§ 1610. — Exceptions to the immunity from attachment or execution.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1610]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 97--JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
Sec. 1610. Exceptions to the immunity from attachment or
execution
(a) The property in the United States of a foreign state, as defined
in section 1603(a) of this chapter, used for a commercial activity in
the United States, shall not be immune from attachment in aid of
execution, or from execution, upon a judgment entered by a court of the
United States or of a State after the effective date of this Act, if--
(1) the foreign state has waived its immunity from attachment in
aid of execution or from execution either explicitly or by
implication, notwithstanding any withdrawal of the waiver the
foreign state may purport to effect except in accordance with the
terms of the waiver, or
(2) the property is or was used for the commercial activity upon
which the claim is based, or
(3) the execution relates to a judgment establishing rights in
property which has been taken in violation of international law or
which has been exchanged for property taken in violation of
international law, or
(4) the execution relates to a judgment establishing rights in
property--
(A) which is acquired by succession or gift, or
(B) which is immovable and situated in the United States:
Provided, That such property is not used for purposes of
maintaining a diplomatic or consular mission or the residence of
the Chief of such mission, or
(5) the property consists of any contractual obligation or any
proceeds from such a contractual obligation to indemnify or hold
harmless the foreign state or its employees under a policy of
automobile or other liability or casualty insurance covering the
claim which merged into the judgment, or
(6) the judgment is based on an order confirming an arbitral
award rendered against the foreign state, provided that attachment
in aid of execution, or execution, would not be inconsistent with
any provision in the arbitral agreement, or
(7) the judgment relates to a claim for which the foreign state
is not immune under section 1605(a)(7), regardless of whether the
property is or was involved with the act upon which the claim is
based.
(b) In addition to subsection (a), any property in the United States
of an agency or instrumentality of a foreign state engaged in commercial
activity in the United States shall not be immune from attachment in aid
of execution, or from execution, upon a judgment entered by a court of
the United States or of a State after the effective date of this Act,
if--
(1) the agency or instrumentality has waived its immunity from
attachment in aid of execution or from execution either explicitly
or implicitly, notwithstanding any withdrawal of the waiver the
agency or instrumentality may purport to effect except in accordance
with the terms of the waiver, or
(2) the judgment relates to a claim for which the agency or
instrumentality is not immune by virtue of section 1605(a)(2), (3),
(5), or (7), or 1605(b) of this chapter, regardless of whether the
property is or was involved in the act upon which the claim is
based.
(c) No attachment or execution referred to in subsections (a) and
(b) of this section shall be permitted until the court has ordered such
attachment and execution after having determined that a reasonable
period of time has elapsed following the entry of judgment and the
giving of any notice required under section 1608(e) of this chapter.
(d) The property of a foreign state, as defined in section 1603(a)
of this chapter, used for a commercial activity in the United States,
shall not be immune from attachment prior to the entry of judgment in
any action brought in a court of the United States or of a State, or
prior to the elapse of the period of time provided in subsection (c) of
this section, if--
(1) the foreign state has explicitly waived its immunity from
attachment prior to judgment, notwithstanding any withdrawal of the
waiver the foreign state may purport to effect except in accordance
with the terms of the waiver, and
(2) the purpose of the attachment is to secure satisfaction of a
judgment that has been or may ultimately be entered against the
foreign state, and not to obtain jurisdiction.
(e) The vessels of a foreign state shall not be immune from arrest
in rem, interlocutory sale, and execution in actions brought to
foreclose a preferred mortgage as provided in section 1605(d).
(f)(1)(A) Notwithstanding any other provision of law, including but
not limited to section 208(f) of the Foreign Missions Act (22 U.S.C.
4308(f)), and except as provided in subparagraph (B), any property with
respect to which financial transactions are prohibited or regulated
pursuant to section 5(b) of the Trading with the Enemy Act (50 U.S.C.
