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40. U.S. amicus curiae brief in the Eleventh Circuit in Belize Telecom, Ltd. v. Belize


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No. 05-12641-CC

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BELIZE TELECOM LTD. and

INNOVATIVE COMMUNICATION COMPANY, LLC,

Plaintiffs-Appellees,

v.

GOVERNMENT OF BELIZE,

Defendant-Appellant.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

_______________

BRIEF OF THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF DEFENDANT-APPELLANT

_______________

JOHN B. BELLINGER, III PETER D. KEISLER

Legal Adviser Assistant Attorney General

DAVID P. STEWART R. ALEXANDER ACOSTA

Assistant Legal Adviser United States Attorney

Department of State

Washington, DC 20520 DOUGLAS N. LETTER

(202) 514-3602

SHARON SWINGLE

(202) 353-2689

Attorneys, Appellate Staff

Civil Division, Room 7250

Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 05-12641-CC

_______________

BELIZE TELECOM LTD. and

INNOVATIVE COMMUNICATION COMPANY, LLC,

Plaintiffs-Appellees,

v.

GOVERNMENT OF BELIZE,

Defendant-Appellant.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

_______________

BRIEF OF THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF DEFENDANT-APPELLANT

_______________

INTRODUCTION AND STATEMENT OF INTEREST

The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq., provides the sole basis for obtaining jurisdiction over a foreign state in civil cases in U.S. courts. The Act provides that foreign states are immune from jurisdiction unless they fall within one of the narrow exceptions to foreign sovereign immunity, see 28 U.S.C. § 1605, and sets out a comprehensive and exclusive scheme for obtaining and enforcing judgments against a foreign government. See generally Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-435, 109 S. Ct. 683, 688 (1989).

In this case, despite the lack of any explicit authorization or enforcement mechanism in the FSIA, the district court has imposed monetary contempt sanctions upon a foreign state. The United States has a substantial interest in the proper interpretation and application of the FSIA because of the foreign policy implications of U.S. litigation involving a foreign state. Those foreign policy interests are particularly significant where, as here, a U.S. court’s orders are likely to be viewed as an affront to the dignity and sovereignty of the foreign state. The United States also has a significant interest in the treatment of foreign states in U.S. courts by virtue of the reciprocal treatment of the United States Government by the courts of other nations. Accordingly, the United States has participated in this litigation to express its position that a U.S. court should not impose monetary contempt sanctions upon a foreign state.

In stating its views as amicus curiae, the United States wishes to make clear that it does not condone a foreign state’s failure to comply with the order of a U.S. court validly exercising jurisdiction over the state.[1] Nevertheless, the legal framework established by Congress for litigation against foreign states does not permit enforcement of monetary contempt sanctions against a state. The imposition of such sanctions also contravenes international practice, and could adversely affect our nation’s relations with foreign states and open the door to reciprocal sanctions against our Government abroad.

STATEMENT OF THE ISSUE PRESENTED

Whether a U.S. district court errs or abuses its discretion when it orders monetary contempt sanctions against a foreign state under the Foreign Sovereign Immunities Act.

SUMMARY OF ARGUMENT

A. The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq., sets out the exclusive means for obtaining and enforcing judgments against a foreign state in a civil case. Under the statute, a foreign state is immune from execution of a monetary judgment for contempt sanctions except as provided under the attachment provisions, 28 U.S.C. §§ 1609-1611. Further, any ambiguity on this point in the statutory text is eliminated by the legislative history, which explains that contempt sanctions may be enforced, if at all, only pursuant to those provisions. Although Congress, in enacting the FSIA, modified the prior rule of absolute foreign sovereign immunity from execution, Congress did not provide for plenary enforcement of court orders, but restricted courts’ authority to those circumstances set forth in Section 1609-1611. Those provisions do not permit enforcement of an order for contempt sanctions against a foreign state.

B. Regardless whether a district court has the power to order monetary contempt sanctions against a foreign state, there are compelling equitable and foreign-affairs interests that weigh decisively against such sanctions. An order of monetary contempt sanctions against a foreign state is not merely unenforceable, it is also likely to be viewed as a significant affront to the dignity and sovereignty of the foreign state. Imposing sanctions for noncompliance with a court’s injunctive order also contravenes international practice and the uniform laws of other nations. This litigation is the only instance of which we are aware in which any court, domestic or foreign, has imposed monetary sanctions against a foreign state for failure to comply with a court order. In light of the potential harm to foreign relations and the possibility of reciprocal sanctions against the United States, as well as the lack of any benefit from an unenforceable order, a district court should not order monetary contempt sanctions against a foreign state.

