Orhan Kemal Cengiz

Today's Zaman
Sept 29 2011

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.


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.