2147.)
CHAPTER 97--JURISDICTIONAL JVIMUNITIES
TERMINATION OF SECTION OF FOREIGN STATES
For termination of section by section 501(c) of
Sec.
Pub. L. 100-449, see Effective and Termination
1602. Findings and declaration of purpose.
Dates note below. 1603. Definitions.
1604. Immunity of a foreign state from jurisdic-
REFERENCES IN TEXT
tion.
Section 777(f) of the Tariff Act of 1930, referred to in 1605. General exceptions to the jurisdictional im-
text, is classified to section 1677f(f) of Title 19, Customs munity of a foreign state.
Duties. 1605A. Terrorism exception to the jurisdictional im-
munity of a foreign state.
PRIOR PROVISIONS 1606. Extent of liability.
A prior section 1584, added Pub. L. 96-417, title II, 1607. Counterclaims.
§201, Oct. 10, 1980, 94 Stat. 1729, provided that if a civil 1608. Service; time to answer default.
action within the exclusive jurisdiction of the Court of 1609. Immunity from attachment and execution of
International Trade was commenced in a district court property of a foreign state.
of the United States, the district court, in the interest 1610. Exceptions to the immunity from attachment
of justice, was to transfer such civil action to the Court or execution.
of International Trade, where such action would pro- 1611. Certain types of property immune from exe-
ceed as if it had been commenced in the Court of Inter- cution.
national Trade in the first instance, and that if a civil AMENDMENTS
action within the exclusive jurisdiction of a district
court, a court of appeals, or the Court of Customs and 2008-Pub. L. 110-181, div. A, title X, §1083(a)(2), Jan.
Patent Appeals was commenced in the Court of Inter- 28, 2008, 122 Stat. 341, added item 1605A.
national Trade, the Court of International Trade, in
the interest of justice, would transfer such civil action § 1602. Findings and declaration of purpose
to the appropriate district court or court of appeals or
The Congress finds that the determination by
to the Court of Customs and Patent Appeals where such
United States courts of the claims of foreign
action was to proceed as if it had been commenced in
such court in the first instance, prior to repeal by Pub. states to immunity from the jurisdiction of such
L. 97-164, title I, § 135, Apr. 2, 1982, 96 Stat. 41, effective courts would serve the interests of justice and
Oct. 1, 1982. would protect the rights of both foreign states
and litigants in United States courts. Under
AMENDMENTS international law, states are not immune from
1993-Pub. L. 103-182 amended section catchline gen- the jurisdiction of foreign courts insofar as their
erally, inserting "the North American Free Trade commercial activities are concerned, and their
Agreement or", and in text substituted "section 777(f)" commercial property may be levied upon for the
for "section 777(d)". satisfaction of judgments rendered against them
EFFECTIVE DATE OF 1993 AMENDMENT in connection with their commercial activities.
Claims of foreign states to immunity should
Amendment by Pub. L. 103-182 effective on the date
henceforth be decided by courts of the United
the North American Free Trade Agreement enters into
force with respect to the United States [Jan. 1, 1994], States and of the States in conformity with the
but not applicable to any final determination described principles set forth in this chapter.
in section 1516a(a)(1)(B) or (2)(B)(i), (ii), or (iii) of Title
(Added Pub. L. 94-583, §4(a), Oct. 21, 1976, 90 Stat.
19, Customs Duties, notice of which is published in the
Federal Register before such date, or to a determina- 2892.)
tion described in section 1516a(a)(2)(B)(vi) of Title 19, EFFECTIVE DATE
notice of which is received by the Government of Can-
ada or Mexico before such date, or to any binational Pub. L. 94-583, §8, Oct. 21, 1976, 90 Stat. 2898, provided
panel review under the United States-Canada Free- that: "This Act [enacting this chapter and section 1330
Trade Agreement, or to any extraordinary challenge
arising out of any such review that was commenced be- 1So in original. Does not conform to section catchline.
A2
Page 417 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE §1605
of this title, amending sections 1332, 1391, and 1441 of § 1604. Immunity of a foreign state from jurisdic-
this title, and enacting provisions set out as notes tion
under this section and section 1 of this title] shall take
effect ninety days after the date of its enactment [Oct. Subject to existing international agreements
21, 1976]." to which the United State's is a party at the
time of enactment of this Act a foreign state
SHORT TITLE
shall be immune from the jurisdiction of the
For short title of Pub. L. 94-583 as the "Foreign Sov- courts of the United States and of the States ex-
ereign Immunities Act of 1976", see section 1 of Pub. L. cept as provided in sections 1605 to 1607 of this
94-583, set out as a Short Title of 1976 Amendments chapter.
note under section 1 of this title.
(Added Pub. L. 94-583, §4(a), Oct. 21, 1976, 90 Stat.
SEPARABILITY 2892.)
Pub. L. 94-583, §7, Oct. 21, 1976, 90 Stat. 2898, provided REFERENCES IN TEXT
that: "If any provision of this Act [enacting this chap-
ter and section 1330 of this title, amending sections The time of enactment of this Act, referred to in
1332, 1391, and 1441 of this title, and enacting provisions text, probably means the time of enactment of Pub. L.
set out as notes under this section and section 1 of this 94-583, which was approved Oct. 21, 1976.
title] or the application thereof to any foreign state is
held invalid, the invalidity does not affect other provi- § 1605. General exceptions to the jurisdictional
sions or applications of the Act which can be given ef- immunity of a foreign state
fect without the invalid provision or application, and
to this end the provisions of this Act are severable." (a) A foreign state shall not be immune from
the jurisdiction of courts of the United States or
§ 1603. Definitions of the States in any case-
(1) in which the foreign state has waived its
For purposes of this chapter- immunity either explicitly or by implication,
(a) A "foreign state", except as used in sec- notwithstanding any withdrawal of the waiver
tion 1608 of this title, includes a political sub- which the foreign state may purport to effect
division of a foreign state or an agency or in- except in accordance with the terms of the
strumentality of a foreign state as defined in waiver;
subsection (b). (2) in which the action is based upon a com-
(b) An "agency or instrumentality of a for- mercial activity carried on in the United
eign state" means any entity- States by the foreign state; or upon an act per-
(1) which is a separate legal person, cor- formed in the United States in Connection
porate or otherwise, and with a commercial activity of the foreign
(2) which is an organ of a foreign state or state elsewhere; or upon an act outside the
political subdivision thereof, or a majority territory of the United States in connection
of whose shares or other ownership interest with a commercial activity of the foreign
is owned by a foreign state or political sub- state elsewhere and that act causes a direct ef-
division thereof, and fect in the United States;
(3) which is neither a citizen of a State of (3) in which rights in property taken in vio-
the United States as defined in section 1332 lation of international law are in issue and
(c) and (e) of this title, nor created under the that property or any property exchanged for
laws of any third country. such property is present in the United States
(c) The "United States" includes all terri- in connection with a commercial activity car-
tory and waters, continental or insular, sub- ried on in the United States by the foreign
ject to the jurisdiction of the United States. state; or that property or any property ex-
(d) A "commercial activity" means either a changed for such property is owned or oper-
regular course of commercial conduct or a par- ated by an agency or instrumentality of the
ticular commercial transaction or act. The foreign state and that agency or instrumental-
commercial character of an activity shall be ity is engaged in a commercial activity in the
determined by reference to the nature of the United States;
course of conduct or particular transaction or (4) in which rights in property in the United
act, rather than by reference to its purpose. States acquired by succession or gift or rights
(e) A "commercial activity carried on in the in immovable property situated in the United
United States by a foreign state" means com- States are in issue;
mercial activity carried on by such state and (5) not otherwise encompassed in paragraph
having substantial contact with the United (2) above, in which money damages are sought
States. against a foreign state for personal injury or
death, or damage to or loss of property, occur-
(Added Pub. L. 94-583, § 4(a), Oct. 21, 1976, 90 Stat. ring in the United States and caused by the
2892; amended Pub. L. 109-2, §4(b)(2), Feb. 18, tortious act or omission of that foreign state
2005, 119 Stat. 12.) or of any official or employee of that foreign
AMENDMENTS state while acting within the scope of his of-
fice or employment; except this paragraph
2005-Subsec. (b)(3). Pub. L. 109-2 substituted "(e)" for
"1(d)". shall not apply to-
(A) any claim based upon the exercise or
EFFECTIVE DATE OF 2005 AMENDMENT performance or the failure to exercise or per-
Amendment by Pub. L. 109-2 applicable to any civil form a discretionary function regardless of
action commenced on or after Feb. 18, 2005, see section whether the discretion be abused, or
9 of Pub. L. 109-2, set out as a note under section 1332 (B) any claim arising out of malicious
of this title. prosecution, abuse of process, libel, slander,
A3
§ 1605 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE Page 418
misrepresentation, deceit, or interference notice is served under subsection (b)(1). Decrees

