In The
Supreme Court of the United States

First National City Bankv.Banco Para el Comercio Exterior de Cuba

Decided June 17, 1983
Justice O’Connor, Majority

CASE DETAILS

Topic: Miscellaneous
Court vote: 6-3
Citation: 462 U.S. 611
Docket: 81-984
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Opinion

JUSTICE O'CONNOR delivered the opinion of the Court.

In 1960, the Government of the Republic of Cuba established respondent Banco Para el Comercio Exterior de Cuba (Bancec) to serve as "[a]n official autonomous credit institution for foreign trade… with full juridical capacity… of its own…." Law No. 793, Art. 1 (1960), App. to Pet. for Cert.2d. In September, 1960, Bancec sought to collect on a letter of credit issued by petitioner First National City Bank (now Citibank) in its favor in support of a contract for delivery of Cuban sugar to a buyer in the United States. Within days after Citibank received the request for collection, all of its assets in Cuba were seized and nationalized by the Cuban Government. When Bancec brought suit on the letter of credit in United States District Court, Citibank counterclaimed, asserting a right to set off the value of its seized Cuban assets. The question before us is whether Citibank may obtain such a setoff, notwithstanding the fact that Bancec was established as a separate juridical entity. Applying principles of equity common to international law and federal common law, we conclude that Citibank may apply a setoff.

I

Resolution of the question presented by this case requires us to describe in some detail the events giving rise to the current controversy.

Bancec was established by Law No. 793, of April 25, 1960, as the legal successor to the Banco Cubano del Comercio Exterior (Cuban Foreign Trade Bank), a trading bank established by the Cuban Government in 1954 and jointly owned by the Government and private banks. Law No. 793 contains detailed "By-laws" specifying Bancec's purpose, structure, and administration. Bancec's stated purpose was

to contribute to, and collaborate with, the international trade policy of the Government and the application of the measures concerning foreign trade adopted by the 'Banco Nacional de Cuba,'

Cuba's central bank (Banco Nacional). Art. 1, No. VIII, App. to Pet. for Cert. 4d. Bancec was empowered to act as the Cuban Government's exclusive agent in foreign trade. The Government supplied all of its capital and owned all of its stock. The General Treasury of the Republic received all of Bancec's profits, after deduction of amounts for capital reserves. A Governing Board consisting of delegates from Cuban governmental ministries governed and managed Bancec. Its president was Ernesto Che Guevara, who also was Minister of State and president of Banco Nacional. A General Manager appointed by the Governing Board was charged with directing Bancec's day-to-day operations in a manner consistent with its enabling statute.

In contracts signed on August 12, 1960, Bancec agreed to purchase a quantity of sugar from El Institutio Nacional de Reforma Agraria (INRA), an instrumentality of the Cuban Government which owned and operated Cuba's nationalized sugar industry, and to sell it to the Cuban Canadian Sugar Company. The latter sale agreement was supported by an irrevocable letter of credit in favor of Bancec issued by Citibank on August 18, 1960, which Bancec assigned to Banco Nacional for collection.

Meanwhile, in July, 1960, the Cuban Government enacted Law No. 851, which provided for the nationalization of the Cuban properties of United States citizens. By Resolution No. 2 of September 17, 1960, the Government ordered that all of the Cuban property of three United States banks, including Citibank, be nationalized through forced expropriation. The "Bank Nationalization Law," Law No. 891, of October 13, 1960, declared that the banking function could be carried on only by instrumentalities created by the State, and ordered Banco Nacional to effect the nationalization.

On or about September 15, 1960, before the banks were nationalized, Bancec's draft was presented to Citibank for payment by Banco Nacional. The amount sought was $193,280.30 for sugar delivered at Pascagoula, Miss. On September 20, 1960, after its branches were nationalized,

Citibank credited the requested amount to Banco Nacional's account and applied the balance in Banco Nacional's account as a setoff against the value of its Cuban branches.

On February 1, 1961, Bancec brought this diversity action to recover on the letter of credit in the United States District Court for the Southern District of New York.

