Republic of Argentina v. NML Capital, Ltd. ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 12–842. Argued April 21, 2014—Decided June 16, 2014
After petitioner, Republic of Argentina, defaulted on its external debt,
respondent, NML Capital, Ltd. (NML), one of Argentina’s bondhold-
ers, prevailed in 11 debt-collection actions that it brought against Ar-
gentina in the Southern District of New York. In aid of executing the
judgments, NML sought discovery of Argentina’s property, serving
subpoenas on two nonparty banks for records relating to Argentina’s
global financial transactions. The District Court granted NML’s mo-
tions to compel compliance. The Second Circuit affirmed, rejecting
Argentina’s argument that the District Court’s order transgressed
the Foreign Sovereign Immunities Act of 1976 (FSIA or Act).
Held: No provision in the FSIA immunizes a foreign-sovereign judg-
ment debtor from postjudgment discovery of information concerning
its extraterritorial assets. Pp. 4–12.
(a) This Court assumes without deciding that, in the ordinary case,
a district court would have the discretion under Federal Rule of Civil
Procedure 69(a)(2) to permit discovery of third-party information
bearing on a judgment debtor’s extraterritorial assets. Pp. 4–5.
(b) The FSIA replaced an executive-driven, factor-intensive, loosely
common-law-based immunity regime with “a comprehensive frame-
work for resolving any claim of sovereign immunity.” Republic of
Austria v. Altmann, 541 U. S. 677, 699. Henceforth, any sort of im-
munity defense made by a foreign sovereign in an American court
must stand or fall on the Act’s text. The Act confers on foreign states
two kinds of immunity. The first, jurisdictional immunity (28
U. S. C. §1604), was waived here. The second, execution immunity,
generally shields “property in the United States of a foreign state”
from attachment, arrest, and execution. §§1609, 1610. See also
§1611(a), (b)(1), (b)(2). The Act has no third provision forbidding or
2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
Syllabus
limiting discovery in aid of execution of a foreign-sovereign judgment
debtor’s assets. Far from containing the “plain statement” necessary
to preclude application of federal discovery rules, Société Nationale
Industrielle Aérospatiale v. United States Dist. Court for Southern
Dist. of Iowa, 482 U. S. 522, 539, the Act says not a word about
postjudgment discovery in aid of execution.
Argentina’s arguments are unavailing. Even if Argentina were
correct that §1609 execution immunity implies coextensive discovery-
in-aid-of-execution immunity, the latter would not shield from dis-
covery a foreign sovereign’s extraterritorial assets, since the text of
§1609 immunizes only foreign-state property “in the United States.”
The prospect that NML’s general request for information about Ar-
gentina’s worldwide assets may turn up information about property
that Argentina regards as immune does not mean that NML cannot
pursue discovery of it. Pp. 5–10.
695 F. 3d 201, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, BREYER, ALITO, and KAGAN, JJ., joined.
GINSBURG, J., filed a dissenting opinion. SOTOMAYOR, J., took no part in
the decision of the case.
Cite as: 573 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–842
_________________
REPUBLIC OF ARGENTINA, PETITIONER v. NML
CAPITAL, LTD.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 16, 2014]
JUSTICE SCALIA delivered the opinion of the Court.
We must decide whether the Foreign Sovereign Immu-
nities Act of 1976 (FSIA or Act), 28 U. S. C. §§1330, 1602
et seq., limits the scope of discovery available to a judg­
ment creditor in a federal postjudgment execution pro­
ceeding against a foreign sovereign.
I. Background
In 2001, petitioner, Republic of Argentina, defaulted on
its external debt. In 2005 and 2010, it restructured most
of that debt by offering creditors new securities (with less
favorable terms) to swap out for the defaulted ones. Most
bondholders went along. Respondent, NML Capital, Ltd.
(NML), among others, did not.
NML brought 11 actions against Argentina in the
Southern District of New York to collect on its debt, and
prevailed in every one.1 It is owed around $2.5 billion,
——————
1 The District Court’s jurisdiction rested on Argentina’s broad waiver
of sovereign immunity memorialized in its bond indenture agreement,
which states: “To the extent that [Argentina] or any of its revenues,
assets or properties shall be entitled . . . to any immunity from suit . . .
from attachment prior to judgment . . . from execution of a judgment or
2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
Opinion of the Court
which Argentina has not paid. Having been unable to
collect on its judgments from Argentina, NML has at­
tempted to execute them against Argentina’s property.
