To accommodate the Japanese Government, the Department of Justice granted the witnesses immunity from prosecution under U.S. law, thus removing their Fifth Amendment grounds. It was an unprecedented exercise of the Attorney General's discretion, and it was done essentially in a spirit of comity.

[C]omity is more than a legal principle. It is the expression of a civilized human being and a humane government-a policy of courtesy, of restraint, of civility, and of concern and sympathy for those with which we deal. That is the spirit I trust you will find at the U.S. Department of Justice today.

Dept. of Justice Press Release (Aug. 8, 1977).

The mentioned U.S.-Japanese agreement is entitled Procedures for Mutual Assistance in the Administration of Justice in connection with the Lockheed Aircraft Corporation matter signed on Mar. 23, 1976 (TIAS 8233; 27 UST 946; entered into force Mar. 23, 1976).

For portions of Judge Bell's remarks concerning antitrust laws, see post, Ch. 10, § 4, pp. 767–770.

During his remarks, Judge Bell gave the following statement concerning some discussions he had had with Canadian officials in June of 1977 on border crossings by law enforcement officers:

In Ottawa, we discussed Canada's concern over the use by our police of "hot pursuit" that carries across the border into Canada. I have repeatedly pledged my cooperation to State Attorneys General, and I am sure those State Attorneys General who are near the Canadian border will reciprocate by cooperating with me in working to restrain border crossings by our law enforcement officers.

So, as I observed during that June week, comity is a principle that comes into play within our borders as well as outside. Unless our States cooperate with Washington, then Washington's ability to cooperate with other nations may be impaired.

Dept. of Justice Press Release (Aug. 8, 1977).

Service of Process Abroad

In the case of Tamari v. Bache & Co. (Lebanon) S.A.L., 431 F. Supp. 1226 (1977), decided on May 17, 1977, the U.S. District Court for the Northern District of Illinois denied a motion by the defendant Lebanese corporation to quash service of summons and to dismiss for lack of personal jurisdiction because the defendant allegedly transmitted commodity orders to Illinois on a continuing basis and accepted service of process voluntarily in Paris. The Court, District Judge John F. Grady, disagreed with the defendant's contention that process was not served in accordance with the provisions of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done on November 15, 1965 (TIAS 6638; 20 UST 361; 658 UNTS 163; entered into force for the United States February 10, 1969).

Portions of the Court's opinion interpreting the Convention and rejecting defendant's attack on the sufficiency of the service of process follow:

As shown by the affidavits of Antoine Boukather, the Court appointed process server, service was effected on Emile Reyes in Paris on December 7, 1976. .

. . . It is clear from the preamble of the Convention that the treaty was meant to simplify service of process abroad so as to ensure that documents are brought to the notice of the addressee in sufficient time. It is true that the treaty sets out a method of service through a "Central Authority" in the signatory country. However, as noted by a California court:

If it be assumed that the purpose of the convention is to establish one method to avoid the difficulties and controversy attendant to the use of other methods. . . it does not necessarily follow that other methods may not be used if effective proof of delivery can be made. Shoei Kako Co., Ltd. v. Superior Court, San Francisco, 33 Cal.App. 3d 808, 821, 109 Cal.Rptr. 402, 411 (1973).

Service in this case would appear to fall within the provisions of article 10(b), which provides that the Convention shall not interfere with "the freedom of judicial officers. . . of the State of origin to effect service of judicial documents directly through... competent persons of the State of destination." Antoine Boukather, the court appointed process server, would seem to meet the requirements of this article. Further, article 5 provides that "unless [it] is incompatible with the law of the State addressed... the document may always be served by delivery to an addressee who accepts it voluntarily." There is no indication that Emile Reyes did not accept process when it was served on him by Boukather, and no indication that France does not permit personal service of process. Accordingly, process appears to comply with the provisions of article 5 as well. The fact that process was actually served and defendant was notified of suit satisfies the due process requirement of notice and complies with article 15 of the Convention, the equivalent of "our national due process concept." Shoei Kako Co., Ltd., supra, 109 Cal. Rptr. at 410. Finally, we are persuaded by the reasoning of the California court in finding that the treaty was not meant to abrogate the provisions of rule 4 [of the Federal Rules of Civil Procedurel, as evidenced by the fact that there has been no change in the provisions of the rule since the treaty became effective. Shoei Kako Co., Ltd.. supra, 109 Cal.Rptr. at 412.

431 F. Supp. at 1228.

Portions of the Convention, to which the United States and France are party, follow:

Article 1

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

CHAPTER I-JUDICIAL DOCUMENTS

Article 2

Each contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other contracting States and to proceed in conformity with the provisions of articles 3 to 6.

Article 3

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legislation or other equivalent formality.

Article 4

If the Central Authority considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request.

Article 5

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either

(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or

(b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.