On February 23, 1961, by Law No. 930, Bancec was dissolved and its capital was split between Banco Nacional and "the foreign trade enterprises or houses of the Ministry of Foreign Trade," which were established by Law No. 934 the same day. [ Footnote 1 ] App. to Pet. for Cert. 16d. All of Bancec's rights, claims, and assets "peculiar to the banking business" were vested in Banco Nacional, which also succeeded to its banking obligations. Ibid. All of Bancec's "trading functions" were to be assumed by "the foreign trade enterprises or houses of the Ministry of Foreign Trade." By Resolution No. 1, dated March 1, 1961, the Ministry of Foreign Trade created Empresa Cubana de Exportaciones (Cuban Enterprise for Exports) (Empresa), which was empowered to conduct all commercial export transactions formerly conducted by Bancec "remaining subrogated in the rights and obligations of said bank [Bancec] as regards the commercial export activities." App. to Pet. for Cert. 26d. Three hundred thousand of the two million pesos distributed to the Ministry of Foreign Trade when Bancec was dissolved were assigned to Empresa. Id. at 27d. By Resolution No. 102, dated December 31, 1961, and Resolution No. 1, dated January 1, 1962, Empresa was dissolved and Bancec's rights relating to foreign commerce in sugar were assigned to Empresa Cubana Exportadora de Azucar y sus Derivados (Cubazucar), a state trading company, which is apparently still in existence.

On March 8, 1961, after Bancec had been dissolved, Citibank filed its answer, which sought a setoff for the value of its seized branches, not an affirmative recovery of damages. [ Footnote 2 ] On July 7, 1961, Bancec filed a stipulation signed by the parties stating that Bancec had been dissolved and that its claim had been transferred to the Ministry of Foreign Trade, and agreeing that the Republic of Cuba may be substituted as plaintiff. The District Court approved the stipulation, but no amended complaint was filed.

Apparently the case lay dormant until May, 1975, when respondent filed a motion seeking an order substituting Cubazucar as plaintiff. The motion was supported by an affidavit by counsel stating that Bancec's claim had passed through the Ministry of Foreign Trade and Empresa to Cubazucar, all by operation of the laws and resolutions cited above. Counsel for petitioner opposed the motion, and the District Court denied it in August, 1975, stating that "to permit such a substitution… would only multiply complications in this already complicated litigation." App. 160.

A bench trial was held in 1977, [ Footnote 3 ] after which the District Court [ Footnote 4 ] granted judgment in favor of Citibank. 505 F.Supp. 412 (1980). The court rejected Bancec's contention that its separate juridical status shielded it from liability for the acts of the Cuban Government.

Under all of the relevant circumstances shown in this record,… it is clear that Bancec lacked an independent existence, and was a mere arm of the Cuban Government, performing a purely governmental function. The control of Bancec was exclusively in the hands of the Government, and Bancec was established solely to further Governmental purposes. Moreover, Bancec was totally dependent on the Government for financing, and required to remit all of its profits to the Government.

* * * *

Bancec is not a mere private corporation, the stock of which is owned by the Cuban Government, but an agency of the Cuban Government in the conduct of the sort of matters which, even in a country characterized by private capitalism, tend to be supervised and managed by Government. Where the equities are so strong in favor of the counterclaiming defendants, as they are in this case, the Court should recognize the practicalities of the transactions…. The Court concludes that Bancec is an alter ego of the Cuban Government.

Id. at 427-428.

Without determining the exact value of Citibank's assets seized by Cuba, the court held that

the value of the confiscated branches… substantially exceeds the sums already recovered, and therefore the set-off pleaded here may be granted in full in favor of Citibank.

Id. at 467. It therefore entered judgment dismissing the complaint. [ Footnote 5 ]

The United States Court of Appeals for the Second Circuit reversed. 658 F.2d 913 (1981). While expressing agreement with the District Court's "descriptions of Bancec's functions and its status as a wholly-owned instrumentality of the Cuban government," the court concluded that "Bancec was not an alter ego of the Cuban government for the purpose of [Citibank's] counterclaims." Id. at 917. It stated that, as a general matter, courts would respect the independent identity of a governmental instrumentality created as "a separate and distinct juridical entity under the laws of the state that owns it" -except "when the subject matter of the counterclaim assertible against the state is state conduct in which the instrumentality had a key role." Id. at 918. As an example of such a situation, the Court of Appeals cited Banco Nacional de Cuba v. First National City Bank, 478 F.2d 191 (CA2 1973), in which it had ruled that Banco Nacional could be held liable by way of setoff for the value of Citibank's seized Cuban assets because of the role it played in the expropriations. But the court declined to hold that

a trading corporation wholly owned by a foreign government, but created and operating as a separate juridical entity, is an alter ego of that government for the purpose of recovery for wrongs of the government totally unrelated to the operations, conduct or authority of the instrumentality.

