The Court held that the Foreign Sovereign Immunities Act (FSIA) does not apply to criminal cases. Halkbank, a Turkish state-owned bank, was indicted for violating U.S. sanctions against Iran. The Second Circuit held that the FSIA does not apply to criminal cases and, in the alternative, that the case would fall within the FSIA's commercial activities exception. The Supreme Court reversed and remanded for consideration of common law immunities.
Halkbank On Remand: Immunity and Extraterritoriality – Judicial Deference or Customary International Law?
The Supreme Court surprised some by ruling unanimously in Turkiye Halk Bankasi A.S. v. United States that the Foreign Sovereign Immunities Act (FSIA) does not protect Halkbank from criminal prosecution in U.S. courts. Seven Justices concluded that the FSIA applies solely to civil actions but remanded the case – without guidance – for the Second…
Continue ReadingWhy the Indictment Against Halkbank Must Be Dismissed
In 2019, the United States indicted Turkiye Halk Bankasi (Halkbank), a Turkish state-owned bank, alleging a multiyear scheme to evade U.S. sanctions against Iran by using fraudulent transactions to transfer the proceeds of oil and gas sales to Iran. Last month, the Supreme Court rejected Halkbank’s claim of immunity under the Foreign Sovereign Immunities Act…
Continue ReadingDear Justice Gorsuch: There’s No Reason to Worry About the Remand in Halkbank
In Turkiye Halk Bankasi A.S. v. United States (Halkbank), the Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) does not apply to criminal proceedings. The Court remanded the case to the Second Circuit to reconsider Halkbank’s claim of common law immunity. Justice Gorsuch, joined by Justice Alito, wrote a partial dissent. He would…
Continue ReadingOpen Questions after Halkbank
The Supreme Court held this week in Türkiye Halk Bankasi, A.S. v. United States that the Foreign Sovereign Immunities Act (FSIA) does not apply to criminal prosecutions. That holding was a blow to Halkbank—a foreign state-owned enterprise under indictment—which had argued that the FSIA provided it with immunity. But the case is not over. The…
Continue ReadingThrowback Thursday: Forty Years of the Bancec Test
The Supreme Court’s 1983 decision in First National City Bank v. Banco Para El Comercio Exterior de Cuba was saddled with a cumbersome mouthful of a title, one confusingly similar to a 1972 opinion in another important case, First National City Bank v. Banco Nacional de Cuba. Fortunately, the 1983 decision was quickly dubbed Bancec, an…
Continue ReadingOne More Thought on Halkbank
The recent Supreme Court argument in Türkiye Halk Bankasi A.S. (Halkbank) v. United States has captivated the transnational litigation community. Experts have weighed in in many forms, including on this blog. In this post, I want to add one more thought that I have not seen raised in this context. Even if the Court decides…
Continue ReadingWashington Foreign Law Society Podcast, "Does the FSIA Bar Prosecution in U.S. Courts of Commercial Enterprises Owned by Foreign States?" (with Ingrid Brunk, Chimène Keitner, David Stewart, & Mark Feldman)
Curt Bradley & Jack Goldsmith, The FSIA and Criminal Prosecutions (Lawfare)