Department's suggestion of immunity and a holding that a foreign government province was not a "person" within the meaning of the Securities Exchange Act, at least not prior to the 1975 amendments to that Act.

No. 99. Psinakis v. Marcos, Civil Action No. C-75-1725-RHS (N.D. Calif. 1975).

Diplomatic request (from the Embassy of the Republic of the Philippines): September 1975.

Head of State immunity was recognized by the Department in a letter to the Attorney General dated September 26, 1975. The Department, however, did not decide that portion of the request seeking recognition of immunity of other Philippine officials named as defendants.

Reported: Digest of United States Practice in International Law, 1975, 344–345. No. 100. State ex rel. Haddock v. Chubu Electric Power Co., Inc., No. 9370 (Roane County Ch. Ct., Tenn., Dec. 1, 1975); and In re Chubu Electric Power Co., Inc. (Assessment App. Comm'n, Tenn. Bd. Tax Equal., May 28, 1976).

Diplomatic request (from the Embassy of Japan): October 24, 1975. Actions relating to an attempted taxation by local authorities of uranium which was stored for Japanese utility companies in Oak Ridge, Tennessee, and which was purchased pursuant to undertakings between the Governments of Japan and of the United States. No Department decision. The request was formally withdrawn on May 25, 1976, on the basis of a settlement. See, Brower, Litigation of Sovereign Immunity Before a State Administrative Body and the Department of State: The Japanese Uranium Tax Case, 71 Am. J. Int'l L. 438 (1977).

No. 101. Rovin Sales Company v. Socialist Republic of Romania, Civil Action No. 73-C-1550 (N.D. Ill., E. Div. 1973).

Diplomatic request (from the Embassy of the Socialist Republic of Romania): November 30, 1975.

No Department decision. The Department learned that the issue of sovereign immunity in this case had been previously decided by the court. The Department's letter to counsel describing the posture of the case stated in part:

In this regard, however, counsel for the Romanian Government defendants has represented to the Department that the defense of sovereign immunity has not been specifically briefed and argued before the Court-at least insofar as it pertains to defendants Socialist Republic of Romania, Octavian Ichim and Teodor Muteanu.

As a matter of policy the Department, representing one of the political branches, is generally reluctant to take a position in matters pending before the judicial branch-unless the posture of the proceedings so requires. We have consistently followed this policy in the sovereign immunity area where, in the conduct of foreign relations, we are asked by diplomatic request to make a determination of sovereign immunity from jurisdiction. By way of background, the Department does not wait for a clarification of the procedural posture of litigation where the case involves sovereign immunity from attachment. But in that situation, an attachment of foreign government property is a direct and complete exercise of jurisdiction by a court, making appropriate an immediate determination of immunity by the Department.

In the present case, the Department is concerned about the orderly administration of litigation before a coequal branch of government, and about duplicating an inquiry which may possibly have been fully reviewed, litigated and determined with finality by the Court. Consequently, the Department is adopting the following position:

Unless the Court determines that the defense of sovereign immunity either is still pending or should be reconsidered, the Department will not proceed itself to make a determination with respect to sovereign immunity.

Reported: 403 F. Supp. 1298 (N.D. Ill. 1975).

No. 102. Logan, et al. v. Secretary of State, et al., Civil Action No. 75– 1519 (D.D.C. 1975).

Diplomatic request by the Embassy of France: December 8, 1975: by the British Embassy: December 8, 1975.

The Department recognized immunity from attachment, suit and other legal process, of certain gold held jointly by the United States. the United Kingdom and France under the Paris Reparation Agreement of 1946.

Reported: Digest of United States Practice in International Law, 1975, at 345346; 553 F.2d 107 (D.C. Cir. 1976).

No. 103. Seabulk Carriers, Inc. v. Central Bank of Nigeria, et al., and The Kaiser Trading Company v. Central Bank of Nigeria, et al., Index Nos. 18970/75 and 19329/75 (Sup. Ct. N.Y., County of N.Y.).

Diplomatic request (from the Embassy of the Federal Republic of Nigeria): December 24, 1975.

No Department decision.

For related cases, see National American Corporation v. Federal Republic of Nigeria, 420 F. Supp. 954 (S.D.N.Y. 1976), 425 F. Supp. 1365 (S.D.N.Y. 1977); Trender Trading Corporation Ltd. v. Central Bank of Nigeria, [1977] 2 W.L.R. 356 (C.A.), 16 I.L.M. 471.

No. 104. D'Angelo v. Petroleos Mexicanos, Civil Action No. 74–17 (D. Del. 1974).

Diplomatic request (from the Embassy of Mexico): February 20,

1976.

No Department decision. In December 1976, the Department advised counsel that inasmuch as the Foreign Sovereign Immunities Act of 1976 was about to take effect and since the issue of sovereign immunity was not ripe for decision (a court decision on an Act of State issue was in the process of being appealed), the Department would not make a determination of sovereign immunity in this case.

Reported: 378 F. Supp. 1034 (D. Del. 1974); 398 F. Supp. 72 (D. Del. 1975); 422 F. Supp. 1280 (D. Del. 1976).

No. 106. Citizens Utilities Company v. Compania Servicios Publicos de Nogales, S.A., Comision Federal de Electricidad, and the Republic of Mexico, No. Civ. 75–268 TUC-JAW (D. Ariz. 1975).

Diplomatic request (from the Embassy of Mexico): March 26, 1976. No Department decision. The Department was advised by defendants' counsel that the request was being withdrawn and that the claim of immunity would be litigated before the court.

No. 107. Gittler v. German Information Center, et al., Index No. 02815/76 (Sup. Ct. N.Y., County of N.Y. 1976).

Diplomatic request (from the Embassy of the Federal Republic of Germany): May 26, 1976.

