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Nml Capital, Ltd., Em Ltd v. the Republic of Argentina

March 30, 2012

NML CAPITAL, LTD., EM LTD., PLAINTIFFS-APPELLEES,
v.
THE REPUBLIC OF ARGENTINA, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Jose A. Cabranes, Circuit Judge:

Argued: December 7, 2011

Before: JACOBS, Chief Judge, CABRANES and WESLEY, Circuit Judges.

Appeal from the judgment of the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge), granting and confirming attachment and restraining orders against a New York bank account owned by the Agencia Nacional de Promocion Cientifica y Tecnologica ("ANPCT"), an instrumentality of the Republic of Argentina, pursuant to the commercial use exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. The District Court correctly held that the funds in the ANPCT Account were subject to attachment pursuant to 28 U.S.C. § 1610 because they were "used for a commercial activity in the United States." 28 U.S.C. § 1610(a). Affirmed.

The question presented is whether certain funds owned by the Republic of Argentina (the "Republic" or "Argentina") were subject to attachment pursuant to 28 U.S.C. § 1610 because they were "used for a commercial activity in the United States." 28 U.S.C. § 1610(a).*fn1 To resolve this question, we must decide whether the Republic's payment of the purchase price of commercial goods to a seller on behalf of a third party recipient constitutes a "commercial activity" under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq.*fn2

This appeal arises from a judgment of the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge), granting and confirming attachment and restraining orders against a bank account*fn3 owned by the Agencia Nacional de Promocion Cientifica y Tecnologica ("ANPCT"), an instrumentality of the Republic, pursuant to the commercial use exception to the FSIA.

BACKGROUND

Plaintiffs-appellees NML Capital, Ltd. ("NML") and EM Ltd. ("EM") (jointly, the "plaintiffs") have acquired on the secondary market hundreds of millions of dollars of non-performing bonds issued by the Republic.*fn4 In due course, the plaintiffs began to bring suit in United States courts to collect the debt. In these eleven consolidated appeals, they moved to attach a New York bank account owned by ANPCT, a sub-unit of Argentina's Ministry of Science, Technology, and Productive Innovation. ANPCT asserts that it employs this account (the "ANPCT Account" or the "Account") for the sole purpose of purchasing scientific equipment for use by grant beneficiaries. Beneficiaries contract with equipment sellers directly, and receive the purchased goods directly from the sellers; ANPCT's only involvement is to remit the prearranged payment to the sellers.

On September 12, 2008, the plaintiffs, moving on an ex parte basis, sought and obtained from the District Court restraining orders (for the actions that had reached final judgment) and attachment orders (for the actions in the pre-judgment phase) seizing the ANPCT Account. On that date, the Account contained more than $3.26 million. On September 30, 2009, the District Court confirmed the restraining orders (but not the attachment orders) to the extent they related to the ANPCT Account, holding that the Account was attachable under § 1610 of the FSIA. NML Capital Ltd. v. Republic of Argentina, No. 08 Civ. 3302, Docket No. 171, at 16 (S.D.N.Y. Sept. 30, 2009)*fn5 ; see note 1, ante. The District Court reasoned that under "the most rudimentary definition," the Account is "used for commercial activity" because "ANPCT funds have been used to purchase scientific equipment." Id. The District Court further explained that by using the Account to buy equipment, the Republic was "acting as a 'private player' in the marketplace, in the same way as any private party engaging in commerce." Id.

The plaintiffs subsequently moved for reconsideration with respect to the pre-judgment attachment orders as they related to the ANPCT Account. On September 30, 2010, the District Court acknowledged its "mistake" and confirmed the attachments of the ANPCT Account. The Republic now appeals the underlying restraining and attachment orders, as well as the orders confirming the restraint and attachment of the ANPCT Account, claiming that the District Court should have granted it immunity from execution pursuant to the FSIA.

DISCUSSION

I. Standard of Review

We review de novo legal conclusions denying FSIA immunity to a foreign sovereign or its property. See Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 129 (2d Cir. 2009);

Robinson v. Gov't of Malaysia, 269 F.3d 133, 138 (2d Cir. 2001). A district court's ruling on a request for an order of attachment is reviewed for abuse of discretion. Aurelius Capital Partners, 584 F.3d at 129; see EM Ltd., 473 F.3d at 472. A district court is said to have abused its discretion if it has (1) "based its ruling on an erroneous view of the law," (2) made a "clearly erroneous assessment of the evidence," or (3) "rendered a decision that cannot be located within ...


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