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UAB Skyroad Leasing v. OJSC Tajik Air, No. 20-cv-00763 (D.D.C. Jan. 26, 2021) [click for opinion]

Petitioner UAB Skyroad Leasing ("Skyroad") brought an arbitration against Respondent OJSC Tajik Air ("Tajik Air"), before the Vilnius Court of Commercial Arbitration in Vilnius, Lithuania, for violating an agreement to lease two Boeing aircraft. In 2018, a $20 million award was issued in favor of Skyroad. It brought this action to enforce the award.

Tajik Air argued that the petition should be dismissed because the court lacked personal jurisdiction over it. Specifically, Tajik Air argued that it did not have sufficient minimum contacts with the United States for the court to exercise personal jurisdiction consistent with the Due Process Clause of the Fifth Amendment. Skyroad argued in response that a minimum contacts analysis was not required because Tajik Air qualified as a foreign state under the Foreign Sovereign Immunities Act (the "FSIA"); therefore, Tajik Air had no Fifth Amendment due process rights. Skyroad's argument was based on the fact that Tajik Air was incorporated under the laws of Tajikistan and fully owned by the state.

Because Skyroad conceded that Tajik Air lacked sufficient minimum contacts with the United States to satisfy the Due Process Clause, the court only addressed whether Tajik Air qualified as a foreign state. The court noted that, underSection 1330(b)of the FSIA, personal jurisdiction over a foreign state exists as to every claim for relief over which the district court has subject matter jurisdiction. However, the court explained that this only applies to "an actual foreign government."

When a case involves an "agency or instrumentality" of a foreign sovereign, the court affords the instrumentality a "presumption of separateness" from the foreign sovereign. For purposes of personal jurisdiction, that presumption means that, unless rebutted, the instrumentality is entitled to due process protection under the Fifth Amendment. And such protection means that, unless the instrumentality has sufficient minimum contacts with the United States, the court lacks personal jurisdiction over it.

Skyroad's case thus rested on rebutting this presumption of separateness. Skyroad asserted that Tajikistan maintained such extensive control over Tajik Air that the company lacked a distinct identity. Skyroad argued that this lack of a distinct identity was clearly shown through (i) Tajikistan's owning 100% of Tajik Air's voting shares, (ii) the government's making decisions on disbursements and appointment of the company's Director General, the Supervisory Board including senior government officials, and (iii) the government's funding Tajik Air, and the reducing of Tajik Air's debts through tax offsets.

The court rejected most of these arguments, stating that the facts presented "are relevant but as a matter of law do not by themselves establish the required control" and "such government action to prop up a wholly owned instrumentality's financial position is not at all unusual, however, and does not constitute excessive control by the state."Further, the court identified features of Tajik Air that "are the hallmark of separateness from a sovereign". First, Tajik Air was restructured from a state enterprise to an open joint stock company by government resolution in 2009. Second, Tajik Air is "authorized to open bank accounts, operate on an independent balance sheet, and may acquire and exercise its proprietary rights and personal non-property rights, incur obligations and litigate."

Under these circumstances, the court ruled that Skyroad did not sufficiently rebut the presumption of separateness; therefore, the court deemed Tajik Air a "person" for Fifth Amendment due process purposes. Because Skyroad conceded that Tajik Air lacked sufficient minimum contacts with the United States, the court concluded that it lacked personal jurisdiction over Tajik Air and could not enforce the $20 million award against the company.

Will Shields of the Washington, DC office contributed to this summary.

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Arbitration. Enforcement of Award. Foreign Sovereign Immunities Act. Personal Jurisdiction. District court refuses to enforce $20 million award...

The separation of the judiciary from other organs of the state remains elusive even after 50 years of Bangladeshs independence as successive governments have amended the constitution to control the judiciary.

Legal experts said that Article 96 of the constitution on the removal of Supreme Court judges for misbehaviour or incapacity was amended on eight occasions between January 1975 and September 2014 while Article 116 on the control and discipline of the lower judiciary was amended on three occasions in 1975, 1979 and 2011.

