Posted by MARTIN on September 10, 1998 at 10:45:33:
In Reply to: The Federal Zone is a HACK. Today's STATES are the political subdivisions in the United States Code. posted by MARTIN on September 08, 1998 at 23:32:17:
RESTRICTIVE THEORY OF SOVEREIGN IMMUNITY: Under the U.S. legal system, however, the scope of a foreign state's immunity is determined by judicial, rather than executive, authorities. A party to a lawsuit, including a foreign state or its agency or instrumentality, is required to present defenses such as sovereign immunity directly to the court in which the case is pending. The immunity of a State from the jurisdiction of the courts of another State is an undisputed principle of customary international law. Until the twentieth century, sovereign immunity from the jurisdiction of foreign courts seemed to have no exceptions. However, as governments increasingly engaged in state-trading and various commercial activities, it was urged that the immunity of States engaged in such activities was not required by international law, and that it was undesirable: Immunity deprived private parties that dealt with a state of their judicial remedies, and gave states an unfair advantage in competition with private commercial enterprise. The restrictive principle of immunity spread rapidly after the second world war. The United States moved to the restrictive theory in the early 1950's, and adopted it by statute in 1976 (the Foreign Sovereign Immunities Act). Under the restrictive theory of sovereign immunity, a State or State instrumentality is immune from the jurisdiction of the courts of another State, except with respect to claims arising out of activities of the kind that may be carried on by private persons. Under the restrictive theory, a State is immune from any exercise of judicial jurisdiction by another State in respect of claims arising out of governmental activities (de jure imperii); it is not immune from the exercise of such jurisdiction in respect of claims arising out of activities of a kind carried on by private persons (de jure gestionis), notably commercial activities. The U.S. Foreign Sovereign Immunities Act codifies the restrictive theory of immunity, incorporating criteria which the courts had developed in applying the theory, while codifying and applying international law. (See, Ch. 5, Restatement 3rd, Foreign Relations Law of the United States, Sec. 451-463, pp. 390, 435, American Law Institute (1986).)
FOREIGN STATE, POLITICAL SUBDIVISION, AGENCY OR INSTRUMENTALITY: Section 1330(a) of the Act gives federal district courts original jurisdiction in personam against foreign states, which are defined as including political subdivisions, agencies, and instrumentalities of foreign states. The Act provides distinct methods of service on a foreign state or political subdivision (28 USC 1608(a)) or service on an agency or instrumentality of a foreign state (28 USC 1608(b)). In order to serve the defendant, the claimant must determine into which category the defendant falls. If in doubt, a claimant should serve the defendant according to both sets of provisions. See, Born & Westin, 340-344 (1989) and George, 19 Int'l Law. 51 (1985).
The term "political subdivisions" includes all governmenal units beneath the central government, including local governments, according to the Act's legislative history. Section 1603(b) defines an "agency or instrumentality" of a foreign state as an entity (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and ----------------------------------------------
(3) which is neither a citizen of a state of the United States as defined in Sec. 1332(c) and --------------------------------------------
(d) nor created under the laws of any third country.
An instrumentality of a foreign state includes a corporation, association, or other juridical person, a majority of whose shares or other ownership interests are owned by the state, even when organized for profit. For a discussion of the responsibilities of states for the obligations of their instrumentalities, see, Restatement (Third) of the Foreign Relations Law of the United States, Sec. 452, p. 399-401 (1986). See also, the legislative history of the Act at 1976 U.S. Code Cong. & Ad. News 6614-6618, in particular, which states in part: "[A]s a general matter, entities which meet the definition of an 'agency or instrumentality of a foreign state' could assume a variety of forms, organizations, such as a shipping line or an airline, a steel company, a central bank, an export association, a governmental procurement agency or a department or ministry which acts and is suable in its own name. Id. at 6614. For a discussion of case law regarding the status of quasi-commercial entities in socialist states, See, Born & Westin, p. 343-344 (1989); See also, Note, Breaking Out of the Capitalist Paradigm: The Significance of Ideology in Determining the Sovereign Immunity of Soviet and Eastern-Bloc Commercial Entities, 2 Hous. J. Int'l. L. 425 (1980); Note, Foreign Sovereign Immunity: Communist and Socialist Organizations - Effects of State's System of Property Ownership on Determination of Agency or Instrumentality Status Under the Foreign Sovereign Immunities Act of 1976, 9 Ga. J. Int'l & Comp. L. 111 (1979); But See, Yessenin-Bolpin v. Novosti Press Agency 443 F. Supp. 849, 852 (S.D.N.Y. 1978); Outboard Marine Corp. v. Pezetel, D.C. Del. 1978, 461 F. Supp. 384; Harris v. VAO Intourist Moscow, D.C. N.Y. 1979, 481 F. Supp. 1056; United Euram Corp. v. Union of Soviet Socialist Republics, D.C N.Y. 1978, 461 F. Supp. 609; S&S Mach. Co. v. Masinenexportimport, 706 F. 2d 411 (2d Cir.), cert. denied, 464 U.S. 850 (1983); Edlow Int'l Co. v. Nuklearna Elektrarna Krsko, 441 F Supp. 827 (D.D.C. 1977); Dayton v. Czechoslovak Socialist Republic, 834 F. 2d 203 (D.C. Cir. 1987).
(see the US CODE TITLE 28, JUDICIARY AND JUDICIAL PROCEDURE; "JUDICIAL DISTRICTS" for a legal geographic area of the so-called FEDERAL ZONE
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