The issuance of an arbitral award in favour of the claimant sometimes is not the end of the road to redress. In some cases, the award debtor will not comply voluntarily with the tribunal’s order to pay compensation. In those cases, the award creditor will have to decide whether to commence recognition and enforcement proceedings and seek the attachment of assets of the award debtor to obtain satisfaction of the award. This article outlines the process for recognizing and effectively enforcing international arbitral awards in U.S. courts.

Obtaining recognition of, and attaching assets in aid of execution of an arbitral award in the United States can be a complex process involving multiple sets of statutes and procedural rules, particularly when the award debtor attempts to evade its obligations under the award by dissipating or divesting its assets. When the award debtor is a sovereign State, additional challenges arise. Whether the award debtor is a private party or a sovereign State, the award creditor would be well advised to plan in advance a strategy for enforcement of the award, including the potential attachment of assets even before the arbitral award has been recognized by a U.S. court.

Part I of this article provides an overview of the legal framework for the recognition and enforcement of international arbitral awards in the United States, examining in particular the multilateral treaties and the applicable U.S. federal legislation. Part II discusses the relevant domestic-law procedures for execution of arbitral awards against assets in the United States. Part III discusses specific limitations on execution against assets of sovereign States.

I Recognition and enforcement of international arbitral awards in the United States

A Legal framework for the recognition and enforcement of foreign arbitral awards in U.S. courts

The recognition and enforcement of international arbitral awards in the United States is based primarily on two multilateral treaties: the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’)1 and the 1975 Inter-American Convention on International Commercial Arbitration (the ‘Panama Convention’).2 The Federal Arbitration Act (the ‘FAA’)3 implements these two Conventions in the United States. <page 33>

1 The New York Convention

The United States acceded to the New York Convention in 1970.4 The Convention mandates the enforcement of an award rendered in any of the 157 sovereign States5 that are parties to the Convention by the courts of the other parties. Article I of the New York Convention defines the scope of the Convention:

This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.6

Article I thus provides that the New York Convention applies to two categories of awards: foreign and non-domestic. Foreign awards are ‘arbitral awards made in the territory of a [sovereign] State other than the [sovereign] State where the recognition and enforcement of such awards are sought’. Non-domestic awards are ‘arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought’.

The difference between a foreign and a non-domestic award is particularly relevant with respect to the possible grounds for refusal of enforcement of an arbitral award. A court may refuse to enforce a foreign award only on the basis of the limited and narrow grounds set forth in Article V of the New York Convention, discussed below.7 By contrast, non-domestic awards are subject to vacatur (set-aside) under section 10 of the FAA,8 which offers more possible means for refusal of enforcement of an award than would be the case for a foreign award under the New York Convention.

Some non-domestic awards that arise from disputes between U.S. citizens may not fall under the New York Convention unless the award: (1) involves property located abroad, (2) envisages performance or enforcement abroad, or (3) has some other reasonable relation with one or more foreign States. Such awards are subject to possible vacatur, much like non-domestic awards generally.

2 The Panama Convention

The lesser-known analog of the New York Convention is the Panama Convention. The Panama Convention was conceived as an instrument to fill the lacunae created by the non-adherence of certain Latin American States to the New York Convention.9 The Panama Convention currently has 19 ratifying sovereign States in the Americas.10 U.S. law mandates that where a majority of parties to an arbitration agreement are from signatory countries to the Panama Convention and are members of the Organization of American States (‘OAS’), the Panama Convention will take precedence over the New York Convention.11

The Panama Convention is similar to the New York Convention in several ways. In fact, some substantive provisions in the Panama Convention are taken verbatim from the New York Convention. Moreover, enforcement under both Conventions is subject to the same general procedural regime; the Panama Convention’s implementing legislation in the United States, Chapter 3 of the FAA,12 incorporates by reference sections 202, 203, 204, 205 and 207 of the FAA, which implement the New York Convention. Another similarity is that the conditions for refusing to enforce an award under the Panama Convention, set forth in Article 5 thereof, are almost identical to those of the New York Convention.13 However, some substantial differences between the two Conventions exist, one of which is that the Panama Convention does not distinguish between foreign and non-domestic awards.

3 The FAA

Although in some jurisdictions ‘confirmation,’ ‘recognition,’ and ‘enforcement’ are considered to refer to separate proceedings, in the United States these terms are often used interchangeably to signify the same proceeding: i.e. the process by which an arbitral award becomes the judgment of a U.S. court, capable of execution.14

Chapters 2 and 3 of the FAA incorporate the New York Convention and the Panama Convention, respectively, into U.S. law.15 The specific provisions governing the recognition and enforcement of awards are found in sections 207 and 304 of the FAA.16

Whereas section 9 of the FAA states that enforcement of a domestic award must be pursued within a year from the issuance of the award, section 207 provides that for the enforcement of awards under the New York and Panama Conventions the time frame is three years.

Section 207 mandates that the court ‘shall’ confirm the award ‘unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention’.17 <page_34>

B Jurisdictional requirements for the recognition and enforcement of foreign arbitral awards in U.S. courts

Although the FAA mandates the recognition and enforcement of foreign arbitral awards that fall under the New York and the Panama Conventions, the FAA does not remove the constitutional due process requirement of both personal and subject matter jurisdiction under U.S. law. Accordingly, parties seeking enforcement of awards must satisfy these requirements.

On personal jurisdiction, an award creditor seeking enforcement must prove that the award debtor has ‘minimum contacts’ with the state where enforcement is sought. This can be done by showing that either: (1) the award debtor has direct contact with the forum state (e.g. is a resident, has place of business there); (2) the award debtor has a contract with a resident of the forum state and that contract is related to the subject matter of the dispute that led to the arbitral award; (3) the award debtor has placed products into the stream of commerce such that it reaches the forum state; or (4) the litigation arises out of the arbitral debtor’s contacts within the forum state.18 Recent U.S. Supreme Court precedents have made it particularly difficult to obtain personal jurisdiction over corporations for conduct unrelated to the forum state. For example, the Supreme Court ruled recently in Daimler AG v. Bauman that Daimler, a German corporation that had a subsidiary in California, could not be sued in California for the conduct of its Argentine subsidiary.19 Due to the complex and fluid nature of the jurisprudence related to this area of U.S. law, practitioners should consult with experienced U.S. counsel regarding the particular circumstances of their case to ensure that they avoid potential pitfalls.

