Contents
Contempt Sanctions
Availability of Contempt Sanctions in 2011
United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On March 15, 2011, the U.S. Court of Appeals for the District of Columbia Circuit decided that contempt sanctions against a foreign government were properly imposed by the district court in a case under the FSIA. FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 637 F.3d 373 (D.C. Cir. 2011). Hemisphere sought to enforce two arbitral awards for delinquent payments on its credit agreement with the Democratic Republic of Congo (“DRC”) in 2004. The district court entered two default judgments after the DRC failed to appear. Hemisphere then sought to execute on the judgments. The DRC appeared in the enforcement proceedings, but failed to respond to discovery requests relating to property available for execution. see this world legal encyclopedia in relation with the year 2006 at 621-26 for a discussion of the court's prior consideration of the availability of diplomatic properties for execution in the case. In 2009, two years after the district court ordered the DRC to produce a certain category of documents in response to its discovery plan, the court found the DRC in civil contempt for failing to comply. The DRC moved to vacate the contempt order, relying on the U.S. amicus brief in a Fifth Circuit case, Af-Cap Inc.v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006) (discussed in World Encyclopedia of Law 2006 at 603-11), in which the court found that contempt sanctions were not appropriate under the FSIA. The U.S. also filed an amicus brief in the D.C. Circuit asserting that contempt sanctions were improper.
The D.C. Circuit disagreed with the Fifth Circuit and the U.S. position and concluded that an order imposing sanctions was appropriate, even if such an order could not be enforced or executed. Excerpts of the court's opinion follow (footnotes and citations to the record omitted). For the court's treatment of the comity arguments presented by the U.S., see information on Nationality, Citizenship and Immigration in this legal Encyclopedia5.B.4.
Developments
The FSIA is a rather unusual statute that explicitly contemplates that a court may have jurisdiction over an action against a foreign state and yet be unable to enforce its judgment unless the foreign state holds certain kinds of property subject to execution. See De Letelier v. Republic of Chile, 748 F.2d 790, 798-99 (2d Cir. 1984) (plaintiff may hold a right without a remedy under the FSIA). Otherwise a plaintiff must rely on the government's diplomatic efforts, or a foreign sovereign's generosity, to satisfy a judgment. Therefore, it is not anomalous to divide, as Hemisphere does, the question of a court's power to impose sanctions from the question of a court's ability to enforce that judgment through execution. Hemisphere's contention that whether the court can enforce its contempt sanction is irrelevant to the availability of a contempt order is consistent with the statutory scheme.
Details
As the Seventh Circuit has recognized, there is not a smidgen of indication in the text of the FSIA that Congress intended to limit a federal court's inherent contempt power. Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir. 2007). Nor is there any legislative history supporting such a claim. Indeed, the House Report to the FSIA demonstrates that Congress kept in place a court's normal discovery apparatus in FSIA proceedings. See H.R. Rep. No. 94-1487, at 23 (1976) (“The bill does not attempt to deal with questions of discovery. Existing law appears to be adequate in this area.”). And the same report illustrates that Congress specifically contemplated that contempt sanctions would be available under the FSIA as a remedy for discovery violations:
[If] a private plaintiff sought the production of sensitive governmental documents of a foreign state, concepts of governmental privilege would apply. Or if a plaintiff sought to depose a diplomat in the United States or a high-ranking official of a foreign government, diplomatic and official immunity would apply. However, appropriate remedies would be available under Rule 37, F.R. Civ. P., for an unjustifiable failure to make discovery.
Id. (emphasis added); see also Fed. R. Civ. P. 37(b)(2)(A)(vii) (sanctions available for failure to abide by court-ordered discovery).
More about the Issue
To be sure, the Fifth Circuit in Af-Cap Inc., upon which the government and the DRC heavily rely, held that a contempt order requiring the Republic of Congo to pay money into the court's registry and send its business associates notice of an outstanding judgment was inconsistent with the FSIA. The court concluded that “[sections 1610 and 1611 of the FSIA] describe the available methods of attachment and execution against property of foreign states. Monetary sanctions are not included.” Af-Cap, 462 F.3d at 428. Although the Seventh Circuit in Autotech distinguished Af-Cap on the grounds that the Fifth Circuit did not purport to decide the antecedent “power” question, i.e. whether the statute precluded the contempt order, see Autotech Techs., 499 F.3d at 745, it does seem to us that the Fifth Circuit accepted the government's litigating effort to conflate the power to impose a contempt sanction with the authority to enforce it (as we noted, the government apparently filed a similarly confusing brief in that case). In any event, since the Fifth Circuit never considered the distinction between the two types of orders, we do not regard its decision as persuasive. We agree with the Seventh Circuit that contempt sanctions against a foreign sovereign are available under the FSIA.
Availability of Contempt Sanctions
In relation to the international law practice and Availability of Contempt Sanctions in this world legal Encyclopedia, please see the following section:
Nationality, Citizenship, Immigration
About this subject:
Passports
. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Authority to Determine Content of Passports to Implement Foreign Policy
Resources
See Also
- Privileges
- Immunities
- Foreign Sovereign Immunities
- Sanctions