with contract rights; or shall be subject to appeal and revision as pro-
vided in other cases of admiralty and maritime
(6) in which the action is brought, either to
jurisdiction. Nothing shall preclude the plaintiff
enforce an agreement made by the foreign
in any proper case from seeking relief in perso-
state with or for the benefit of a private party
nam in the same action brought to enforce a
to submit to arbitration all or any differences
maritime lien as provided in this section.
which have arisen or which may arise between
(d) A foreign state shall not be immune from
the parties with respect to a defined legal rela- the jurisdiction of the courts of the United
tionship, whether contractual or not, concern- States in any action brought to foreclose a pre-
ing a subject matter capable of settlement by
ferred mortgage, as defined in section 31301 of
arbitration under the laws of the United title 46. Such action shall be brought, heard, and
States, or to confirm an award made pursuant determined in accordance with the provisions of
to such an agreement to arbitrate, if (A) the chapter 313 of title 46 and in accordance with the
arbitration takes place or is intended to take principles of law and rules of practice of suits in
place in the United States, (B) the agreement rem, whenever it appears that had the vessel
or award is or may be governed by a treaty or been privately owned and possessed a suit in
other international agreement in force for the rem might have been maintained.
United States calling for the recognition and [(e), (f) Repealed. Pub. L. 110-181, div. A, title
enforcement of arbitral awards, (C) the under- X, § 1083(b)(1)(B), Jan. 28, 2008, 122 Stat. 341.]
lying claim, save for the agreement to arbi- (g) LIMITATION ON DISCOVERY.-
trate, could have been brought in a United (1) IN GENERAL.-(A) Subject to paragraph
States court under this section or section 1607, (2), if an action is filed that would otherwise
or (D) paragraph (1) of this subsection is other- be barred by section 1604, but for section
wise applicable. 1605A, the court, upon request of the Attorney
(b) A foreign state shall not be immune from General, shall stay any request, demand, or
the jurisdiction of the courts of the United order for discovery on the United States that
States in any case in which a suit in admiralty the Attorney General certifies would signifi-
is brought to enforce a maritime lien against a cantly interfere with a criminal investigation
vessel or cargo of the foreign state, which mari- or prosecution, or a national security oper-
time lien is based upon a commercial activity of ation, related to the incident that gave rise to
the foreign state: Provided, That- the cause of action, until such time as the At-
(1) notice of the suit is given by delivery of torney General advises the court that such re-
a copy of the summons and of the complaint quest, demand, or order will no longer so
to the person, or his agent, having possession interfere.
of the vessel or cargo against which the mari- (B) A stay under this paragraph shall be in
time lien is asserted; and if the vessel or cargo effect during the 12-month period beginning on
is arrested pursuant to process obtained on be- the date on which the court issues the order to
half of the party bringing the suit, the service stay discovery. The court shall renew the
of process of arrest shall be deemed to con- order to stay discovery for additional 12-
month periods upon motion by the United
stitute valid delivery of such notice, but the
party bringing the suit shall be liable for any States if the Attorney General certifies that
discovery would significantly interfere with a
damages sustained by the foreign state as a re-
criminal investigation or prosecution, or a na-
sult of the arrest if the party bringing the suit
had actual or constructive knowledge that the tional security operation, related to the inci-
dent that gave rise to the cause of action.
vessel or cargo of a foreign state was involved; (2) SUNSET.-(A) Subject to subparagraph
and (B), no stay shall be granted or continued in
(2) notice to the foreign state of the com-
effect under paragraph (1) after the date that
mencement of suit as provided in section 1608
is 10 years after the date on which the incident
of this title is initiated within ten days either
that gave rise to the cause of action occurred..
of the delivery of notice as provided in para- (B) After the period referred to in subpara-
graph (1) of this subsection or, in the case of graph (A), the court, upon request of the At-
a party who was unaware that the vessel or torney General, may stay any request, de-
cargo of a foreign state was involved, of the mand, or order for discovery on the United
date such party determined the existence of States that the court finds a substantial like-
the foreign state's interest. lihood would-
(c) Whenever notice is delivered under sub- (i) create a serious threat of death or seri-
section (b)(1), the suit to enforce a maritime lien ous bodily injury to any person;
shall thereafter proceed and shall be heard and (ii) adversely affect the ability of the
determined according to the principles of law United States to work in cooperation with
and rules of practice of suits in rem whenever it foreign and international law enforcement
appears that, had the vessel been privately agencies in investigating violations of
owned and possessed, a suit in rem might have United States law; or
been maintained. A decree against the foreign (iii) obstruct the criminal case related to
state may include costs of the suit and, if the the incident that gave rise to the cause of
decree is for a money judgment, interest as or- action or undermine the potential for a con-
dered by the court, except that the court may viction in such case.
not award judgment against the foreign state in (3) EVALUATION OF EVIDENCE.-The court's
an amount greater than the value of the vessel evaluation of any request for a stay under this
or cargo upon which the maritime lien arose. subsection filed by the Attorney General shall
Such value shall be determined as of the time be conducted ex parte and in camera.