U.S. courts are divided on whether in rem jurisdiction satisfies the U.S. constitutional requirements of personal jurisdiction. Some courts have concluded that having assets located within the physical jurisdiction of the forum state is insufficient, especially if the assets are unrelated to the underlying commercial relationship that led to the dispute.20 Other courts, however, have disagreed.21

With regard to subject matter jurisdiction, the requirement is more easily met, as the FAA expressly grants subject matter jurisdiction to actions related to the New York Convention and the Panama Convention.22

C Procedures for filing in a U.S. court to enforce an arbitral award

Section 13 of the FAA specifies the documents that an award creditor must file, namely:

• The agreement; the selection or appointment, if any, of an additional arbitrator or umpire; and each written extension of the time, if any, within which to make the award.

• The award.

• Each notice, affidavit, or other paper used upon an application to confirm, modify, or correct the award, and a copy of each order of the court upon such an application.23

In addition to the documents listed above, if the award was rendered in a language other than English, the award creditor should check if there are any pertinent rules of the competent U.S. court regarding translations.24 It is also advisable that the award holder follow scrupulously the service of process rules delineated in section 9 of the FAA,25 as well as the Federal Rules of Civil Procedure.

Finally, pursuant to section 6 of the FAA, the application to enforce the arbitral award should be submitted as a motion or as a petition, and not as a complaint.26 Submission as a motion or petition distinguishes the action from a typical civil lawsuit, which requires the fulfillment of numerous procedural hurdles inapplicable to enforcement actions.

D Grounds for non-recognition

Article V of the New York Convention and Article 5 of the Panama Convention set forth the grounds on the basis of which a domestic court may refuse the recognition of an arbitral award. The grounds for non-recognition are substantially similar in both Conventions. Article V of the New York Convention states that recognition and enforcement may be refused if the award debtor can prove that:

(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or <page_35>

(c) The award deals with a difference beyond the scope of the arbitration agreement; or

(d) The arbitral tribunal was improperly constituted; or

(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made; or

(f) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

(g) The recognition or enforcement of the award would be contrary to the public policy of that country.

Article V of the New York Convention also provides that the recognition and execution of an arbitral decision may be refused if the court finds:

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

(b) The recognition or enforcement of the award would be contrary to the public policy of that country.

1 Forum non conveniens

An ancillary basis for dismissal of an application for enforcement of a foreign arbitral award is the forum non conveniens doctrine. Pursuant to this doctrine, the court may dismiss the case—even if it otherwise has jurisdiction—if there is a more appropriate forum to hear the case than that chosen by the award creditor. Factors for the court to consider include: (1) the availability/location of witnesses; (2) the location of relevant evidence; (3) hardship for the defendant; and (4) questions of public policy.

Despite the invocation of this doctrine by many non-U.S. award debtors in the context of proceedings before U.S. courts, the instances where it has been successfully invoked and led to dismissals are the exception rather than the rule. In general, U.S. courts do not hold forum non conveniens as a bar to enforcement proceedings, but the U.S. Court of Appeals for the Second Circuit has done so in a few instances, finding dismissal of the case to be, on balance, more appropriate.27

2 Postponement of execution

As stated in Article VI of the New York Convention (and similarly also in Article 6 of the Panama Convention) a U.S. court could postpone a decision on an enforcement petition where an action to set aside the award is pending in a court at the seat of the arbitration. Article VI of the New York Convention states:

If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V (1) (e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.28

In practice, based on these provisions of the New York and Panama Conventions, U.S. courts will generally refuse to enforce an award that has been set aside at the seat.29 Recently, however, the U.S. Court of Appeals for the Second Circuit broke from that trend. In a 2016 ruling in Corporacion Mexicana de Mantenimiento Integral, S de RL de CV (‘Commisa’) v. Pemex-Exploracion y Produccion (‘Pemex’),30 that Court of Appeals upheld the decision of the District Court of the Southern District of New York, dated 27 August 2013, whereby the latter confirmed an award that Commisa had obtained against Pemex in an ICC arbitration seated in Mexico, notwithstanding the Mexican courts’ nullification of that award in 2011.

The Court of Appeals for the Second Circuit observed that the Panama Convention appears to grant domestic courts ‘unfettered discretion’ to enforce nullified awards: Article 5(e) of the Panama Convention provides that enforcement ‘may be refused’ if one of the defenses to recognition is established.31 While international comity ordinarily requires U.S. courts to treat foreign judgments (including judgments nullifying arbitral awards) as conclusive, they may decline to do so if ‘enforcement of the [foreign] judgment would offend the public policy’ of the United States.32 The Court of Appeals emphasized that this public policy exception is a high bar; it requires that recognizing a nullified award ‘vindicate ‘fundamental notions of what is decent and just’ in the United States’.33 The Court of Appeals found that the standard was met in that case. Pemex has appealed to the U.S. Supreme Court; the Court has not yet decided whether to review the case.

E Recognition and enforcement of ICSID awards

U.S. courts recognize and enforce awards rendered pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ‘ICSID Convention’). The ICSID Convention, ratified by 153 Contracting States and in <page_36> force since 1966,34 establishes the legal framework for the settlement of investment disputes between foreign investors and sovereign States that have consented to international arbitration pursuant to the ICSID Convention. Article 54 of the ICSID Convention imposes on all its Contracting States the obligation to enforce the award ‘as if it were a final judgment of a court in that State’.35 It states, in paragraph (1):

Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.36

Article 54 ‘does not prescribe any particular method to be followed in its domestic implementation, but requires each Contracting State to meet the requirements of the Article in accordance with its own legal system’.37 It states, in paragraph (3):

Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.

Article 54(2) requires the party seeking recognition or enforcement of an award to furnish to the competent court or other designated authority of the Contracting State where recognition or enforcement is sought a copy of the award certified by the ICSID Secretary-General.38

As a result of these provisions, the process of enforcing ICSID awards is—at least on paper—relatively straightforward.39 In practice, however, many domestic courts (including U.S. courts) do not have experience in dealing with applications to recognize or enforce ICSID awards, so the actual process may require some extra attention and discussion with the court.

