Restructuring

Yesterday, the US Supreme Court issued a decision in Republic of Argentina v. NML Capital, No. 12-842. In a 7-1 majority opinion, the Court held that the Foreign Sovereign Immunities Act (FSIA) does not limit the scope of discovery available to a judgment creditor in post-judgment execution proceedings against a foreign sovereign.
In practical terms, the Court’s decision permits NML to pursue discovery into Argentina’s assets around the world that, pursuant to various judgments entered against Argentina, might be subject to attachment and execution. Left for another day is the question whether Argentina’s extraterritorial property may be subject to attachment or execution under the laws of the relevant jurisdiction; NML indeed may not be able to execute against certain properties identified in discovery. Additionally, because of how the case came before the Court, the impact of the decision outside of the instant case may be further limited by other federal rules and application of judicial discretion. Nonetheless, the Court’s decision reaffirms the broad scope of post-judgment discovery in aid of enforcement, including against foreign sovereigns.
To read the alert, please follow this link.