On June 16, 2014, the Supreme Court heard oral argument in Republic of Argentina v. NML Capital. The question in this case is whether post-judgment discovery in aid of enforcing a judgment against a foreign state can be ordered with respect to all assets of a foreign state regardless of their location or use, as held by the Second Circuit, or is limited to assets located in the United States that are potentially subject to execution under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. § 1602 et seq., as held by the Seventh, Fifth, and Ninth Circuits.
In an opinion issued by Justice Scalia, the Court affirmed the Second Circuit by a vote of 7-1 (Justice Sotomayor not participating), holding that no provision in the FSIA immunizes a foreign-sovereign judgment debtor from postjudgment discovery of information concerning its extraterritorial assets. Justice Ginsburg dissented.
To discuss the case, we have Prof. Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, Director, International & Comparative Law Programs, University of San Diego School of Law as well as Professor Thomas Lee, the Leitner Family Professor of International Law, Director Graduate and International Studies, Fordham University School of Law.