A4
Page 419 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE § 1605
(4) BAR ON MOTIONS TO DISMISS.-A stay of Subsec. (b)(1). Pub. L. 100-640, §1(1), substituted "and
discovery under this subsection shall con- if the vessel or cargo is arrested pursuant to process ob-
stitute a bar to the granting of a motion to tained on behalf of the party bringing the suit, the
dismiss under rules 12(b)(6) and 56 of the Fed- service of process of arrest shall be deemed to con-
eral Rules of Civil Procedure. stitute valid delivery of such notice, but the party
bringing the suit shall be liable for any damages sus-
(5) CONSTRUCTION.-Nothing in this sub- tained by the foreign state as a result of the arrest if
section shall prevent the United States from the party bringing the suit had actual or constructive
seeking protective orders or asserting privi- knowledge that the vessel or cargo of a foreign state
leges ordinarily available to the United was involved" for "but such notice shall not be deemed
States. to have been delivered, nor may it thereafter be deliv-
ered, if the vessel or cargo is arrested pursuant to proc-
(Added Pub. L. 94-583, §4(a), Oct. 21, 1976, 90 Stat. ess obtained on behalf of the party bringing the suit-
2892; amended Pub. L. 100-640, § 1, Nov. 9, 1988, 102 unless the party was unaware that the vessel or cargo
Stat. 3333; Pub. L. 100-669, §2, Nov. 16, 1988, 102 of a foreign state was involved, in which event the serv-
Stat. 3969; Pub. L. 101-650, title III, §325(b)(8), ice of process of arrest shall be deemed to constitute
Dec. 1, 1990, 104 Stat. 5121; Pub. L. 104-132, title valid delivery of such notice".
II, §221(a), Apr. 24, 1996, 110 Stat. 1241; Pub. L. Subsec. (b)(2). Pub. L. 100-640, §1(2), substituted
"paragraph (1) of this subsection" for
105-11, Apr. 25, 1997, 111 Stat. 22; Pub. L. 107-77, "subsection (b)(1)
of this section".
title VI, §626(c), Nov. 28, 2001, 115 Stat. 803; Pub.
Subsecs. (c), (d). Pub. L. 100-702, §1(3), added subsecs.
L. 107-117, div. B, §208, Jan. 10, 2002, 115 Stat.
(c) and (d).
2299; Pub. L. 109-304, §17(f)(2), Oct. 6, 2006, 120
Stat. 1708; Pub. L. 110-181, div. A, title X, EFFECTIVE DATE OF 2008 AMENDMENT
§1083(b)(1), Jan. 28, 2008, 122 Stat. 341.)
For applicability of amendments by Pub. L. 110-181 to
REFERENCES IN TEXT pending cases, see section 1083(c) of Pub. L. 110-181, set
out as an Effective Date note under section 1605A of
Rules 12(b)(6) and 56 of the Federal Rules of Civil Pro-
this title.
cedure, referred to in subsec. (g)(4), are set out in the
Appendix to this title.
EFFECTIVE DATE OF 1997 AMENDMENT
AMENDMENTS Pub. L. 105-11 provided that the amendment made by
2008-Subsee. (a)(7). Pub. L. 110-181, §1083(b)(1)(A), that Act was effective with respect to any cause of ac-
struck out par. (7) which provided for lack of jurisdiction arising before, on, or after Apr. 25, 1997.
tional immunity in certain cases in which money dam-
ages were sought against a foreign state for personal EFFECTIVE DATE OF 1996 AMENDMENT
injury or death caused by an act of torture, extra- Pub. L. 104-132, title II, §221(c), Apr. 24, 1996, 110 Stat.
judicial killing, aircraft sabotage, hostage taking, or 1243, provided that: "The amendments made by this
the provision of material support or resources for such subtitle [subtitle B (§221) of title II of Pub. L. 104-132,
an act. amending this section and section 1610 of this title]
Subsecs. (e), (f). Pub. L. 110-181, §1083(b)(1)(B), struck
shall apply to any cause of action arising before, on, or
out subsecs. (e) and (f) which defined "torture", "extra- after the date of the enactment of this Act [Apr. 24,
judicial killing", "hostage taking", and "aircraft sabo- 1996]."
tage" and provided for a 10-year statute of limitations
for actions brought under former subsec. (a)(7) of this
section.
Subsec. (g)(1)(A). Pub. L. 110-181, §1083(b)(1)(C), sub- Pub. L. 100-640, §3, Nov. 9, 1988, 102 Stat. 3334, pro-
stituted "but for section 1605A" for "but for subsection vided that: "The amendments made by this Act
(a)(7)". [amending this section and section 1610 of this title]
2006-Subsec. (d). Pub. L. 109-304 substituted "section shall apply to actions commenced on or after the date
31301 of title 46" and "chapter 313 of title 46" for "the of the enactment of this Act [Nov. 9, 1988]."
Ship Mortgage Act, 1920 (46 U.S.C. 911 and following)"
and "that Act", respectively. CIVIL LIABILITY FOR ACTS OF STATE SPONSORED
2002-Subsec. (a)(7)(A). Pub. L. 107-117 amended Pub. TERRORISM
L. 107-77. See 2001 Amendment note below. Pub. L. 104-208, div. A, title I, §101(c) [title V, §589],
2001-Subsec. (a)(7)(A). Pub. L. 107-77, as amended by Sept. 30, 1996, 110 Stat. 3009-121, 3009-172, provided that:
Pub. L. 107-117, inserted before semicolon "or the act is "(a) an [sic] official, employee, or agent of a foreign
related to Case Number 1:00CV03110(EGS) in the United state designated as a state sponsor of terrorism des-
States District Court for the District of Columbia". ignated [sic] under section 6(j) of the Export Adminis-
1997-Subsec. (a)(7)(B)(ii). Pub. L. 105-11 substituted tration Act of 1979 [50 U.S.C. App. 2405(j)] while acting
"neither the claimant nor the victim was" for "the
within the scope of his or her office, employment, or
claimant or victim was not". agency shall be liable to a United States national or
1996-Subsec. (a)(7). Pub. L. 104-i32, §221(a)(1), added the national's legal representative for personal injury
par. (7). or death caused by acts of that official, employee, or
Subsecs. (e) to (g). Pub. L. 104-132, §221(a)(2), added agent for which the courts of the United States may
subsecs. (e) to (g). maintain jurisdiction under [former] section 1605(a)(7)
1990-Subsec. (a)(6). Pub. L. 101-650 substituted of title 28, United States Code, for money damages
"state" for "State" after "foreign". which may include economic damages, solatium, pain,
1988-Subsec. (a)(6). Pub. L. 100-669 added par. (6). and suffering, and punitive damages if the acts were
Subsec. (b). Pub. L. 100-702, §1(3), struck out at end among those described in [former] section 1605(a)(7).
