foreign state or its entities. These limited circumstances are prescribed in sections 1610 and 1611 of the statute. It should be noted that under section 1610(c), a foreign state or its entities must be afforded a reasonable opportunity to satisfy a judgment before execution can be accorded.

6. The new statute precludes the Department of State from making decisions on state immunity. Such decisions must be made exclusively by the courts. Thus, when the legislation takes effect on January 19, 1977, the Department will not be able to continue its prior practice of entertaining diplomatic requests to determine questions of sovereign immunity, or of conveying such determinations of immunity to an American court. . . .

Dept. of State File No. P77 0014-208.

Department of State Determinations

The Department of State, at the request of the Canadian Embassy in Washington, issued on February 20, 1976, a suggestion of sovereign immunity in the case of Semonian v. Crosbie, et al., Civil Action No. 74-4893-T, in the U.S. District Court for the District of Massachusetts. The suggestion was filed with the Court by the Department of Justice on February 27, 1976. The Embassy had requested a suggestion of immunity on behalf of the following defendants: the Province of Newfoundland ("the Province"); a crown corporation named Labrador Linerboard, Ltd.; Frank Moores, Premier and First Minister of the Province, and John C. Crosbie, Minister of Intergovernmental Relations and Minister of Fisheries of the Province.

The action concerned the exploitation of timber resources on public lands owned by the Province; decisions by the Province and its officials concerning how the resources should be exploited; and agreements between the Province and a Canadian corporation, Canadian Javelin, Ltd., relating to the exploitation of these resources. In a letter of February 20, 1976, to the Attorney General, Mark B. Feldman, Deputy Legal Adviser of the Department of State, described the pending case and the Department's determination as follows:

The amended complaint sets forth five causes of action: (1) alleged breach by the Province of a May 1, 1972, settlement agreement between it and Canadian Javelin, by failing to pay money said to be owing under the agreement; (2) alleged fraud and coercion by the Province and its officials in causing Canadian Javelin to enter into this settlement agreement; (3) alleged willful misrepresentation by the Province and its officials, in inducing Canadian Javelin to enter into an earlier agreement dated November 21, 1969, through representations that certain timber reserves existed; (4) alleged willful misrepresentation and fraud by

the Province and its officials, in inducing Canadian Javelin to enter into the November 21, 1969, agreement, through representations that certain licenses and grants would be issued to Canadian Javelin; and (5) alleged unjust enrichment of the Province and of Labrador Linerboard, Ltd., by virtue of the acts alleged in some or all of the other causes of action. There is no allegation that the officials of the Province of Newfoundland acted other than in their official capacities and on behalf of the Province.

The Department recognizes and allows the immunity of defendants Moores and Crosbie from suit in this action.

With respect to the Province of Newfoundland and its crown. corporation, Labrador Linerboard. Ltd., the Department recognizes and allows the immunity of these defendants from suit with respect to:

(a) the second, third and fourth causes of action, and

(b) the fifth cause of action, but only insofar as it is based upon transactions or events underlying the second, third or fourth causes of action.

These decisions relate only to the immunity issues raised with the Department. The Department, of course, takes no position with respect to questions of jurisdiction, the appropriateness of the forum or other procedural claims raised in the case, or the merits of the litigation.

*

On March 16, 1976, the Department of State, in a note to the Canadian Embassy, pointed out that the immunity recognized by the Department extended to several aspects of the case, but not to the entire litigation. It added:

The Department was of the view that in accordance with international law as applied by the United States under the "Tate Letter," 26 Dept. State Bulletin 984 (1952), immunity is not appropriate with respect to the first cause of action, because it is based on alleged acts which are private or commercial in nature (jure gestionis) rather than public in nature (jure imperii).

*

Dept. of State File No. P76 0035-1222.

The Department of State similarly issued a suggestion of immunity on February 20, 1976, in the case of Greenspan et al. v. Crosbie et al., No. 74 Civ. 4734 (JMC), then pending in the U.S. District Court for the Southern District of New York and involving similar facts plus the disposition by the Province of Newfoundland, allegedly in the United States, of certain shares of Canadian Javelin stock. The suggestion was filed in that Court by the Department of Justice on March 9, 1976. In addition to recognizing the immunity of defendant government officials, the Department of State's letter stated:

*

With respect to the Province of Newfoundland, the Department recognizes and allows the immunity of the Province from suit, except insofar as plaintiffs' claims may be based upon direct injuries to purchasers of securities in the United States arising from (a) any immediate steps taken by the Province to effect the sale of securities in the United States, (b) any alleged misrepresentation in violation of United States securities laws, made by the Province in effecting the sale of securities in the United States, or (c) any alleged failure to disclose material information which the Province, in effecting the sale of securities in the United States, was required to disclose under U.S. securities laws. The Department does not address the question of whether the Province did in fact effect any sales of securities in the United States.

Finally, the Department recognizes and allows the immunity of the Province of Newfoundland as to the claim and demand for any punitive damages.

Dept. of State File No. P77 0009-10.

