The transaction involved the purchase and release of gold from
Kenya. CFG paid, but there was no delivery, allegedly on the
basis that there was more than gold in the shipment
(diamonds). There then ensued a series of statements from the
Kenyan police. The consignment was never released —
but nor were the funds returned.
The Eight Circuit addressed the issue as one of subject matter
jurisdiction. The Court looked first at the commercial
activity exception but found it inapplicable. Since the
allegations of the complaint alleged actions such as failure to
investigate, failure to secure the gold, and failure to return
funds, the District Court and the Court of Appeals found that there
was no commercial activity exception; "[t]he decisions
regarding whether or how too investigate an allegedly fraudulent
commercial transaction between private parties, regulate exports,
enforce criminal laws, and seize property during criminal
investigations are governmental rather than commercial
activities". The Court of Appeals did not address the
question directly of the refusal to return the funds, which,
allegedly, the defendants had, having seized it from the alleged
wrongdoers. So the alleged wrongdoers no longer had the
funds; defendants did. Where were the plaintiffs going to get
the funds if not from the Defendants, who, based on allegations
that were being accepted as true, were involved in the transaction
and aftermath. (The plaintiffs said that the wrongdoer was not an
agent of the Kenyan government but also alleges that the Kenyan
police were involved.)
The Court of Appeals further ruled that the tort exception to
the FSIA was inapplicable. It covers "'only torts
occurring within the territorial jurisdiction of the United
States', regardless of whether the alleged tor 'may have
had effects in the United States'". Assuming the
plaintiffs were U.S. entities, that the funds came from the U.S.,
and that the loss was suffered in the U.S., is there an argument
that the tort occurred here?
In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corruption developments in the past month with links to primary resources.
The Department of Commerce, Bureau of Industry and Security and the Department of the Treasury, Office of Foreign Assets Control put into effect their Final Rules officially altering the 1960 U.S. embargo against Cuba.
On December 18, US President Barack Obama signed into law the Ukraine Freedom Support Act (UFSA), which either imposes, or gives the President the authority to impose, a range of additional sanctions targeting the energy and defense sectors of the Russian Federation.
On December 17, 2014, President Obama announced a "new course" in the United States' relationship with Cuba, including the re-establishment of diplomatic ties and the beginning of a roll-back in sanctions.
The Department of Treasury’s Office of Foreign Assets Control (OFAC) amended the Cuban Assets Control Regulations to implement changes in U.S. policy toward Cuba announced by President Obama on December 17, 2014.