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ANKARA: A Letter From An Armenian-American Lawyer

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  • ANKARA: A Letter From An Armenian-American Lawyer

    A LETTER FROM AN ARMENIAN-AMERICAN LAWYER
    Orhan Kemal Cengiz

    Today's Zaman
    Sept 29 2011
    Turkey

    Whether the property cases in the US against Turkey owing to the land
    expropriated from Ottoman Armenians in 1915 will produce any concrete
    legal consequences is not yet clear.

    In this column I have been trying to inform you about the developments
    in the Alex Bakalian case, which is being heard in California against
    the Turkish Republic and two Turkish banks.

    In my recent column I tried to summarize the defense arguments of
    the Turkish banks that were submitted to the California court. There
    were, as expected, a few core arguments in the pleadings regarding
    time limitations and whether or not an American court could try a
    sovereign country.

    At the end of my article I also invited the legal representatives of
    Bakalian to share with me their arguments in this case. Yesterday,
    Vartkes Yeghiayan, lawyer for Bakalian, sent me a letter, explaining
    their perspective on some of the key issues raised by the Turkish bank
    in this case, particularly regarding whether or not Turkey could be
    put on trial in the US. I would like to share Mr. Yeghiayan's letter
    with you below:

    Dear Mr. Orhan Kemal Cengiz,

    We have not yet filed our response to defendants Motion to Dismiss. In
    the meantime, we thought that the following might be of some help to
    understand some of the complex issues you raise.

    The Motion to Dismiss and Motion for Judgment on the Pleadings were
    both filed on Sept. 19, 2011, by defendants Central Bank of the
    Republic of Turkey and T.C. Ziraat Bankasi. The Republic of Turkey
    has failed to appear in the case, and the court entered Turkey's
    default on Sept. 1, 2011.

    The banks don't argue that the Republic of Turkey is not responsible
    for the Ottoman Empire's actions; they simply state that the Republic
    allegedly succeeded parts of the Ottoman Empire starting in 1923.

    Turkey was validly haled into a United States federal court pursuant
    to long-established US law which comports with the prevailing
    international law.

    The Foreign Sovereign Immunities Act contains a comprehensive set of
    legal standards governing claims of immunity in every civil action
    against a foreign state or its political subdivisions, agencies,
    or instrumentalities.

    For the most part, the Act codifies the restrictive theory of sovereign
    immunity that has prevailed in international law since at least the
    end of World War II. Under the Act, a foreign state is normally immune
    from the jurisdiction of US federal and state courts, subject to a set
    of specified exceptions. When one of the specified exceptions applies,
    the foreign state is liable in the same manner and to the same extent
    as a private individual under like circumstances.

    Following passage of the Act in 1976, the US Department of State
    informed all foreign embassies in Washington of its enactment.

    Turkey's actions against Plaintiffs in this case fall within two of
    the specified exceptions -- actions in which rights in property taken
    in violation of international law are in issue, as well as actions
    based upon commercial activities of the foreign sovereign country
    carried on in the US or causing a direct effect in the US.

    Thus, Turkey is not entitled to immunity from suit in US courts.

    However, Turkey has chosen not to appear to defend its interests,
    and thus Plaintiffs do not know Turkey's position regarding its legal
    obligation to appear.

    Restitution of the property is Plaintiffs' rightful remedy in
    international law for the unlawful expropriation of their property. In
    lieu of restitution, Plaintiffs are entitled to recovery of the
    current fair market replacement value of the properties, plus the
    accrued reasonable rental value.

    The hearing on the banks' motions is scheduled for Dec. 19, 2011.

    In view of recent statements by Prime Minister [Recep Tayyip] Erdogan
    regarding the return of property to minority foundations, we look
    forward to the Republic of Turkey living up to its moral and legal
    obligation to the Armenian Plaintiffs in this case.

    Sincerely,

    Vartkes Yeghiayan

    I would like to thank Yeghiayan for his explanation, which I guess he
    will further develop in his response to the Turkish banks before the
    California court. I am also waiting for their detailed legal opinion,
    which they will submit before December.

    Let's keep an eye on this interesting case.

    http://www.todayszaman.com/columnistDetail_getNewsById.action?newsId=258400

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