Issuing and Executing of the US Courts Judgments against the Assets of the Central Bank of Iran from the Perspective of International Law and the US Law

Document Type : Research Paper

Author

Assistant Professor, Shahed University, Tehran, Iran

Abstract

In April 20, 2016 the Supreme Court of the United States confirmed the execution of the US Courts judgments in Case of Peterson et al against assets of the Central Bank of Iran. The Supreme Court held that the execution of judgments against assets of the Central Bank is not in contradiction with the Principle of Separation of Powers set out in the US Constitution. This judgment which reflects the position of the highest court in the United States with respect to the immunity of Central banks and its property would affect the judgments of inferior courts in the United States. Up until 2012 the Central Bank of Iran and its property was immune under American Law. In thatyear, the US Congress adopted Iran Threat Reduction and Syrian Human Rights Act by which the assets of Central Bank of Iran were blocked and allowed the American judgment creditors to enforce the Judgments against the Government of Iran from assets of Central Bank of Iran. The measure of Congress in adoption of the Act and consequently the execution of judgments against assets of Central Bank of Iran are without merit. Under Customary International Law, Central Banks and their properties are having immunity and the properties cannot be subject to the  execution of judgments which are issued against States.

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Main Subjects

References

  1. A)  Books & Articles

    1. Ansari Moein, P. (2011) Immunity of States and Their Properties, 1th ed., Tehran, Mizan Publication. (in Persian)
    2. Abdollahi, M and Shafea, M. Sh. (2008) States Immunity in International Law, 2nd ed., Tehran, Presidency Publication.(in Persian)
    3. Bankas, E. K. (2005) The State Immunity controversy in International Law: Private Suits against Sovereign States in Domestic Courts, 1st ed., Berlin: Springer
    4. Blair, W. (1998) “The Legal Status of Central Bank Investment under English Law”, Cambridge Law Journal, Vol. 57, PP. 374-390.
    5. Carl, B. M (1979) “Foreign Sovereigns in American Courts; the United States Foreign Sovereign Immunities Act in Practice”, Southwestern Law Journal, Vol. 33, PP. 1009-1030.
    6. Habibi Majandeh, M. & et.al., “Critical Study of The US Practice relating to Breach of State Immunity in Light of Public International Law and 2012 Case of ICJ”, International Law Journal, vol. 51. PP.67-96 (in Persian)
    7. Harris, D. J (2005) Cases and Materials on International Law, sixth ed., London: Sweat & Maxwell.
    8. Kadkhodaei, A. and Daei A.(2011) “Violability of Iran`s Immunity before the US Courts”, International Law Journal, vol. 43, PP. 13-38 (in Persian)
    9. O`Connell, D. P (1970) International Law, vol. II, 2nd ed., London: Stevens and Sons.

    10. Schreuer, Ch. H (1995) State Immunity: Some Recent Developments, Cambridge: Grotious Publications Ltd.

    11. Sinclair, I. (1980) “The Law of Sovereign Immunity: Recent Developments”, 167 Recueil des Cours: Collected Courses of the Hague Academy of International Law, Vol. 167, PP. 113-138.

    12. Sonorajah, M, (1982) “Problems in Applying the Restrictive Theory of Sovereign Immunity”, International & Comparative Law Quarterly, Vol. 31, PP. 661-678.

    13. Tadayoni, A. and Kazerouni, SM. (2017) “The Comparative Study on State Immunity under Iranian and American Laws in Light of the Attachment of 2 billion Dollars of Iranian Assets”, Comparative Law Review, vol. 7, Issue 2, PP. 461-491 (in Persian).

    14. Yang, Xiaodong (2012) State Immunity in International Law, 1st ed., New York, Cambridge: Cambridge University Press.

     

    B) Cases

    15. The Schooner Exchange v McFaddon et al. (1812) 7 Cranch.

    16. Trendtex v. Central Bank of Nigeria (1977) Q.B.560.

    17. Republic of Mexico v. Hoffman (1943) 324 US 30.

    18. Alfred Dunhill of London Inc. v. Republic of Cuba (1976) 425 US 682.

    19. Bank Markazi, the Central Bank of Iran v. Deborah D. Peterson, et al. Case No. 10 Civ. 4518(BSJ) (GWG).

    20. Borizzi Brothers v. Steamship Pesaro (1926) 271 US 562.

    21. Victory Transport Inc. v. Comisona General de Abastecimientos y. transportes (1964)336 F. 2d 354 2nd Civ.

    22. EM v. Argentina, US, 473 F.3d 463, 473 (Second Circuit, 2007).

     

    C) International Documents

    23. United Nations Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004, UN Doc A/RES/59/38, Annex (16 December 2004).

    24. US Foreign Sovereign Immunities Act (FSIA) 1976; Public Law. No. 94-583.

    25. UK State Immunity Act 1978; available at: https://www.legislation.gov.uk/ukpga/1978/33 (Last visit on 15/1/ 2018).

    26. Canada State Immunity Act 1985; available at: http://www.laws-lois.justice.gc.ca/eng/acts/S-18 (Last visit on 20/1/2018).

    27. ICJ Advisory Opinion on Immunities from Legal Process of a Special Rapporteur of the Commission on Human Rights, 10 August 1998 (www.icj-cij.org/docket/index) (last visit on 27/1/2018).

    28. ICJ Advisory Opinion on Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Judgment of 4 June 2008, ICJ Reports 2008; (www.icj-cij.org/docket/index) (Last visit on 27/1/2018).

    29. United States Diplomatic and Consular Staff in Tehran (US v Iran) [1980] ICJ Rep.

    30. Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February 2012(http://www.icj-cij.org/docket/files/143/16883.pdf> (Last visit on 27/1/2018))

    31. The Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST, 3227, 500 UNTS 95.

    32. The Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.

    33. The General Convention on Privileges and Immunities of the United Nations, Apr. 13, 1946, 21 UST 1418, 1 UNTS.

    34. Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat 1214.

    35. Iran Threat Reduction and Syria Human Rights Act of 2012, Pub. L. No. 112-158.

    36. Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Iran`s Application Instituting Proceedings, 14 June 2016, p. 17(http://www.icj-cij.org/docket/files) (last visit on 27/1/2018).

    37. US House of Representatives, Report No. 94-1487, 1976.

    38. Department of State Bulletin, Vol. 26 (1953).

    39. Treaty of Amity Economic Relations and Consular Rights between the United States and Iran, 15 August 1955, 284 U.N.T.S. 93 (entered into force 16 June 1957).

Comparative Law Review
Volume 9, Issue 1
Spring & Summer
April 2018
Pages 351-379

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