That postjudgment litigation “has involved lengthy at­
tachment proceedings before the district court and multi­
ple appeals.” EM Ltd. v. Republic of Argentina, 695 F. 3d
201, 203, and n. 2 (CA2 2012) (referring the reader to prior
opinions “[f]or additional background on Argentina’s de­
fault and the resulting litigation”).
Since 2003, NML has pursued discovery of Argentina’s
property. In 2010, “ ‘[i]n order to locate Argentina’s assets
and accounts, learn how Argentina moves its assets
through New York and around the world, and accurately
identify the places and times when those assets might be
subject to attachment and execution (whether under
[United States law] or the law of foreign jurisdictions),’ ”
id., at 203 (quoting NML brief), NML served subpoenas on
two nonparty banks, Bank of America (BOA) and Banco de
la Nación Argentina (BNA), an Argentinian bank with a
branch in New York City. For the most part, the two
subpoenas target the same kinds of information: docu­
ments relating to accounts maintained by or on behalf of
Argentina, documents identifying the opening and closing
dates of Argentina’s accounts, current balances, transac­
tion histories, records of electronic fund transfers, debts
owed by the bank to Argentina, transfers in and out of
Argentina’s accounts, and information about transferors
and transferees.
Argentina, joined by BOA, moved to quash the BOA
subpoena. NML moved to compel compliance but, before
——————
from any other legal or judicial process or remedy, . . . [Argentina] has
irrevocably agreed not to claim and has irrevocably waived such im­
munity to the fullest extent permitted by the laws of such jurisdiction
(and consents generally for the purposes of the [FSIA] to the giving of
any relief or the issue of any process in connection with any Related
Proceeding or Related Judgment) . . . .” App. 106–107.
Cite as: 573 U. S. ____ (2014) 3
Opinion of the Court
the court ruled, agreed to narrow its subpoenas by exclud­
ing the names of some Argentine officials from the ini-
tial electronic-fund-transfer message search. NML also
agreed to treat as confidential any documents that the
banks so designated.
The District Court denied the motion to quash and
granted the motions to compel. Approving the subpoenas
in principle, it concluded that extraterritorial asset discov­
ery did not offend Argentina’s sovereign immunity, and it
reaffirmed that it would serve as a “clearinghouse for
information” in NML’s efforts to find and attach Argenti­
na’s assets. App. to Pet. for Cert. 31. But the court made
clear that it expected the parties to negotiate further over
specific production requests, which, the court said, must
include “some reasonable definition of the information
being sought.” Id., at 32. There was no point, for in­
stance, in “getting information about something that
might lead to attachment in Argentina because that would
be useless information,” since no Argentinian court would
allow attachment. Ibid. “Thus, the district court . . .
sought to limit the subpoenas to discovery that was rea­
sonably calculated to lead to attachable property.” 695
F. 3d, at 204–205.
NML and BOA later negotiated additional changes to
the BOA subpoena. NML expressed its willingness to
narrow its requests from BNA as well, but BNA neither
engaged in negotiation nor complied with the subpoena.
Only Argentina appealed, arguing that the court’s order
transgressed the Foreign Sovereign Immunities Act be­
cause it permitted discovery of Argentina’s extraterritorial
assets. The Second Circuit affirmed, holding that “be­
cause the Discovery Order involves discovery, not attach­
ment of sovereign property, and because it is directed at
third-party banks, not at Argentina itself, Argentina’s
sovereign immunity is not infringed.” Id., at 205.
We granted certiorari. 571 U. S. ___ (2014).
4 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
Opinion of the Court
II. Analysis
A
The rules governing discovery in postjudgment execu­
tion proceedings are quite permissive. Federal Rule of
Civil Procedure 69(a)(2) states that, “[i]n aid of the judg­
ment or execution, the judgment creditor . . . may obtain
discovery from any person—including the judgment debtor—
as provided in the rules or by the procedure of the
state where the court is located.” See 12 C. Wright, A.