Subject to subparagraph (b) of the first paragraph of this article, the document may always be served by delivery to an addressee who accepts it voluntarily.

Article 6

The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.

The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.

The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.

The certificate shall be forwarded directly to the applicant.

Article 10

Provided the State of destination does not object, the present Convention shall not interfere with—

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination, (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

Article 15

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Conven

tion, and the defendant has not appeared, judgment shall not be given until it is established that

(a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

(b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Each contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled

(a) the document was transmitted by one of the methods provided for in this Convention,

(b) a period of time of not less than six months, considered adequate by the Judge in the particular case, has elapsed since the date of the transmission of the document,

(c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

Portions of the Court's opinion rejecting defendant's contention that the plaintiff had not established a prima facia case of personal jurisdiction over the defendant follow:

Plaintiffs allege that Bache Lebanon solicited and accepted commodities orders on the plaintiffs' behalf and transmitted such orders from Lebanon to Chicago for execution by Bache & Co., Inc. ("Bache Delaware") on Chicago commodities exchanges. It is alleged that such orders were transmitted from Bache Lebanon to Chicago for execution on a continuing basis. We find that this continuing activity in Illinois by Bache Lebanon constitutes the transaction of business under Ill. Rev. Stat. ch. 110, § 17 (1) (a). By engaging in a regular practice of transmitting commodity orders for execution on the Chicago exchanges, defendant can be said to have invoked the benefits and protections of Illinois law. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed. 2d 1283 (1958); Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 1144 (7th Cir. 1975). Thus, the requirements of due process are met; and "the maintenance of the suit does not offend the 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945).

431 F. Supp. at 1227-1228.

87

Sovereign Immunity

Foreign Sovereign Immunities Act

Removal to Federal Court

On March 7, 1977, the U.S. District Court for the Eastern District of New York in Rasu Maritima S.A. v. Perusahaan Tertambangan Minyak Ban Gas Bumi Negara (Pertamina) (77 Civ. 263) denied the defendant's motion pursuant to section 6 of the Foreign Sovereign Immunities Act, 28 U.S.C. 1441 (d), to remove the plaintiff's action from

the State court of New York to the U.S. district court. In arriving at its decision endorsing a December 22, 1976, decision of Judge John M. Cannella, the Court in an unreported opinion by District Judge Kevin Thomas Duffy noted that Congress had not indicated any support for the interpretation of the removal provision of the Act sought by the defendant and expressed doubt that Congress meant to permit a foreign state to remove to a Federal court an action already pending in a State court, "notwithstanding its proximity to final judgment, solely on the basis of the Act's effectiveness."

The text of Judge Duffy's endorsement opinion appears below:

By order of Judge Cannella on December 22, 1976, this action, removed by defendant Pertamina on November 5, 1976, was remanded to State court for lack of diversity jurisdiction, without prejudice to defendants' rights under the Foreign Sovereign Immunities Act of 1976 (the Act), Pub. Law 94-583, 90 Stat. 2891, then enacted but not yet effective. On January 19, 1977, the effective date of the Act, Pertamina again removed the action to this Court, seeking to invoke section 6 of the Act, 28 U.S.C. 1441 (d), allowing a foreign state, or its political subdivisions, agencies or instrumentalities, sued in State court to remove the action to district court, and providing for an enlargement of the time limitation for removal "at any time for cause shown." Plaintiff again has moved to remand.

Pertamina argues that the Act was intended to apply to pending cases and that since Pertamina could not remove prior to the effective date of the Act, good cause for extending the removal period has been shown. I disagree with this interpretation.

Congress specifically indicated in section 6 that the time period to be enlarged for cause was that set forth in 28 U.S.C. 1446 (b), i.e., 30 days from the receipt by the defendant of the summons, initial pleading or later submission indicating that the case is or has become removable. If Congress, aware that involuntary developments, such as a change in the law as here, would not start the removal clock of § 1446 (b) running, See MOORE, Federal Practice,¶0.168[3.-5] at 1244 and cases cited at n. 35 (2d ed. 1965), had desired the newly created right to remove to be retroactive, so that an extension of that right would be possible at this juncture, it could have so indicated. More likely the extension "at any time" was included to cover a situation where the action was originally removable under the Act, but the 30-day removal period had expired. This interpretation finds support in the reason the extension for cause was included— not only, as Pertamina asserts, to reflect a preference for suits against foreign states to be brought in Federal courts, but also to allow the time to remove to parallel the 60-day grant of time for a foreign state to file an answer or responsive pleading under section 4 of the Act, 28 U.S.C. 1608 (d). H.R. Rep. No. 94-1487, 94th Cong. 2d Sess. at 32 (Sept. 9, 1976). Moreover, Congress specifically provided that the Act was not to take effect for 90 days. This provision was included to give foreign states notice of the provisions of the Act, Id. at 33; if a foreign state could not be sued in Federal

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