"Whenever notice is delivered under subsection (b)(1) of "(b) Provisions related to statute of limitations and
this section, the maritime lien shall thereafter be limitations on discovery that would apply to an action
deemed to be an in personam claim against the foreign brought under 28 U.S.C. 1605(f) and (g) shall also apply
state which at that time owns the vessel or cargo in- to actions brought under this section. No action shall
volved: Provided, That a court may not award judgment be maintained under this action [sic] if an official, em-
against the foreign state in an amount greater than the ployee, or agent of the United States, while acting
value of the vessel or cargo upon which the maritime within the scope of his or her office, employment, or
lien arose, such value to be determined as of the time agency would not be liable for such acts if carried out
notice is served under subsection (b)(1) of this section." within the United States."
A5
§1606 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE Page 424
By the authority vested in me as President by the (Added Pub. L. 94-583, § 4(a), Oct. 21, 1976, 90 Stat.
Constitution and the laws of the United States, includ- 2894; amended Pub. L. 105-277, div. A, §101(h)
ing section 301 of title 3, United States Code, and sec- [title I, §117(b)], Oct. 21, 1998, 112 Stat. 2681-480,
tion 1083(d) of the National Defense Authorization Act 2681-491; Pub. L. 106-386, div. C, §2002(g)(2), for-
for Fiscal Year 2008 (the "Act"), I hereby determine
that:
merly §2002(f)(2), Oct. 28, 2000, 114 Stat. 1543, re-
* All provisions of section 1083 of the Act, if applied numbered §2002(g)(2), Pub. L. 107-297, title II,
to Iraq or any agency or instrumentality thereof, may §201(c)(3), Nov. 26, 2002, 116 Stat. 2337.)
affect Iraq or its agencies or instrumentalities, by ex-
AMENDMENTS
posing Iraq or its agencies or instrumentalities to li-
ability in United States courts and by entangling their 2000-Pub. L. 106-386, §2002(g)(2), formerly §2002(f)(2),
assets in litigation. as renumbered by Pub. L. 107-297, which directed repeal
* The economic security and successful reconstruc- of section 101(h) [title I, §117(b)] of div. A of Pub. L.
tion of Iraq continue to be top national security prior- 105-277, was executed by striking out ", except any ac-
ities of the United States. Section 1083 of the Act tion under section 1605(a)(7) or 1610(f)" after "punitive
threatens those key priorities. If permitted to apply to damages", to reflect the probable intent of Congress.
Iraq, section 1083 would risk the entanglement of sub- See 1998 Amendment note below.
stantial Iraqi assets in litigation in the United States- 1998-Pub. L. 105-277 inserted ", except any action
including those of the Development Fund for Iraq, the under section 1605(a)(7) or 1610(f)" after "punitive dam-
Central Bank of Iraq, and commercial entities in the ages".
United States in which Iraq has an interest. Section
1083 also would expose Iraq to new liability of at least
several billion dollars by undoing judgments favorable Amendment by Pub. L. 105-277 applicable to any
to Iraq, by foreclosing available defenses on which Iraq claim for which a foreign state is not immune under
is relying in pending litigation, and by creating a new section 1605(a)(7) of this title arising before, on, or after
Federal cause of action backed by the prospect of puni- Oct. 21, 1998, see section 101(h) [title I, §117(c)] of Pub.
tive damages to support claims that may previously L. 105-277, set out as a note under section 1610 of this
have been foreclosed. If permitted to apply to Iraq, sec- title.
tion 1083 would have a significant financial impact on
Iraq and would result in the redirection of financial re- § 1607. Counterclaims
sources from the continued reconstruction of Iraq and
In any action brought by a foreign state, or in
the harming of Iraq's stability, contrary to the inter-
ests of the United States. which a foreign state intervenes, in a court of
* A waiver of all provisions of section 1083 with re- the United States or of a State, the foreign state
spect to Iraq and any agency or instrumentality of Iraq shall not be accorded immunity with respect to
is therefore in the national security interest of the any counterclaim-
United States and will promote the reconstruction of, (a) for which a foreign state would not be en-
the consolidation of democracy in, and the relations of titled to immunity under section 1605 or 1605A
the United States with, Iraq. of this chapter had such claim been brought in
* Iraq continues to be a reliable ally of the United
States and a partner in combating acts of international a separate action against the foreign state; or
terrorism. The November 26, 2007, Declaration of Prin- (b) arising out of the transaction or occur-
ciples for a Long-Term Relationship of Cooperation and rence that is the subject matter of the claim
Friendship between the Republic of Iraq and the United of the foreign state; or
States of America confirmed the commitment of the (c) to the extent that the counterclaim does
United States and Iraq to build an enduring relation- not seek relief exceeding in amount or differ-
ship in the political, diplomatic, economic, and secu- ing in kind from that sought by the foreign
rity arenas and to work together to combat all terror-
state.
ist groups, including al-Qaida.
Accordingly, I hereby waive all provisions of section (Added Pub. L. 94-583, § 4(a), Oct. 21, 1976, 90 Stat.
1083 of the Act with respect to Iraq and any agency or 2894; amended Pub. L. 110-181, div. A, title X,
instrumentality thereof.
§ 1083(b)(2), Jan. 28, 2008, 122 Stat. 341.)
You are authorized and directed to notify the Con-
gress of this determination and waiver and the accom- AMENDMENTS
panying memorandum of justification [not set out in
2008-Subsec. (a). Pub. L. 110-181 inserted "or 1605A"
the Code], incorporated by reference herein, and to ar-
after "section 1605".
range for their publication in the Federal Register.
GEORGE W. BUSH. EFFECTIVE DATE OF 2008 AMENDMENT
§ 1606. Extent of liability For applicability of amendments by Pub. L. 110-181 to