Miller, & R. Marcus, Federal Practice and Procedure
§3014, p. 160 (2d ed. 1997) (hereinafter Wright & Miller)
(court “may use the discovery devices provided in [the
federal rules] or may obtain discovery in the manner
provided by the practice of the state in which the district
court is held”). The general rule in the federal system is
that, subject to the district court’s discretion, “[p]arties
may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense.” Fed. Rule
Civ. Proc. 26(b)(1). And New York law entitles judgment
creditors to discover “all matter relevant to the satisfac­
tion of [a] judgment,” N. Y. Civ. Prac. Law Ann. §5223
(West 1997), permitting “investigation [of] any person
shown to have any light to shed on the subject of the
judgment debtor’s assets or their whereabouts,” D. Siegel,
New York Practice §509, p. 891 (5th ed. 2011).
The meaning of those rules was much discussed at oral
argument. What if the assets targeted by the discovery
request are beyond the jurisdictional reach of the court to
which the request is made? May the court nonetheless
permit discovery so long as the judgment creditor shows
that the assets are recoverable under the laws of the
jurisdictions in which they reside, whether that be Florida
or France? We need not take up those issues today, since
Argentina has not put them in contention. In the Court of
Appeals, Argentina’s only asserted ground for objection to
Cite as: 573 U. S. ____ (2014) 5
Opinion of the Court
the subpoenas was the Foreign Sovereign Immunities Act.
See 695 F. 3d, at 208 (“Argentina argues . . . that the
normally broad scope of discovery in aid of execution is
limited in this case by principles of sovereign immunity”).
And Argentina’s petition for writ of certiorari asked us to
decide only whether that Act “imposes [a] limit on a United
States court’s authority to order blanket post-judgment
execution discovery on the assets of a foreign state used
for any activity anywhere in the world.” Pet. for Cert. 14.
Plainly, then, this is not a case about the breadth of Rule
69(a)(2).2 We thus assume without deciding that, as the
Government conceded at argument, Tr. of Oral Arg. 24,
and as the Second Circuit concluded below, “in a run-of­
the-mill execution proceeding . . . the district court would
have been within its discretion to order the discovery from
third-party banks about the judgment debtor’s assets
located outside the United States.” 695 F. 3d, at 208. The
single, narrow question before us is whether the Foreign
Sovereign Immunities Act specifies a different rule when
the judgment debtor is a foreign state.
B
To understand the effect of the Act, one must know
something about the regime it replaced. Foreign sovereign
immunity is, and always has been, “a matter of grace and
comity on the part of the United States, and not a re­
striction imposed by the Constitution.” Verlinden B. V. v.
Central Bank of Nigeria, 461 U. S. 480, 486 (1983). Ac­
cordingly, this Court’s practice has been to “defe[r] to the
decisions of the political branches” about whether and
——————
2 On one of the final pages of its reply brief, Argentina makes for the
first time the assertion (which it does not develop, and for which it cites
no authority) that the scope of Rule 69 discovery in aid of execution is
limited to assets upon which a United States court can execute. Reply
Brief 19. We will not revive a forfeited argument simply because the
petitioner gestures toward it in its reply brief.
6 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
Opinion of the Court
when to exercise judicial power over foreign states. Ibid.For the better part of the last two centuries, the political
branch making the determination was the Executive,
which typically requested immunity in all suits against
friendly foreign states. Id., at 486–487. But then, in 1952,
the State Department embraced (in the so-called Tate
Letter) the “restrictive” theory of sovereign immunity,
which holds that immunity shields only a foreign sover­
eign’s public, noncommercial acts. Id., at 487, and n. 9.
The Tate Letter “thr[ew] immunity determinations into
some disarray,” since “political considerations sometimes
led the Department to file suggestions of immunity in
cases where immunity would not have been available
under the restrictive theory.” Republic of Austria v. Alt­
mann, 541 U. S. 677, 690 (2004) (internal quotation marks
omitted). Further muddling matters, when in particular
cases the State Department did not suggest immunity,
courts made immunity determinations “generally by refer­
ence to prior State Department decisions.” Verlinden, 461
U. S., at 487. Hence it was that “sovereign immunity
decisions were [being] made in two different branches,
subject to a variety of factors, sometimes including diplo­
matic considerations. Not surprisingly, the governing
standards were neither clear nor uniformly applied.” Id.,
at 488.
