¹ Bank Markazi v. Peterson, 136 S. Ct. 1310, 1316 (2016).

² Id. at 1317.

³ See id.

⁴ See ICJ Press Release, Iran Institutes Proceedings Against the United States with Regard to a Dispute Concerning Alleged Violations of the 1955 Treaty of Amity (June 15, 2016), at http://www.icj-cij.org/docket/files/164/19032.pdf.

⁵ “At approximately 6:25 a.m. Beirut time,... [a] truck crashed through a concertina wire barrier and a wall of sandbags, and entered the barracks. When the truck reached the center of the barracks, the bomb in the truck detonated. The resulting explosion was the largest non-nuclear explosion that had ever been detonated on the face of the Earth.” Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46, 56 (D.D.C. 2003) (footnote omitted). “As a result of the Marine barracks explosion, 241 servicemen were killed....” Id. at 58. “The United States has long recognized Iran’s complicity in this attack.” Bank Markazi, 136 S. Ct. at 1320 n.6. (citing H.R. Rep. No. 104-523, pt. 1, at 9 (1996) (“After an Administration determination of Iran’s involvement in the bombing of the Marine barracks in Beirut in October 1983, Iran was placed on the U.S. list of state sponsors of terrorism on January 19, 1984.”)).

⁶ See Bank Markazi, 136 S. Ct. at 1316.

⁷ Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1604 (2012).

⁸ 28 U.S.C. §1605A. See also Crook, John R., Contemporary Practice of the United States Relating to International Law, 102 AJIL 350, 350 (2008)Google Scholar.

⁹ “The bill I am introducing today will bring clarity to this law on behalf of victims of terrorism and reaffirm their right to sue and collect damages from state sponsors of terrorism. There are several reasons why the law needs to be improved. First, the courts decided in 2004 in Cicippio-Puleo v. Islamic Republic of Iran that, contrary to the intent of the Flatow amendment, there would be no Federal private right of action against foreign governments. The ruling stated that there could only be legal action against individual officials and employees of that government. Second, current law permits judgment holders to only seize assets over which a terrorist state has day-to-day managerial control, thereby allowing terrorist states to hide their assets from the victims who have successful judgments against them. Third, state sponsors of terrorism, such as Libya, which is still responsible for terrorist acts it committed in the past, have consistently abused the appeals process to delay litigation proceedings. My new legislation will address these issues and improve the ability of victims to hold state sponsors of terrorism accountable.” 153 Cong. Rec. S10791-01, 10793 (daily ed. Aug. 2, 2007) (statement of Sen. Lautenberg).

¹⁰ 28 U.S.C. §1605A(a)(1).

¹¹ Id., §1605A(a)(2)(A)(i)(I). “[T]he term ‘state sponsor of terrorism’ means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), section 40 of the Arms Export Control Act (22 U.S.C. 2780), or any other provision of law, is a government that has repeatedly provided support for acts of international terrorism.” Id., §1605A(h)(6).

¹² Additionally, the claimant/victim must have been a national of the United States or member of the armed forces or “otherwise an employee of the Government of the United States” when the act occurred and, if the act occurred in the foreign state against which the claim is brought, the claimant must afford “the foreign state a rea sonable opportunity to arbitrate the claim.” Id., §1605A (a)(2)(A)(ii)-(iii).

¹³ See The Foreign Sovereign Immunities Act: Hearing on S. 825 Before the Subcomm. on Courts and Administrative Practice of the Judiciary Comm., 103d Cong. (1994).

¹⁴ See id. at 13–14 (prepared Statement of Jamison S. Borek, Deputy Legal Adviser, Department of State) (“We are not aware of any instance in which a state permits jurisdiction over such tortious conduct of a foreign state with out territorial limitations.”).

¹⁵ Id. at 14.

¹⁶ See id.

¹⁷ Id. at 15.

¹⁸ Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, 2012 I.C.J. Rep. 99, para. 88 (Feb. 3).