pending cases, see section 1083(c) of Pub. L. 110-181, set
As to any claim for relief with respect to out as an Effective Date note under section 1605A of
which a foreign state is not entitled to immu- this title.
nity under section 1605 or 1607 of this chapter, § 1608. Service; time to answer; default
the foreign state shall be liable in the same
manner and to the same extent as a private indi- (a) Service in the courts of the United States
vidual under like circumstances; but a foreign and of the States shall be made upon a foreign
state except for an agency or instrumentality state or political subdivision of a foreign state:
thereof shall not be liable for punitive damages; (1) by delivery of a copy of the summons and
if, however, in any case wherein death was complaint in accordance with any special ar-
caused, the law of the place where the action or rangement for service between the plaintiff
omission occurred provides, or has been con- and the foreign state or political subdivision;
strued to provide, for damages only punitive in or
nature, the foreign state shall be liable for ac- (2) if no special arrangement exists, by deliv-
tual or compensatory damages measured by the ery of a copy of the summons and complaint in
pecuniary injuries resulting from such death accordance with an applicable international
which were incurred by the persons for whose convention on service of judicial documents;
benefit the action was brought. or
A6
Page 425 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE §1610
(3) if service cannot be made under para- (d) In any action brought in a court of the
graphs (1) or (2), by sending a copy of the sum- United States or of a State, a foreign state, a po-
mons and complaint and a notice of suit, to- litical subdivision thereof, or an agency or in-
gether with a translation of each into the offi- strumentality of a foreign state shall serve an
cial language of the foreign state, by any form answer or other responsive pleading to the com-
of mail requiring a signed receipt, to be ad- plaint within sixty days after service has been
dressed and dispatched by the clerk of the made under this section.
court to the head of the ministry of foreign af- (e) No judgment by default shall be entered by
fairs of the foreign state concerned, or a court of the United States or of a State
(4) if service cannot be made within 30 days against a foreign state, a political subdivision
under paragraph (3), by sending two copies of thereof, or an agency or instrumentality of a
the summons and complaint and a notice of foreign state, unless the claimant establishes
suit, together with a translation of each into his claim or right to relief by evidence satisfac-
the official language of the foreign state, by tory to the court. A copy of any such default
any form of mail requiring a signed receipt, to judgment shall be sent to the foreign state or
be addressed and dispatched by the clerk of political subdivision in the manner prescribed
the court to the Secretary of State in Wash- for service in this section.
ington, District of Columbia, to the attention (Added Pub. L. 94-583, § 4(a), Oct. 21, 1976, 90 Stat.
of the Director of Special Consular Services- 2894.)
and the Secretary shall transmit one copy of
the papers through diplomatic channels to the § 1609. Immunity from attachment and execution
foreign state and shall send to the clerk of the of property of a foreign state
court a certified copy of the diplomatic note Subject to existing international agreements
indicating when the papers were transmitted. to which the United States is a party at the
As used in this subsection, a "notice of suit" time of enactment of this Act the property in
shall mean a notice addressed to a foreign state the United States of a foreign state shall be im-
and in a form prescribed by the Secretary of mune from attachment arrest and execution ex-
State by regulation. cept as provided in sections 1610 and 1611 of this
(b) Service in the courts of the United States chapter.
and of the States shall be made upon an agency (Added Pub. L. 94-583, § 4(a), Oct. 21, 1976, 90 Stat.
or instrumentality of a foreign state: 2895.)
(1) by delivery of a copy of the summons and
REFERENCES IN TEXT
complaint in accordance with any special ar-
rangement for service between the plaintiff The time of enactment of this Act, referred to in
and the agency or instrumentality; or text, probably means the time of enactment of Pub. L.
(2) if no special arrangement exists, by deliv- 94-583, which was approved Oct. 21, 1976.
ery of a copy of the summons and complaint § 1610. Exceptions to the immunity from attach-
either to an officer, a managing or general ment or execution
agent, or to any other agent authorized by ap-
pointment or by law to receive service of proc- (a) The property in the United States of a for-
ess in the United States; or in accordance with eign state, as defined in section 1603(a) of this
an applicable international convention on chapter, used for a comniercial activity in the
service of judicial documents; or United States, shall not be immune from attach-
(3) if service cannot be made under para- ment in aid of execution, or from execution,
graphs (1) or (2), and if reasonably calculated upon a judgment entered by a court of the
to give actual notice, by delivery of a copy of United States or of a State after the. effective
the summons and complaint, together with a date of this Act, if-
translation of each into the official language (1) the foreign state has waived its immu-
of the foreign state- nity from attachment in aid of execution or
(A) as directed by an authority of the for- from execution either explicitly or by implica-
eign state or political subdivision in re- tion, notwithstanding any withdrawal of the
sponse to a letter rogatory or request or waiver the foreign state may purport to effect
(B) by any form of mail requiring a signed except in accordance with the terms of the
receipt, to be addressed and dispatched by waiver, or
(2) the property is or was used for the com-
the clerk of the court to the agency or in-
mercial activity upon which the claim is
strumentality to be served, or
(C) as directed by order of the court con- based, or
(3) the execution relates to a judgment es-
sistent with the law of the place where serv-
tablishing rights in property which has been
ice is to be made. taken in violation of international law or
(c) Service shall be deemed to have been which has been exchanged for property taken
made- in violation of international law, or
(1) in the case of service under subsection (4) the execution relates to a judgment es-
(a)(4), as of the date of transmittal indicated tablishing rights in property-
in the certified copy of the diplomatic note; (A) which is acquired by succession or gift,