App. 5(b)), section 620(a) of the Foreign Assistance Act of 1961 (22
U.S.C. 2370(a)), sections 202 and 203 of the International Emergency
Economic Powers Act (50 U.S.C. 1701-1702), or any other proclamation,
order, regulation, or license issued pursuant thereto, shall be subject
to execution or attachment in aid of execution of any judgment relating
to a claim for which a foreign state (including any agency or
instrumentality or such state) claiming such property is not immune
under section 1605(a)(7).
(B) Subparagraph (A) shall not apply if, at the time the property is
expropriated or seized by the foreign state, the property has been held
in title by a natural person or, if held in trust, has been held for the
benefit of a natural person or persons.
(2)(A) At the request of any party in whose favor a judgment has
been issued with respect to a claim for which the foreign state is not
immune under section 1605(a)(7), the Secretary of the Treasury and the
Secretary of State should make every effort to fully, promptly, and
effectively assist any judgment creditor or any court that has issued
any such judgment in identifying, locating, and executing against the
property of that foreign state or any agency or instrumentality of such
state.
(B) In providing such assistance, the Secretaries--
(i) may provide such information to the court under seal; and
(ii) should make every effort to provide the information in a
manner sufficient to allow the court to direct the United States
Marshall's office to promptly and effectively execute against that
property.
(3) Waiver.--The President may waive any provision of paragraph (1)
in the interest of national security.
(Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2896; amended
Pub. L. 100-640, Sec. 2, Nov. 9, 1988, 102 Stat. 3333; Pub. L. 100-669,
Sec. 3, Nov. 16, 1988, 102 Stat. 3969; Pub. L. 101-650, title III,
Sec. 325(b)(9), Dec. 1, 1990, 104 Stat. 5121; Pub. L. 104-132, title II,
Sec. 221(b), Apr. 24, 1996, 110 Stat. 1242; Pub. L. 105-277, div. A,
Sec. 101(h) [title I, Sec. 117(a)], Oct. 21, 1998, 112 Stat. 2681-480,
2681-491; Pub. L. 106-386, div. C, Sec. 2002(g)(1), formerly
Sec. 2002(f)(1), Oct. 28, 2000, 114 Stat. 1543, renumbered
Sec. 2002(g)(1), Pub. L. 107-297, title II, Sec. 201(c)(3), Nov. 26,
2002, 116 Stat. 2337.)
References in Text
The effective date of this Act, referred to in subsecs. (a) and (b),
is 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94-583, set out
as an Effective Date note under section 1602 of this title.
Amendments
2000--Subsec. (f)(2)(A), (B)(ii). Pub. L. 106-386,
Sec. 2002(g)(1)(A), formerly Sec. 2002(f)(1)(A), as renumbered by Pub.
L. 107-297, substituted ``should make every effort to'' for ``shall''.
Subsec. (f)(3). Pub. L. 106-386, Sec. 2002(g)(1)(B), formerly
Sec. 2002(f)(1)(B), as renumbered by Pub. L. 107-297, added par. (3).
1998--Subsec. (f). Pub. L. 105-277 added subsec. (f).
1996--Subsec. (a)(7). Pub. L. 104-132, Sec. 221(b)(1), added par.
(7).
Subsec. (b)(2). Pub. L. 104-132, Sec. 221(b)(2), substituted ``(5),
or (7),'' for ``or (5),'' and ``involved in the act'' for ``used for the
activity''.
1990--Subsecs. (a)(6), (e). Pub. L. 101-650 substituted ``state''
for ``State'' after ``foreign''.
1988--Subsec. (a)(6). Pub. L. 100-669 added par. (6).
Subsec. (e). Pub. L. 100-640 added subsec. (e).
Effective Date of 1998 Amendment
Pub. L. 105-277, div. A, Sec. 101(h) [title I, Sec. 117(c)], Oct.
21, 1998, 112 Stat. 2681-480, 2681-491, provided that: ``The amendments
made by subsections (a) and (b) [amending this section and section 1606
of this title] shall apply to any claim for which a foreign state is not
immune under section 1605(a)(7) of title 28, United States Code, arising
before, on, or after the date of enactment of this Act [Oct. 21,
1998].''
