throbber
(Slip Opinion)
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` OCTOBER TERM, 2013
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`Syllabus
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`1
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` 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
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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`
` Syllabus
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` 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
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` REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
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`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
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` 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.
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` GINSBURG, J., filed a dissenting opinion. SOTOMAYOR, J., took no part in
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`the decision of the case.
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`Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash­
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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`
` that corrections may be made before the preliminary print goes to press.
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`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,
`——————
` 1The 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
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`REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
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`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.
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` Cite as: 573 U. S. ____ (2014)
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`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).
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`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
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`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
`——————
`2On 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.
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` REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
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`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
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`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,
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`REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
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`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
`——————
`3Argentina 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.
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` Cite as: 573 U. S. ____ (2014)
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`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
`
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`REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD.
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`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
`——————
` 4The 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.
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`Cite as: 573 U. S. ____ (2014)
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`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
`——————
`5NML 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.
` 6Although 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
`
`
`
`
`11
`
`
`
`
`
`
`
`
`
`

`
`
`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)
`
` GINSBURG, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`_________________
`
` 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
`
`
`
`
`
`
`
`
`
`

`
`
` 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.
`
`
`
`2

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