Chapter VIII. Decisions of national tribunals

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Chapter VIII

DeCIsIons oF nAtIonAL tRIBUnALs

the United states of America

Supreme Court of the State of New York, County of the Bronx—Part IA-19A

Nafissatou Diallo v. Dominique Strauss-Kahn, Decision, Index No. 307065/11 of 1 May 2012

Motion to dismiss on grounds of lack of subject-matter jurisdiction—Claims of immunity from civil process by former Managing Director of the International Monetary Fund—“Absolute” or “functional” immunity—International Monetary Fund Articles of Agreement and International Organizations Immunity Act bestow only functional immunity—Express right of a specialized agency to modify and curtail standard immunity clauses under the United Nations Convention on Privileges and Immunities of the Specialized Agencies, 1947—Rejection of claim that absolute immunity for executive heads under the 1947 Convention is evidence of customary international law—Question whether customary international law trumps conflicting domestic statute—Non-applicability of article 39 of the Vienna Convention on Diplomatic Relations—Enjoyment of residual immunity from pre-resignation acts in furtherance of the business of the International Monetary Fund

“The reputation of a thousand years may be determined by the conduct of one hour” - Japanese proverb (The International Monetary Fund [“IMF”] 2011 Annual Report - Ethics Applied)

Few are unfamiliar with the highly publicized events at New York City’s Sofitel Hotel on May 14, 2011 involving claims by Nafissatou Diallo, a chambermaid at the hotel, that she was sexually assaulted by Dominique Strauss-Kahn, then Managing Director of the IMF, who denied Ms Diallo’s allegation but admitted to a consensual sexual encounter with her

Mr Strauss-Kahn was arrested on May 14, 2011, resigned his post at the IMF on May 18, 2011 and was indicted on felony charges on May 19, 2011 Several months later, on August 8, 2011, Ms Diallo instituted this civil action, venued in this court because of her Bronx residence, seeking damages for injuries and other losses she alleges she suffered as a result of the claimed attack

Prior to Mr Strauss-Kahn interposing an answer to the civil complaint, all criminal charges against him were dropped Thereafter, he moved pre-answer, as was his right under New York law, to dismiss plaintiff’s civil complaint on the grounds that this court lacks subject matter jurisdiction of this action because, on the day this action was commenced and service effectuated, he enjoyed immunity from civil process because of his previous

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position as Managing Director of the IMF¹* Ms Diallo has opposed the motion, arguing that on the day of service, Mr Strauss-Kahn enjoyed no immunity, except for any residual immunity which might attach to acts he performed in furtherance of the business of the IMF prior to his resignation on May 18, 2011 Mr Strauss-Kahn has conceded that whatever occurred at the Sofitel Hotel with Ms Diallo was not in the furtherance of the business of the IMF

Indisputably, as Managing Director of the IMF, Mr Strauss-Kahn enjoyed some type of immunity, either “absolute”, as he contends, which would spare him from criminal or civil liability in this country, even on matters strictly personal and unrelated to the IMF, or “functional” or “official acts” immunity which only relates to activities in furtherance of the business of the IMF and would be of no benefit to him as to the claims asserted in this lawsuit Thus, to prevail on his motion, Mr Strauss-Kahn must establish that he enjoyed absolute immunity which continued after his resignation from the IMF until at least August 8, 2011, the day process in this action was served The court heard extensive oral argument on the motion on March 28, 2012

Background

In July, 1944, optimistic that the conclusion of World War II was near, delegates from 44 nations met at Bretton Woods, New Hampshire, to promulgate plans for a post-World War II international monetary system From that gathering came the idea for the IMF Soon, Articles of Agreement^* ** (“Articles”) for the proposed agency were drafted which were ratified by the United States in 1945 by enactment of the Bretton Woods Agreement Act
(22 USC § 286 et seq) By 1946, the Articles were ratified by sufficient nations to make the IMF a legally empowered specialized agency

Today, nearly 70 years later, the IMF is an organization of 188 countries headquartered in Washington D C and capitalized by a quota system which requires that an IMF member country be assigned a quota which is based on the country’s relative economic size in the global community A country’s voting power is linked to its quota The United States of America pays the largest quota of any member nation

Turning to the issue of immunity, pursuant to IMF Articles § 8(i), all employees of the IMF are “immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives [the] immunity ” (emphasis supplied) This provision is expressly incorporated in the Bretton Woods Agreement (22 USC § 286h), which gives the immunity provisions of the Articles “full force and effect in the United States

” hence, the document creating the IMF and the American statute approving it provide for “functional” or “official acts” immunity for IMF employees

In 1945, the International Organizations Immunity Act of 1945 (IOIA) (22 USC § 288d[b]), became law in the United States This statute provides that:

1 * “Because immunity is an exception to jurisdiction, a court’s first task is to determine whether personal and subject matter...