Tuesday, March 31, 2009

New Federal District Court Decision on Diplomatic Immunity

I received a tip from James Levenson about an interesting new case on diplomatic immunity.  The case is Swarna v. Al-Awadi, No. 06 Civ. 4880(PKC), 2009 WL 773446 (S.D.N.Y. Mar. 20, 2009).  Here's an excerpt from the decision to give you a flavor of what the case is about and what the court held.

Plaintiff Swarna Vishranthamma brings this action against her former employers, Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan (“Individual Defendants”) and the State of Kuwait (collectively, “defendants”). At the time of the events in question, Mr. Al-Awadi was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations (“Kuwait Mission”), and plaintiff was employed as the Individual Defendants' live-in domestic servant. Mr. Al-Awadi now lives in Paris, France. Plaintiff, asserting jurisdiction under the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, seeks damages against the Individual Defendants for subjecting her to slavery and slavery-like practices, including trafficking, involuntary servitude, forced labor, assault and sexual abuse (“ATCA claims”). Plaintiff also brings claims under New York law for failure to pay legally required wage, N.Y. Labor Law §§ 190, et seq. and 650, et seq. , fraud, unjust enrichment and breach of contract (“labor law claims). Plaintiff seeks damages against Kuwait on the grounds that Kuwait is vicariously liable on the ATCA and labor law claims, and that Kuwait ratified Mr. Al-Awadi's ants and aided and abetted the Individual Defendants' allegedly unlawful conduct.

Defendants have not answered or otherwise moved with respect to the complaint. Plaintiff now moves for a default judgment pursuant to Rule 55(b)(2), Fed.R.Civ.P. Defendants have filed a Notice of Appearance and argue that this Court lacks subject matter jurisdiction because the Individual Defendants have diplomatic immunity under the Vienna Convention on Diplomatic Relations (“VCDR”), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, and because Kuwait has sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1607. For the reasons explained below, plaintiff's motion for a default judgment is granted with respect to her claims against the Individual Defendants, but is denied with respect to her claims against Kuwait. Plaintiff's motion for authorization to seek discovery from Kuwait is denied as moot.

Hat tip to James Levenson!



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Singapore has construed Article 39(2) of the Vienna Convention on Diplomatic Immunity to mean that once a diplomat is removed from his position in the receiving country, a warrant of arrest can be issued against him for criminal acts carried out by him while he was a diplomat. See http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/legalnews/67143.html?utm_source=rss%20subscription&utm_medium=rss

Article 39(2) provides:
When the functions of a person enjoying privileges and immunities have come to an end, such
privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry
of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict.
However, with respect to acts performed by such a person in the exercise of his functions as a member
of the mission, immunity shall continue to subsist.

Surely Article 39(2) only applies to acts done after he leaves the country, and cannot have retrospective effect.

An article on this issue would be most interesting.

Posted by: anon | Apr 16, 2010 4:08:07 AM

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