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New Case: Georges v. United Nations

I am a little late on this, but I wanted to note the recent complaint by several Haitians on behalf of themselves and a putative class against the United Nations, The UN Stabilization Mission in Haiti, Secretary-General Ban, and former Under-Secretary-General Edmond Mulet. The claims are for negligence, negligent supervision, intentional infliction of emotional distress, nuisance, and breach of contract, all arising out of the cholera epidemic that has afflicted Haiti and that the plaintiffs say is the fault of the UN mission in the country.

The merits of the dispute are obviously important, but I will be looking as well at issues of service of process and immunity. It seems to me that the UN itself is likely immune from suit under International Organizations Immunity Act, 22 U.S.C. § 288a(b), which provides:

International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.

And if we look at the exceptions to foreign state immunity under the FSIA, 28 U.S.C. § 1605, it’s difficult to see that any could apply.

Similarly, with regard to UN officials such as the Secretary-General, under 22 U.S.C. § 288d:

Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned.

It seems clear that Ban and Mulet are being sued for “acts performed by them in their official capacity and falling within their functions …” So it seems the immunity statute will likely apply.

Even leaving the statute aside, it’s not clear how one could serve process on the United Nations. One could deliver a summons to Ban or any other official while he is out and about in New York City. But under the UN Headquarters Agreement, “The service of legal process, including the seizure of private property, may take place within the headquarters district only with the consent of and under conditions approved by the Secretary-General.” Maybe FRCP 4(f)(3), which permits alternate methods of service, could help? Well, here’s an interesting twist: the rule applies only to service “at a place not within any judicial district of the United States.” The UN headquarters may be inviolable, as an embassy is inviolable, but—and I am no public international law expert—it seems to me that it’s within the Southern District of New York, right?

The bottom line seems to be that the case will likely be dismissed on immunity grounds.

Case of the Day: Kaiser Group International v. World Bank

The case of the day is Kaiser Group Int’l, Inc. v. World Bank (D.C. Cir. 2011). It has an interesting procedural history. Kaiser contracted to build a steel mill for Nova Hut, a firm partially owned by the Czech Republic. The project was financed by the International Finance Corporation, a member of the World Bank Group. Kaiser filed a bankruptcy petition in the U.S. Bankruptcy Court for the District of Delaware. IFC and Nova Hut filed proofs of claim. Kaiser commenced an adversary proceeding against IFC and Nova Hut. IFC asserted that under the International Organizations Immunity Act, 22 U.S.C. § 288a(b), it was immune from suit on Kaiser’s claim. But the Bankruptcy Court held that IFC had waived its immunity by filing its proof of claim, and the Court of Appeals for the Third Circuit ultimately agreed. Int’l Fin. Corp. v. Kaiser Group Int’l, Inc. (In re Kaiser Group Int’l, Inc.), 399 F.3d 558 (3d Cir. 2005). On remand, the Bankruptcy Court granted a motion to compel arbitration, and Kaiser then initiated an arbitration against the IFC before the ICC in Vienna. The claim was for tortious interference in Kaiser’s contract with Nova Hut.

Kaiser applied to the District Court for the District of Columbia under the judicial assistance statute for issuance of subpoenas to the World Bank (IFC’s parent) in aid of the arbitration. The District Court denied the application on the grounds that the World Bank was immune from all process, including subpoenas, under the IOIA. On appeal, Kaiser argued that the World Bank had waived immunity, either expressly (in its charter) or indirectly (in connection with IFC’s submission of a proof of claim in the bankruptcy case). The court did not consider the World Bank’s charter in the appeal, holding that Kaiser had waived that issue by failing to raise it below. While in a dictum the court suggested that  the IOIA allowed the district courts to exercise jurisdiction only where there had been an express waiver, the court did not need to make a holding on that point, because it found that Kaiser had not alleged that the IFC was acting as the World Bank’s agent, so as to permit a finding that IFC’s waiver should be imputed to the World Bank.

Even if the World Bank had waived its immunity, in my opinion the court still would have been right to deny the application, since, as I have noted before (e.g., here), I think the better reading of the judicial assistance statute does not extend to private international arbitrations (though I suppose there could be an argument that this arbitration was quasi-public given that the IFC was a party).