Congress abated the bedlam in 1976, replacing the old
executive-driven, factor-intensive, loosely common-law­
based immunity regime with the Foreign Sovereign Im­
munities Act’s “comprehensive set of legal standards
governing claims of immunity in every civil action against
a foreign state.” Ibid. The key word there—which goes a
long way toward deciding this case—is comprehensive. We
have used that term often and advisedly to describe the
Act’s sweep: “Congress established [in the FSIA] a com­
prehensive framework for resolving any claim of sovereign
immunity.” Altman, 541 U. S., at 699. The Act “compre­
Cite as: 573 U. S. ____ (2014) 7
Opinion of the Court
hensively regulat[es] the amenability of foreign nations to
suit in the United States.” Verlinden, supra, at 493. This
means that “[a]fter the enactment of the FSIA, the Act—
and not the pre-existing common law—indisputably gov­
erns the determination of whether a foreign state is enti­
tled to sovereign immunity.” Samantar v. Yousuf, 560
U. S. 305, 313 (2010). As the Act itself instructs, “[c]laims
of foreign states to immunity should henceforth be decided
by courts . . . in conformity with the principles set forth in
this [Act].” 28 U. S. C. §1602 (emphasis added). Thus, any
sort of immunity defense made by a foreign sovereign in
an American court must stand on the Act’s text. Or it
must fall.
The text of the Act confers on foreign states two kinds of
immunity. First and most significant, “a foreign state
shall be immune from the jurisdiction of the courts of the
United States . . . except as provided in sections 1605 to
1607.” §1604. That provision is of no help to Argentina
here: A foreign state may waive jurisdictional immunity,
§1605(a)(1), and in this case Argentina did so, see 695
F. 3d, at 203. Consequently, the Act makes Argentina
“liable in the same manner and to the same extent as a
private individual under like circumstances.” §1606.
The Act’s second immunity-conferring provision states
that “the property in the United States of a foreign state
shall be immune from attachment[,] arrest[,] and execu­
tion except as provided in sections 1610 and 1611 of this
chapter.” §1609. The exceptions to this immunity defense
(we will call it “execution immunity”) are narrower. “The
property in the United States of a foreign state” is subject
to attachment, arrest, or execution if (1) it is “used for a
commercial activity in the United States,” §1610(a), and
(2) some other enumerated exception to immunity applies,
such as the one allowing for waiver, see §1610(a)(1)–(7).
The Act goes on to confer a more robust execution immu­
nity on designated international-organization property,
8 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
Opinion of the Court
§1611(a), property of a foreign central bank, §1611(b)(1),
and “property of a foreign state . . . [that] is, or is intended
to be, used in connection with a military activity” and is
either “of a military character” or “under the control of a
military authority or defense agency,” §1611(b)(2).
That is the last of the Act’s immunity-granting sections.
There is no third provision forbidding or limiting discovery
in aid of execution of a foreign-sovereign judgment debt­
or’s assets. Argentina concedes that no part of the Act
“expressly address[es] [postjudgment] discovery.” Brief for
Petitioner 22. Quite right. The Act speaks of discovery
only once, in a subsection requiring courts to stay discov­
ery requests directed to the United States that would
interfere with criminal or national-security matters,
§1605(g)(1). And that section explicitly suspends certain
Federal Rules of Civil Procedure when such a stay is
entered, see §1605(g)(4). Elsewhere, it is clear when the
Act’s provisions specifically applicable to suits against
sovereigns displace their general federal-rule counter­
parts. See, e.g., §1608(d). Far from containing the “plain
statement” necessary to preclude application of federal
discovery rules, Société Nationale Industrielle Aérospatiale
v. United States Dist. Court for Southern Dist. of Iowa,
482 U. S. 522, 539 (1987), the Act says not a word on the
subject.3
Argentina would have us draw meaning from this si­
lence. Its argument has several parts. First, it asserts
that, before and after the Tate Letter, the State Depart­
ment and American courts routinely accorded absolute
execution immunity to foreign-state property. If a thing
belonged to a foreign sovereign, then, no matter where it
——————
3 Argentina and the United States suggest that, under the terms of
Rule 69 itself, the Act trumps the federal rules, since Rule 69(a)(1)
states that “a federal statute governs to the extent it applies.” But,
since the Act does not contain implicit discovery-immunity protections,
it does not “apply” (in the relevant sense) at all.
