(Slip Opinion) OCTOBER TERM, 2013 1 

Syllabus 

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

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

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 bondholders, prevailed in 11 debt-collection actions that it brought against Argentina 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 motions 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 judgment 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 framework for resolving any claim of sovereign immunity.” Republic of 

Austria v. Altmann, 541 U. S. 677, 699. Henceforth, any sort of immunity 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 
 

 

 

2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. 

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

postjudgment discovery in aid of execution. 

Argentina’s arguments are unavailing. Even if Argentina were 

correct that §1609 execution immunity implies coextensive discoveryin-aid-of-execution immunity, the latter would not shield from discovery 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 Argentina’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. 

GINSBURG, J., filed a dissenting opinion. SOTOMAYOR, J., took no part in 

the decision of the case. 
 

 

_________________ 

_________________ 

Cite as: 573 U. S. ____ (2014) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

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 Immunities Act of 1976 (FSIA or Act), 28 U. S. C. §§1330, 1602 

et seq., limits the scope of discovery available to a judgment creditor in a federal postjudgment execution proceeding 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 
 

 

2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. 

Opinion of the Court 

which Argentina has not paid. Having been unable to 

collect on its judgments from Argentina, NML has attempted to execute them against Argentina’s property.

That postjudgment litigation “has involved lengthy attachment proceedings before the district court and multiple 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 default 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: documents relating to accounts maintained by or on behalf of 

Argentina, documents identifying the opening and closing 

dates of Argentina’s accounts, current balances, transaction 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 immunity 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. 
Cite as: 573 U. S. ____ (2014) 3 

Opinion of the Court 

the court ruled, agreed to narrow its subpoenas by excluding the names of some Argentine officials from the initial 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 discovery 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 Argentina’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 instance, 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 reasonably 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 because it permitted discovery of Argentina’s extraterritorial 

assets. The Second Circuit affirmed, holding that “because the Discovery Order involves discovery, not attachment 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). 
 

4 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. 

Opinion of the Court 

II. Analysis 

A 

The rules governing discovery in postjudgment execution proceedings are quite permissive. Federal Rule of 

Civil Procedure 69(a)(2) states that, “[i]n aid of the judgment 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 satisfaction 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 
 

 

 

Cite as: 573 U. S. ____ (2014) 5 

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-ofthe-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 restriction imposed by the Constitution.” Verlinden B. V. v. 

Central Bank of Nigeria, 461 U. S. 480, 486 (1983). Accordingly, 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. 
 

 

 

6 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. 

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 sovereign’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. Altmann, 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 reference 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 diplomatic 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-lawbased immunity regime with the Foreign Sovereign Immunities 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 comprehensive framework for resolving any claim of sovereign 

immunity.” Altman, 541 U. S., at 699. The Act “compre­
Cite as: 573 U. S. ____ (2014) 7 

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 governs the determination of whether a foreign state is entitled 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 execution 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 immunity on designated international-organization property, 
 

 

 

8 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. 

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 debtor’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 an subsection requiring courts to stay discovery 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 counterparts. 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 silence. Its argument has several parts. First, it asserts 

that, before and after the Tate Letter, the State Department 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. 
Cite as: 573 U. S. ____ (2014) 9 

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 unconditional barrier to post-judgment relief.” Brief for Petitioner 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., Argentina 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 executionimmunity 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 discoveryin-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
 

 

 

10 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. 

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 nonexecutable 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 information 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, Argentina’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 extraterritorial 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 extraterritorial assets is limited to that which the Act makes relevant to execution 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. 
 

 

Cite as: 573 U. S. ____ (2014) 11 

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-ofexecution 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 Congress ‘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 consequences 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 authority to amend the Act—which, as it happens, is the same

branch that forced our retirement from the immunity-byfactor-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 agreement, see n. 1, supra. The Second Circuit did not address this argument. 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 
 

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) 1 

GINSBURG, J., dissenting 

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 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 sovereign’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 execution 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 relevant 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 
 

2 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 discovery “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 debtor, 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 international 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 therefore dissent from the sweeping examination of Argentina’s 

worldwide assets the Court exorbitantly approves today.