It is painful that we are deprived of getting full independence of the judiciary from the executive, even though the establishment of an independent judiciary was one of the core objectives of our 1972 constitution, Dhaka University law professor Md Mizanur Rahman told New Age.

Although the law ministry is consulting with the Supreme Court to deal with administrative affairs in the subordinate judiciary, questions can be raised on how much the consultation is effective, he added.

He said that it is not a good sign for a democracy and such deviations bring no blessings for a country and a nation. When the judiciary is kept under the executive, democracy the first casualty, he pointed out.

The power to remove SC judges was vested in the president through the parliament in 1972, then in January 1975, through the Fourth Amendment to the constitution, the president became the sole arbiter.

Later in 1977, the president and the chief martial law administrator were authorised to exercise the power through the chief justice-led Supreme Judicial Council and the system of Supreme Judicial Council was ratified by the fifth amendment to the constitution in 1979, and the power was again vested in the chief martial law administrator in 1983.

All the martial law proclamations, including the Supreme Judicial Council of the fifth amendment, were revived through martial law proclamation in 1986 with the power vested in the chief martial law administrator.

All the martial law proclamations were declared unconstitutional by the High Court on August 29, 2005 in a Bangladesh Italian Marble Works Ltd case, but the Appellate Division in February 2010 retained the Supreme Judicial Council until December 31, 2012 with the observation that the parliament would make necessary amendment to the constitution regarding issues related to the Article 96.

On June 30, 2011, the parliament upheld the Supreme Judicial Council by amending the constitution through the 15th amendment.

In 2014, the government through the 16th amendment vested the power again in the parliament but the High Court on May 5, 2016 declared 16th amendment unconstitutional and restored the Supreme Judicial Council and the Appellate Division to upheld the HC verdict on July 3, 2017.

Jurist Shahdeen Malik told New Age that though the government has yet to amend the constitution to restore the Supreme Judicial Council on the ground that its appeal against the Supreme Courts ruling awaits a hearing, the online version of the constitution incorporated the parliaments authority to remove SC judges.

He said that the separation of the lower judiciary from the law ministry on November 1, 2007 remained on paper because the ministry continued influencing the subordinate judiciary.

He said that the process of recruitments of SC judges was not transparent and partisanship became the norm since early 2000 as no law has been framed yet to set up the qualifications of the judges as per Article 95 of the constitution.

Consequently, there are always some doubts in independent functioning of the higher judiciary, he said.

There is dual control of subordinate judges by the law ministry and the Supreme Court, said Shahdeen, who also added that the law ministry should not have any control over the judiciary as per the constitution.

Although the judiciary has been developed on paper, the independence of the judiciary could not be achieved in reality, SC lawyer and right activist Md Asaduzzaman said.

He said that the judiciary became relatively weaker and more affected since former chief justice Surendra Kumar Sinha was removed as it is him who penned the 16th amendment verdict in 2017.

Judges have been appointed on the political choice of the governments in absence of any law or rules and this is why the higher judiciary has become questionable sometimes, he said.

Asaduzzaman said that the partisan judgements on this occasion come from the judges.

He said that the government wanted to control the judges without making any law for setting out qualifications for Supreme Court judges.

The Appellate Division in the 16th amendment case also restored Articles 115 and 116 from the 1972 constitution.

The governments petition seeking a review of the 16th amendment verdict still awaits a hearing.

The authority of control and discipline of judges and magistrates shall vest in the Supreme Court as per Article 116 of the 1972 constitution.

The Supreme Court lost the authority as the government vested the authority in the president amending the constitution through the fourth amendment.

The Supreme Court lost its authority over lower court judges after the Appellate Division upheld the High Courts verdict that had declared the fifth amendment unconstitutional.

On June 30, 2011, the government restored the fifth amendment provision relating to Article 115 and 116 paying no heed to the Appellate Divisions observation in its verdict on the fifth amendment to reinstate original Articles 115 and 116.

Article 115(1) of the 1972 constitution empowered the president to appoint district judges on the recommendations of the Supreme Court and other persons after consultation of the Public Service Commission and the Supreme Court.