Effective Date of 1996 Amendment
Amendment by Pub. L. 104-132 applicable to any cause of action
arising before, on, or after Apr. 24, 1996, see section 221(c) of Pub.
L. 104-132, set out as a note under section 1605 of this title.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-640 applicable to actions commenced on or
after Nov. 9, 1988, see section 3 of Pub. L. 100-640, set out as a note
under section 1605 of this title.
Satisfaction of Judgments From Blocked Assets of Terrorists, Terrorist
Organizations, and State Sponsors of Terrorism
Pub. L. 107-297, title II, Sec. 201(a), (b), (d), Nov. 26, 2002, 116
Stat. 2337, 2339, provided that:
``(a) In General.--Notwithstanding any other provision of law, and
except as provided in subsection (b), in every case in which a person
has obtained a judgment against a terrorist party on a claim based upon
an act of terrorism, or for which a terrorist party is not immune under
section 1605(a)(7) of title 28, United States Code, the blocked assets
of that terrorist party (including the blocked assets of any agency or
instrumentality of that terrorist party) shall be subject to execution
or attachment in aid of execution in order to satisfy such judgment to
the extent of any compensatory damages for which such terrorist party
has been adjudged liable.
``(b) Presidential Waiver.--
``(1) In general.--Subject to paragraph (2), upon determining on
an asset-by-asset basis that a waiver is necessary in the national
security interest, the President may waive the requirements of
subsection (a) in connection with (and prior to the enforcement of)
any judicial order directing attachment in aid of execution or
execution against any property subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular Relations.
``(2) Exception.--A waiver under this subsection shall not apply
to--
``(A) property subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular
Relations that has been used by the United States for any
nondiplomatic purpose (including use as rental property), or the
proceeds of such use; or
``(B) the proceeds of any sale or transfer for value to a
third party of any asset subject to the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular
Relations.
``(d) Definitions.--In this section, the following definitions shall
apply:
``(1) Act of terrorism.--The term `act of terrorism' means--
``(A) any act or event certified under section 102(1) [Pub.
L. 107-297, set out in a note under section 6701 of Title 15,
Commerce and Trade]; or
``(B) to the extent not covered by subparagraph (A), any
terrorist activity (as defined in section 212(a)(3)(B)(iii) of
the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(iii))).
``(2) Blocked asset.--The term `blocked asset' means--
``(A) any asset seized or frozen by the United States under
section 5(b) of the Trading With the Enemy Act (50 U.S.C. App.
5(b)) or under sections 202 and 203 of the International
Emergency Economic Powers Act (50 U.S.C. 1701; 1702); and
``(B) does not include property that--
``(i) is subject to a license issued by the United
States Government for final payment, transfer, or
disposition by or to a person subject to the jurisdiction of
the United States in connection with a transaction for which
the issuance of such license has been specifically required
by statute other than the International Emergency Economic
Powers Act (50 U.S.C. 1701 et seq.) or the United Nations
Participation Act of 1945 (22 U.S.C. 287 et seq.); or
``(ii) in the case of property subject to the Vienna
Convention on Diplomatic Relations or the Vienna Convention
on Consular Relations, or that enjoys equivalent privileges
and immunities under the law of the United States, is being
used exclusively for diplomatic or consular purposes.
``(3) Certain property.--The term `property subject to the
Vienna Convention on Diplomatic Relations or the Vienna Convention
on Consular Relations' and the term `asset subject to the Vienna
Convention on Diplomatic Relations or the Vienna Convention on
Consular Relations' mean any property or asset, respectively, the
attachment in aid of execution or execution of which would result in
a violation of an obligation of the United States under the Vienna
Convention on Diplomatic Relations or the Vienna Convention on
Consular Relations, as the case may be.
