Argentina v. NML Capital, Ltd. (2013)
- Docket
- 12-842
- Decided
- 2013-01-01
Summary
Question: Does a subpoena that requires a bank to disclose information about all assets of a foreign state, without respect to their location or use, violate the Foreign Sovereign Immunities Act? Conclusion: No. Justice Antonin Scalia delivered the opinion for the 7-1 majority. The Court held that, under the FSIA, property held within the United States by foreign nations cannot be attached to a civil claim except under a narrow exemption, which requires the property to be used for a commercial activity as well as satisfying one additional condition such as the foreign nation waiving its immunity from attachment. However, the fact that some property may be immune from attachment does not mean the property is also immune from discovery. While NML and Argentina may disagree as to whether property within the United States is covered by the FSIA's immunity, the level of immunity given to a foreign nation's property held outside the United States may be different in non-U.S. jurisdictions. Because the FSIA only grants immunity to property held within the United States, NML may be able to find foreign property held outside the United States that is attachable under the law of the foreign jurisdiction but that would be immune from attachment if held in the United States. Justice Ruth Bader Ginsburg wrote a dissent in which she argued that the majority should not assume that foreign jurisdictions may allow the attachment of property which could not be attached under United States law. Therefore, based on the FSIA, Justice Ginsburg wrote that the discovery request should have been limited to property used in connection with commercial activity, which is a necessary requirement under U.S. law for attachment. Justice Sonia Sotomayor took no part in the decision of this case.