On April 19, the US Supreme Court issued a decision in the case "Halkbank v. United States" (Turkiye Halk Bankasi A. S., Aka Halkbank V. United States). In this decision, the Court considered the applicability of sovereign immunities under the Federal Sovereign Immunities Act of 1976 (FSIA) to a commercial bank majority-owned by the Turkish Wealth Fund.

This decision was commented for the Dnistryanskyi Center by the US lawyer Glen Kelley.

 This is an interesting decision of the US Supreme Court clarifying some important issues relating to the scope of the immunity to certain US legal proceedings of non-US states (“foreign sovereigns”). It clarifies among other things that the general immunity to civil judicial proceedings does not extent to criminal proceedings and prosecutions.

I don’t think it is directly helpful to any future efforts to seek to overcome sovereign immunity in relation to Russian foreign exchange reserves or other Russian state assets that may be in the US. However, it might be indirectly helpful as I think it addresses some potential arguments that Russia might make if the pathway to seeking to seize such assets is a US criminal proceeding of some sort.

I continue to believe the primary route to the seizure and sending to Ukraine of Russian sovereign assets would be the existing statutory framework that exists for state sponsors of terrorism, if Russia is named as a state sponsor, or alternatively a similar new statute from US Congress.

The idea of using criminal proceedings to make funds and other assets of sanctioned parties available for compensation to Ukraine is of course relevant in one sense. As you know there is a recent US statute allowing the US Dept. of Justice to turn over to Ukraine assets seized from sanctioned Russian companies and individuals if they are convicted of criminal violations of US sanctions laws. And the US DOJ has been advocating for Congress to expand this authority, to cover for example criminal convictions against Russian sanctioned parties relating to a broader range of US laws – not just sanctions but also, for example, export controls, anti-money laundering, corruption, etc.

 Glen N. Kelley is partner of Jacobson Burton Kelley PLLC (Boston, USA) and member of the Ukraine Task Force of the New York State Bar Association