In the United States, a split is emerging between federal courts in New York, on the one hand, and in Washington, D.C., on the other hand, with respect to whether ICSID awards may be enforced through ex parte proceedings. While New York courts allow ex parte enforcement proceedings,40 the U.S. District Court for the District of Columbia in Micula v. Romania held that a judgment debtor must file a plenary proceeding (as opposed to an ex parte action).41 The court in Micula explained that the ICSID Convention does not specify what judicial procedure should be used to enforce an ICSID award. Consequently, the court found that it needed to look to state law to supply the relevant procedural rules, and that in debt-collection actions state law required the use of a plenary proceeding instead of simply an ex parte application.42 The question whether recognition proceedings are ex parte has important practical consequences. In ex parte proceedings, the creditor’s application is considered by the court without notice to the debtor, or without giving the debtor an opportunity to present a defense or counterarguments. A plenary proceeding, on the other hand, would give both parties the opportunity to be heard, via briefs, or a hearing—and, importantly, would also provide the debtor notice that the creditor is intending to initiate execution proceedings.

Claimants seeking to enforce ICSID awards (or indeed arbitral awards from other fora) must deal with the additional challenge posed by sovereign immunity under international and domestic law. Indeed, Article 55 of the ICSID Convention clarifies that nothing in Article 54 (concerning the obligation to recognize and enforce ICSID awards) shall be construed as derogating from any Contracting State’s laws on sovereign immunity from execution.43 The U.S. law on sovereign immunity is discussed in Part III below.

II Procedures for executing a confirmed award

Once the award obtains recognition through the appropriate procedure before a U.S. court, it becomes a domestic judgment in the United States and is therefore subject to domestic procedures and rules on execution of judgments. This Part focuses on the process for executing a confirmed arbitral award in U.S. courts.44

A Pre-recognition remedies as a precautionary measure to aid enforcement

As will become clear in the discussion below, pursuing post-recognition remedies in aid of execution of a confirmed award may be time consuming due to automatic stays of enforcement, waiting periods during discovery, and various practical delays. There is thus the risk that an award debtor will dissipate or divest its assets before the creditor is permitted to begin execution proceedings or before the creditor has identified assets against which to execute. Certain jurisdictions have rules to prevent debtors from evading execution efforts (as will be discussed below). But in many cases, if the debtor dissipates or divests assets during the automatic stay period, the remedy is a state-<page_37>law action for fraudulent transfer. Because the creditor’s recourse in the event of dissipation of assets will likely entail the burden and expense of additional litigation, it is advisable to plan in advance for enforcement efforts, including by seeking pre-recognition remedies, where available. Pre-recognition attachment offers the further possible advantage of gaining priority over other creditors competing for a limited pool of assets.

While the exact remedies available vary from jurisdiction to jurisdiction, common remedies include attachment and garnishment. A writ of attachment is a court order that prevents a (potential) debtor from transferring or selling property subject to seizure (such as equipment) to hide it from eventual creditors. A writ of garnishment is similar to a writ of attachment, except that it operates against third parties: the court orders a third party (most commonly, a bank) that holds assets belonging to the debtor to restrain or surrender those assets to ensure satisfaction of the creditor’s claim against the debtor.45

Like post-recognition execution (discussed below), pre-recognition attachment is governed by state law. Even in federal courts, the law of the state where the federal court is located supplies the available remedies for seizing property to secure satisfaction of a potential award.46

While the precise standards and procedures vary from state to state, pre-judgment attachment generally requires the existence of a suit for damages, identification of specific property of the defendant to which the plaintiff claims a legal right, and a showing of some need to secure the property prior to the conclusion of the lawsuit—including that the defendant resides outside the state, or has fraudulently transferred assets in order to evade enforcement of the award (or may imminently do so).47

Not all jurisdictions have specifically considered whether pre-judgment attachment is available in the context of international arbitration proceedings. New York courts, at least, have permitted attachment before recognition of an award and even in anticipation of an arbitral award.48 Note, however, that the Foreign Sovereign Immunities Act (‘FSIA’),49 the comprehensive legal framework for foreign sovereign immunity in U.S. courts, severely limits pre-judgment attachment against foreign sovereign property—even more so than with respect to post-judgment attachment. For instance, whereas the FSIA permits attachment of sovereign property post-judgment where the State has implicitly waived its sovereign immunity (discussed in more detail below), the FSIA permits pre-judgment attachment against sovereign property only where the State has explicitly waived immunity from pre-judgment attachment and the purpose of the attachment is to secure satisfaction of a potential judgment rather than to obtain jurisdiction.50

B Automatic stay of execution of an award

Many jurisdictions impose an automatic stay of execution (of any judgment), which prevents a creditor from moving immediately to execute an award. (The automatic stay has no effect on an existing pre-judgment writ of attachment or garnishment.) For proceedings in federal courts, the Federal Rules of Civil Procedure provide for a 14-day stay.51 In state courts, a different stay period may apply, so creditors should check the applicable rules. The District of Columbia, for instance, provides for an automatic stay period of ten days.52 In Texas, on the other hand, execution generally may not begin within 30 days from judgment,53 unless the creditor files an affidavit stating that the debtor is attempting to transfer property out of the country or effect a fraudulent transfer.54

In general, the purpose of an automatic stay is to afford the debtor an opportunity to move for post-judgment relief or to appeal before becoming subject to execution proceedings. Under Rule 60(b) of the Federal Rules of Civil Procedure, for example, a party may seek relief from a final judgment, order, or proceeding on the grounds of, for instance: mistake, fraud, newly discovered evidence, or the fact that the judgment is void or has already been satisfied. While confirmed arbitral awards are not subject to appeal on the merits, an award debtor may seek relief from the confirmed award under Rule 60(b). For example, the debtor might file a motion under Rule 60(b) for relief from an order confirming the award on the ground that the court lacked jurisdiction.55 The automatic stay period provides the debtor a chance to do so.

