Abi Jaoudi and Azar Trading Corp V Cigna

Abi Jaoudi and Azar Trading Corp v Cigna in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On December 5, 2011, the United States filed a statement of interest, including the State Department's determination on immunity as exhibit 1, in The Abi Jaoudi and Azar Trading Corp. v . Cigna Worldwide Ins. Co., No. 91-6785 (E.D. Pa.). The Abi Jaoudi and Azar Trading Corp. (“AJA”) had obtained a judgment against Cigna Worldwide Insurance Company (“Cigna” or “CWW”) in Liberian courts for property damage resulting during the Liberian civil war. AJA sought to enforce the Liberian judgment, but U.S. courts had previously determined that CWW rightfully invoked the insurance policy's war risk provision and had issued an anti-suit injunction against further proceedings to collect on the insurance claims.

In 2008, CWW brought contempt proceedings against AJA and other respondents based on their efforts to pursue enforcement of the Liberian judgment. Respondent Josie Senesie served as Liberian Insurance Commissioner and was appointed in 2007 by the Liberian government as receiver of the estate of CWW's Liberian branch. Respondent Senesie retired while the contempt proceedings were pending and was replaced by respondent Foday Sesay.

Excerpts from the statement of interest follow. Both the statement of interest and exhibit 1, the State Department's immunity determination, are available at (internet link) state.gov/s/l/c8183.htm.

Developments

In assessing immunity, the Department of State takes into account the relevant principles of international law, as well as the United States's foreign policy interests. In particular, current and former officials of a foreign state generally enjoy immunity for acts undertaken in their official capacities. See, e.g., Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belgium), 2002 I.C.J.

3, ¦ 61 (Feb. 14) (Merits). The immunity protecting foreign officials for their official acts ultimately belongs to the sovereign rather than the official. See id. As a result, the Department of State takes into account the views of a foreign state as to the immunity of its own officials, including whether a foreign state understands its officials to have acted in an official capacity, when determining a foreign official's entitlement to immunity. However, the views of the foreign state on whether an act was taken in an official capacity are not dispositive. Another consideration relevant to the immunity determination is whether the law of the foreign state treats the act at issue as one taken in an official capacity.

In light of these principles and the particular facts of this case, the Department of State has concluded that Respondents Senesie and Sesay are immune from this contempt action to the extent the Court finds that the acts for which CIGNA seeks to hold them in contempt—namely, recognizing AJA's proof of claim based upon its Liberian judgment and initiating and continuing the indemnity suit in the Cayman Islands against ACE—were, under Liberian law, acts taken by Senesie and Sesay in their official capacities as Insurance Commissioners for the Republic of Liberia. See Letter from Harold Hongju Koh to the Honorable Tony West at 3, dated December 5, 2011 (attached as Ex. 1). Conversely, to the extent the Court finds that either or both of these acts were, under Liberian law, taken by Senesie and Sesay solely in their capacities as representatives of the estate and thus outside of their official capacities, the Department of State concludes that they are not immune from this contempt action with respect to such acts. Id. The Department of State recognizes that Liberian law may treat acts taken in the Insurance Commissioner's capacity as representative of the estate as acts taken in his official capacity, in which event he would not be acting solely in his capacity as representative of the estate. Id.

Although, based on the current record, the United States is declining to take a position on whether, under Liberian law, the acts at issue were taken within Senesie's and Sesay's official capacities, leaving that determination to the Court, the United States does note there is at least some evidence in the current record bearing on this question.