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International Tin Council v. Amalgamet Inc.

Published online by Cambridge University Press:  27 February 2017

Steven R. Ratner
Steven R. Ratner*
Affiliation:
United States Department of State
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Extract

Petitioner, International Tin Council (ITC), brought an action to stay an American Arbitration Association arbitration that was initiated by respondent, Amalgamet Inc., and that arose out of petitioner’s refusal to honor three contracts for the purchase of tin from respondent. Petitioner claimed that it was immune from suit in the United States by virtue of its status as an international organization under British law, and, in the alternative, that the arbitration clause in its contract with respondent was unenforceable. The Supreme Court of New York County (per Parness, J.) dismissed the petition, and held that petitioner lacked any basis under U.S. law for immunity from legal process and that petitioner had consented to the arbitration clause providing for arbitration in New York.

Keywords

Sovereign immunityinternational organizationsact of state doctrinerecognition of foreign lawsarbitration clauses
Type
International Decisions
Information
American Journal of International Law , Volume 82 , Issue 4 , October 1988 , pp. 837 - 840
Copyright
Copyright © American Society of International Law 1988

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References

1 See generally McFadden, The Collapse of Tin: Restructuring a Failed Commodity Agreement, 80 AJIL 811 (1986). The events of 1985 resulted in numerous civil cases in England regarding ITC contracts. See, e.g., Shearson Lehman Bros. v. Maclaine Watson & Co., [1988] 1 W.L.R. 16; Maclaine Watson & Co. v. International Tin Council, [1987] 2 All E.R. 787; Standard Chartered Bank v. International Trade Council, [1986] 3 All E.R. 257.

2 The ITC was created pursuant to Article IV of the Second International Tin Agreement, Sept. 1, 1960, 403 UNTS 3, “to administer the provisions and to supervise the operation” of the Agreement.

3 See id., Art. I (objectives of Second International Tin Agreement).

4 The FSIA defines a “foreign state” as including “a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” An agency or instrumentality of a foreign state must be a separate legal person, an organ of a foreign state or political subdivision thereof or owned by such a state or subdivision, and neither a U.S. citizen nor created under the laws of a third country. 28 U.S.C. §1603(a)–(b) (1982). Cf. International Ass’n of Machinists v. OPEC, 477 F.Supp. 553 (CD. Cal. 1979), aff’d on other grounds, 649 F.2d 1354 (9th Cir. 1981), cert. denied, 454 U.S. 1163 (1982) (dismissing suit against OPEC members under FSIA when defendants were individual nations, but not OPEC as an organization, which had not been properly served).

5 Section 1 of the IOIA defines an international organization as:

a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.

6 524 N.Y.S.2d 971, 974.

7 Id.

8 Headquarters Agreement, Feb. 9, 1972, United Kingdom-International Tin Council, 834 UNTS 287. See also infra note 11.

9 International Tin Council (Immunities and Privileges) Order, S.I. 1972, No. 120.

10 524 N.Y.S.2d at 975.

11 Headquarters Agreement, supra note 8, Arts. 8, 23, 24 and 28.

12 524 N.Y.S.2d at 975.

13 Restatement (Third) of Foreign Relations Law of the United States §443 (1987).

14 Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300 (2d Cir. 1981), cert, denied, 454 U.S. 1148 (1982).

15 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 694–95 (1976). The commercial nature of the default of the instant case could have been considered an additional basis for rejecting the act of state doctrine, based on the plurality opinion in Dunhill, id. at 695–706 (opinion of White, J.).

16 See Restatement (Third), supra note 13, §467 comments a and/and Reporters’ Note 1.