Sunday, September 5, 2010
The Eleventh Circuit Court of Appeals has been busy with some international law-related cases this past month.
In World Holdings LLC v. Germany, No. 09-14359 (2010), the Court affirmed jurisdiction over the claim of World Holdings LLC (WHL) to obtain payment on bonds issued by Germany during the 1920s. Germany stopped making payment on the bonds during World War II. After the war, Germany affirmed its pre-war financial obligations, including these bonds, and negotiated repayment plans, including a 1953 treaty with the United States. Germany has refused to pay WHL for its bonds, however, because the bonds have not been properly validated. WHL claims alternatively that it is not possible to comply with the validation procedure and that it is not be subject to that validation procedure in any event. WHL sued Germany for breach of contract. Germany argued that it is not subject to suit in U.S. courts due to sovereign immunity. Although Germany conceded that the commercial activity exception to the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. sec. 1602, applies to this case, Germany also argued that FSIA is superceded by the international repayment agreements which require validation of the bonds. After reviewing those international agreements, the Eleventh Circuit concluded that no direct conflict exists between those agreements and FSIA. Accordingly, the Court determined that WHL's suit against Germany may proceed, but offered no opinion on the merits regarding whether the bonds are enforceable.
By contrast, In Estate of Amergi v. Palestinian Authority, No. 09-13618 (2010), the Court found that it did not have jurisdiction over an Alien Tort Statute (ATS), 28 U.S.C. sec. 1350, claim brought by representatives of an Israeli lawyer who was shot and killed while driving in the Gaza Strip. Plaintiffs claimed that the Palestinian Authority (PA) controlled that area as well as the Palestinian Liberation Organization (PLO) and that these groups advocated the killing of Israelis in Gaza. Plaintiffs further claim that Defendants provided encouragement and financial and other support to the man responsible for Amergi's killing. Plaintiffs allege that a private killing under these circumstances constitutes a war crime and is a tort in violation of the law of nations within the meaning of the ATS. The Eleventh Circuit rejected Plaintiffs' claim, stating that the record did not support the assertion that these actions were carried out during armed conflict. Rather than a tort under international law, the Eleventh Circuit characterized Amergi's killing as a single act of murder. Like the single act of illegal detenion in Sosa v. Alvarez Machain, a single act of murder does not give rise to jurisdiction under the ATS.