Litigation On Behalf of Foreign Governments, and Their Agencies and Enterprises

The Separate Entity Doctrine for State Enterprises

The Supreme Court’s decision in First National City Bank v. Banco Para el Comercio Exterior de Cuba (the Bancec case), litigated by the Firm, established the principle that foreign state enterprises may not, with narrow exceptions, be held responsible for the debts and obligations of the foreign state. Appellate and trial courts have applied Bancec in scores of cases involving many different countries. Without Bancec’s protection, state-owned enterprises would be subject to potentially crippling attachments and legal judgments based on the unrelated acts of the foreign state.

In Alejandre v. Republic of Cuba, the Firm successfully relied on the “separate entity” principle it had established in Bancec to protect telecommunication payments owed by AT&T and others to the Cuban telephone company. The plaintiffs sought to seize the payments to satisfy a substantial default judgment against the Republic of Cuba.

Act of State Doctrine

In Banco Nacional de Cuba v. Sabbatino, the Firm won the celebrated U.S. Supreme Court ruling that the courts of the United States will not, with limited exceptions, question the legality of the acts of a foreign sovereign done within its own territory, even if those acts are allegedly in violation of international law.

The Sabbatino decision is the foundation of the modern “act of state” doctrine, which insulates sovereign acts from attack in the courts of the United States in most circumstances. The Supreme Court refined the “act of state doctrine” in two subsequent cases litigated by the Firm (First National City Bank v. Banco Nacional de Cuba; Alfred Dunhill of London, Inc. v. Republic of Cuba).

Sovereign Immunity

In a Court of Appeals decision, the Firm won the release of a Cuban merchant vessel attached by the Chilean Government of Augusto Pinochet as it was transiting the Panama Canal, after fleeing attack in Chile during Pinochet’s coup.  Spacil v. Crowe.

The Firm successfully defended the Republic of South Africa in litigation that sought to hold it responsible on claims against South African citizens alleged to have acted as sanctions-busting agents of the former apartheid regime.  Oster v. Republic of South Africa

The Firm also prevailed in sovereign immunity litigation on behalf of the Republic of South Africa arising from the government’s effort to prevent unauthorized use of Internet domain names bearing the “South Africa.”

Attachments 

In federal court litigation arising out of Bolivia’s nationalization of the foreign ownership interests in its telephone company, the Firm overturned the attachment of the telephone company’s New York bank accounts.  The attachment had been obtained to secure a possible arbitration award in a nationalization claim against Bolivia at ICSID (the International Centre for the Settlement of Investment Disputes). E.T.I. Euro Telecom International N.V. v. Republic of Bolivia and Empresa Nacional de Telecomunicaciones Entel S.A..

In England, the Firm instructed and assisted English counsel in overturning parallel attachments of the Bolivian telephone company’s London bank accounts.

Execution of Judgments Against the Assets of a “State Sponsor of Terrorism”

The Firm has successfully represented twenty Cuban enterprises and research institutes against an effort to execute upon their patents and registered trademarks, in satisfaction of a substantial “anti-terrorism” default judgment against the Republic of Cuba.   The U.S. District Court for the District of Columbia held that it could examine the jurisdiction of the Florida state court that had issued the default judgment, and found that the judgment was unenforceable because of the issuing court’s lack of subject matter jurisdiction.  Jerez v. Republic of Cuba

Nationalizations

The Firm has litigated the leading U.S. cases on nationalizations. In Sabbatino, the Supreme Court ruled that the “act of state” doctrine applies to bar U.S. courts from entertaining challenges to the nationalization of U.S.-owned property situated in the foreign country at the time of the nationalization.

In Banco Nacional de Cuba v. Chase Manhattan Bank, the Firm successfully argued to the Court of Appeals for the Second Circuit that international law does not support the traditional “Hull Doctrine” of full and immediate compensation long espoused by the U.S. State Department.

In a series of cases, such as Mendendez v. Faber Coe & Gregg, the Firm won judicial acceptance of the principle that international law does not restrict a sovereign’s authority to expropriate the property of its own nationals.

The Firm advised Chile’s Allende government on the nationalization of U.S.-owned copper mines, and defended Chile and its state enterprises in subsequent litigation brought by the U.S. copper companies.

Head of State Immunity

The Firm successfully represented Haitian President Aristide, then in exile in the United States following  a coup, in asserting “Head of State” immunity to defeat a lawsuit for the alleged assassination of a coup leader. The case remains one of the leading U.S. precedents on “Head of State” immunity.

Recovery of Looted State Assets

The Firm successfully brought litigation to recover Haiti state assets looted by the Duvalier family that had been secreted in New York.  Republic of Haiti v. Duvalier.

The President’s Foreign Affairs Authority; Iran Hostage Crisis

During the Iran-U.S. confrontation of 1979-81, the Firm successfully represented the Central Bank of Iran (Bank Markazi Iran) in litigation to protect billions of dollars of Central Bank deposits in the U.S. from attachment by U.S. banks and corporations.

The Firm helped draft the protocol that became the basis for the Algerian Declarations, the State-to-State accords that resolved the hostage crisis and required the return of Iranian assets in the United States.

The Firm represented the Central Bank of Iran before the Supreme Court in the landmark case of Dames & Moore v. Regan, which upheld the Algerian Declarations and released Iranian assets from judicial attachments.

United Nations; PLO’s Permanent Observer Mission to the United Nations

The Firm represented officials of the PLO’s Permanent Observer Mission to the United Nations in obtaining a judicial order that prohibited the U.S. government from closing the Mission pursuant to the U.S.’s Anti-Terrorism Act of 1987.  Mendelsohn v. Meese; United States v. PLO.

Libel Action on Behalf of Greece’s Prime Minister Papandreou

The Firm represented Prime Minister Andreas Papandreou in his politically charged lawsuit for defamation against TIME magazine.

Extradition

The Firm represented the government of Greece in its attempt to extradite a former high Greek official accused of corruption.  It has also advised other foreign sovereigns on politically sensitive extradition matters.

Intellectual Property 

The Firm established that the U.S. trade embargo against Cuba excuses Cuban parties from the normal requirement of U.S. trademark law that it is necessary to use a trademark in U.S. commerce in order to preserve rights in the mark.  Jose M. Arechabala Rodrigo v. Havana Rum & Liquors, S.A.  (Trademark Trial and Appeal Board.)

Before the TTAB, the Firm has also successfully employed the infrequently invoked Inter-American Convention to protect against U.S. companies that knowingly adopt Cuban trademarks as their own. Corporacion Cimex v. DM Enterprises & Distributors, Inc.

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