and or
(2) in any other case under this section, as of (B) which is immovable and situated in the
the date of receipt indicated in the certifi- United States: Provided, That such property
cation, signed and returned postal receipt, or is not used for purposes of maintaining a
other proof of service applicable to the method diplomatic or consular mission or the resi-
of service employed. dence of the Chief of such mission, or
A7
§1962 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE Page 484
(3) Interest shall be allowed, computed, and after Dec. 31, 1986, see section 1511(d) of Pub. L. 99-514,
paid on judgments of the United States Court of set out as a note under section 6621 of Title 26, Internal
Federal Claims only as provided in paragraph (1) Revenue Code.
of this subsection or in any other provision of EFFECTIVE DATE OF 1982 AMENDMENTS
law. Pub. L. 97-258, §2(m), Sept. 13, 1982, 96 Stat. 1062, pro-
(4) This section shall not be construed to af- vided that the amendment made by that section is ef-
fect the interest on any judgment of any court fective Oct. 1, 1982.
not specified in this section. Amendment by Pub. L. 97-164 effective Oct. 1, 1982,
see section 402 of Pub. L. 97-164, set out as a note under
(June 25, 1948, ch. 646, 62 Stat. 957; Pub. L. 97-164, section 171 of this title.
title III, §302(a), Apr. 2, 1982, 96 Stat. 55; Pub. L.
97-258, §2(m)(1), Sept. 13, 1982, 96 Stat. 1062; Pub. § 1962. Lien
L. 97-452, §2(d)(1), Jan. 12, 1983, 96 Stat. 2478;
Every judgment rendered by a district court
Pub. L. 99-514, §2, title XV, §1511(c)(17), Oct. 22,
within a State shall be a lien on the property lo-
1986, 100 Stat. 2095, 2745; Pub. L. 102-572, title IX,
cated in such State in the same manner, to the
§902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L.
same extent and under the same conditions as a
106-554, §l(a)(7) [title III, §307(d)(1)], Dec. 21,
judgment of a court of general jurisdiction in
2000, 114 Stat. 2763, 2763A-636.)
such State, and shall cease to be a lien in the
HISTORICAL AND REVISION NOTES same manner and time. This section does not
Based on title 28, U.S.C., 1940 ed., §811 (R.S. §966; Mar. apply to judgments entered in favor of the
3, 1911, ch. 231, § 291, 36 Stat. 1167). United States. Whenever the law of any State
Changes were made in phraseology. requires a judgment of a State court to be reg-
istered, recorded, docketed or indexed, or any
REFERENCES IN TEXT
other act to be done, in a particular manner, or
Section 6621 of the Internal Revenue Code of 1986, re- in a certain office or county or parish before
ferred to in subsec. (c)(1), is classified to section 6621 of such lien attaches, such requirements shall
Title 26, Internal Revenue Code.
apply only if the law of such State authorizes
AMENDMENTS the judgment of a court of the United States to
be registered, recorded, docketed, indexed or
2000-Subsec. (a). Pub. L. 106-554 substituted "the
weekly average 1-year constant maturity Treasury otherwise conformed to rules and requirements
yield, as published by the Board of Governors of the relating to judgments of the courts of the State.
Federal Reserve System, for the calendar week preced-
(June 25, 1948, ch. 646, 62 Stat. 958; Pub. L.
ing." for "the coupon issue yield equivalent (as deter-
mined by the Secretary of the Treasury) of the average 101-647, title XXXVI, §3627, Nov. 29, 1990, 104
accepted auction price for the last auction of fifty-two Stat. 4965.)
week United States Treasury bills settled immediately HISTORICAL AND REVISION NOTES
prior to".
1992-Subsec. (c)(3). Pub. L. 102-572 substituted Based on title 28, U.S.C., 1940 ed., §§812 and 814 (R.S.
"United States Court of Federal Claims" for "United §967; Aug. 1, 1888, ch. 729, §1, 25 Stat. 357; Mar. 3, 1911,
States Claims Court". ch. 231, §291, 36 Stat. 1167; Aug. 17, 1912, ch. 300, 37 Stat.
1986-Subsec. (c)(1). Pub. L. 99-514, §1511(c)(17), sub- 311).
stituted "the underpayment rate or overpayment rate Section consolidates sections 812 and 814 of title 28,
(whichever is appropriate) established" for "a rate es- U.S.C., 1940 ed., with changes in phraseology necessary
tablished". to effect consolidation and to clarify the meaning of
Pub. L. 99-514, §2, substituted "Internal Revenue such sections.
Code of 1986" for "Internal Revenue Code of 1954". Omitted words "or decree" after "judgments" as un-
1983-Subsec. (b). Pub. L. 97-452 substituted "section necessary inasmuch as Rule 54(a) of the Federal Rules
1304(b) of title 31" for "section 1302 of the Act of July of Civil Procedure by definition of judgment includes a
27, 1956 (31 U.S.C. 724a)". decree.
1982-Subsec. (a). Pub. L. 97-164, §302(a)(1), (2), des- Words "in the State of Louisiana" after "or parish"
ignated existing provisions as subsec. (a), substituted were omitted as unnecessary.
"at a rate equal to the coupon issue yield equivalent A reference to section 813 of title 28, U.S.C., 1940 ed.,
(as determined by the Secretary of the Treasury) of the was omitted, since such section is omitted from this re-
average accepted auction price for the last auction of vision as covered by Rule 79(c) of the Federal Rules of
fifty-two week United States Treasury bills settled im- Civil Procedure.
mediately prior to the date of the judgment" for "at AMENDMENTS
the rate allowed by State law", and inserted provision
that the Director of the Administrative Office of the 1990-Pub. L. 101-647 inserted after first sentence
United States Courts distribute notice of the rate and "This section does not apply to judgments entered in
any changes in it to all Federal judges. favor of the United States."
Subsec. (b). Pub. L. 97-258 substituted "this title and
section 1304(b)(1) of title 31" for "title 28, United States
Code, and section 1302 of the Act of July 27, 1956 (31 Amendment by Pub. L. 101-647 effective 180 days after
U.S.C. 724a)". Nov. 29, 1990, see section 3631 of Pub. L. 101-647, set out
Subsecs. (b), (c). Pub. L. 97-164, §302(a)(3), added sub- as an Effective Date note under section 3001 of this
secs. (b) and (c). title.
EFFECTIVE DATE OF 1992 AMENDMENT § 1963. Registration of judgments for enforce-
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, ment in other districts
see section 911 of Pub. L. 102-572, set out as a note
A judgment in an action for the recovery of
under section 171 of this title.
money or property entered in any court of ap-
EFFECTIVE DATE OF 1986 AMENDMENT peals, district court, bankruptcy court, or in the
Amendment by section 1511(c)(17) of Pub. L. 99-514 ap- Court of International Trade may be registered
plicable for purposes of determining interest for periods by filing a certified copy of the judgment in any
A8
Page 485 TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE § 1964
