1 Pub. L. No. 94-583 (1976), 28 U.S.C. §§1330, 1332(a)(2), (3), and (4), 1391(f), 1441(d), 1602-161 1, reprinted in 71 AJIL 595 (1977), 15 ILM 1388 (1976).

2 Section-by-Section Analysis, 15 ILM 102, 103 (1976), comment under section 2. In this respect, the Act differs from the State Immunity Act 1978 of the United Kingdom (reprinted in 17 ILM 1123 (1978)); Delaume, , The State Immunity Act of the United Kingdom, 73 AJIL 185 (1979)CrossRefGoogle Scholar; White, , The State Immunity Act 1978, [1979] J. Bus. L. 105 Google Scholar; and from the European Convention on State Immunity (reprinted in 11 ILM 470 (1972)); G. Delaume, Transnational Contracts, para. 11.10 (1980 updating). The State Immunity Act deals only with substantive issues of immunity and leaves unchanged domestic rules of adjudicatory jurisdiction. Substantially, the same remark can be made in respect of the European Convention, except that the drafters of the convention listed in a Specific Annex a number of improper fora, which, as among contracting states, should be regarded as insufficient to found jurisdiction.

3 § 1603(a) and (b).

4 § 1603(d) and (e) reads: (d) A “commercial activity”means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. (e) A “commercial activity carried on in the United States by a foreign state”means commercial activity carried on by such state and having substantial contact with the United States.

5 The State Immunity Act 1978, in addition to listing a number of transactions considered as having a commercial character (sections 3 to 11), provides a comprehensive definition in section 3(3), according to which:

In this section “commercial transaction”means —

(a) any contract for the supply of goods or services;

(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

(c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority… .

See Delaume, State Immunity Act, supra note 2.

6 See, e.g., Gittler v. German Information Center, 408 N.Y.S.2d 600 (Sup. Ct. 1978); United Euram Corp. v. U.S.S.R., 461 F.Supp. 609 (S.D.N.Y. 1978), and more generally, G. Delaume, Transnational Contracts, supra note 2, para. 11.05.

7 Section-by-Section Analysis, supra note 2, at 105, comments under §1603(d). See also, in connection with the renting of an apartment building on a commercial basis, County Board of Arlington County v. Government of the German Democratic Republic, No. 78-293-A (D.C. Alex. Va.), reprinted in 17 ILM 1402 (1978).

8 Section-by-Section Analysis, supra note 2, at 105.

9 comment under §1603(e).

10 G. Delaume, Transnational Contracts, supra note 2, para. 7.08, n.1..

11 453 F.Supp. 385 (S.D.N.Y. 1978).

12 406 F.Supp. 899 (D.D.C. 1976).

13 495 F.2d 483 (5th Cir. 1974).

14 See text and notes 45-46 infra.

15 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851 (1967), cert, denied, 88 S.Ct. 241, 389 U.S. 923 (1967).

16 119 N.Y.S.2d 319 (1953), aff'd, 119 N.Y.S.2d. 918, 281 A.D. 861 (1953), reargument and appeal denied, 127 N.Y.S.2d 815, 283 A.D. 655 (1954).

17 119 N.Y.S.2d at 322.

18 Delaume, , Public Debt and Sovereign Immunity: The Foreign Sovereign Immunities Act of1976, 71 AJIL 399, 405 (1977)CrossRefGoogle Scholar.

19 467 F.Supp. 383 (S.D.N.Y. 1979), reprinted in 18 ILM 977 (1979).

20 308 N.Y.S.2d 337, 26 N.Y.2d 13 (1970).

21 See note 15 supra.

22 425 F.Supp. 1365 (S.D.N.Y. 1977), reprinted in 16 ILM 505 (1977).

23 National American Corp. v. Federal Republic of Nigeria, 420 F.Supp. 954 (S.D.N.Y. 1976), reprinted in 16 ILM 505 (1977). Note that prejudgment attachment would now be barred by §1610(c) and (d) of the Foreign Sovereign Immunities Act.

24 Said the court: Few of the traditional criteria of doing business have been demonstrated. Concededly, CBN does not have an office here nor are its employees present within the state. The isolated act of maintaining bank accounts here has been held not to constitute doing business. Fremay, Inc. v. Modern Plastic Mach. Corp., 15 A.D.2d 235, 222 N.Y.S.2d 694 (1st Dep't 1961). The applicants denominate Morgan Guaranty as CBN's agent. New York courts have recognized a foreign corporation's presence when its agent systematically performs services within the state which would have subjected the principal to jurisdiction had they been performed by it. Frummer v. Hilton Hotels lnt'l Inc., 19 N.Y.2d 533, 537, 281 N.Y.S. 2d 41, 44, 227 N.E. 2d 851 (1967); McLaughlin, Practice Commentary C301:3 (McKinney 1972). Clearly, Morgan Guaranty is an entity independent of CBN. While the agency theory has been interpreted, in some instances, to include the acts of independent contractors, Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317 (2d Cir. 1964), the nature of Morgan Guaranty's actions on behalf of CBN would not appear to have that symbiotic quality which would subject CBN to jurisdiction here under the traditional “doing business”standards. N.Y.C.P.L.R. §301 (McKinney 1972); Frummer v. Hilton Hotels lnt'l, Inc., supra [425 F.Supp. at 1369].