ARGUMENT

UNITED STATES COURTS SHOULD NOT IMPOSE MONETARY

CONTEMPT SANCTIONS ON FOREIGN STATES

A. The Foreign Sovereign Immunities Act Precludes Enforcement Of Monetary Contempt Sanctions Against A Foreign State.

“[T]he subject-matter jurisdiction of the lower federal courts is determined by Congress ‘in the exact degrees and character which to Congress may seem proper for the public good.’” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 433, 109 S. Ct. 683, 688 (1989) (quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845)). With respect to foreign states, Congress intended that the jurisdiction of U.S. courts would be governed exclusively by the FSIA, which sets out a comprehensive scheme for obtaining and enforcing judgments against foreign sovereigns in civil litigation. See Republic of Austria v. Altmann, 541 U.S. 677, 691, 124 S. Ct. 2240, 2249 (2004); Amerada Hess, 488 U.S. at 434, 437, 109 S. Ct. at 688, 690. As we next show, the text, history, and structure of the FSIA establish that the statute bars enforcement of monetary contempt sanctions against a foreign state.

The FSIA provides that a foreign state is immune from jurisdiction except as immunity is removed by statute, and further provides that a foreign state’s property is immune from attachment, arrest, or execution except in the limited circumstances set forth in the Act. See 28 U.S.C. §§ 1604, 1609. Absent a foreign state’s waiver of immunity from execution of an order of monetary sanctions — and there is no suggestion or evidence in this case that such a waiver exists — an order of monetary sanctions for failure to comply with a court order does not fall within any statutory exception to immunity from execution. See 28 U.S.C. §§ 1610(a), 1605(a)(7); De Letelier v. Republic of Chile, 748 F.2d 790, 798-799 (2d Cir. 1984) (FSIA does not permit execution against foreign state’s property of judgment resulting from non-commercial tortious conduct), cert. denied, 471 U.S. 1125 (1985). Thus, Congress has not provided any mechanism for a U.S. court to enter an enforceable contempt order imposing sanctions against an unwilling foreign state.

The conclusion that contempt sanctions may not be enforced against a foreign state except in accordance with the execution provisions of the FSIA is confirmed by the statute’s legislative history. As set out in the House Report accompanying the legislation, Congress intended that, for a foreign state subject to jurisdiction,

liability exists as it would for a private party under like circumstances. * * * Consistent with this section, a court could, when circumstances were clearly appropriate, order an injunction or specific performance. But this is not determinative of the power of the court to enforce such an order. For example, a foreign diplomat or official could not be imprisoned for contempt because of his government’s violation of an injunction. See 22 U.S.C. 252. Also a fine for violation of an injunction may be unenforceable if immunity exists under sections 1609-1610.

Jurisdiction of United States Courts in Suits Against Foreign States, H.R. Rep. No. 94-1487, at 22 (1976) (emphasis added), reprinted in 1976 U.S.C.C.A.N. 6604, 6621.

Subsequent legislative history further demonstrates that the FSIA does not permit enforcement of monetary contempt sanctions against a foreign state. In considering proposed amendments to the FSIA in 1987, Congress heard testimony at a subcommittee hearing by Elizabeth Verville, Deputy Legal Adviser in the State Department, that the statute would not permit “imposition of a fine on a foreign state * * * for a state’s failure to comply with a court order.” Hearing on H.R. 1149, H.R. 1689, and H.R. 1888, Before the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee, 100th Cong., 1st Sess., at 19 (1987). Deputy Legal Adviser Verville explained that, although the FSIA does not “explicitly preclud[e] a court from imposing a fine on a foreign state * * * [for] failure to comply with a court order,” the statute’s legislative history makes clear that sanctions of this sort are impermissible, a position that “is consistent with state practice” internationally. Id. at 36.

Finally, the structure of the FSIA and the legal landscape against which it was enacted support the conclusion that a U.S. court may not enforce monetary contempt sanctions against a foreign state. The primary argument in favor of enforceable contempt sanctions is that such authority is necessary to give effect to the jurisdiction conferred by Congress under the FSIA. As the Second Circuit recognized in De Letelier, however, in rejecting a claim that Congress could not have intended in the FSIA “to create a right without a remedy,” the jurisdiction conferred over claims against foreign states does not carry with it the authority to enforce judgment on such claims. 748 F.2d at 798-799. Congress adopted the statute against “the background of the views of sovereignty expressed in the 1945 charter of the United Nations and the 1972 enactment of the European Convention” as well as the state of the law in the United States prior to 1976. Id. at 799. Under both international law and pre-1976 U.S. law, a litigant could obtain a judgment against a foreign state under certain circumstances, but could not enforce that judgment against a foreign state’s property, which was immune from attachment. See id. In seeking enforcement, a litigant was left to seek diplomatic intercession by the United States Government or to rely on the willingness of a foreign state to honor judgments against it. Congress changed that rule “in part” in enacting the FSIA, but did not provide for plenary enforcement of the orders of U.S. courts, choosing instead to cabin courts’ enforcement authority in 28 U.S.C. §§ 1609-1611. See id.; Connecticut Bank of Commerce v. Republic of Congo, 309 F.3d 240, 252 (5th Cir. 2002) (noting that “immunity from execution is * * * narrower than jurisdictional immunity”). Thus, the statutory text, history, and structure provide conclusive evidence that Congress intended for the FSIA to bar enforcement of monetary sanctions for contempt against a foreign state that has not waived its immunity from execution of those sanctions.