658 F.2d at 920. [ Footnote 6 ]

Citibank moved for rehearing, arguing, inter alia, that the panel had ignored the fact that Bancec had been dissolved in February, 1961. The motion, and a suggestion of rehearing en banc, were denied. This Court granted certiorari. 459 U.S. 942 (1982). We reverse, and remand the case for further proceedings.

II

A

As an initial matter, Bancec contends that the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1602-1611 (FSIA), immunizes an instrumentality owned by a foreign government from suit on a counterclaim based on actions taken by that government. Bancec correctly concedes that, under 28 U.S.C. 1607(c), [ Footnote 7 ] an instrumentality of a foreign state bringing suit in a United States court is not entitled to immunity

with respect to any counterclaim… to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the [instrumentality].

It contends, however, that, as a substantive matter, the FSIA prohibits holding a foreign instrumentality owned and controlled by a foreign government responsible for actions taken by that government.

We disagree. The language and history of the FSIA clearly establish that the Act was not intended to affect the substantive law determining the liability of a foreign state or instrumentality, or the attribution of liability among instrumentalities of a foreign state. Section 1606 of the FSIA provides in relevant part that,

[a]s to any claim for relief with respect to which a foreign state is not entitled to immunity…, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances….

The House Report on the FSIA states:

The bill is not intended to affect the substantive law of liability. Nor is it intended to affect… the attribution of responsibility between or among entities of a foreign state; for example, whether the proper entity of a foreign state has been sued, or whether an entity sued is liable in whole or in part for the claimed wrong.

H.R.Rep. No. 94-1487, p. 12 (1976). [ Footnote 8 ]

Thus, we conclude that the FSIA does not control the determination of whether Citibank may set off the value of its seized Cuban assets against Bancec's claim. Nevertheless, our resolution of that question is guided by the policies articulated by Congress in enacting the FSIA. See infra at 462 U. S. 627 -628.

B

We must next decide which body of law determines the effect to be given to Bancec's separate juridical status. Bancec contends that internationally recognized conflict-of-law principles require the application of the law of the state that establishes a government instrumentality -here Cuba -to determine whether the instrumentality may be held liable for actions taken by the sovereign.

We cannot agree. As a general matter, the law of the state of incorporation normally determines issues relating to the internal affairs of a corporation. Application of that body of law achieves the need for certainty and predictability of result while generally protecting the justified expectations of parties with interests in the corporation. See Restatement (Second) of Conflict of Laws § 302, Comments a and e (1971). Cf. Cort v. Ash, 422 U. S. 66, 422 U. S. 84 (1975). Different conflicts principles apply, however, where the rights of third parties external to the corporation are at issue. See Restatement (Second) of Conflict of Laws, supra, 301. [ Footnote 9 ] To give conclusive effect to the law of the chartering state in determining whether the separate juridical status of its instrumentality should be respected would permit the state to violate with impunity the rights of third parties under international law while effectively insulating itself from liability in foreign courts. [ Footnote 10 ] We decline to permit such a result. [ Footnote 11 ]

Bancec contends in the alternative that international law must determine the resolution of the question presented. Citibank, on the other hand, suggests that federal common law governs. The expropriation claim against which Bancec seeks to interpose its separate juridical status arises under international law, which, as we have frequently reiterated, "is part of our law…." The Paquete Habana, 175 U. S. 677, 175 U. S. 700 (1900). As we set forth below, see infra, at 462 U. S. 624 -630, and nn. 19 20 the principles governing this case are common to both international law and federal common law, which, in these circumstances, is necessarily informed both by international law principles and by articulated congressional policies.

III

A

Before examining the controlling principles, a preliminary observation is appropriate. The parties and amici have repeatedly referred to the phrases that have tended to dominate discussion about the independent status of separately constituted juridical entities, debating whether "to pierce the corporate veil," and whether Bancec is an "alter ego" or a "mere instrumentality" of the Cuban Government. In Berkey v. Third Avenue R. Co., 244 N.Y. 84, 155 N.E. 58 (1926), Justice (then Judge) Cardozo warned in circumstances similar to those presented here against permitting worn epithets to substitute for rigorous analysis.

The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for, starting as devices to liberate thought,they end often by enslaving it.