The Supreme Court also lost the authority to appoint district judges and magistrates as the government through the fourth amendment empowered the president to exercise the power in accordance with rules made by him.

The president still retained the power.

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Separation of judiciary still elusive - newagebd.net

As debates about policing pervade the public conversation, professorRachel Harmonof the University of Virginia School of Law has written the first casebook to look at the laws that govern police conduct in the United States.

The Law of the Police, published by Wolters Kluwer, takes on the question of how the law shapes police-citizen encounters and how the law might be leveraged to make policing serve the public better.

Harmon, a former federal prosecutor who directs the Law SchoolsCenter for Criminal Justice, has taught a course on the laws governing police for 15 years. She came to UVA Law in 2006 after spending eight years as a federal prosecutor in the U.S. Department of Justices Civil Rights Division.

Throughout her time in academia, she has wrestled with what role, if any, policing should have in peoples lives, and how best to prevent misconduct.

I came to the Law School from practice, where I spent years prosecuting civil rights cases, including against police officers, she said. Over time, I got frustrated with criminal prosecution as a response to police misconduct. Prosecuting illegal police violence can be important, but I knew there had to be better ways to prevent problems in policing.

Among her goals for the book, she said, was to look at how different laws and legal rules make policing more or less harmful.

The book is a reaction to the traditional approach to policing the police, which is rights-focused. For example, a common police practice she considers problematic is selectively asking drivers, based on a gut feeling, to open their trunks during a traffic stop with all of the officers conscious and unconscious biases in tow.

Lawyers have typically looked at such problems and argued that they violate Fourth Amendment doctrine or, if they dont, that the doctrine should be changed, she said. I see things differently.

In the evolution of her thoughts, Harmon first looked at how existing rights and remedies might be applied to curb policing that works against the public interest.

I spent my first couple of years as an academic looking at legal remedies to see whether they could be used to prevent problems in policing and tossing them over my shoulder, Harmon said. So civil rights damages actions, is that going to work? No, thats not going to work a lot of the time. Justice Department investigations of police departments, is that going to work? No, that wont work well enough either.

She then suggested enhancements to these existing tools, before going another way.

I wrote a couple of articles trying to improve rights and remedies before I started to write about how to think more broadly about police misconduct as a regulatory problem, Harmon said. The question is not only how to remedy police misconduct, but how to use law to get the public safety we want, both through policing and through other means.

Focusing on that question led Harmon to study the harms of policing and how the law overlooks them or contributes to them.

Moreover, studying the vast array of legal rules that shape policing and police departments led Harmon to realize how little of it lawyers and law students may know, she said.

Hopefully, the book can be a resource, not just for law students, but for academics, lawyers, police chiefs, journalists, activists, judges or just about anyone interested in how the law actually governs policing and how it might do so differently whether thats reforming police departments or turning public safety over to nonpolice actors, she said.

She noted that the book is different than a criminal procedure textbook, which specifically prepares lawyers for the concepts they will need to know as future prosecutors or defenders. Her book is organized by police practices, such as stopping traffic, using force, maintaining order, and policing resistance and protests, rather than legal categories dictated by Fourth and Fifth Amendment law. The book covers departmental policies and local and state law, as well as federal statutes and cases. It also addresses topics law students rarely study and on which there are few resources for lawyers and commentators, such as asset forfeiture, protest policing, video recording the police, and criminal investigations and prosecutions of police officers.

Even so, that hasnt stopped some professors who have given her book a test run from using it in their criminal procedure courses. Harmon said that the book was not conceived with that purpose in mind, but she has grown more comfortable with the idea that it can be used to teach an alternative version of criminal procedure, one in which the police are front and center.

Harmon is a member of the American Law Institute and serves as an associate reporter for its project on Principles of the Law of Policing. She advises nonprofits and government actors on issues of policing and the law, and served as a policing expert for the independent review of the white supremacist events of Aug. 11-12, 2017, in Charlottesville.