Notably, the fact that a foreign state has waived its sovereign immunity to suit under Section 1605(a)(1) of the FSIA does not establish that the state is subject to enforcement of monetary contempt sanctions under Section 1609 and 1610(a). The significant and intentional disjunct between the jurisdictional and enforcement provisions of the FSIA precludes a court from finding a waiver of immunity from enforcement of contempt sanctions simply because a foreign sovereign has waived its immunity from jurisdiction with respect to particular claims. As a matter of practice, furthermore, it would be extremely unlikely for a foreign state to waive its immunity from enforcement of punitive, quasi-criminal sanctions of this type. As discussed below (at pp. 12-16 & n.2, infra), under the uniform laws and practices of other nations, a state may not be subject to coercive sanctions for noncompliance with a judicial order. Indeed, the laws of most countries bar a court even from ordering a foreign sovereign to take specific action. The district court’s contempt orders against the Government of Belize stand as the only known example of a court’s imposition of contempt sanctions on a foreign state. Under these circumstances, a foreign state’s implicit waiver of immunity from suit cannot reasonably be interpreted as a waiver of immunity from monetary contempt sanctions.

B. Monetary Contempt Sanctions Against A Foreign State Contravene Equitable Principles And International Practice, And Could Have Significant Adverse Foreign Policy Consequences.

Regardless whether a U.S. court has the power to enter a monetary sanctions order against a foreign state — a question that this Court need not decide — basic principles of equity and comity should preclude such an order.


1. As we have explained, monetary contempt sanctions against a foreign state cannot be enforced absent a waiver of immunity from execution of those sanctions. “A court should not issue an unenforceable injunction” against a foreign state. In re Estate of Marcos Human Rights Litig., 94 F.3d 539, 545, 548 (9th Cir. 1996). In exercising its equitable authority, a court should be cautious that its orders will be effective and that they will utilize the least amount of force necessary to achieve the desired end. See, e.g., Shillitani v. United States, 384 U.S. 364, 371, 86 S. Ct. 1531, 1536 (1966); cf. Virginian Ry. Co. v. System Fed’n No. 40, 300 U.S. 515, 550, 57 S. Ct. 592, 601 (1937) (“[A] court of equity may refuse to give any relief when it is apparent that that which it can give will not be effective or of benefit to the plaintiff.”).

The United States Government does not mean to condone a foreign state’s failure to comply with the order of a U.S. court. However, other remedies are potentially available to encourage a foreign state’s compliance. A district court may direct an adverse evidentiary presumption against a recalcitrant foreign state or may even, if the claimant can “establish[] his claim or right to relief by evidence satisfactory to the court,” enter a default judgment against the state. 28 U.S.C. § 1608(e). An aggrieved litigant may also pursue non-judicial remedies, including diplomatic intercession. As an equitable matter, however, a U.S. court should not enter an order of monetary sanctions against a foreign state that is immune from execution of any such order.

2. Foreign policy considerations also weigh strongly against the imposition of contempt sanctions in response to a foreign state’s failure to conform to a court directive purporting to control that state’s conduct.

In weighing the proper response to a foreign state’s failure to comply with an injunction, it is important to recognize the strongly held view of many foreign states that they are not subject to coercive orders by a U.S. court. Absent specific evidence to the contrary, the refusal of a sovereign state to conform to a judicial directive should not be considered as an expression of scorn or contempt for which such sanctions are normally imposed. Rather, such a refusal may reflect a determination by that foreign state that a U.S. court lacks power to control its conduct. The laws in many foreign nations do not permit a court to enter an injunction against a foreign state,[2] and the foreign state may expect the United States to extend to it the same respect and courtesy. The potential for affront is particularly heightened if the U.S. court purports to control the foreign state’s conduct within its own borders, as was the case here.[3]

Furthermore, as this Court has recognized, it is important to consider issues of foreign sovereign immunity in light of foreign and international norms. See Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1295 (11th Cir. 1999). Where U.S. practice diverges from international practice, our Government is vulnerable to reciprocal sanctions when it litigates abroad. Under the uniform laws and practices of other nations, monetary sanctions may not be imposed on a foreign state even if the state violates a court order.