Cite as: 573 U. S. ____ (2014) 9
Opinion of the Court
was found, it was immune from execution. And absolute
immunity from execution necessarily entailed immunity
from discovery in aid of execution. Second, by codifying
execution immunity with only a small set of exceptions,
Congress merely “partially lowered the previously uncon­
ditional barrier to post-judgment relief.” Brief for Peti­
tioner 29. Because the Act gives “no indication that it was
authorizing courts to inquire into state property beyond
the court’s limited enforcement authority,” ibid., Argen­
tina contends, discovery of assets that do not fall within an
exception to execution immunity (plainly true of a foreign
state’s extraterritorial assets) is forbidden.
The argument founders at each step. To begin with,
Argentina cites no case holding that, before the Act, a
foreign state’s extraterritorial assets enjoyed absolute
execution immunity in United States courts. No surprise
there. Our courts generally lack authority in the first
place to execute against property in other countries, so
how could the question ever have arisen? See Wright &
Miller §3013, at 156 (“[A] writ of execution . . . can be
served anywhere within the state in which the district
court is held”). More importantly, even if Argentina were
right about the scope of the common-law execution­
immunity rule, then it would be obvious that the terms of
§1609 execution immunity are narrower, since the text of
that provision immunizes only foreign-state property “in
the United States.” So even if Argentina were correct that
§1609 execution immunity implies coextensive discovery­
in-aid-of-execution immunity, the latter would not shield
from discovery a foreign sovereign’s extraterritorial assets.
But what of foreign-state property that would enjoy
execution immunity under the Act, such as Argentina’s
diplomatic or military property? Argentina maintains
that, if a judgment creditor could not ultimately execute a
judgment against certain property, then it has no business
pursuing discovery of information pertaining to that prop­
10 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
Opinion of the Court
erty. But the reason for these subpoenas is that NML does
not yet know what property Argentina has and where it is,
let alone whether it is executable under the relevant
jurisdiction’s law. If, bizarrely, NML’s subpoenas had
sought only “information that could not lead to executable
assets in the United States or abroad,” then Argentina
likely would be correct to say that the subpoenas were
unenforceable—not because information about nonexecut­
able assets enjoys a penumbral “discovery immunity”
under the Act, but because information that could not
possibly lead to executable assets is simply not “relevant”
to execution in the first place, Fed. Rule Civ. Proc.
26(b)(1); N. Y. Civ. Prac. Law Ann. §5223.4 But of course
that is not what the subpoenas seek. They ask for infor­
mation about Argentina’s worldwide assets generally, so
that NML can identify where Argentina may be holding
property that is subject to execution. To be sure, that
request is bound to turn up information about property
that Argentina regards as immune. But NML may think
the same property not immune. In which case, Argenti­
na’s self-serving legal assertion will not automatically
prevail; the District Court will have to settle the matter.
* * *
Today’s decision leaves open what Argentina thinks is a
gap in the statute. Could the 1976 Congress really have
meant not to protect foreign states from postjudgment
——————
4 The dissent apparently agrees that the Act has nothing to say about
the scope of postjudgment discovery of a foreign sovereign’s extraterri­
torial assets. It also apparently agrees that the rules limit discovery to
matters relevant to execution. Our agreement ends there. The dissent
goes on to assert that, unless a judgment creditor proves up front that
all of the information it seeks is relevant to execution under the laws of
all foreign jurisdictions, discovery of information concerning extraterri­
torial assets is limited to that which the Act makes relevant to execu­
tion in the United States. Post, at 2 (opinion of GINSBURG, J.). We can
find no basis in the Act or the rules for that position.
Cite as: 573 U. S. ____ (2014) 11
Opinion of the Court
discovery “clearinghouses”? The riddle is not ours to solve
(if it can be solved at all). It is of course possible that, had
Congress anticipated the rather unusual circumstances of
this case (foreign sovereign waives immunity; foreign
sovereign owes money under valid judgments; foreign
sovereign does not pay and apparently has no executable
assets in the United States), it would have added to the
Act a sentence conferring categorical discovery-in-aid-of­
execution immunity on a foreign state’s extraterritorial
assets. Or, just as possible, it would have done no such
thing. Either way, “[t]he question . . . is not what Con­
gress ‘would have wanted’ but what Congress enacted in
the FSIA.” Republic of Argentina v. Weltover, Inc., 504
U. S. 607, 618 (1992).5
Nonetheless, Argentina and the United States urge us
to consider the worrisome international-relations conse­
quences of siding with the lower court. Discovery orders
as sweeping as this one, the Government warns, will cause
“a substantial invasion of [foreign states’] sovereignty,”
Brief for United States as Amicus Curiae 18, and will
“[u]ndermin[e] international comity,” id., at 19. Worse,
such orders might provoke “reciprocal adverse treatment
of the United States in foreign courts,” id., at 20, and will
“threaten harm to the United States’ foreign relations
more generally,” id., at 21. These apprehensions are
better directed to that branch of government with author-
ity to amend the Act—which, as it happens, is the same
branch that forced our retirement from the immunity-by­
factor-balancing business nearly 40 years ago.6
——————
5 NML also argues that, even if Argentina had a claim to immunity
from postjudgment discovery, it waived it in its bond indenture agree­
ment, see n. 1, supra. The Second Circuit did not address this argu­
ment. Nor do we.
