Dealing with Diplomatic or Sovereign Immunity
Many diplomats and instrumentalities of foreign countries enjoy a level of immunity from the legal process within the United States. Many people understand how diplomats may be immune from most criminal prosecutions, and this perhaps makes diplomats more comfortable with coming to this country to carry out their diplomatic functions. However, diplomats and instrumentalities of foreign countries may also be immune from some civil cases or may be subject to special legal procedures when individuals pursue claims against them. By keeping a few things in mind, dealing with diplomatic or sovereign immunity may be easier.
Waiving Diplomatic or Sovereign Immunity
One of the most important factors to consider when dealing with diplomatic or sovereign immunity is that such immunity can oftentimes be waived. Individuals and entities are generally allowed to consent to the jurisdiction of a court to hear a dispute, and this applies in the diplomatic context as well. Waiver oftentimes cannot be implied and needs to be explicit. As a result, contracts with diplomats or instrumentalities of a foreign county like missions or embassies should include a provision that waives diplomatic or sovereign immunity.
Such waiver provisions are usually implicated in leases with diplomats and other foreign instrumentalities. In addition, other contracts, such as employment agreements, contracts for the sale of property, and other understandings should include a waiver provision so it is clear that the diplomat or foreign instrumentality will be subject to the courts in the United States. Even if American courts may have jurisdiction over a given dispute, it is still helpful to include a waiver provision so there is more clarity and there is no need to litigate the issue during a subsequent case.
Waiving Service of Process
Another important consideration when dealing with diplomatic or sovereign immunity is service of process. Serving process involves the procedure by which each defendant to a case is given notice that litigation has been filed against them and that they need to respond. Normally, process is served by personally giving the defendant a copy of the papers that were filed, but sometimes court rules allow service to be effectuated through the mail and through other means.
Sometimes, when dealing with diplomatic and foreign instrumentalities, the normal rules of service of process do not apply. Rather, service can only be effectuated through very specific procedures. This may involve the translation of papers to be served into another language, which can be a costly process. Moreover, sometimes papers can only be served through diplomatic channels, which involves more complexity and can add to the length of time it takes to complete this step of the litigation process. However, parties are oftentimes allowed to agree to a method of serving diplomats and foreign instrumentalities if litigation ever arises. This can include mailing the papers without further efforts to a certain address or some other process about which the parties agree. By waiving the usual service of process requirement and agreeing to one method of serving process, parties can eliminate a complex issue that may arise in cases involving diplomats and foreign instrumentalities.
Type of Immunity
A different part of dealing with diplomatic or sovereign immunity is determining the type of immunity to which the defendant will be afforded. Generally, if individuals are dealing with foreign individuals rather than entities, diplomatic immunity may be triggered. There are usually two types of diplomats that are afforded immunity: diplomats associated with the United Nations, and diplomats that are otherwise associated with embassies of foreign countries established in the United States. However, individuals associated with international bodies and other entities may be subject to immunity under American law.
Even among diplomats, there are various levels of immunity. Ambassadors and individuals of similar rank and their families are typically afforded the highest level of diplomatic immunity. However, individuals who work for ambassadors or for foreign entities are usually afforded a lower level of immunity and may only be immune from acts that stem from their official work. Because of the complexity of diplomatic and sovereign immunity, and the varying degrees to which individuals may be covered by this immunity, it is important to speak with an attorney who is experienced with these issues to determine which level of immunity may be implicated.
Diplomatic Channels
Since it is often challenging to use the legal process when dealing with diplomatic or sovereign immunity, it often makes sense to go through diplomatic challenges. Organizations such as the United Nations to which diplomats and sovereigns may be attached usually have a grievance process so that individuals can voice their complaints about people and entities that enjoy immunity. Moreover, the State Department also typically offers individuals the chance to air grievances with diplomats and sovereigns and the state department may be able to help solve disputes with such individuals and entities. Parties with claims against diplomats or sovereign entities might wish to work through diplomatic channels as well as the legal process to have the best chance possible at resolving their issue.
The Rothman Law Firm is experienced at pursuing claims against diplomats and foreign instrumentalities who may enjoy immunity from certain kinds of cases. If you are looking for an experienced New York and New Jersey attorney to handle your legal issue involving a diplomat or foreign entity in which immunity may be an issue, please feel free to contact The Rothman Law Firm to request a free consultation.