Thus, for example, the European Convention on State Immunity bars a court from imposing monetary sanctions on a foreign state for refusal “to comply with a court order to produce evidence (contempt of court).” [4] Under the Convention, a court faced with a foreign state’s noncompliance is limited to remedies involving “whatever discretion [the court] may have under its own law to draw the appropriate conclusions from a State’s failure or refusal to comply.” European Convention on State Immunity, (E.T.S. No. 074), Explanatory Report, Point 70 (discussing Article 18) (convention entered into force June 11, 1976).[5]

In a similar vein, the United Nations Convention on Jurisdictional Immunities of States and Their Property provides that “[a]ny failure or refusal by a State to comply with an order of a court of another State enjoining it to perform or refrain from performing a specific act * * * shall entail no consequence other than those which may result from such conduct in relation to the merits of the case. In particular, no fine or penalty shall be imposed on the State by reason of such failure or refusal.” United Nations Convention on Jurisdictional Immunities of States and Their Properties, Article 24(1).

The United Nations Convention is not yet in force, and the United States is not a signatory to the Convention. Nevertheless, it is the position of the United States that a number of its provisions, including Article 24(1), reflect current international norms and practices regarding foreign state immunity. Notably, the principle reflected in Article 24 of the Convention was uniformly supported by member states, which disagreed only about whether to extend even further a state’s immunity from coercion. In the initial 1986 formulation of the draft Articles, the International Law Commission proposed two provisions barring courts from imposing coercive measures on foreign states, one of which recognized a state’s immunity “from any [judicial] measure of coercion requiring it to perform or to refrain from performing a specific act on pain of suffering a monetary penalty.” Yearbook of the International Law Commission, 1986, Vol. II, Part Two, pp. 12, UN Doc. A/41/10, chap. II.D. Some states considered that formulation too narrow, with Mexico complaining that coercive measures “do not consist solely in monetary penalties,” and the United Kingdom protesting that the Articles should recognize state “immunity from the very possibility of having such an order made against it.” International Law Commission: Jurisdictional Immunities of States and Their Property, Comments and Observations Received from Governments, UN Doc. A/CN.4/410, at 33 (Feb. 17, 1988). As the United Kingdom elaborated, it is not “appropriate for a domestic court to order the Government of another State, without its consent, to do or not to do particular acts whether or not any penalty is threatened,” and “[i]n any event, there is in general no method of enforcing such a penalty against a foreign State * * *.” Id., UN Doc. A/CN.4/410, at 58; see also id. at 24 (comments of German Democratic Republic) (“[I]t is not permissible as a matter of principle to exercise judicial compulsion against another State.”). As noted above, the final Convention directed that states would be immune from fines or penalties for failure to comply with an injunctive order, and that the only permissible consequences would be “those which may result from such conduct in relation to the merits of the case.” United Nations Convention on Jurisdictional Immunities of States and Their Properties, Article 24(1).

Finally, individual nations other than the United States that have codified foreign sovereign immunity law, although relatively few in number, uniformly have protected foreign states from monetary sanctions for failure to comply with an injunctive order. Canadian law provides, for example, that “[n]o penalty or fine may be imposed by a court against a foreign state” for its failure to produce documents or other information to the court, and further provides that a state shall be immune in toto from any “injunction, specific performance or the recovery of land or other property.” Canadian State Immunity Act, §§ 12(1), 10(1). The United Kingdom State Immunity Act similarly provides that a foreign state may not be penalized with monetary sanctions for its failure to disclose or produce any document or other information in court proceedings, and also may not be subject to any “injunction or order for specific performance,” absent narrow circumstances not present here. UK State Immunity Act, § 13.

Singapore and Pakistan have also enacted immunity provisions essentially identical to those of Canada and the United Kingdom. See Singapore State Immunity Act, § 15; Pakistan State Immunity Ordinance, § 14. And Australian law provides that “[a] penalty by way of fine or committal shall not be imposed in relation to a failure by a foreign State or by a person on behalf of a foreign State to comply with an order made against the foreign State by a court.” Australian Foreign States Immunities Act of 1985, § 34. In sum, the uniform international practice is to bar monetary contempt sanctions of the type ordered by the district court.

3. There is virtually no precedential support for the district court’s contempt orders. Indeed, this litigation is the only instance of which we are aware in which any court, domestic or foreign, has imposed monetary sanctions against a foreign state for failure to comply with a court order.