other district or, with respect to the Court of 1990-Pub. L. 101-647 inserted after first sentence
International Trade, in any judicial district, "Such a judgment entered in favor of the United States
when the judgment has become final by appeal may be so registered any time after judgment is en-
tered."
or expiration of the time for appeal or when or-
1988-Pub. L. 100-702 substituted "Registration of
dered by the court that entered the judgment for judgments of the district courts and the Court of Inter-
good cause shown. Such a judgment entered in national Trade" for "Registration in other districts" in
favor of the United States may be so registered section catchline and amended first sentence generally.
any time after judgment is entered. A judgment Prior to amendment, first sentence read as follows: "A
so registered shall have the same effect as a judgment in an action for the recovery of money or
judgment of the district court of the district property now or hereafter entered in any district court
where registered and may be enforced in like which has become final by appeal or expiration of time
for appeal may be registered in any other district by
manner.
filing therein a certified copy of such judgment."
A certified copy of the satisfaction of any
1958-Pub. L. 85-508 struck out provisions which ex-
judgment in whole or in part may be registered tended provisions of section to District Court for Terri-
in like manner in any district in which the judg- tory of Alaska. See section BlA of this title which es-
ment is a lien. tablishes a United States District Court for the State
The procedure prescribed under this section is of Alaska.
in addition to other procedures provided by law 1954-Act Aug. 23, 1954, extended provisions of section
for the enforcement of judgments. to District Court for Territory of Alaska.
(June 25, 1948, ch. 646, 62 Stat. 958; Aug. 23, 1954, EFFECTIVE DATE OF 1990 AMENDMENT
ch. 837, 68 Stat. 772; Pub. L. 85-508, §12(o), July Amendment by Pub. L. 101-647 effective 180 days after
7, 1958, 72 Stat. 349; Pub. L. 100-702, title X, Nov. 29, 1990, see section 3631 of Pub. L. 101-647, set out
§1002(a), (b)(1), Nov. 19, 1988, 102 Stat. 4664; Pub. as an Effective Date note under section 3001 of this
L. 101-647, title XXXVI, §3628, Nov. 29, 1990, 104 title.
Stat. 4965; Pub. L. 104-317, title II, §203(a), Oct.
19, 1996, 110 Stat. 3849.) EFFECTIVE DATE OF 1988 AMENDMENT
Pub. L. 100-702, title X, §1002(c), Nov. 19, 1988, 102
HISTORICAL AND REVISION NOTES
Stat. 4665, provided that: "The amendments made by
This section follows the recommendation of the Su- this section [amending this section and repealing sec-
preme Court's Advisory Committee on Federal Rules of tion 1963A of this title] take effect 90 days after the
Civil Procedure (1937) which included the following date of enactment of this title [Nov. 19, 1988]."
rule:
"Rule 77. REGISTRATION OF JUDGMENTS IN OTHER DIS- EFFECTIVE DATE OF 1958 AMENDMENT
TRICT COURTS. A judgment entered in any district court
Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on
and which has become final through expiration of the
admission of Alaska into the Union pursuant to Proc.
time for appeal or by mandate on appeal may be reg-
No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required
istered in any other district court by filing therein an
by sections 1 and 8(c) of Pub. L. 85-508, see notes set out
authenticated copy of the judgment. When so reg-
under section 81A of this title and preceding section 21
istered the judgment shall have the same effect and
of Title 48, Territories and Insular Possessions.
like proceedings for its enforcement may be taken
thereon in the court in which it is registered as if the
[§ 1963A. Repealed. Pub. L. 100-702, title X,
judgment had been originally entered by that court. If
in the court in which the judgment was originally en- § 1002(b) (2), Nov. 19, 1988, 102 Stat. 4664]
tered, the judgment has been satisfied in whole or in Section, added Pub. L. 96-417, title V, §511(a), Oct. 10,
part or if an order has been made modifying or vacating 1980, 94 Stat. 1743, provided for registration of judg-
it or affecting or suspending its operation, the party ments of the Court of International Trade. See section
procuring the registration shall and any other party 1963 of this title.
may file authenticated copies of the satisfaction or
order with the court in which the judgment is reg- EFFECTIVE DATE OF REPEAL
istered. This rule shall not be construed to limit the ef-
fect of the Act of February 20, 1905, c. 592, §20 (33 Stat. Repeal effective 90 days after Nov. 19, 1988, see section
729), as amended, U.S.C., title 15, §100; or the Act of 1002(c) of Pub. L. 100-702, set out as an Effective Date
March 4, 1909, c. 320, §§36 and 37 (35 Stat. 1084), U.S.C., of 1988 Amendment note under section 1963 of this title.
title 17, §§36 and 37; or §56 of the Judicial Code, U.S.C.,
title 28, §117; or to authorize the registration elsewhere § 1964. Constructive notice of pending actions
of an order or a judgment rendered in a divorce action
Where the law of a State requires a notice of
in the District of Columbia."
Section 2508 of this title provides for the registration an action concerning real property pending in a
of judgments of the Court of Claims in favor of the court of the State to be registered, recorded,
United States in any district. See, also, section 2413 of docketed, or indexed in a particular manner, or
this title. in a certain office or county or parish in order
The phrase "for the recovery of money or property" to give constructive notice of the action as it re-
was not in the committee's draft of Rule 77 of Federal lates to the real property, and such law author-
Rules of Civil Procedure but was inserted in the revised izes a notice of an action concerning real prop-
section to exclude judgments in divorce actions, and
erty pending in a United States district court to
any other actions, the registration of which would
serve no useful purpose. be registered, recorded, docketed, or indexed in
the same manner, or in the same place, those re-
AMENDMENTS quirements of the State law must be complied
1996--Pub. L. 104-317 in section catchline substituted with in order to give constructive notice of such
"for enforcement in other districts" for "of the district an action pending in a United States district
courts and the Court of International Trade", in first court as it relates to real property in such
undesignated par. substituted "court of appeals, dis-
State.
trict court, bankruptcy court," for "district court" and
"copy of the judgment" for "copy of such judgment", (Added Pub. L. 85-689, §1(a), Aug. 20, 1958, 72
and added undesignated par. at end. Stat. 683.)
A9