In any event, it is important to bear in mind that by the end of the automatic stay period, the award debtor will be aware that the award has been confirmed by a U.S. court and that the creditor is likely to commence execution proceedings. That is either because the particular jurisdiction does not permit ex parte proceedings for confirmation (as is the case in the federal district court for the District of Columbia56), or because ex parte confirmation proceedings have ended, the award has been confirmed, and the award debtor has been informed pursuant to state law that judgment has issued (i.e. that the award has been confirmed).57 The automatic stay rules protect debtors from being unfairly surprised by execution proceedings on a recognized award or other judgment of which they have no notice. But they also create the possibility that <page_38> a debtor will try to evade payment of the obligation under an arbitral award by dissipating or divesting its assets during the automatic stay period.

C Post-recognition discovery: identifying assets for attachment and possible execution

After the stay period elapses, execution proper may begin. The procedures for execution of a recognized award are governed by state law. This is true even where execution is sought in federal courts: proceedings ‘must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies’.58

The first step is to identify assets against which to execute the award. The Federal Rules of Civil Procedure permit post-recognition discovery in aid of execution.59 The award creditor can require the debtor to disclose all information reasonably calculated to lead to evidence of the debtor’s assets.

Post-judgment discovery is generally ‘permissive’, with no special exceptions for foreign sovereigns, foreign sovereign immunity notwithstanding. Indeed, in Republic of Argentina v. NML, the U.S. Supreme Court rejected Argentina’s argument that sovereign immunity limited the scope of post-judgment discovery.60 As the Court explained, nothing in the FSIA addresses discovery proceedings. Thus, while some sovereign property is immune from execution, creditors may seek discovery in order to identify sovereign property that is subject to execution.

In federal courts, the creditor may choose to proceed under either federal or state discovery rules. State rules may be more generous in certain respects. For example, in Texas there are no restrictions on the number of interrogatories in post-judgment discovery proceedings, whereas the Federal Rules limit interrogatories to 25 per side. Nevertheless, in federal courts it is ‘customary to proceed under the federal rules’.61 Moreover, federal trial judges are more likely to be familiar with the federal discovery rules, which may weigh against opting for state discovery rules.

A party generally has 30 days to respond to discovery requests under the Federal Rules (the time periods may vary under state rules). In post-recognition situations where there is a suspicion that the debtor is dissipating assets, these delays can be significant. It is therefore advisable, as mentioned above, to try to secure pre-recognition attachment where possible—or at least to try to identify the debtor’s assets in advance of an award.

D Execution against identified assets

State law generally defines which assets are subject to execution. Most states permit execution against goods, property, and credits.62 States generally exempt from execution some kinds of personal property, as well as ‘homestead property’ (i.e. the debtor’s actual primary residence).63 Specific federal statutes also exempt certain property from execution, such as retirement or disability benefits or annuities. These exemptions are relatively unlikely to come into play in the commercial context. In any event, the debtor bears the burden to prove that the property falls within an exemption.64 In addition, certain property belonging to foreign sovereign property is immune from execution under the FSIA, as will be discussed in more detail in Part III.

Specific enforcement mechanisms and procedures vary from state to state. The creditor should consult the relevant rules to determine what mechanisms are available and appropriate given the particular situation and facts—first and foremost, in which states assets of the award debtor are likely to be found. In addition, the creditor should enquire whether proceedings may be filed ex parte. While, as discussed above, the confirmation proceedings probably already placed the debtor on notice that the creditor was planning to execute on the award, ex parte execution proceedings can help preserve at least a certain degree of surprise. The following subsections briefly describe a few examples of the potential mechanisms in New York, Texas, and the District of Columbia.

With one or two notable exceptions mentioned below, case law regarding execution of international arbitral awards is sparse. Many domestic courts deal very rarely with recognition and execution of foreign awards, and most execution efforts in any context are unlikely to result in published opinions.

1 New York

Restraining notice. The restraining notice is an important procedural device. Served without court leave, a restraining notice prevents the debtor or a third party from assigning or transferring any property in which the judgment debtor has an interest. In essence, the restraining notice freezes property while the creditor uses other devices to exercise its interest (in this context, satisfaction of the award) on that property.65

Property execution. A property execution directs an authorized official to seize and sell property in which the debtor has an interest.66 Property executions are often used to seize funds in the debtor’s bank accounts. <page_39>

Turnover order. A turnover order allows a creditor to execute on property in which the debtor has an interest but which is in the possession of a third party (most commonly, a bank holding assets of the debtor). The court must find that the debtor is entitled to possess the property, or that the creditor has rights in the property superior to those of the third party that holds the property.67

There has been some uncertainty in the past several years regarding whether a turnover order in New York can reach property located in bank branches outside the United States. In Koehler v. Bank of Bermuda, the New York Court of Appeal (the highest court in New York state) held that a turnover order could be used to obtain assets held by a foreign branch of a foreign bank over which the court had personal jurisdiction because the bank had a U.S. subsidiary in New York.68 Nevertheless, just five years later, the same New York Court of Appeal in Motorola Credit Corp. v. Standard Chartered Bank, practically retreated from its earlier ruling in Koehler by reaffirming the ‘separate entity rule’, a New York state law doctrine that many courts and commentators believed Koehler had abrogated.69 Under that separate entity rule, ‘even when a bank garnishee with a New York branch is subject to personal jurisdiction, its other branches are to be treated as separate entities for certain purposes, particularly with respect to … prejudgment attachments and … postjudgment restraining notices and turnover orders.’ In Motorola Credit, the New York Court of Appeal held that the separate entity rule ‘prevents a judgment creditor from ordering a garnishee bank operating branches in New York to restrain a judgment debtor’s assets held in foreign branches of the bank’.70

2 District of Columbia

Writ of attachment. A writ of attachment effectively freezes or seizes property to maintain the status quo. The creditor may attach property held by the debtor, as well as property held by a third party (for example, a bank).71

Writ of fieri facias (writ of execution). A writ of fieri facias, also known as a ‘writ of execution’, orders a marshal or other officer to seize property to satisfy the judgment.72 The writ may be levied on all goods and personal property not exempt from execution, as well as ‘money, bills, checks, promissory notes, or bonds, or certificates of stock in corporations owned by the debtor’.73 Real property may not be seized as long as goods and chattels are sufficient to pay the judgment and the debtor is ready to satisfy the debt.74

3 Texas

Abstract of judgment. A creditor can create a judgment lien on any non-exempt real estate by filing the judgment with the county clerk in any Texas county where the debtor has real estate. This has the effect of imposing a lien on all non-exempt real property in that county. The creditor need not describe a specific piece of property, and may file in multiple counties.75