Although a small number of U.S. courts have ordered monetary contempt sanctions against an agency or instrumentality of a foreign state (as opposed to the central government itself), those courts have done so without considering whether the FSIA permits contempt sanctions to be enforced against the state agency or instrumentality. See, e.g., First City, N.A. v. Rafidain Bank, 281 F.3d 48, 52-55 (2d Cir.) (affirming sanctions order for failure to comply with post-judgment discovery order, but addressing only question whether court had authority to order discovery), cert. denied, 537 U.S. 813 (2002); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1477-1478 (9th Cir.) (upholding monetary contempt sanctions for failure to comply with post-judgment discovery order, but limiting analysis to whether FSIA permitted requirement of supersedeas bond or letter of credit pending appeal), cert. dismissed, 506 U.S. 948 (1992); cf. Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 79-80 (3d Cir. 1994) (vacating injunctive order against foreign state but suggesting in dictum that court could impose monetary sanctions for contumacious conduct). In fact, to our knowledge, no court of appeals has ever considered whether a monetary contempt order may be enforced under the FSIA attachment provisions, and the only district court to consider the question has concluded that monetary contempt sanctions against a foreign state agency are not enforceable. See United States v. Crawford Enterprises, Inc., 643 F. Supp. 370, 381-382 (S.D. Tex. 1986), aff’d, 826 F.2d 392 (5th Cir. 1987); see also J. Dellapenna, Suing Foreign Governments and Their Corporations 742 (2d ed. 2003) (recognizing that “there may be no way to enforce” monetary contempt sanctions against a foreign state given the “severe restrictions on executing judgments”).

The conclusion that monetary contempt sanctions should not be imposed against foreign states gains support, moreover, from the analogous context of courts’ treatment of the United States Government. The United States Government is immune from the jurisdiction of U.S. courts except to the extent that its immunity has been abrogated by Congress. Numerous courts have recognized that, even where Congress has waived the United States’s immunity to suit, the Government may not be ordered to pay monetary sanctions for violation of a court order absent an explicit waiver of sovereign immunity for such sanctions. See, e.g., Yancheng Baolong Biochem. Prods. Co. v. United States, 406 F.3d 1377, 1382-1383 (Fed. Cir. 2005); Coleman v. Espy, 986 F.2d 1184, 1190-1192 (8th Cir.), cert. denied, 510 U.S. 913 (1993); see also In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C. Cir. 1998) (holding that sovereign immunity would prevent a litigant from seeking monetary damages or attorneys’ fees and costs from contumacious federal official). The basic premise of foreign sovereign immunity is that other nations are the juridical equals of the United States. See, e.g., The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L. Ed. 287 (1812) (noting theory of “perfect equality and absolute independence of sovereigns”). Accordingly, decisions regarding the treatment of the United States Government may properly inform the treatment of foreign Governments in our courts.

Finally, in determining the propriety of an order of contempt sanctions, it is significant that, even if the order is unenforceable, it would likely be viewed by the foreign state as a suggestion of purposeful wrongdoing, and could offend the dignity of the foreign State. Cf. In re Papandreou, 139 F.3d 247, 251 (D.C. Cir. 1998) (noting that contempt order against high-level Greek officials “offends diplomatic niceties even if it is ultimately set aside on appeal”). In considering the potential for affront in this litigation, it is striking that the amount of the sanction order by the district court here — $50,000 per diem — is equivalent to nearly 2% of Belize’s daily gross domestic product, under the most recent statistics provided by the World Bank. See (Belizean 2003 GDP = $988.5 million, or $2.7 million per day). Were a foreign court to assert the same extraordinary power over the United States Government that the district court has asserted in this litigation over the Government of Belize, it would undoubtedly lead to great public outcry. As this Court has cautioned, in interpreting and applying the FSIA, it is vital to “consider[] the potential impact of our FSIA interpretations on foreign litigation involving the United States and its interests.” Aquamar, S.A., 179 F.3d at 1295.

* * * * *

The United States urges this Court to reject monetary sanctions as an means for coercing compliance with a U.S. court order against a foreign state. An order of monetary contempt sanctions such as that entered by the district court has the potential to harm our foreign relations and to open the door to the imposition of sanctions upon our Government by foreign courts. Imposing contempt sanctions on a foreign state is at odds with the uniform practice of the international community and the treatment of our own Government by courts here and abroad. Stacked against those compelling policy considerations are nonexistent benefits from an award that is, as we have shown, unenforceable under the FSIA. Under these circumstances, a district court errs and abuses its discretion when it orders monetary contempt sanctions against a foreign state.

CONCLUSION

For the foregoing reasons, this Court should vacate the orders of the district court.

Respectfully submitted,

JOHN B. BELLINGER, III PETER D. KEISLER

Legal Adviser Assistant Attorney General

DAVID P. STEWART R. ALEXANDER ACOSTA

Assistant Legal Adviser United States Attorney

Department of State

Washington, DC 20520 DOUGLAS N. LETTER

(202) 514-3602

SHARON SWINGLE

(202) 353-2689

Attorneys, Appellate Staff

Civil Division, Room 7250

Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULE OF APPELLATE PROCEDURE 32(a)

I hereby certify that this brief complies with the type‑volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because this brief contains 4,598 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the typestyle requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared with Word Perfect 12 in a proportional typeface with 14 characters per inch in Times New Roman.

