US Government Debt Different - Finance Department - University of ...

Charles W. Mooney, Jr. b. The Race to Recover.221Continuing the assumption that Congress would not withdraw itsconsent to suits against the U.S., now consider the means of enforcinga judgment against the U.S. obtained in the Court of FederalClaims. 145 The U.S. no doubt would assert an absolute sovereign immunityfrom execution in order to prevent enforcement of such ajudgment against its assets located within U.S. territory. Whethersuch immunity from execution would be absolute under currentU.S. law apparently has not been the subject of any reported decision.As with timely payment of Treasuries discussed above, it apparentlyhas been assumed that judgments against the U.S. would bepaid in due course and that Congress would always make necessaryappropriations to do so. 146 In the absence of any controlling federalauthority, it is virtually certain that a U.S. court would adopt absoluteimmunity from execution for domestic assets of the U.S. Thatwould be consistent with laws enacted in other states with respect todomestic assets. 147 Inasmuch as the baseline for international law wasmay withdraw its consent to sue the Government at any time.”).145 Of course, a recognized holder or a holder through Treasury Direct also mightchoose to sue in another jurisdiction outside the U.S. What follows concerning sovereignimmunity (or not) from execution would also apply to judgments obtainedoutside the U.S.146 Consistent with an absolute immunity from execution, the Rules of Procedureof the Court of Federal Claims, which are patterned after and numbered consistentlywith the Federal Rules of Civil Procedure, provide in part: “Rule 69. Execution[Not used].” Any exceptions to absolute immunity from execution would be thoseapplicable under United States federal common law (including international law).147 See Código de Procedimientos Civiles [CPC] [Civil Procedure Code] Article4, Diario Oficial de la Federación [DO], 16 de Enero de 2012 (Mex.) (stating thatMexican courts may not attach property of Mexico in aid of execution); Société X v.U.S., (Court of Cassation 1993) cited in August Reinisch, European Court PracticeConcerning State Immunity from Enforcement Measures, 17 Eur. J. Int’l L. 803, 813(2006) (explaining that under Turkish legislation, only assets of the Turkish state areimmune from execution). Bond prospectuses of certain countries also reflect thatproperty of the State that is within the State will be immune from execution. See$1,000,000,000 State Treasury of Republic of Poland 5¼% Notes due 2014 (Prospectusdated Aug. 20, 2003) (Prospectus Supplement dated Oct. 22, 2003), at 60,http://www.sec.gov/Archives/edgar/data/79312/000119312503066700/d424b5.htm (last visited Apr. 10, 2012) (“Under the laws of Poland, subject to certain exceptions,assets of Poland are immune from attachment or other forms of executionwhether before or after judgment.”); U.S.$600,000,000 Republic of Chile FloatingRate Notes due 2008 (Prospectus dated Jan. 16, 2004), at 1,