Republic of Sudan v. Harrison

INTERPRETING THE FSIA’S SERVICE REQUIREMENTS

The Republic of Sudan argues that, under the FSIA, a party should not be able to obtain personal jurisdiction over a foreign state simply by dispatching service to the domestic embassy of the foreign state. Rather, Sudan contends, the FSIA requires that a party hoping to gain jurisdiction over a foreign state serve the head of foreign affairs in that state, in the absence of a special arrangement or an applicable international convention. This, Sudan argues, is the most logical interpretation of the FSIA’s language, which provides that service is achieved by “address[ing] and dispatch[ing service] to the head of ministry of foreign affairs of the foreign state.” Sudan maintains that under the “natural reading” of the text, mail should not be considered “addressed and dispatched” to a recipient unless it is sent to the physical location that the recipient is known to inhabit. Sudan claims that the FSIA’s specification that service is completed on the date the mailing is received and signed further supports this understanding, because any other interpretation would allow service to be complete when the mailing reached and signed for at the foreign state’s domestic embassy instead of when the mailing was forwarded to its ultimate destination; an event which would unduly burden the recipient foreign state with a shorter time constraint for filing.

Harrison counters that the FSIA’s service procedures allow service on a foreign state to be completed by dispatching the mailing to the foreign state’s American embassy. Harrison argues that, because the FSIA does not specify a location to which a party must “addres[s] and dispatc[h]”, an interpretation requiring service be sent to the foreign ministry would read an extra requirement into the statute unintended by Congress. Harrison contends that, if Congress intended service to be complete only when delivered to a foreign ministry, it could have easily stipulated this requirement in the text of the statute. In support of this argument, Harrison points to the fact that Congress did specify locations for other methods of service elsewhere in the FSIA.Harrison further asserts that Congress typically specifies a location for service when that location is required by law for service to be effective and points to the existence of numerous statutes wherein Congress explicitly provides a location for service. Finally, Harrison maintains that the FSIA’s requirement that service should be “addressed and dispatched” only means that a mailing need name a foreign state’s minister, not that it must be delivered to a specific location.

THE VIENNA CONVENTION’S INVIOLABILITY PRINCIPLE

Sudan argues that permitting service on a foreign state through that state’s U.S. embassy is impermissible as it would violate the Vienna Convention, specifically Article 22. Sudan interprets Article 22 of the Vienna Convention, which provides that “[t]he premises of the [embassy] shall be inviolable”, to prohibit parties from gaining personal jurisdiction over a foreign state through service at that foreign state’s U.S. embassy. To support this assertion, Sudan cites a preliminary report on the Vienna Convention from the U.N. International Law Commission that stipulates service should not be made on the premises of U.S. embassies. Sudan also argues that service through a foreign state’s U.S. embassy infringes on that foreign state’s sovereignty as it compels that foreign state to either appear or face a default judgment. Sudan maintains that this principle of inviolability is especially important in view of the FSIA’s explicit provision that the statute should be read as not to conflict with existing international agreements. Sudan further argues that the distinction between service “on” an embassy and service “via” an embassy is immaterial, because mailing service documents to an embassy in the U.S. functionally makes that embassy an agent for service, even in situations where the mailing is forwarded to the foreign state.

Harrison counters that allowing service on a foreign state via that state’s embassy in the U.S. is actually consistent with the Vienna Convention’s inviolability principle. Harrison contends that mailing merely conveys information, and thus does not constitute the level of physical intrusion required to violate the sovereignty of a foreign state at its U.S. embassy. Harrison also notes that because embassy staff must sign for the documents in order for them to take effect, service through an embassy does not impermissibly coerce the foreign state or intrude on the foreign state’s sovereignty. Furthermore, Harrison relies on the Vienna Convention’s drafting history to argue that the International Law Commission intended to allow service through an embassy, pointing to when the Commission issued revised commentary stating that nothing in Article 22 “prevent[ed] service through post.” Finally, Harrison asserts that barring service on a foreign state’s U.S. embassy as a rule of law would be inconsistent with other provisions of the FSIA, which allow service documents to be delivered to a foreign state’s U.S. embassy in certain circumstances. Harrison also argues in the alternative that the text making the FSIA “[s]ubject to existing international agreements” only applies to subject-matter jurisdiction, not personal jurisdiction.