Sec. 3. Exceptions to the immunity from attachment or execution
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/bill/114/s/3442/is/section-3A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 1610 of title 28, United States Code, is amended by striking subsection
(g)and inserting the following: In this subsection— the term financial agency has the meaning given the term in section 5312(a) of title 31; the term financial asset — has the meaning given the term in Article 8–102 of the Uniform Commercial Code; and includes cash; the term financial institution has the meaning given the term in section 5312(a) of title 31; the term intermediary bank has the meaning given the term in Article 4A–104 of the Uniform Commercial Code; and the term property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state includes— a financial asset beneficially owned by a terrorist party or its agency or instrumentality; any interest, sale, and redemption payment related to a financial asset described in clause
(i)that is received in an account maintained in the United States at a financial agency or financial institution regardless of where the terrorist party or its agency or instrumentality maintains an account in its name to which the financial asset has been credited; and a transfer of funds, including any mid-stream electronic funds transfer in possession of an intermediary bank if— such terrorist party or its agency or instrumentality is the originator or the beneficiary of the fund transfer; or the transfer was conducted for the direct or indirect benefit of such terrorist party or its agency or instrumentality, including the central bank or monetary authority of the terrorist party, regardless of whether the transfer was initiated by a non-state-owned, non-U.S. financial institution located outside of the United States and only passes through the financial system of the United States to another non-state-owned, non-U.S. financial institution located outside of the United States. Except as provided in subparagraph (C), any attempted direct or indirect transfer from an account located in the United States to an account located outside of the United States shall be null and void, and the asset that is the subject of the transfer shall be treated as if the asset remains in the United States, if the transfer— relates to any financial asset described in paragraph (1)(E); is for the direct or indirect benefit of a foreign state or an agency or instrumentality of that foreign state, regardless of whether the transfer is completed by means of a book entry, wire transfer, or otherwise; and violates any court order, retraining notice, judgment lien, or other process in aid of enforcement of, or that constitutes a fraudulent conveyance or transfer with respect to, a judgment under section 1605A against that foreign state or the agency or instrumentality of that foreign state. A court that has personal jurisdiction over the transferee of a transfer described in subparagraph
(A)may— order the transferee to return the financial asset to the United States; and if the transferee fails to obey an order under clause (i)— deem any asset that is an amount not greater than the value of the transferred asset to be an asset of a foreign state or an agency or instrumentality of the foreign state; and issue an award against the transferee in an amount that is not greater than the value of the transferred asset. Any transfer that otherwise would be null and void under subparagraph
(A)shall not be deemed to be null and void if the person who held or maintained the asset that was the subject of the transfer establishes that the transfer did not represent a willful violation of the provisions of any court order, retraining notice, judgment lien, or other process in aid of enforcement of a judgment under section 1605A against a foreign state or an agency or instrumentality of that foreign state. Subject to paragraph
(4)and notwithstanding any other provision of law, including any provision of law relating to sovereign immunity and the provisions of section 1611, the property of a foreign state against which a judgment is entered under section 1605A or under section 1605(a)(7) (as such section was in effect on January 27, 2008), and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this subsection, regardless of— the level of economic control over the property by the government of the foreign state; whether the profits of the property go to that government; the degree to which officials of that government manage the property or otherwise control its daily affairs; whether that government is the sole beneficiary in interest of the property; or whether establishing the property as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations. Any property of a foreign state, or agency or instrumentality of a foreign state, to which paragraph
(1)applies shall not be immune from attachment in aid of execution, or execution, upon a judgment entered under section 1605A or under section 1605(a)(7) (as such section was in effect on January 27, 2008), because the property is regulated by the United States Government by reason of action taken against that foreign state under the Trading With the Enemy Act ( 50 U.S.C. 4301 et seq. ) or the International Emergency Economic Powers Act ( 50 U.S.C. 1701 et seq. ). Nothing in this subsection shall be construed to supersede the authority of a court to prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment in property subject to attachment in aid of execution, or execution, upon such judgment. The final judgment directing attachment in aid of execution or execution against an asset described in paragraph (1)(E)(iii), including any mid-stream electronic funds transfer to a judgment creditor under this section shall provide that— any financial agency or financial institution ordered to attach in aid of execution or execute against any such asset that is involved in processing any transfer related to those assets shall be discharged of any and all liability to any party with respect to such funds transfer; for purposes of determining the liability of the originator of any mid-stream funds transfer to a foreign state against which a judgment has been entered under section 1605A or under section 1605(a)(7) (as such section was in effect on January 27, 2008), or to the agency or instrumentality of such a state, the mid-stream transfer shall be treated as if it were completed and payment were received by the intended beneficiary; and the foreign state against which a judgment has been entered under section 1605A or under section 1605(a)(7) (as such section was in effect on January 27, 2008), and each agency and instrumentality of such a state shall be barred from pursuing any claim related to the assets turned over pursuant to this subsection against any entity discharged pursuant to subparagraphs
(A)and (B). To the extent that any State or local law is inconsistent with the requirements of this subsection, the requirements of this subsection shall preempt such State or local law. .
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