I have this guest post at Opinio Juris: Argentina and the Foreign Sovereign Immunities Act, Round 2 (discussing the pending petition for writ of certiorari in Republic of Argentina v. NML Capital Ltd.).
As the title indicates, this petition comes out of the same case that generated the question argued to the Supreme Court in April, also under the name Republic of Argentina v. NML Capital. (Lyle Denniston has a helpful post at SCOTUSBlog: The Argentine Bond Saga Made Simple. This account is good too.). The common theme is that Argentina, a judgment debtor after defaulting on its sovereign bonds, wants protection from post-judgment remedies, ordered by the U.S. district court, that Argentina says would grossly interfere with its sovereign prerogatives and undermine U.S. foreign policy.
I'm interested in this case (see this prior post) because it's a test of textualism. The relevant statute, the Foreign Sovereign Immunities Act, gives foreign sovereigns an express protection against post-judgment remedies — namely, that non-commercial sovereign assets are not subject to "arrest attachment [or] execution." But the remedies to which Argentina objects are not "attachment[s] arrest[s] [or] execution[s]." In the prior arguemnt, it's a discovery order directing certain third-party banks to reveal information about he location of Argentina's assets, and in the current petition it's an order than Argentina not pay some bondholders before paying others.
The orders may have the bad consequences Argentina describes (though the plaintiffs say they won't). But in any event the orders aren't barred by the statute, which goes on to say that, except as it otherwise provides, non-immune foreign sovereigns are liable to the same extent as private parties. Argentina is asking the Court to create new exceptions.
Among other things, this shows how textualism is more determinate than non-textualism (even though textualism isn't always determinate). The statute is pretty clear. Who knows if non-textualist judges would think it a good idea to add some exceptions.
(Disclosure: I previously prepared an analysis of this case for the Judicial Education Project supporting the bondholders, for which I was compensated.)
Posted at 5:30 PM