Writ of execution. A writ of execution directs the sheriff to sell property of the judgment debtor in order to satisfy the judgment. A creditor may obtain a writ of execution once 30 days have passed from final judgment.76 Nevertheless, the writ may be issued prior to 30 days from judgment upon filing an affidavit that the judgment debtor is attempting to remove property from the country or is about to effect a fraudulent transfer.77

Writ of garnishment. A creditor may obtain a writ of garnishment where there is no property in Texas subject to execution sufficient to satisfy the judgment. The purpose of garnishment is to order a third party (such as a bank) that holds property belonging to the debtor to pay the creditor to satisfy the judgment. The debtor’s bank account is generally frozen as soon as garnishment proceedings begin.78

Turnover order. A creditor may initiate court proceedings to reach property in satisfaction of judgment, where property cannot readily be attached or levied by ordinary legal process. A court may order the debtor to ‘turn over’ to an officer or receiver for execution any property (including contract rights receivable, accounts receivable, or other rights to money at a future date).79 Note that the turnover procedure is not an exclusive or comprehensive remedy, and the creditor will often need to use additional mechanisms (such as a temporary restraining order or a writ of garnishment) to prevent dissipation of assets.

Many of the mechanisms described above under each of the three sample states involve standard procedures and routine form filings, but strict adherence to the governing rules is essential. Pursuit of such remedies will likely alert the debtor to the creditor’s collection strategy and trigger efforts to dissipate or divest assets. Moving for writs of garnishment or other relief ex parte, where permitted by the local rules, can help conceal specific details of the creditor’s plans. In practice, however, the debtor may be notified (at least in federal courts that use an electronic filing system that includes automatic electronic notifications to the parties) that the creditor has made a filing under seal with the court. <page_40>

Because the creditor may therefore have only one shot at these remedies before the debtor moves to dissipate assets, it is critical to follow the procedures correctly the first time. Creditors should carefully consult the applicable procedures and seek advice from counsel familiar with the local courts and experienced in executing international arbitral awards or other foreign judgments.

III Specific limitations on attachment of assets of foreign sovereign States

As explained in Part II, executing an international arbitral award in U.S. courts is an intricate process. In cases involving awards against foreign sovereign States, these procedural details are further complicated by special jurisdictional rules, under local and international law, limiting attachment of assets of foreign sovereign States.

The FSIA is the sole means of obtaining jurisdiction over a foreign sovereign State in U.S. courts.80 The FSIA recognizes two separate immunity inquiries: immunity from jurisdiction and immunity from enforcement. The first inquiry concerns whether a U.S. court may exercise jurisdiction over the foreign sovereign in the first place; the second asks whether the court, having assumed jurisdiction, may order execution against the foreign sovereign’s assets.81 The FSIA is thus consistent with public international law recognizing and distinguishing between the two types of immunity.82

A Sovereign immunity from jurisdiction

Under the FSIA, foreign sovereign States are presumptively immune from jurisdiction unless an express exception enumerated in the statute applies.83 Section 1605(a)(6)(B) of the FSIA provides such an exception for actions to enforce foreign arbitral awards. That section specifically provides that foreign sovereign States are not immune from jurisdiction in any action to confirm an arbitral award governed by a treaty in force for the United States calling for the recognition and enforcement of arbitral awards; such treaties include the New York Convention, the Panama Convention, and the ICSID Convention, discussed in Part I. Section 1605(a)(6) has been used to establish jurisdiction on numerous occasions in cases involving enforcement under the New York Convention.84 Courts also have held that section 1605(a)(6)(B) confers jurisdiction in cases involving enforcement of ICSID awards.85

If one of the exceptions to sovereign immunity under the FSIA applies, a U.S. court will have subject matter jurisdiction over the sovereign. In addition to subject matter jurisdiction, the creditor must still establish that the court has personal jurisdiction over the sovereign. In practice, this simply means establishing that the foreign sovereign was validly served under 28 U.S.C. § 1608(a).86 In this respect, the personal jurisdiction inquiry differs significantly from the general rules regarding non-sovereign defendants in U.S. courts. For example, the usual minimum-contacts inquiries required for non-sovereign defendants do not apply when the defendant is a sovereign State.87 Whether the same applies to ‘political subdivisions’ and ‘agencies and instrumentalities’ of foreign sovereign States, however, may depend on the foreign State’s degree of control over the entity in question.88

B Sovereign immunity from execution

Even if a foreign sovereign State cannot claim immunity from jurisdiction in an action to enforce an award, under section 1609 of the FSIA the sovereign’s property is ‘immune from attachment, arrest and execution’, except as specifically provided in sections 1610 and 1611. Section 1609 thus sets forth a ‘default presumption’ of immunity that the creditor must defeat. ‘[W]here the plaintiff seeks to attach property of the foreign state itself, immunity is presumed and the court must find an exception … not as a jurisdictional matter but to give effect to the statutory scheme.’89

Section 1610 lists specific exceptions to the general presumption of immunity. Under section 1610(a), ‘[t]he property in the United States of a foreign state … used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution’ if at least one of seven enumerated conditions is satisfied. Thus, the creditor must establish (1) that the property is in the United States; (2) that the property is ‘used for a commercial activity in the United States’ and (3) that one of the seven criteria in section 1610(a) applies. Thus, for example, the U.S. district court for the Southern District of New York in Liberian Eastern Timber Corporation (‘LETCO’) v. Republic of Liberia held that certain fees and taxes due to the Liberian government were immune from attachment. Those assets were ‘designed to raise revenues for the Republic of Liberia and, as such, [were] sovereign not commercial assets . . . and thus immune from execution’.90 The court enjoined LETCO from executing against registry taxes and fees, but stated that the company could execute its judgment against ‘any properties which are used for commercial activities and that may fall within one of the exceptions delineated in section 1610’.91 LETCO subsequently attempted to execute against bank accounts of the Embassy of Liberia, but the U.S. district court for the District of Columbia held that those accounts were <page_41> immune from attachment under both the Vienna Convention on Diplomatic Relations and the FSIA.92 In relation to the latter, the court followed ‘the narrow definition of "commercial activity’’’ (discussed below) and held that ‘[t]he essential character of the activity for which the funds in the [Embassy’s bank] accounts are used, therefore, undoubtedly is of a public or governmental nature because only a governmental entity may use funds to perform the functions unique to an embassy’.93