¹⁹ State Immunity Act, R.S.C., 1985, c. S-18 Can.). Canada’s exception states, in relevant part: “A foreign state that is set out on the list referred to in subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985.” Id. at 6.1.

²⁰ See Brief for the United States as Amicus Curiae at 2, Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016) (No. 14-770). The majority of judgments remained unpaid. Id. at 1320.

²¹ Bank Markazi, 136 S. Ct. at 1318 (citations omitted). The “commercial exception” provides that “[t]he property in the United States of a foreign state... used for a commercial activity in the United States, shall not be immune from attachment in aid of execution.” 28 U.S.C. §1610. As relevant here, §1611 stipulates that “[n]ot-withstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment and from execution, if (1) the property is that of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent foreign government, has explicitly waived its immunity from attachment in aid of execution.” 28 U.S.C. § 1611(b)(1) (emphasis added).

²² Bank Markazi, 136 S. Ct. at 1318.

²³ See id.

²⁴ A number of programs including the International Emergency Economic Powers Act and Trading with the Enemy Act “authorize the President to ‘block’ particular assets in the United States.” In general, blocking programs prohibit transactions concerning property of the targeted foreign government in the absence of Executive Branch authorization. Brief for the United States as Amicus Curiae at 3, Bank Markazi, 136 S. Ct. 1310 (No. 14-770).

²⁵ Terrorism Risk Insurance Act, H.R. 3210, 107th Cong. §201(a) (2002) (codified at 28 U.S.C. § 1610(f)(1)(A)).

²⁶ Exec. Order No. 13,5999, 77 Fed. Reg. 6659, 6659 (Feb. 5, 2012) (emphasis added).

²⁷ Bank Markazi, 136 S. Ct. at 1320 n.10.

²⁸ See id.

²⁹ Bank Markazi, 136 S. Ct. at 1318 n.3. “[T]he bond assets have been held in a New York account at Citibank directly controlled by Clearstream Banking, S.A. (Clearstream), a Luxembourg-based company that serves ‘as an intermediary between financial institutions worldwide.’ Initially, Clearstream held the assets for Bank Markazi and deposited interest earned on the bonds into Bank Markazi’s Clearstream account. At some point in 2008, Bank Markazi instructed Clearstream to position another intermediary—Banca UBAE, S.p.A., an Italian bank— between the bonds and Bank Markazi. Thereafter, Clearstream deposited interest payments in UBAE’s account, which UBAE then remitted to Bank Markazi.” Id. at 1321 (citations omitted).

³⁰ See id. at 1318.

³¹ See Peterson, 2013 WL 1155576, at *24.; see also Peterson v. Islamic Republic of Iran, 758 F.3d 185, 188 (2d Cir. 2014) (“Although Iran argues that the TRIA ownership requirements have not been satisfied, we need not reach this issue in light of Congress’s enactment of § 8772.”).

³² 22 U.S.C. §8772(a)(1) (2012).

³³ Id., §8772(b).

³⁴ Id., §8772(a)(1).

³⁵ Id., §8772(a)(2).

³⁶ Bank Markazi, 136 S. Ct. at 1320–21.

³⁷ Peterson, 758 F.3d at 189.

³⁸ See Peterson v. Islamic Republic of Iran, No. 10 Civ. 4518, 2013 WL 1155576, at *31 (S.D.N.Y. Mar. 13, 2013); Brief for Petitioner on Writ of Certiorari at 19, Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) (No. 14-770).

³⁹ Peterson, 758 F.3d at 188.

⁴⁰ Peterson v. Islamic Republic of Iran, 136 S. Ct. 26 (2015).

⁴¹ Bank Markazi, 136 S. Ct. at 1322.

⁴² Id. at 1325.

⁴³ Id. at 1327.

⁴⁴ Id. at 1324, (quoting Richard Fallon, Jr. Et Al., Hart And Wechsler’s The Federal Courts and the Federal System 323, n. 29 (7th ed. 2015)).

⁴⁵ Bank Markazi, 136 S. Ct. at 1325.