In December she wasco-author of a report, Policing Priorities for the New Administration, advocating for a stronger regulatory approach. The report, produced in collaboration with Barry Friedman and the Policing Project at the New York University School of Law, urged the White House to appoint a policing czar and require that all of the more than 80 federal law enforcement agencies meet basic standards for transparency, among other clear and actionable measures.

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Professor's New Casebook Is First to Look at Law of the Police - UVA Today

The Second Circuit has recently held that the Government must account for rental income it denied a property owner during a period of illegal seizure even though the Government was able to establish probable cause at a post-seizure hearing. The appeal stemmed from a decades-long sanctions and civil forfeiture action in which the U.S. Department of Justice has sought to forfeit, among others, a 36-story skyscraper located at 650 Fifth Avenue in Midtown Manhattan co-owned by the Alavi Foundation, an entity accused of laundering money for Iran.

The Government brought the civil action seeking to forfeit Alavis assetsincluding the building, valued at nearly $1 billionto distribute proceeds to victims of bombings and other attacks linked to Iran. The Government alleged that the property was traceable to violations of the International Emergency Economic Powers Act, money laundering statutes, and Iranian sanctions promulgated by the U.S. Department of Treasurys Office of Foreign Assets Control.

The case has been vigorously litigated for more than 13 years, involving extensive motion practice and years of discovery among hundreds of litigants, and producing several appeals, including an appeal from a judgment for the Government following a month-long jury trial that the Second Circuit vacated in 2019.

In the latest appeal, Alavi challenged the district courts finding of probable cause for the forfeiture, and argued that, even if probable cause existed, Alavi was entitled to the rental income the Government seized before the district courts determination of probable cause. The Second Circuit affirmed the probable-cause finding but agreed with Alavi on the second point.

18 U.S.C. 983 sets forth the [g]eneral rules for civil forfeiture proceedings. It permits courts to issue a protective order to seize, secure, maintain, or preserve the availability of property subject to civil forfeiture, and such orders may be entered prior to judgment. Id. 983(j)(1). 18U.S.C. 985, however, states that real property that is the subject of a civil forfeiture action shall not be seized before entry of an order of forfeiture. Id. 985(b)(1)(A), (f)(1). Section 985 contains two exceptions to this prohibition on pre-judgment seizures of real property: (1) where, on the Governments application, the court conducts a pre-seizure probable cause hearing in which the property owner has a meaningful opportunity to be heard or (2) where the court determines that there is probable cause for the forfeiture and that there are exigent circumstances that permit the Government to seize the property without prior notice and an opportunity for the property owner to be heard. Id. 985(d)(1)(B)(i)-(ii).

The Government argued that the specific provisions in 985 that require a pre-seizure hearing or showing of exigent circumstances apply only to seizures of real property and not, as here, to a seizure of rental income, and thus the protective order at issue was governed by 983, not 985. The Court disagreed. It held that a seizure of rental income is subject to the statutory due process restrictions in 985 as well as the Due Process Clause of the Fifth Amendment. Because the Governments seizure of the rental income without a pre-deprivation notice and hearing violated constitutionally protected due process rights, the Court found no need to reach the statutory due process issue, describing it as academic. The Court thus concluded that the building had been unlawfully seized until the district courts hearing on probable cause in October 2020.

The Court then turned to the remedy for the period of illegal seizure. The Government argued that as long as a court eventually determines that probable cause for forfeiture exists, previously unlawfully seized rental income should not be released. The Court disagreed, joining a majority of other circuits holding that the remedy for an illegal seizure where the Government fails to provide pre-deprivation notice and hearing but the property is later found to be subject to forfeiture after due process has been afforded is return of rents or lost profits during the period of illegal seizure. Because the district court did not hold a hearing on probable cause until October 13, 2020, all rental income seized by the Government before that date must be released to Alavi.

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No Hearing? No Money: Second Circuit Holds the Government May Not Keep Illegally Seized Rent - JD Supra

What if liberty and democracy are opposites? What if the principle underlying liberty is to restrain the government to maximize individual autonomy? What if the principle underlying democracy is to unleash the government to give the people whatever they want?

What if personal liberty is an individual birthright because we are created in the image and likeness of God? What if just as God is perfectly free, we are perfectly free? What if our personal liberties are integral to our humanity?

