Ricardo Devengoechea v. Bolivarian Republic of Venezuela

(CIRCUIT CONFLICT, MANDATE STAYED) Title 28 U.S.C. § 1610(a)(1) of the Foreign Sovereign Immunities Act provides that a foreign country which suffers a judgment against it may waive its immunity against execution on its property either explicitly or “by implication.” In an action to enforce a judgment against a foreign country under the Foreign Sovereign Immunities Act:

1. Is the standard for determining the foreign country’s implied waiver of its execution immunity under § 1610(a)(1) an objective standard or subjective standard — where the objective standard focuses on the reasonable objective appearance given by the foreign country’s conduct, in accord with the ordinary meaning of “implied waver” and Black’s Law Dictionary — while the subjective standard focuses solely on the foreign country’s subjective “intent”? &LUFXLW&RQÁLFW

2. Is the property of a foreign country which is subject WRMXGJPHQWH[HFXWLRQGHÀQHGE\WKHMXGJPHQWH[HFXWLRQ statute or by court rulings which depart from the statute — where the judgment-execution statute allows execution against all “[t]he property in the United States of [the] foreign state … used for a commercial activity in the United States” (28 U.S.C. § 1610(a)) — while court rulings in some Circuits restrict judgment-execution to the few LWHPVGLUHFWO\UHODWHGWRDSODLQWLII·VFODLP" &LUFXLW&RQÁLFW

3. Are the equities of the case relevant to whether a foreign country has impliedly waived its execution immunity, or must a trial court totally disregard the equities in making a determination of implied waiver?