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Case: 18-2797 Document: 003113202359 Page: 1 Date Filed: 04/03/2019

United States Court of Appeals

CRYSTALLEX INTERNATIONAL CORPORATION,

BOLIVARIAN REPUBLIC OF VENEZUELA,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF OF INTERVENOR BOLIVARIAN REPUBLIC OF VENEZUELA

E. WHITNEY DEBEVOISE PAUL J. FISHMAN

TABLE OF AUTHORITIES ................................................................................. ii

Argentine Republic v. Amerada Hess Shipping Corp.,

Aurelius Capital Partners, LP v. Republic of Argentina,

Banco Nacional de Cuba v. Sabbatino,

Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co.,

Bridas S.A.P.I.C. v. Gov’t of Turkmenistan,

Clientron Corp. v. Devon IT, Inc.,

Federal Insurance Co. v. Richard I. Rubin & Co.,

Frew ex rel. Frew v. Hawkins,

Guaranty Trust Co. v. United States,

Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc.,

Jesner v. Arab Bank PLC,

Kiobel v. Royal Dutch Petroleum Co.,

Lightfoot v. United States,

Micula v. Gov’t of Romania,

Micula v. Gov’t of Romania,

Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela,

National City Bank v. Banco Para el Comercio Exterior de Cuba,

Ohio Hoist Mfg. Co. v. LiRocchi,

Philadelphia Welfare Rights Org. v. Shapp,

Publicker Industries, Inc. v. Roman Ceramics Corp.,

Republic of Sudan v. Harrison,

Rubin v. Islamic Republic of Iran,

Verlinden B.V. v. Cent. Bank of Nigeria,

Walters v. Indus. & Commercial Bank of China, Ltd.,

Wells Fargo Equip. Fin., Inc. v. Asterbadi,

World Wide Minerals, Ltd. v. Republic of Kazakhstan,

22 U.S.C. § 1650a ........................................................................................... 13, 14

§ 1602 .................................................................................................... 5, 11, 13

§ 1605 .................................................................................................... 5, 12, 17

§ 1606 .................................................................................................... 5, 12, 17

§ 1607 .................................................................................................... 5, 12, 17

§ 1608 .................................................................................................... 5, 10, 12

§ 1963 ...................................................................................... 2–4, 9, 10, 12–16

Const. of Venezuela, art. 233 ..................................................................................7

H.R. Rep. No. 94-1487 (1976) ...................................................................... 5, 9–12

S. Rep. No. 83-1917 (1954) ....................................................................................4

N.Y. C.P.L.R. § 5402 ............................................................................................ 11

The White House, Statement from President Donald J. Trump

U.S. Dep’t of the Treasury, Press Release, Treasury Sanctions

U.S. Dep’t of the Treasury, Press Release, Treasury Sanctions

1 W.M. Fletcher, Cyclopedia of the Law of Private Corporations § 41

permits ex parte summary proceedings against foreign sovereigns. It puts in issue

derlying the statute—U.S. foreign affairs and international comity.

Crystallex observes that, as of 2018, under Nicolás Maduro, “Venezuela

ha[d] become a rogue nation”—one that “completely disregarded PDVSA’s pur-

ported separateness to achieve the dictatorship’s political objectives—running

PDVSA’s day-to-day affairs … and treating it as the [Maduro] regime’s all-

recognized Juan Guaidó as the Interim President of the Bolivarian Republic of

Venezuela (the “Republic”), denounced the Maduro regime as “illegitimate,” and

restoration of a democratically elected government for the people of Venezuela.

undermining U.S. foreign policy by impeding President Guaidó’s ability to com-

plete the transition of the Republic to democracy.

By exercising jurisdiction over this action against Petróleos de Venezuela,

ity to reach consensual arrangements with its creditors.

Crystallex initiated this execution action by registering a previous judgment—

entered against the Republic in a different district court—pursuant to 28 U.S.C.

imposes strict jurisdictional requirements for serving foreign sovereigns, which

vide subject-matter jurisdiction.