⁴⁶ Id. at 1326 n. 23.

⁴⁷ Id. at 1326.

⁴⁸ Id. (emphasis added).

⁴⁹ The District Court made findings related to the definitions of “beneficial interest” and “equitable title.” Id. at 1325 n. 20. Furthermore, “§8772 required the District Court to determine whether the Bank owned the assets in question.” Id. In this particular case, however, Bank Markazi conceded that “Iran held the requisite ‘equitable title to, or beneficial interest in, the assets.” Id. at 1321.

⁵⁰ Id. at 1325. This holding in particular appears to have severely limited the implications of some famous language from United States v. Klein, 80 U.S. 128 (1872), perhaps to the vanishing point. See id. at 146 (stating that Congress may not “prescribe rules of decision to the Judicial Department... in [pending] cases”).

⁵¹ Bank Markazi, 136 S. Ct. at 1328.

⁵² Id.

⁵³ Id. See also id. at 1322 (“Article III of the Constitution establishes an independent Judiciary, a Third Branch of Government with the ‘province and duty... to say what the law is’ in particular cases and controversies.”) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)).

⁵⁴ Bank Markazi, 136 S. Ct. at 1330 (Roberts, J., dissenting).

⁵⁵ Id. at 1332.

⁵⁶ Gladstone, Rick, Iran Threatens Lawsuit in StreetHague Court Over U.S. Ruling on $2 Billion, N.Y. Times, Apr. 25, 2016, at A6Google Scholar.

⁵⁷ Goodenough, Patrick, Iran Threatens to Take US to Int’l Tribunal Over Supreme Court Terror Payout Ruling, CNS News (Apr. 26, 2016) at http://cnsnews.com/news/article/patrick-goodenough/iran-threatens-take-us-intl-tribunal-over-supreme-court-terror Google Scholar (alteration in original).

⁵⁸ Gladstone, Rick, Iran Hints at Retaliation Over U.S. Use of Seized Assets, N.Y. Times, Apr. 28, 2016, at A3Google Scholar.

⁵⁹ Letter from Dr. Javad Zarif, Minister for Foreign Affairs of the Islamic Republic of Iran, to Ban Ki-moon, UN Secretary General (Apr. 28, 2016), available at http://iran-un.org/en/2016/04/28/28-april-2016-letter-of-h-e-dr-m-javad-zarif-minister-for-foreign-affairs-of-the-islamic-republic-of-iran-addressed-to-h-e-ban-ki-moon-secretary-general-united-nations/.

⁶⁰ See Communiqué by the Coordinating Bureau of the Non-Aligned Movement in Rejection of Unilateral Actions by the United States in Contravention of International Law, in Particular the Principle of State Immunity (May 5, 2016), available at http://iran-un.org/en/2016/05/05/05-may-2016-communique-by-the-coordinating-bureau-of-the-non-aligned-movement-inrejection-of-unilateral-actions-by-the-united-states-in-contravention-of-international-law-in-particular-the-principle/.

⁶¹ Id.

⁶² ICJ Press Release, Iran Institutes Proceedings Against the United States with Regard to a Dispute Concerning Alleged Violations of the 1955 Treaty of Amity (June 15, 2016), at http://www.icj-cij.org/docket/files/164/19032.pdf. The treaty entered into force on June 16, 1957.

⁶³ Id. at 1.

⁶⁴ Treaty of Amity, Economic Relations, and Consular Rights, Iran-U.S., Aug. 15, 1955, 284 UNTS 93, 110, 112, 114, 116, 118.

⁶⁵ ICJ Press Release, supra note 62, at 1 (alterations in original).

⁶⁶ Id.

⁶⁷ Id. at 2.

⁶⁸ Fitch, Asa, Iran Sues U.S. in International Court Over Frozen Assets, Wall St. J. (June 16, 2016), at http://www.wsj.com/articles/iran-sues-u-s-in-international-court-over-frozen-assets-1466027629 Google Scholar.