_______________________

Sharon Swingle

Counsel for the United States

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief Of The United States As Amicus Curiae In Support Of Defendant-Appellant were served on the following counsel by overnight delivery, postage prepaid, on September 2, 2005:

Thomas R. Julin

Juan Enjamio

Jamie L. Zysk

Hunton & Williams

1111 Brickell Avenue

Suite 2500

Miami, FL 33131-3126

(305) 810-2516

Jane W. Moscowitz

Moscowitz, Moscowitz & Magolnick P.A.

1111 Brickell Avenue

Suite 2050

Miami, FL 33131-3126

(305) 379-8300

Joel S. Perwin

169 East Flagler Street

Suite 1422

Miami, FL 33131-1212

(305) 779-6095

Alexander Angueira

Christopher Lawrence Barnett

Stearns Weaver Miller Weissler Alhadeff

150 West Flagler Street

Suite 2200

Miami, FL 33130-1536

(305) 789-3200

and on the following counsel by hand delivery on September 6, 2005:

Lanny J. Davis

Raymond G. Mullady, Jr.

James W. Deacon, III

Benjamin R. Jacewicz

Orrick, Herrington & Sutcliffe, LLP

3050 K Street NW

Suite 200

Washington, DC 20007-5135

(202) 339-8442

_______________________

Sharon Swingle

Counsel for the United States

ELEVENTH CIRCUIT RULE 28(C)

STATEMENT REGARDING ORAL ARGUMENT

The United States, appearing as amicus curiae in this litigation in support of defendant-appellant the Government of Belize, respectfully requests that the Court grant oral argument in this appeal. This appeal raises an issue of first impression in this or any United States court — whether a district court errs or abuses its discretion when it orders monetary contempt sanctions against a foreign state — the resolution of which could affect significantly our foreign relations with other nations as well as the treatment of the United States Government in foreign courts. The United States respectfully suggests that this issue warrants oral argument before the Court, and requests that counsel for the United States be permitted to participate in any oral argument that is granted.

TABLE OF CONTENTS

Page

ELEVENTH CIRCUIT RULE 26.1 CERTIFICATE OF

INTERESTED PARTIES AND CORPORATE

DISCLOSURE STATEMENT................................................................... i

ELEVENTH CIRCUIT RULE 28(C) STATEMENT

REGARDING ORAL ARGUMENT......................................................... v

INTRODUCTION AND STATEMENT OF INTEREST .................................... 1

STATEMENT OF THE ISSUE PRESENTED ................................................... 3

SUMMARY OF ARGUMENT .......................................................................... 3

ARGUMENT .................................................................................................... 5

UNITED STATES COURTS SHOULD NOT IMPOSE MONETARY

CONTEMPT SANCTIONS ON FOREIGN STATES .............................. 5

A. The Foreign Sovereign Immunities Act Precludes

Enforcement Of Monetary Contempt Sanctions

Against A Foreign State................................................................... 5

B. Monetary Contempt Sanctions Against A Foreign State

Contravene Equitable Principles And International Law,

And Could Have Significant Adverse Foreign Policy

Consequences .............................................................................. 10

CONCLUSION ............................................................................................... 22

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF

APPELLATE PROCEDURE 32(a)

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page:

Cases:

Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc.,

179 F.3d 1279 (11th Cir. 1999)........................................................... 13, 20

Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 109 S. Ct. 683 (1989)....................................................... 2, 5

Cary v. Curtis, 44 U.S. (3 How.) 236 (1845)...................................................... 5

Coleman v. Espy, 986 F.2d 1184 (8th Cir.), cert. denied,

510 U.S. 913 (1993)................................................................................ 19

Connecticut Bank of Commerce v. Republic of Congo,

309 F.3d 240 (5th Cir. 2002)...................................................................... 9

De Letelier v. Republic of Chile, 748 F.2d 790 (2d Cir. 1984),

cert. denied, 471 U.S. 1125 (1985)..................................................... 6, 8, 9

In re Estate of Marcos Human Rights Litig., 94 F.3d 539

(9th Cir. 1996)......................................................................................... 10

First City, N.A. v. Rafidain Bank, 281 F.3d 48 (2d Cir.),

cert. denied, 537 U.S. 813 (2002)............................................................. 17

In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998)............................................ 20

Republic of Austria v. Altmann, 541 U.S. 677, 124 S. Ct.

