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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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F. Vigilant Protection of Non-Governmental Organization Immunity

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  1. As sovereign state litigation increases, so too will the importance of the distinct statutory immunity for certain non-governmental organizations, including the World Bank and other international financing organization.  The breadth and inviolable nature of so-called "IOIA" immunity was recently reconfirmed by the federal Court of Appeals for the DC Circuit in Inversora Murten S.A. v. Energoprojekt-Niskogradnja Co., Ltd., 264 Fed. Appx. 13 (D.C. Cir. Feb. 14, 2008).  

  2. As explained in the Guide, the International Organizations Immunities Act (IOIA) of 1945, 28 USC § 288a(b) provides broad, "absolute" immunity not only from suit, but - critically - from provisional remedies such as garnishment, attachment, etc. to international organizations designated by the President by Executive Order.  Currently, the IOIA organizations run the gamut from international water and commodity organizations to the World Bank to WIPO

  3. In Inversora Murten, a creditor sought to garnish contract payments to be made by the World Bank to the debtor (a Serbian entity that had contracted with Nigeria on projects funded by the World Bank).  The court reconfirmed that IOIA immunity is "absolute" absent an express waiver and that any such waivers are to be narrowly construed to apply only if enforcing the waiver would serve the organization's broader mission.  264 Fed. Appx. at 15 (citing Atkinson v. Inter-American Development Bank, 156 F.3d 1335 (D.C. Cir. 1998)). 

  4. Inversora found that, although the World Bank's governing documents contain a waiver of immunity, the waiver was not applicable to the requested garnishment because the World Bank had no material interest in giving its funds to a third party (the creditor), nor in the finances of the third party debtor, a contractor carrying out a project financed by the World Bank.  Such careful parsing of IOIA organization waivers and their purpose will continue to restrict plaintiff access to IOIA funds and property.

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