NML Capital Goes To Europe

Detail of Argentina FlagNML Capital, one of Argentina’s creditors, has been trying to collect on a US judgment for years. As we saw in NML Capital v. Banco Central (2d Cir. 2011), the case of the day from July 8, 2011, the Second Circuit held that the assets of the Argentine Central Bank on deposit with the Federal Reserve Bank of New York were immune from attachment under 28 U.S.C. § 1611(b). Gilles Cuniberti has reported on NML’s efforts to get at Argentina’s assets in Belgium and France, where NML attempted to attach bank accounts held by Argentine embassies and missions to UNESCO and other international bodies. In both cases, Argentina asserted diplomatic immunity. The issue in both cases turned on the Vienna Convention on Diplomatic Relations. (We discussed the Convention a few days ago, noting that the US precedents support the view that bank accounts used by embassies for diplomatic purposes are immune from execution under Article 25 of the Convention, which requires the host country to “accord full facilities for the performance of the functions of the mission”).

Article 22(3) of the Convention provides:

The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

In the French case, the Cour de cassation held that under customary international law, embassy bank accounts are entitled to immunity, and a waiver of diplomatic immunity must specifically state that it applies to diplomatic assets if it is to be effective. Thus the attachments in France were void. Interestingly, the decision does not expressly justify the court’s conclusions about the content of customary international law on these points, but Cuniberti writes that the Cour de cassation‘s opinions are often cryptic in this way.

I don’t have access to the Belgian decision, but according to Cuniberti, the court held that the attachment was valid, on the grounds that the Vienna Convention’s only limitation on waivers of diplomatic immunity was the requirement that the waiver be express, and there was no question but that Argentina had made an express waiver. The Belgian court, in other words, refused to find a requirement that the waiver refer expressly to the immunity of diplomatic assets in order to be effective, as the Cour de cassation had done.

Photo credit: Global Jet (license)

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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