6 Although this appeal concerns only the meaning of the Act, we have
no reason to doubt that, as NML concedes, “other sources of law”
ordinarily will bear on the propriety of discovery requests of this nature
12 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
Opinion of the Court
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SOTOMAYOR took no part in the decision of this
case.
——————
and scope, such as “settled doctrines of privilege and the discretionary
determination by the district court whether the discovery is warranted,
which may appropriately consider comity interests and the burden that
the discovery might cause to the foreign state.” Brief for Respondent
24–25 (quoting Société Nationale Industrielle Aérospatiale v. United
States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 543–544,
and n. 28 (1987)).
Cite as: 573 U. S. ____ (2014) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–842
_________________
REPUBLIC OF ARGENTINA, PETITIONER v. NML
CAPITAL, LTD.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 16, 2014]
JUSTICE GINSBURG, dissenting.
The Foreign Sovereign Immunities Act of 1976, 28
U. S. C. §§1330, 1602 et seq., if one of several conditions is
met, permits execution of a judgment rendered in the
United States against a foreign sovereign only on “property
in the United States . . . used for a commercial activity.”
§1610(a). Accordingly, no inquiry into a foreign sover-
eign’s property in the United States that is not “used for a
commercial activity” could be ordered; such an inquiry,
as the Court recognizes, would not be “ ‘relevant’ to execu-
tion in the first place.” Ante, at 10 (citing Fed. Rule Civ.
Proc. 26(b)(1)). Yet the Court permits unlimited inquiry
into Argentina’s property outside the United States,
whether or not the property is “used for a commercial
activity.” By what authorization does a court in the United
States become a “clearinghouse for information,” ante,
at 3 (internal quotation marks omitted), about any and all
property held by Argentina abroad? NML may seek such
information, the Court reasons, because “NML does not yet
know what property Argentina has [outside the United
States], let alone whether it is executable under the rele-
vant jurisdiction’s law.” Ante, at 10. But see Société
Nationale Industrielle Aérospatiale v. United States Dist.
Court for Southern Dist. of Iowa, 482 U. S. 522, 542 (1987)
(observing that other jurisdictions generally allow much
2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
GINSBURG, J., dissenting
more limited discovery than is available in the United
States).
A court in the United States has no warrant to indulge
the assumption that, outside our country, the sky may be
the limit for attaching a foreign sovereign’s property in
order to execute a U. S. judgment against the foreign
sovereign. Cf. §1602 (“Under international law, . . . th[e]
commercial property [of a state] may be levied upon for the
satisfaction of judgments rendered against [the state] in
connection with [its] commercial activities.” (emphasis
added)). Without proof of any kind that other nations
broadly expose a foreign sovereign’s property to arrest,
attachment or execution, a more modest assumption is in
order. See EM Ltd. v. Republic of Argentina, 695 F. 3d
201, 207 (CA2 2012) (recognizing that postjudgment dis-
covery “must be calculated to assist in collecting on a
judgment” (citing Fed. Rules Civ. Proc. 26(b)(1), 69(a)(2))).
Unless and until the judgment creditor, here, NML,
proves that other nations would allow unconstrained
access to Argentina’s assets, I would be guided by the one
law we know for sure—our own. That guide is all the
more appropriate, as our law coincides with the interna-
tional norm. See §1602. Accordingly, I would limit NML’s
discovery to property used here or abroad “in connection
with . . . commercial activities.” §§1602, 1610(a). I there-
fore dissent from the sweeping examination of Argentina’s
worldwide assets the Court exorbitantly approves today.