A building owned by the Socialist Republic of Romania and occupied by its Permanent Mission to the United Nations was the subject of an attachment in Ungureanu v. Socialist Republic of Romania, in the Supreme Court of the State of New York, County of New York, Index No. 09793/1976. Following a diplomatic request from the Romanian Embassy in Washington, the Department of State recognized the immunity of the property in question and requested the Department of Justice to file a suggestion of immunity. In a letter of August 20, 1976, to Attorney General Edward H. Levi, Acting Legal Adviser George H. Aldrich stated:

The property in question is used as diplomatic premises of the Permanent Mission of the Socialist Republic of Romania to the United Nations. The property also serves as the residence for personnel of the Permanent Mission, and for members of the staff of the Economic Counselor of the Embassy of the Socialist Republic of Romania. The remainder of the property is currently undergoing an interior renovation for ultimate use, in the near future, by the Economic Counselor of the Embassy and by the Romanian Library.

Taking note of applicable international agreements, and also for foreign relations reasons, the Department of State recognizes and allows the immunity of this property from attachment. Consequently, the Department would be grateful if you would cause an appropriate suggestion of immunity to be filed with the Supreme Court of the State of New York, County of New York.

The Department, in making this determination, has not found it necessary to determine any question concerning the underlying lawsuit.

Dept. of State File No. P77 0009-14. The applicable international agreements cited

in a footnote to Mr. Aldrich's letter were: Vienna Convention on Diplomatic Relations, art. 22 (TIAS 7502; 23 UST 3227) and the U.N. Headquarters Agreement, sec. 15 (TIAS 1676; 61 Stat. 3416).

The Department of State received a second request for a determination of immunity from the Romanian Embassy-this time for property formerly used as the diplomatic premises of the Romanian Permanent Mission to the United Nations, but subsequently used for residential purposes by the Permanent Representative of Romania to the United Nations. It too became the subject of an attachment in Ungureanu v. Socialist Republic of Romania, supra. The Department again recognized the immunity of the property in question. Monroe Leigh, Legal Adviser, in a letter to Attorney General Levi, dated October 12, 1976, stated:

Although the present property at 60 East 93rd Street, New York City, no longer serves as the offices of the Permanent Mission of the Socialist Republic of Romania to the United Nations, it continues to serve as the residence of the Permanent Representative of the Socialist Republic of Romania to the United Nations. Moreover, although much of the building is vacant and although the building has been offered for sale or rental, it does not appear that the property has been put to any commercial, investment, or other nonpublic use.

Taking note of these circumstances and of applicable international agreements, and also for foreign relations reasons, the Department of State recognizes and allows the immunity of this property from attachment. Consequently, the Department would be grateful if you would cause an appropriate suggestion of immunity to be filed with the Supreme Court of the State of New York, County of New York.

The Department, in making this determination, has not found it necessary to determine any question concerning the underlying lawsuit.

Dept. of State File No. P77 0012-1788. The applicable international agreements cited in a footnote to Mr. Leigh's letter were Vienna Convention on Diplomatic Relations, arts. 22 and 30 (TIAS 7502; 23 UST 3227), and the U.N. Headquarters Agreement, sec. 15 (TIAS 1676; 61 Stat. 3416).

Proof of Immunity

In National American Corporation v. Federal Republic of Nigeria, 420 F. Supp. 954 (1976), the U. S. District Court for the Southern District of New York held, inter alia, on October 13, 1976, that the fact that the agreement sued under was signed by the Ministry of Defense on behalf of the Nigerian Government did not automatically entitle the defendants to sovereign immunity.

A Delaware corporation brought action against the Republic of Nigeria and the Central Bank of Nigeria to recover the unpaid

balance for the purchase price of cement and unpaid demurrage charges under the terms of a written agreement. Nigeria and the Central Bank asserted sovereign immunity as a defense, although they did not request that the Department of State recommend that the immunity be granted. They claimed that the cement was for the use of the Nigerian armed forces and that immunity is conferred on "acts concerning the armed forces." The plaintiff in resisting the claim stressed the "intrinsically commercial" nature of the contract and the absence of any reference in it to the uses of the cement.

The Court agreed with the plaintiff's contention that the fact that the agreement was signed by the Ministry of Defense was irrelevant in deciding entitlement to sovereign immunity. It held that the corporation had presented a prima facie case and was entitled to an attachment, and that partial assignees of the corporation's claim were not indispensable parties.

The Supreme Court on May 24, 1976, in a 5-4 decision in Alfred Dunhill of London, Inc. v. The Republic of Cuba, 425 U.S. 682 (1976), held that the burden of proof in establishing an act of state defense had not been met. Four of the Justices stated that an act arising out of purely commercial operations by a foreign sovereign did not constitute an act of state. Although the Court had requested briefs and oral argument on whether its decision in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), should be overruled, it did not reach that issue.

The issue before the Court was whether the failure of respondents to return to petitioner Alfred Dunhill of London, Inc. (Dunhill), funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill by certain expropriated Cuban cigar businesses was an "act of state" by Cuba precluding an affirmative judgment against respondents. See the 1975 Digest, pp. 372-375, and the 1973 Digest pp. 234-237, for background on the case. For the Department of State's views on the question of reconsideration of Sabbatino, see the letter dated November 26, 1975, from Monroe Leigh, Legal Adviser of the Department, to Solicitor General Robert H. Bork in the 1975 Digest, pp. 372-375.

The majority opinion in Dunhill was delivered by Mr. Justice Byron R. White. It stated, in part:

In granting the petition, 416 U.S. 981 (1974), we requested the parties to address certain questions, the first being whether the