``(4) Terrorist party.--The term `terrorist party' means a
terrorist, a terrorist organization (as defined in section
212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(vi))), or a foreign state designated as a state
sponsor of terrorism under section 6(j) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign
Assistance Act of 1961 (22 U.S.C. 2371).''
Waiver of Exception to Immunity From Attachment or Execution
Pub. L. 105-277, div. A, Sec. 101(h) [title I, Sec. 117(d)], Oct.
21, 1998, 112 Stat. 2681-480, 2681-492, which authorized the President
to waive the requirements of section 101(h) [title I, Sec. 117] of Pub.
L. 105-277, which amended this section and section 1606 of this title
and enacted provisions set out as a note above, in the interest of
national security, was repealed by Pub. L. 106-386, div. C,
Sec. 2002(g)(2), formerly Sec. 2002(f)(2), Oct. 28, 2000, 114 Stat.
1543, renumbered Sec. 2002(g)(2), Pub. L. 107-297, title II,
Sec. 201(c)(3), Nov. 26, 2002, 116 Stat. 2337.
Determination of President of the United States, No. 99-1, Oct. 21,
1998, 64 F.R. 59201, which provided for waiver of requirements of
section 101(h) [title I, Sec. 117(b)] of div. A of Pub. L. 105-277,
relating to blocked property of terrorist-list states, was superseded by
Determination of President of the United States, No. 2001-3, Oct. 28,
2000, 65 F.R. 66483, set out below.
Determination To Waive Attachment Provisions Relating to Blocked
Property of Terrorist-List States
Determination of President of the United States, No. 2001-3, Oct.
28, 2000, 65 F.R. 66483, provided:
Memorandum for the Secretary of State [and] the Secretary of the
Treasury
By the authority vested in me as President by the Constitution and
laws of the United States of America, including section 2002(f) [now
2002(g)] of H.R. 3244, ``Victims of Trafficking and Violence Protection
Act of 2000,'' (approved October 28, 2000) [section 2002(g) of Pub. L.
106-386, amending this section and section 1606 of this title and
repealing provisions set out as a note above], I hereby determine that
subsection (f)(1) of section 1610 of title 28, United States Code, which
provides that any property with respect to which financial transactions
are prohibited or regulated pursuant to section 5(b) of the Trading with
the Enemy Act (50 U.S.[C.] App. 5(b)[)], section 620(a) of the Foreign
Assistance Act of 1961 (22 U.S.C. 2370(a)), sections 202 and 203 of the
International Emergency Economic Powers Act (50 U.S.C. 1701-1702), and
proclamations, orders, regulations, and licenses issued pursuant
thereto, be subject to execution or attachment in aid of execution of
any judgment relating to a claim for which a foreign state claiming such
property is not immune from the jurisdiction of courts of the United
States or of the States under section 1605(a)(7) of title 28, United
States Code, would impede the ability of the President to conduct
foreign policy in the interest of national security and would, in
particular, impede the effectiveness of such prohibitions and
regulations upon financial transactions. Therefore, pursuant to section
2002(f) [now 2002(g)] of H.R. 3244, the ``Victim's of Trafficking and
Violence Protection Act of 2000,'' I hereby waive subsection (f)(1) of
section 1610 of title 28, United States Code, in the interest of
national security. This waiver, together with the amendment of
subsection (f)(2) of the Foreign Sovereign Immunities Act [probably
means subsec. (f)(2) of this section] and the repeal of the subsection
(b) of section 117 of the Treasury and General Government Appropriations
Act, 1999 [section 101(h) [title I, Sec. 117(b)] of div. A of Pub. L.
105-277, amending section 1606 of this title], supersedes my prior
waiver of the requirements of subsections (a) and (b) of said section
117 [amending this section and section 1606 of this title], executed on
October 21, 1998 [former Determination of President of the United
States, No. 99-1, Oct. 21, 1998, 64 F.R. 59201].
The Secretary of State is authorized and directed to publish this
determination in the Federal Register.
William J. Clinton.
Section Referred to in Other Sections
This section is referred to in sections 1609, 1611 of this title.