In the context of enforcement of arbitral awards, it is usually not difficult to satisfy one of the seven criteria enumerated under section 1610(a). Section 1610(a)(1) contains an exception for cases where ‘the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication’. Courts have held that consent to arbitration implicitly waives immunity from attachment.94 And section 1610(a)(3) contains an exception where ‘the execution relates to a judgment establishing rights in property which has been taken in violation of international law …’ Section 1610(a)(6) contains an exception for execution where ‘the judgment is based on an order confirming an arbitral award rendered against the foreign state, provided that attachment in aid of execution, or execution, would not be inconsistent with any provision in the arbitral agreement’. In sum, in cases involving arbitral awards against foreign sovereigns, there are likely to be numerous applicable exceptions.

The other two requirements under section 1610(a) (i.e. (1) whether property is located ‘in the United States’ and (2) ‘used for commercial activity in the United States’) are more difficult to satisfy. The situs of sovereign property may be a complicated question, particularly when the property consists of future interests or intangible property.95 In recent years, courts have generally agreed that a foreign State’s rights to payment from third-party debtors are deemed to be located in the United States, and therefore potentially subject to attachment, if the debtors themselves are located in the United States.96

As regards the ‘used for commercial activity in the United States’ requirement under section 1610(a), U.S. courts have read it very strictly. In defining ‘commercial activity’, the basic inquiry is whether a private person could have engaged in the same type of activity.97 Under that test, commercial assets related to diplomatic activity are immune.98 In addition, the assets must be used for commercial activity by the foreign State itself, rather than by a third party.99 Thus, for example, the commercial activities of private corporations that manage sovereign assets do not provide a basis for jurisdiction.

The U.S. Court of Appeals for the Fifth Circuit explained in a case against the Republic of the Congo that ‘what matters under the statute is what the property is "used for," not how it was generated or produced. If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income. Conversely, even if a foreign state’s property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not "used for" a commercial activity within [U.S.] borders.’100 In that case, the U.S. Court of Appeals for the Fifth Circuit remanded to the district court to consider whether royalty and tax payments owed by oil companies to the Congolese government were in fact "used in" the United States for commercial purposes by the Republic of the Congo. Applying these principles, numerous other U.S. courts have similarly held that funds that might have originated from commercial transactions but that are used for public, sovereign purposes are immune from execution.101 Indeed, at least one court has even held that, even though bond offerings are per se commercial activity, the proceeds of bond offerings are not subject to execution, absent evidence that the foreign State used the proceeds for commercial activity.102

Section 1611 of the FSIA sets forth exceptions to the exceptions under section 1610. Notably, under section 1611, property of a foreign central bank or monetary authority held for its own account, as well as military property, is immune from execution even if it would otherwise qualify for one of the exceptions to immunity in section 1610 mentioned above.

Overall, attaching a sovereign State’s assets in the United States can pose significant challenges, given the numerous conditions that a creditor must satisfy in order to establish that the sovereign property is subject to execution and the manner in with which the courts have interpreted those conditions. By contrast, the standards for attachment are less stringent with respect to property of an instrumentality or agency of a foreign sovereign State. Under section 1610(b), property located in the United States of a foreign sovereign State agency or instrumentality that is engaged in commercial activity in the United States is not immune from execution if the agency has explicitly or implicitly <page_42> waived its immunity and if the judgment relates to certain claims for which the agency or instrumentality was not immune from suit under the FSIA.

Whether the assets of a State-owned enterprise are subject to attachment and execution to satisfy a particular award against the State depends not only on the question of immunity under the FSIA, but also on the substantive law of liability—i.e. whether it is appropriate to attribute liability among the State and its instrumentalities. The U.S. Supreme Court has held that ‘[d]ue respect for the actions taken by foreign sovereigns and for principles of comity between nations’ means that ‘the government and its instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such’.103 A party can defeat the presumption of separate juridical status by showing that the entity is ‘so extensively controlled by its owner that a relationship of principal and agent is created’, or that treating an instrumentality as a separate juridical entity would result in ‘fraud or injustice’.104 This is a heavy presumption that is difficult to rebut. Even sole state ownership of an entity combined with limited supervision is insufficient.105 Courts generally require that the State exercise a high degree of control over the entity’s activities (such as supervision of routine business decisions, including paying dividends and honoring contracts, approving invoices).106

Concluding remark

The international legal framework established by the New York Convention, the Panama Convention and the ICSID Convention, discussed above, facilitates the recognition and enforcement of international arbitral awards in the United States and in other sovereign States that are parties to those treaties. In important ways, they make enforcing arbitral awards issued by international tribunals less challenging than enforcing judgments issued by standing judicial bodies of other sovereign States. That fact does not mean, however, that the specific procedure for the recognition and enforcement of international arbitral awards is without procedural and practical intricacies. Award creditors, and even claimants that reasonably anticipate a favorable arbitral award, can and should take certain steps to minimize the difficulties and complications that they are likely to face in their efforts to secure recognition and enforcement of the arbitral award by U.S. courts. Charting an enforcement strategy in advance, in consultation with specialized counsel, will undoubtedly improve the award creditor’s chances of obtaining satisfaction of the award. This is particularly true where the award debtor cannot be expected to comply voluntarily with the award and may even attempt to dissipate or divest its assets. In those situations, discovery of assets for their attachment, either before or after recognition of the award by the U.S. court, becomes advisable. In addition, where the award debtor is a sovereign State, sovereign immunity defenses under FSIA must be anticipated and should inform the award creditor’s enforcement, and even its litigation, strategy.

1
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 21 U.S.T. 2517, TIAS No. 6997.

2
Inter-American Convention on International Commercial Arbitration, 30 Jan. 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336.

3
9 U.S.C. §§ 201–208 for the New York Convention; §§ 301–307 for the Panama Convention.

4
See United Nations Commission on International Trade Law website, www.uncitral.org, UNCITRAL Texts and Status.

5
See Contracting States, New York Convention, available at www.newyorkconvention.org/countries.

6
New York Convention, Art. I(1).

7
New York Convention, Art. V.

8
9 U.S.C. § 10.

