Republic of Argentina v. NML Capital Ltd. (12-842)

argument 12-842

Republic of Argentina v. NML Capital Ltd.

Supreme Court of the United States 1h 1m 5 speakers 8 chapters transcribed 7 days ago official recording ↗

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What does the Foreign Sovereign Immunities Act (FSIA) say about sovereign immunity and execution?

John G. Roberts 0:01

We'll hear argument first this morning in case twelve eight forty two the Republic of Argentina versus NML

Mr. Blackman 0:07

Capital Limited. Mr. Blackman? Mr Chief Justice, and may it please the Court, the sweeping worldwide forensic examination of foreign state property that the Court of Appeals approved targets sovereign property that the FSIA makes categorically immune from process of U.S. courts, including diplomatic and military property. national security assets, property of a state's current and former presidents, and other property outside the United States. This far exceeds the enforcement powers of U.S. courts under the FSIA.

Elena Kagan 0:45

Aren't those issues of privilege And didn't the court below permit you to um raise those questions as individual items came up. as individual accounts. But the subpoena is only asking Bank of America for or the banks for their information. Some of them may be of that nature. But wasn't the district court going to monitor that?

Mr. Blackman 1:12

Well, two answers to your question. First, Justice Sotomayor, uh the FSIA comes logically and legally before issues of privilege as to a specific asset. There's a categorical limitation of execution and all process in aid of execution to property in the United States used for commercial activity at the end.

Unknown 1:36

That's on what you can execute. FSIA itself doesn't say anything about discovery.

Mr. Blackman 1:44

The FSA doesn't have a provision except for sixteen oh five G, which specifically talks about discovery, but the statute very much delineates the bounds of permissible discovery when it delineates the universe of executable property. The legislative

Unknown 2:04

in in an ordinary uh state case, let's say, you get a judgment in in New York. And um the the judgment is is not satisfied and so there is this kind of an inquiry into what property the uh the losing defendant owns. Cannot you uh uh qu uh find out what property that defendant owns in Florida? In Florida certainly yes. But but the New York Court has its writ does not run to Florida. The whitey rule. You have to bring another another another lawsuit in Florida, right? And so also here, uh the writ the writ of the Second Circuit doesn't run to uh uh to France. You may have to bring a a separate suit in France. But uh but I don't I don't see that it goes beyond the bounds of what of what the law allows the discovery to uh to cover.

Mr. Blackman 2:57

Rule sixty nine, which has never been construed in the area of discovery and aid of execution by this Court. provides for discovery in aid of execution. And an aid of execution logically needs to mean the execution uh that could be ordered by the court ordering the discovery.

Unknown 3:17

But that's absolutely not true, because the a New York court cannot order execution of on property in Florida. Well you have to bring another another cause of action in Florida and yet you certainly can find out what what property the deadbeat defendant owns in Florida.

Mr. Blackman 3:35

Rule sixty nine also says specifically, Justice Scalia, uh that uh it is subject to a federal statute that governs where applicable. And the uh uh advisory committee notes clearly list the whole host of exemption statutes.

Unknown 3:52

You are you you're saying About You can't inquire into property that would be exempt anywhere. That's the difference. You may have to bring a separate suit in Florida or Probably y if it's a federal judgment you just register it then. But Mm in the typical case, the judgment debtor is exposed, all of her assets are exposed. Here I think what you're saying is The statute the foreign sovereign immunity act confines what can be executed, whether Florida, France, any place, it's got to be property and commercial property in the United States.

Mr. Blackman 4:34

That's that's exactly correct. uh Justice Ginsburg and I was referring to the exemptions that are listed in the advisory committee notes because they list things like homestead and veterans benefits and other categories of assets which

Stephen G. Breyer 4:51

the reason I mean I I read this like Justice Scalia. I thought when you read Rule sixty nine, obtaining discovery, You can obtain it in aid of the judgment or execution As provided in these rules.