What if personal freedom -- which we are free to abuse -- is Gods greatest gift, after life itself? What if, without freedom, we would not be fully human but subservient to whomever or whatever took our freedoms away or persuaded us to surrender them?

What if government is essentially the negation of liberty? What if some liberties should be negated? What if those liberties that should be negated consist of the liberty to violate the natural rights of others by taking their lives, liberties and properties? What if government does this every day because it wants to tell us how to live? What if no one consented to a government that takes property and freedom from the people it governs?

ARTHUR HERMAN: MESSAGE TO DESANTIS CIVICS IMPORTANT BUT HERE'S WHAT WE REALLY NEED TO TEACH OUR KIDS

What if the right to worship or not, to think as you wish, say what you think, to publish what you say, to associate -- or not -- with whomever you choose, to defend yourself using the same means as the government and bad guys, to enjoy the right to privacy, to keep the government off your property and back and out of your face, to travel wherever and whenever, to engage in commercial intercourse on private property freely and without the need for government permission are natural, personal rights that no government -- whether by edict, legislation or referendum -- can morally dismiss or discard?

What if democracy offers the government tools to take our personal liberty and private property? What if, under a democracy, the government grows and liberty shrinks? What if thats because the democratic government desperately wants to stay in power, and in order to do so, it takes wealth from some and gives it to others? What if those from whom it takes wealth never consented to the takings?

What if, in a democracy, the public treasury has turned into a public trough? What if, in a democracy, those in power find ways around laws intended to limit their power? What if the government is essentially the judge of its own powers? What if no matter which party is in power, the government acts as if it can right any wrong, regulate any behavior, tax any event, and insinuate itself into any controversy -- whether authorized by the Constitution or not?

What if the Constitution is the supreme law of the land? What if it was written to establish the government and to limit it? What if its amendments expressly guarantee that the government shall not interfere with the exercise of natural rights? What if the government does so anyway?

What if the governments excuse is always emergency or safety? What if it promises during "an emergency" that it will bring safety in return for a surrender of liberty? What if the Ninth Amendment commands that the government may not deny or disparage natural rights, no matter the emergency?

What if this liberty-for-safety-in-an-emergency offer is the Devils bargain? What if surrendering liberty does not lead to safety but only more government?

What if -- since liberty is a personal birthright -- you can surrender your own liberty but you cannot your neighbors? What if the government takes liberty whether voluntarily surrendered or not?

What if the theory of the Constitution is that the states voluntarily surrendered some of their sovereign powers to the federal government so that it can address federal issues that are spelled out in the Constitution? What if the theory of state sovereignty is that the people in each state voluntarily surrendered some personal liberty in return for the protection of natural rights? What if the only liberty surrendered is the liberty to impair the natural rights of others?

What if no rational person has surrendered to government the liberty to walk the streets, to go to work, to operate and patronize lawful businesses and to control absolutely ones own face?

What if the Fifth Amendment commands that the government cannot take property rights without paying the ownertheir fair market value?

What if the government and its friends in the media have scared the daylights out of hundreds of millions of Americans so that they will peacefully surrender their rights and livelihoods during the governments emergency, and thus bring about the governments version of safety?

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What if there are no emergency powers in the Constitution? What if, during the War Between the States, the Supreme Court later ruled there was no emergency power to deny basic civil liberties?

What if state legislatures are utterly without power to interfere with our daily choices in the name of emergency and safety? What if those same state legislatures cannot give to governors powers that they do not have?

What if all the COVID-19 restrictions on personal autonomy directly defy the Constitution? What if the government doesnt care? What if millions who lost personal autonomy dont care because they have accepted the Devils bargain that somehow voluntary servitude will bring them temporary health and safety?

What if they have forgotten about the safety of their personal liberties?

What if democracy and liberty can only co-exist when the government is faithful to the Constitution? What if the history of American government is its infidelity to the Constitution?

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What if liberty taken or surrendered is not returned?

What will we do about it?

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Judge Andrew P. Napolitano: Who will keep our liberties safe? - Fox News