2240 (2004)............................................................................................... 5

Republic of Philippines v. Westinghouse Elec. Corp.,

43 F.3d 65 (3d Cir. 1994)........................................................................ 18

Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468

(9th Cir.), cert. dismissed, 506 U.S. 948 (1992)......................................... 18

In re Sealed Case No. 98-3077, 151 F.3d 1059

(D.C. Cir. 1998)...................................................................................... 19

Shillitani v. United States, 384 U.S. 364, 86 S. Ct. 1531

(1966)............................................................................................... 10, 11

The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L. Ed.

287 (1812)............................................................................................... 19

United States v. Crawford Enterprises, Inc., 643 F. Supp. 370

(S.D. Tex. 1986), aff’d, 826 F.2d 392 (5th Cir. 1987)................................ 18

Virginian Ry. Co. v. System Fed’n No. 40, 300 U.S. 515, 57 S. Ct.

592 (1937)............................................................................................... 11

Yancheng Baolong Biochem. Prods. Co. v. United States,

406 F.3d 1377 (Fed. Cir. 2005)................................................................ 19

Statutes:

Australian Foreign States Immunities Act of 1985, § 34 .................................... 17

Canadian State Immunity Act:

§ 10(1) ................................................................................................... 16

§ 12(1) ................................................................................................... 16

Foreign Sovereign Immunities Act:

28 U.S.C. § 1330................................................................................... 1, 3

28 U.S.C. § 1602 et seq......................................................................... 1, 3

28 U.S.C. § 1604 ..................................................................................... 6

28 U.S.C. § 1605...................................................................................... 1

28 U.S.C. § 1605(a)(1) ......................................................................... 3, 9

28 U.S.C. § 1605(a)(7).............................................................................. 6

28 U.S.C. § 1608(e)................................................................................. 11

28 U.S.C. § 1609................................................................................... 6, 9

28 U.S.C. §§ 1609-1611..................................................................... 3, 4, 9

28 U.S.C. §§ 1610(a)............................................................................. 6, 9

Pakistan State Immunity Ordinance, § 14 ......................................................... 17

Singapore State Immunity Act, § 15 ................................................................ 17

United Kingdom State Immunity Act, § 13 ...................................................... 16

Legislative Materials:

Jurisdiction of United States Courts in Suits Against

Foreign States, H.R. Rep. No. 94-1487 (1976),

reprinted in 1976 U.S.C.C.A.N. 6604........................................................ 7

Hearing on H.R. 1149, H.R. 1689, and H.R. 1888,

Before the Subcommittee on Administrative Law

and Governmental Relations of the House

Judiciary Committee, 100th Cong., 1st Sess. (1987).................................... 7

Miscellaneous:

J. Dellapenna, Suing Foreign Governments and Their

Corporations 742 (2d ed. 2003)............................................................... 18

European Convention on State Immunity, (E.T.S. No. 74), entered

into force June 11, 1976................................................................ 13, 14

European Convention on State Immunity, (E.T.S. No. 74),

Explanatory Report............................................................................ 13, 14

H. Fox, “International Law and the Restraints on the Exercise

of Jurisdiction by National Courts of States,” in

M. Evans, ed., International Law (2003).................................................... 12


International Law Commission: Jurisdictional Immunities

of States and Their Property, Comments and

Observations Received from Governments,

UN Doc. A/CN.4/410 (Feb. 17, 1988) ..................................................... 15

United Nations Convention on Jurisdictional Immunities of

State and Their Properties.................................................................. 14, 16

Yearbook of the International Law Commission, 1986, Vol. II,

Park Two, UN Doc. A/41/10, chap. II.D.................................................. 15

ELEVENTH CIRCUIT RULE 26.1

CERTIFICATE OF INTERESTED PARTIES

AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1, the following is a complete list of the trial judge, all attorneys, persons, associations of persons, firms, partnerships, or corporations that have an interest in the outcome of the particular case on appeal, including subsidiaries, conglomerates, affiliates, and parent corporations, including any publicly held company that owns 10 percent or more of the party’s stock, and other identifiable legal entities related to a party.

Aguilar, Gaspar - New Chief Executive Officer of Belize Telecommunications Limited

Angueira, Alexander - Attorney for Plaintiffs/Appellees

Ashcroft, Lord Michael

Barnett, Christopher L. - Attorney for Plaintiffs/Appellees

Barrow, Ursula

Belize National Teachers Union

Belize Telecom Ltd. - Plaintiff/Appellee

Belize Telecommunications Limited

Black, Wilman H. - Corporate Secretary to Belize Telecommunications Limited

Board of Directors, New Horizon Inc.

Brown, The Hon. Stephen T. - U.S.D.C. Magistrate Judge

Campbell , Sydney - Governor, Central Bank of Belize

Canton, Dr. Gilbert - Public Utilities Commission

Carlisle Holdings Limited

Central Bank of Belize

Conteh, The Hon. Chief Justice Dr. Abdulai O. - Justice of the Supreme Court of Belize

Davis, Lanny J. - Attorney for Plaintiffs/Appellees

Deacon, III James W. - Attorney for Plaintiffs/Appellees

Enjamio, Juan C. - Attorney for Defendant/Appellant

Farah, Edward - TIBOM, N.A.

