U.S. Supreme Court Rejects Limits on Post-Judgment Discovery Into Foreign States’ Assets: Supreme Court Holds That Post-Judgment Discovery Into the Overseas Assets of a Foreign State Is Not Barred by the Foreign Sovereign Immunities Act

Sullivan & Cromwell LLP - June 16, 2014

The U.S. Supreme Court held today that the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., does not bar post-judgment discovery into the overseas assets of a foreign state.  In Argentina v. NML Capital Ltd., No. 12-842 (June 16, 2014), a divided Court affirmed the Second Circuit and held that a discovery order requiring two nonparty financial institutions, Bank of America and Banco de la Nación Argentina, to disclose documents relating to all accounts maintained by or on behalf of Argentina—including assets and transactions in foreign states—does not violate Argentina’s sovereign immunity. The Court held that the FSIA does not limit post-judgment discovery to only those assets that U.S. courts can attach under the FSIA:  assets held and used for commercial purposes in the United States. The Court declined to give any significant weight to the contention that the order created difficult and competing obligations for the financial institutions subject to the subpoenas. The decision increases burdens on financial institutions holding assets of foreign sovereigns and expands district courts’ power to order post-judgment foreign discovery.