Saturday, December 17, 2022


The Department of Justice has filed its Brief of Respondent in the Halkbank case presently pending before the U.S. Supreme Court, the justices having accepted the bank's Certiorari petition. Extremely thorough, it appears to cover all the issues and sub-issues that have been raised in the bank's brief, and in any of the Amicus briefs. 

The principal issue, as framed in the US brief is:


Whether petitioner, a commercial bank, is categorically exempt from criminal prosecution by the United States for violations of numerous federal criminal laws, on the ground that a majority of its shares are owned by the Turkish government.

For those readers who do not have the time to review the 62-page brief, here are the points it makes:

1. The US District Court had jurisdiction to review the case against Halkbank.

2. Federal law does not except the bank's offenses from criminal jurisdiction.

3.  There is no extraterritorial rule precluding US Courts from exercising jurisdiction over foreign government-owned corporations, for violations of US criminal law.

4. Foreign government-owned corporations have no immunity for commercial activities within the United States.

5. US Common Law does not recognize foreign sovereign immunity were the Executive Branch determines it unwarranted.

6.. The Foreign Sovereign Immunities Act (FSIA) does not immunize the bank from criminal prosecution.

7. The FSIA does not apply to criminal cases. Its text, structure and history demonstrates that it is exclusively applicable to civil actions.

8.The FSIA was not designed to address criminal cases.

9. Neither precedent nor policy supports the bank's readings of the FSIA as implicitly barring criminal prosecutions.

10. the Commercial Activity exception applies in any case in which the FSIA itself applies and the exception's terms are met.

11. The prosecution in this case falls within the Commercial Activity exception.

We are following all developments in this case of great public interest, and shall update our readers accordingly.

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