Friday, July 22, 2022



The Solicitor General has filed its brief, responding to  the Halkbank Certiorari Petition to the US Supreme Court, which seeks "blanket immunity on foreign-state-owned enterprises from all criminal proceedings in the United States." The bank faces several charges, including money laundering; it lost on the issue in the trial court, SDNY, and in the Second Circuit Court of Appeal. The Petition is its last chance to evade responsibility for assisting Iran in evading global sanctions.

First, the brief makes its point, with profuse citations to authority: the Foreign Sovereign Immunities Act (FISA) does not apply to criminal cases. To quote the brief:

"The FSIA’s background, purpose, and legislative history further reinforce that its immunity provisions were designed to address only civil cases. See Saman- tar, 560 U.S. at 316 n.9, 319 n.12, 320-325 (conducting a similar analysis). “[T]he ‘Act and its legislative history do not say a single word about possible criminal pro- ceedings.” In re Grand Jury Subpoena, 912 F.3d at 630 (citation omitted). “To the contrary, the relevant reports and hearings suggest Congress was focused, laser-like, on the headaches born of private plaintiffs’ civil actions against foreign states.” Ibid.

The Act was passed to address problems that arose exclusively in civil actions—namely, suits by private lit- igants thrusting case-specific requests for immunity on the Executive Branch, resulting in inconsistent immun- ity determinations and uncertainty for litigants. See H.R. Rep. No. 1487, 94th Cong., 2d Sess. 6-9 (1976) (1976 House Report); Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearing Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary on H.R. 11315, 94th Cong., 2d Sess. 24-27, 31-35, 60 (1976) (1976 Hearings); see also Verlinden, 461 U.S. at 487-488 (dis- cussing impetus for the Act). The Executive Branch ac- cordingly proposed the FSIA to govern “[h]ow, and un- der what circumstances, * * * private persons [can] maintain a lawsuit against a foreign government or against a commercial enterprise owned by a foreign government.” 1976 Hearings 24 (State Department); accord id. at 29 (Justice Department). The House Re- port, in turn, likewise emphasized the need for “comprehensive provisions” to “inform parties when they can have recourse to the courts to assert a legal claim against a foreign state,” 1976 House Report 7, and repeatedly referred to “plaintiffs,” “suit[s],” “litigants,” and “liability,” id. at 6-8, 12—all terms that are indicative of civil actions.

No text or history suggests that Congress intended the FSIA to displace the Executive Branch’s traditional role in deciding whether to criminally prosecute a foreign-government-owned business ...." (Brief at 7-8)

 We note that even if FISA was applicable, the Commercial Activity exception applies. The bank's history of commercial contact with the US financial structure readers Halkbank's argument moot. The brief also effectively disposes of the remainder of there bank's arguments. It would appear that the bank's changes that its petition will be granted by the Court are slim at best. 

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