25 425 F.Supp. at 1370, referring in particular to Wirth v. Prenyl, 29 A.D.2d 373, 288 N.Y.S.2d 377 (1st Dep't 1968).

26 425 F.Supp. at 1372, relying on Amigo Foods Corp. v. Marine Midland Bank, 39 N.Y.2d 391, 384 N.Y.S.2d 124 (1976).

27 4 4 8 F.Supp. 622 (S.D.N.Y. 1978), reprinted in 17 ILM 1407 (1978). International Ass'n of Machinists v. OPEC, 477 F.Supp. 553 (CD. Cal. 1979) is distinguishable since in that case the court held that the OPEC nations’ price-fixing activities were sovereign acts.

28 448 F.Supp. at 639.

29 Section-by-Section Analysis, supra note 2, at 107.

30 467 F.Supp. 383 (S.D.N.Y. 1979), reprinted in 18 ILM 977 (1979).

31 Section-by-Section Analysis, supra note 2, comment on section 1330(b), at 103, citing 326 U.S. 310, 90 L.Ed. 95 (1945).

32 Section-by-Section Analysis, supra note 2, at 107.

33 Restatement (Second) Foreign Relations Law of the United States (1965) §18(b)(ii) and (iii).

34 459 F.Supp. 264 (D.D.C. 1978).

35 357 U.S. 235, 2 L.Ed.2d 1283 (1958).

36 459 F.Supp. at 266.

37 481 F.Supp. 1056 (E.D.N.Y. 1979). 3SId. at 1065.

38 453 F.Supp. 1097 (S.D.N.Y. 1978),

39 id, 592 F.2d 673 (2d Cir. 1979).

40 In this connection, it is interesting to note that the Second Circuit refused to “pierce the corporate veil”and give weight to the argument that NEPCO was the alter ego of PETCO: “PETCO is a Bahamian corporation. Though a subsidiary of NEPCO, it was a separate corporate entity, and we will not here pierce the corporate veil in favor of those who created that veil.”592 F.2d at 676.

41 Id. at 677.

42 467 F.Supp. 383 (S.D.N.Y. 1979), reprinted in 18 ILM 977 (1979).

43 Compare Thos. P. Gonzalez Corp. v. Consejo Nacional de Produccion de Costa Rica, 614 F.2d 1247 (9th Cir. 1980). A California grain trader brought suit for breach of contract against an autonomous agency of the Republic of Costa Rica. The contract had been entered into in Costa Rica between the defendant and the local agent of the plaintiff, following an invitation to bid. The contract specified delivery in Costa Rica, payment to be made by letters of credit issued by a Costa Rican bank and confirmed by a Californian bank. The action was dismissed on the ground that the defendant carried on no business in California and that to assume jurisdiction would be violative of due process.

44 461 F.Supp. 384 (D.Del. 1978).

45 Id. at 394 n. 13. In this connection, it is also somewhat surprising that the court did not refer to Frummer and its progeny in order to consider whether Melex was not in effect the “alter ego”agent of the defendant in the United States, in which case jurisdiction could also have been ascertained on the basis of §1605(a)(2), clause 1.

46 H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. 21 (1976).

47 Consolidated Edison Co. of New York v. Aircraft Carrier Foch, No. 76 Civ. 2446 (S.D.N.Y. Jan. 5, 1979).

48 Perez v. The Bahamas, 482 F.Supp. 1208 (D.D.C. 1980).

49 Letelier v. Republic of Chile (D.D.C. March 11, 1980), reprinted in 19 ILM 409 (1980).

50 §13-425, D.C. Code, enacted by Pub. L. 913-58, sec. 132(a), 84 Stat. 473, 548, 549.

51 Section-by-Section Analysis, supra note 2, at 106.

52 G. Delaume, Transnational Contracts, supra note 2, para. 7.13.

53 See supra, text and notes 34-42.

54 §1605(a)(1), dealing with waivers of immunity.

55 Delaume, supra note 18, at pp. 417-21.

56 G. Delaume, Transnational Contracts, supra note 2, para. 13.05.

57 465 F.Supp. 824 (D.D.C. 1978), reprinted in 17 ILM 1395 (1978).

58 Section-by-Section Analysis, supra note 2, at 106.

59 Libyan Am. Oil Co. v. Socialist People's Libyan Arab Jamahirya, 482 F.Supp. 1175 (D.D.C. 1980). In that case, the court held that by agreeing to arbitrate in Switzerland disputes with an oil concessionaire, Libya had waived its immunity and that the court had jurisdiction to recognize and enforce the award. However, the court also held that it could not exercisejurisdiction under the act of state doctrine, since this would imply ruling on the validity of the Libyan nationalization law.

60 Verlinden B.V. v. Central Bank of Nigeria, No. 79 Civ. 1150 (S.D.N.Y., April 21, 1980), 3 West's Fed. Case News 36 (1980). Trib. gr. inst., Paris, July 8, 1970, Republique Socialiste Federate Yougoslave v. S.E.E.E., [1971] Clunet 131, [1971] J.C.P. II 16810 (submission to arbitration in Switzerland).

61 Trib. gr. inst., Paris, July 8, 1970, République Socialiste Fédérate Yougoslave v.S.E.E.E., [1971] Clunet 131, [1971] J.C.P. II 16810 submission to arbitration in Switzerland).