9
Dean, Danielle & Chelsea Masters, ‘"In the Canal Zone": the Panama Convention and its Relevance in the United States Today’, The Arbitration Brief 2, No. 1 (2012), 90 at 91–2, available at: www.digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1030&context=ab.

10
See Organization of American States website, www.oas.org/juridico/english/sigs/b-35.html.

11
9 U.S.C. § 305.

12
9 U.S.C. §§ 301–30.

13
Panama Convention, Art. 5.

14
See e.g. Jiangsu Changlong Chems, Co. v. Burlington Bio-Medical & Sci. Corp., 399 F. Supp. 2d 165, 168 (E.D.N.Y. 2005).

15
9 U.S.C. §§ 201–8 for the New York Convention; §§ 301–7 for the Panama Convention.

16
9 U.S.C. §§ 9, 207, 304.

17
9 U.S.C. § 207.

18
LexisPSL Arbitration, ‘Enforcing a New York Convention award in the USA’, at 3.

19
Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

20
See e.g. Base Metal Trading v OJSC Novokuznetsky Aluminum Factory, 283 F.3d 208, 213 (4th Cir. 2002).

21
See e.g. CME Media Enterprises BV v. Zelezny, No. 01-cv-1733, 2001 WL 1035138, at *3 (SDNY Sept. 10, 2001).

22
9 U.S.C. § 203 (‘An action or proceeding falling under the [New York] Convention shall be deemed to arise under the laws and treaties of the United States. The district courts of the United States (including the courts enumerated in section 460 of title 28) shall have original jurisdiction over such an action or proceeding, regardless of the amount in controversy.’); 9 U.S.C. § 302 (‘Sections 202, 203, 204, 205, and 207 of this title shall apply to this chapter as if specifically set forth herein, except that for the purposes of this chapter "the Convention" shall mean the Inter-American Convention.’).

23
9 U.S.C. § 13. For an overview of enforcement procedure generally, see the amended decision dated 2 Mar. 2017 in CBF Indústria De Gusa SA v. AMCI Holdings Inc., No. 15-1133 (2d Cir. 2017).

24
LexisPSL Arbitration, ‘Enforcing a New York Convention award in the USA’, at 3. The federal court system does not have specific requirements for translations, nor is there any federal statute setting forth translation requirements. The federal court system does not ‘certify’ translators.

25
9 U.S.C. § 9.

26
9 U.S.C. § 6.

27
Global Arbitration Review, The Arbitration Review of the Americas 2017, at 28; see also In re Arbitration between Monegasque de Reassurances SAM v. Nak Naftogaz of Ukraine (Monde Re) 158 F. Supp. 2d 377 (S.D.N.Y. 2001); Figueiredo Ferraz E Engenharia de Projeto Ltda v. Republic of Peru (Figueiredo), 665 F.3d 384 (2d Cir. 2011).

28
New York Convention, Art. VI.

29
See, e.g., TermoRio S.A. v. Electranta S.P., 487 F.3d 928, 938-39 (D.C. Cir. 2007); Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd., 191 F.3d 194, 198 (2d Cir. 1999).

30
Corporacion Mexicana de Mantenimiento Integral, S de RL de CV v. Pemex-Exploracion y Produccion, 832 F.3d 92 (2d Cir. 2016).

31
Ibid. at 105–6.

32
Ibid. at 106.

33
Ibid. at 107.

34
See Database of ICSID Member States, available at https://icsid.worldbank.org/en/Pages/about/Database-of-Member-States.aspx.

35
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter ICSID Convention), Art. 54(1), available at: www.icsid.worldbank.org/en/Documents/icsiddocs/ICSID%20Convention%20English.pdf.

36
ICSID Convention, Art. 54.

37
Report of the Executive Directors on the Convention, at 47, available at www.icsid.worldbank.org/en/Documents/icsiddocs/ICSID%20Convention%20English.pdf.

38
ICSID Convention, Art. 54.

39
A.C. Smutny, A.D. Smith & M Pitt, ‘Enforcement of ICSID Convention Arbitral Awards in U.S. Courts’, 43 Pepperdine L. Rev. 649 (2016).

40
Mobil Cerro Negro Ltd. v. Bolivarian Republic of Venezuela, 87 F. Supp. 3d 573 (S.D.N.Y. 2015) (finding that the ICSID Convention permitted the application of New York State procedures for judgment enforcement actions, which allowed for the use of ex parte proceedings).

41
See Micula v. Romania, 104 F. Supp. 3d 42 (D.D.C. 2015).

42
Ibid. at 49.

43
ICSID Convention, Art. 54.

44
For clarity, this section will use the term pre/post-recognition instead of pre/post-judgment, and award instead of judgment, where appropriate and unless the context requires additional specification.

45
The creditor in garnishment proceedings is the garnishor and the third party is the garnishee.

46
Fed. R. Civ. P. 64.

47
See e.g. N.Y. C.P.L.R. § 6201; D.C. Code § 16-501 et seq.; Tex. R. Civ. P. 659.

48
Sojitz Corp. v. Prithvi Info. Solutions Ltd, 921 N.Y.S.2d 14, 15 (N.Y. App. Div. 2011); see N.Y. C.P.L.R. § 7502.

49
28 U.S.C. §§ 1602–11.

50
28 U.S.C. § 1610(d); see Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255, 261 (2d Cir. 2003).

51
Fed. R. Civ. P. 62(a).

52
D.C. R. Civ. P. 62(a).

53
Tex. R. Civ. P. 627.

54
Tex. R. Civ. P. 628.

55
See e.g. Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329, 1330 (11th Cir. 2015) (granting relief from order confirming arbitral award under Rule 60(b) for lack of jurisdiction); Aurum Asset Managers, LLC v. Bradesco Compagnia de Seguros, 441 F. App’x 822, 824-25 (3d Cir. 2011) (affirming decision to vacate order confirming arbitral award under Rule 60(b) for lack of jurisdiction).

56
See Micula v. Romania, 104 F. Supp. 3d 42 (D.D.C. 2015). The Southern District of New York takes the opposite approach. Mobil Cerro Negro Ltd. v. Bolivarian Republic of Venezuela, 87 F. Supp. 3d 573 (S.D.N.Y. 2015).