Fonseca, The Hon. Ralph - Minister of Finance and Home Affairs, Government of Belize

Gandhi, Gian - Legal Counsel to Ministry of Finance of Belize

Goldberg, Adam - Attorney for Plaintiffs/Appellees

Government of Belize - Defendant/Appellant

Guiseppi, Lyndon - Managing Director RBTT Merchant Bank Limited

Hall, Ronald M. - Managing Director, Capital Market Group, TIBOM, N.A.

Hunton & Williams LLP - Attorneys for Defendant/Appellant

Innovative Communication Company, LLC - Plaintiff/Appellee

International Telecommunications Limited

Julin, Thomas R. - Attorney for Defendant/Appellant

Karma Enterprises Limited

Letter, Dougas - Attorney for the United States of America

Loeb, Robert - Attorney for the United States of America

Lois Young Barrow & Co - Attorneys for New Horizons Inc.

Lumor, Frederick Doe - Senior Counsel for Belize Telecommunications Limited

McSweaney, Hugh - Principal Secretary, Government of Belize

Membiela, Gustavo J. - Attorney for Defendant/Appellant

Moreland, Allen B. - Attorney for Defendant/Appellant

Moscowitz, Jane W. - Attorney for Defendant/Appellant

Mullady, Raymond G. Jr. - Attorney for Plaintiffs/Appellees

Musa, The Hon. Said W. - Prime Minister of Belize

National Trade Union Congress of Belize

New Horizon Inc.

Omega Enterprises Limited

Overseas Private Investment Corporation

Orrick Herrington & Sutcliffe LLP - Attorney for Plaintiffs/Appellees

Prosser, Jeffrey J.

Public Service Union of Belize

Public Utilities Commission, Government of Belize

Rasmussen, Garret G. - Attorney for Plaintiffs/Appellee

RBTT Merchant Bank Limited

Redfield, Holland L. II - Vice President of Innovative Communications Company, LLC

Sanders, Sir Ronald M. - Innovative Communications Company, LLC

Sookoo, Surresh B. - Managing Director and CEO, RBTT Merchant Bank Limited

Speednet Communications Limited

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Attorneys for Plaintiffs/Appellee

Stewart, David P. - U.S. Department of State

Supreme Court of Belize

Swingle, Sharon - Attorney for United States of America

TIBOM, N.A.

Thornton, James J. - Attorney for Defendant/Appellant

Ungaro-Benages, The Hon. Ursula - U.S.D.C. Judge

United States of America

Vitelco a/k/a Innovative Telephone, subsidiary of Innovative Communications Company, LLC

Vondras, John G. - Managing Director of Belize Telecommunications Limited

Welch, Lionel - Senior Belizean Attorney

Young, Lois M. - S.C. Counsel for New Horizons Inc.

Zysk, Jamie L., Attorney for Defendant/Appellant

_____________________

Sharon Swingle

Counsel for the United States



[1] We take no position in this litigation on the question whether the district court correctly exercised jurisdiction over the plaintiffs’ claims under the FSIA waiver provision, 28 U.S.C. § 1605(a)(1). We also take no position on whether the Government of Belize violated the district court’s preliminary injunctive order.

[2] Although there is widespread acceptance in modern international law that foreign states’ immunity from adjudication may be restricted, “immunity from enforcement jurisdiction remains largely absolute,” and “a foreign State continues largely immune from forcible measures of execution against its person or property.” H. Fox, “International Law and the Restraints on the Exercise of Jurisdiction by National Courts of States,” in M. Evans, ed., International Law 364, 366, 371 (2003); see also id. at 371 (“Nor may an injunction or order for specific performance be directed by a national court against a foreign State on pain of penalty if not obeyed.”).

[3] It is perhaps relevant in this regard that the preliminary injunction held to have been violated by the Government of Belize was premised on an interpretation of corporate and contract documents that was not only rejected by a Belizean court prior to the district court’s order of monetary sanctions but also subsequently repudiated by the district court itself, which reversed course and entered judgment on the merits for the Government of Belize on nearly all counts. The district court’s entry of a preliminary injunction apparently contributed to civil unrest and industrial sabotage in Belize and to significant disruption of that country’s telecommunications network.

[4] For the convenience of the Court, the United States has attached an addendum to this brief that includes the European Convention and several other international- and foreign-law sources relied upon.

[5] Because the European Convention does not provide for any mechanism to enforce a judgment against a foreign state, a fortiori courts lack power under the Convention to enter coercive sanctions for non-compliance with their judgments.



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