Request for immunity from suit was denied by the Department on January 13, 1977.

This suit was brought by the executrix of the estate seeking payment for services allegedly rendered to the German Information Center. The note of the Department to the Embassy stated in part:

The Department of State has carefully considered the written memoranda and accompanying documents submitted on behalf of both the plaintiff and the German Information Center, as well as the oral presentation made on behalf of the German Information Center. (Plaintiff relied solely on her written submissions.) Based on this review, it appears that the litigation in question concerns a claim that an individual was employed by the German Information Center to perform public relations and related services for which he was not paid. In particular, the individual assisted in the production of motion pictures which promoted the image of the Federal Republic of Germany. Although this alleged employment may have involved the exercise of artistic or technical expertise, it did not involve the formulation of government policies. Moreover, the Department notes that the employment or engagement of persons to perform public relations services is a transaction that is common, both

in the public and private sectors. The Department has concluded that such employment is not, in these circumstances, a uniquely governmental activity, but is rather essentially of a commercial or private law nature. In light of international law as applied by the United States, the Department has determined that it would not be appropriate to recognize sovereign immunity in this case.

It should be emphasized that this conclusion does not, in any respect, reflect upon the underlying merits of the lawsuit, or on procedural issues such as whether the proper party has been sued.

The Embassy may be assured that the Department of State has given the most careful consideration to the request of the Embassy. In view of the Embassy's request, the Department has endeavored to reach a decision before the Foreign Sovereign Immunities Act of 1976 (P.L. 94-583) takes effect, and, in so doing, has studied in detail the considerations advanced by the parties and their counsel. The Department regrets that a more favorable determination was not possible.

No. 108. Ungureanu v. Socialist Republic of Romania, Index No. 09793/1976 (Sup. Ct. N.Y., County of N.Y. 1976).

First diplomatic request (from the Embassy of the Socialist Republic of Romania): August 18, 1976.

Immunity from attachment of the offices of the Permanent Mission of the Socialist Republic of Romania to the United Nations was recognized by the Department, in a letter to the Attorney General dated August 20, 1976.

Second diplomatic request: September 30, 1976.

Immunity from attachment of the residence of the Permanent Representative of the Socialist Republic of Romania was recognized by the Department, in a letter to the Attorney General dated October 12, 1976.

Reported: Digest of United States Practice in International Law, 1976, at 330-331.

No. 110. India Towing Co., Inc. v. French Republic, No. 76 Civ. 5266 (S.D.N.Y. 1976).

Diplomatic request (from the Embassy of France): January 4,

1977.

Immunity from attachment was recognized by the Department, in a letter to the Attorney General dated January 13, 1977. The letter stated in part:

The Republic of France, through its Embassy, has sent a diplo matic note requesting that the Department of State determine that certain property is immune from attachment. The property in question is a deposit account held in the name of Banque de France, the central bank of the Republic of France, at the branch of Credit Lyonnias located at 95 Wall Street, New York, New York. This account was attached on or about December 7, 1976, apparently in order to commence the above-entitled lawsuit.

!

The Embassy's note represents that the funds in this bank account "consist solely of funds maintained on deposit in the United States as dollar reserves of the Republic of France," that "the attached funds are used solely for dollar reserves of the Republic of France deposited in the United States," and that the funds are not "devoted to a commercial or private use." The Department has not received from counsel for plaintiff any information inconsistent with the foregoing representations.

The Department recognizes and allows the immunity of the bank account in question from attachment. The Department would be grateful if you would cause an appropriate suggestion of sovereign immunity to be filed with the United States District Court for the Southern District of New York, on or before January 18, 1977.

It should be noted that the Foreign Sovereign Immunities Act of 1976 (P.L. 94-583) takes effect on January 19, 1977. As indicated in my letter to you of November 2, 1976 (which has been published at 41 Fed. Reg. 50883), the Department of State will not make any further determinations of sovereign immunity on or after January 19, 11977. The Act requires that, as of that date, all sovereign immunity determinations in the United States will be made by the courts in accordance with P.L. 94-583.

} In this regard, it appears that if the issue of immunity from attachment in the above-entitled litigation had been determined on or after January 19, 1977, the outcome would not have been different. By virtue of section 1609 of P.L. 94-583, foreign governments would be entitled to an immunity from attachments levied for the purpose of obtaining jurisdiction.

A suggestion of immunity was filed by the U.S. Attorney on Januɩry 17, 1977, two days prior to the entry into force of the Foreign Sovereign Immunities Act of 1976. The court vacated the attachment, and in an opinion dated March 3, 1977, stated:

The State Department has recognized the immunity of the funds in question from attachment and has caused a Suggestion of Immunity to be filed with the Court. This suggestion is binding upon 1 the Court, which has no power to inquire into the validity of the Department's determination. Republic of Mexico v. Hoffman, 324 U.S. 30, 34 (1945); Ex parte Republic of Peru, 318 U.S. 578, 588-89 (1943); Spacil v. Crowe, 489 F.2d 614 (5th Cir. 1974); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985 (1971); New York and Cuba Mail S.S. Co. v. Republic of Korea, 132 F. Supp. 684 (S.D.N.Y. 1955).

Even if the new Foreign Sovereign Immunities Act, P.L. 94-583, 90 Stat. 2891 (Oct. 21, 1976), governed this case, the funds in question would be immune from attachment, since it is undisputed that they are funds of a foreign central bank. 28 U.S.C. 1611 (b) (1). See also 28 U.S.C. 1609, 1610 (d).

Accordingly, the motion to vacate the attachment is granted. Since plaintiff's counsel conceded at argument that the attachment was the only basis for jurisdiction over the defendant, the motion to dismiss for lack of jurisdiction is also granted.

257-179 O-79-70