57
See e.g. N.Y. C.P.L.R. § 54 (requiring service on the debtor within 30 days of the filing of the judgment and stating that proceeds of an execution may not be distributed earlier than 30 days after proof of service).

58
See Fed. R. Civ. P. 69(a).

59
Fed. R. Civ. P. 69(a).

60
134 S. Ct. 2250 (2014).

61
Wright & Miller, 12 Fed. Prac. & Proc. Civ. § 3014.

62
N.Y. C.P.L.R. § 5205, D.C. Code § 16-544.

63
N.Y. C.P.L.R. §§ 5205–6; D.C. Code § 15-501.

64
See Lozano v. Lozano, 975 S.W.2d 63, 67 (Tex.App.-Hous. [14th Dist.] 1998).

65
N.Y. C.P.L.R. § 5222.

66
N.Y. C.P.L.R. § 5230; Ladjevardian v. Republic of Argentina, 2016 WL 3039189 (S.D.N.Y. May 26, 2016).

67
N.Y. C.P.L.R. § 5225(b); Ladjevardian, 2016 WL 3039189.

68
911 N.E.2d 825 (N.Y. Ct. App. 2009).

69
21 N.E.3d 223 (N.Y. Ct. App. 2014).

70
Ibid. at 224.

71
See D.C. Code §§ 16-541 et seq.

72
D.C. Code § 15-311.

73
D.C. Code § 15-311.

74
D.C. Code § 15-323.

75
Tex. Property Code §§ 52.001 et seq.

76
Tex. R. Civ. P. 627.

77
Tex. R. Civ. P. 628.

78
See Tex. Civ. Prac. & Rem. Code § 63.001(3); Tex. R. Civ. P. 668.

79
Tex. Civ. Prac. & Rem. Code § 31.002.

80
OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989).

81
See Weinstein v. Islamic Republic of Iran, 831 F.3d 470 (D.C. Cir. 2016) (emphasizing the distinction); Liberia E. Timber Corp. v. Republic of Liberia, 650 F. Supp. 73 (S.D.N.Y. 1986) (same).

82
See e.g. U.N. Convention on Jurisdictional Immunities of States and Their Property, Art. 18, G.A. Res. 59/38, Annex, U.N. Doc. A/RES/59/38 (Dec. 2, 2004); Jurisdictional Immunities of the State (Ger. v. It., Greece intervening), 2012 I.C.J. 99 ¶ 113.

83
Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993).

84
See e.g. BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233 (D.D.C. 2015); S & Davis Int’l, Inc. v. Yemen, 218 F.3d 1292, 1302 (11th Cir. 2000); Matter of Arbitration Between Cromalloy Aeroservices, a Div. of Chromalloy Gas Turbine Corp. and Arab Republic of Egypt, 939 F. Supp. 907 n.1 (D.C. Cir. 1996).

85
See Mobil Cerro Negro Ltd. v. Venezuela, 87 F. Supp. 3d 573 (S.D.N.Y. 2015); Blue Ridge Investments, LLC v. Argentina, 735 F.3d 72 (2d Cir. 2013).

86
See 28 U.S.C. § 1330(b).

87
See e.g. Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393 (2d. Cir. 2009); I.T. Consultants, Inc. v. Islamic Republic of Pakistan, 351 F.3d 1184, 1191 (D.C. Cir. 2003).

88
See e.g. TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 301-02 (D.C. Cir. 2005).

89
Rubin v. Islamic Republic of Iran, 637 F.3d 783, 800 (7th Cir. 2011); Weinstein v. Islamic Republic of Iran, 831 F.3d 470, 482 (D.C. Cir. 2016).

90
Liberian Eastern Timber Co. v. Republic of Liberia, 650 F. Supp. 73, 78 (S.D.N.Y. 1986).

91
Ibid.

92
Liberian Eastern Timber Co. v. Republic of Liberia, 659 F. Supp. 606, 611 (D.D.C. 1987) ("In conclusion, the bank accounts of the Liberian Embassy are immune from attachment both because they enjoy diplomatic immunity under the Vienna Convention and because no exception of the FSIA applies to deprive the bank accounts of their grant of sovereign immunity.").

93
Ibid. at 610.

94
See e.g. Stati v. Kazakhstan, No. 14-1638, 2016 WL 4191540 (D.D.C. Aug. 5, 2016).

95
See e.g. FG Hemisphere v. Republique du Congo, 455 F.3d 575 (5th Cir. 2006).

96
See e.g. Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1131 (9th Cir. 2010); Af-Cap, Inc. v. Republic of Congo, 383 F.3d 361 (5th Cir. 2006).

97
Argentina v. Weltover, 504 U.S. 607 (1992).

98
See e.g. Foxworth v. Permanent Mission of the Republic of Uganda to the United Nations, 796 F. Supp. 791, 793 (S.D.N.Y. 1992).

99
Rubin v. Islamic Republic of Iran, 830 F.3d 470 (7th Cir. 2016).

100
Conn. Bank of Commerce v. Republic of Congo, 309 F.3d 240, 251 (5th Cir. 2002).

101
See Af-Cap Inc. v. Chevron Overseas (Congo) Ltd, 475 F.3d 1080 (9th Cir. 2007); Export-Import Bank of the Republic of China v. Grenada, 768 F.3d 75 (2d Cir. 2014).

102
Trans Commodities, Inc. v. Kazakhstan Trading House, S.A., No. 96-cv-9782, 1997 WL 811474 (S.D.N.Y. May 28, 1997).

103
First Nat’l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 626-27 (1983).

104
Ibid. at 629.

105
See e.g. TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 301-02 (D.C. Cir. 2005) (presumption overcome where the Ukrainian statute creating the state entity made the entity ‘subordinate and accountable’ to the parliament; the entity’s activities were controlled by governmental bodies; the chair of the entity was appointed by the Ukrainian president with parliamentary approval; the entity’s Board was approved by the parliament; and the entity’s expenses were paid by the Ukrainian state budget); McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 351-52 (D.C. Cir. 1995) (presumption overcome where government dictated ‘routine business decisions’).

106
Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1073-74 (9th Cir. 2002).