Case of the Cay Commissions Import Export v. Congo

Colgolese 787

The case of the day is Commissions Import Export S.A. v. Republic of the Congo (D. Utah 2016). The Congolese government failed to pay Commissions on public works and materials contracts in the 1980s. An arbitral tribunal issued an award in favor of Commissions, and Commissions obtained recognition of the award in England in 2009. Commissions then brought an action in New York, which was transferred to the District of Columbia, seeking recognition and enforcement of the English judgment. That action resulted in a default judgment for approximately $630 million. Commission then registered the judgment in the District of Utah and served a subpoena on the Bank of Utah calling for information about its “role as owner trustee and security trustee” for a Boeing 787-8 Dreamliner.

In light of Argentina v. NML Capital, the court correctly allowed the discovery under FRCP 69. The FSIA does not limit discovery into a sovereign’s assets, even if the FSIA might have something to say about the immunity of particular sovereign assets from execution or attachment.

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 2012), 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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