Id. at 94, 155 N.E. at 61. With this in mind, we examine briefly the nature of government instrumentalities. [ Footnote 12 ]

Increasingly during this century, governments throughout the world have established separately constituted legal entities to perform a variety of tasks. [ Footnote 13 ] The organization and control of these entities vary considerably, but many possess a number of common features. A typical government instrumentality, if one can be said to exist, is created by an enabling statute that prescribes the powers and duties of the instrumentality, and specifies that it is to be managed by a board selected by the government in a manner consistent with the enabling law. The instrumentality is typically established as a separate juridical entity, with the powers to hold and sell property and to sue and be sued. Except for appropriations to provide capital or to cover losses, the instrumentality is primarily responsible for its own finances. The instrumentality is run as a distinct economic enterprise; often it is not subject to the same budgetary and personnel requirements with which government agencies must comply. [ Footnote 14 ]

These distinctive features permit government instrumentalities to manage their operations on an enterprise basis while granting them a greater degree of flexibility and independence from close political control than is generally enjoyed by government agencies. [ Footnote 15 ] These same features frequently prompt governments in developing countries to establish separate juridical entities as the vehicles through which to obtain the financial resources needed to make large-scale national investments.

[P]ublic enterprise, largely in the form of development corporations, has become an essential instrument of economic development in the economically backward countries which have insufficient private venture capital to develop the utilities and industries which are given priority in the national development plan. Not infrequently, these public development corporations… directly or through subsidiaries, enter into partnerships with national or foreign private enterprises, or they offer shares to the public.

Friedmann, Government Enterprise: A Comparative Analysis, in Government Enterprise: A Comparative Study 303, 333-334 (W. Friedmann & J. Garner eds.1970).

Separate legal personality has been described as "an almost indispensable aspect of the public corporation." Id. at 314. Provisions in the corporate charter stating that the instrumentality may sue and be sued have been construed to waive the sovereign immunity accorded to many governmental activities, thereby enabling third parties to deal with the instrumentality knowing that they may seek relief in the courts. [ Footnote 16 ] Similarly, the instrumentality's assets and liabilities must be treated as distinct from those of its sovereign in order to facilitate credit transactions with third parties. Id. at 315. Thus, what the Court stated with respect to private corporations in Anderson v. Abbott, 321 U. S. 349 (1944), is true also for governmental corporations:

Limited liability is the rule, not the exception; and on that assumption large undertakings are rested, vast enterprises are launched, and huge sums of capital attracted.

Id. at 362.

Freely ignoring the separate status of government instrumentalities would result in substantial uncertainty over whether an instrumentality's assets would be diverted to satisfy a claim against the sovereign, and might thereby cause third parties to hesitate before extending credit to a government instrumentality without the government's guarantee. [ Footnote 17 ] As a result, the efforts of sovereign nations to structure their governmental activities in a manner deemed necessary to promote economic development and efficient administration would surely be frustrated. Due respect for the actions taken by foreign sovereigns and for principles of comity between nations, see Hilton v. Guyot, 159 U. S. 113, 159 U. S. 163 -164 (1895), leads us to conclude -as the courts of Great Britain have concluded in other circumstances [ Footnote 18 ] -that government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.

We find support for this conclusion in the legislative history of the FSIA. During its deliberations, Congress clearly expressed its intention that duly created instrumentalities of a foreign state are to be accorded a presumption of independent status. In its discussion of FSIA § 1610(b), the provision dealing with the circumstances under which a judgment creditor may execute upon the assets of an instrumentality of a foreign government, the House Report states:

Section 1610(b) will not permit execution against the property of one agency or instrumentality to satisfy a judgment against another, unrelated agency or instrumentality. There are compelling reasons for this. If U.S. law did not respect the separate juridical identities of different agencies or instrumentalities, it might encourage foreign jurisdictions to disregard the juridical divisions between different U.S. corporations or between a U.S. corporation and its independent subsidiary. However, a court might find that property held by one agency is really the property of another.

H.R.Rep. No. 94-1487, pp. 29-30 (1976) (citation omitted).

Thus, the presumption that a foreign government's determination that its instrumentality is to be accorded separate legal status is buttressed by this congressional determination. We next examine whether this presumption may be overcome in certain circumstances.

B

In discussing the legal status of private corporations, courts in the United States [ Footnote 19 ] and abroad [ Footnote 20 ] have recognized

See 1 W. Fletcher, Cyclopedia of the Law of Private Corporations 41 (rev. perm. ed.1983):

"[A] corporation will be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons." Id. at 389 (footnote omitted).

See generally H. Henn, Handbook of the Law of Corporations 146 (2d ed.1970); I. Wormser, Disregard of the Corporate Fiction and Allied Corporation Problems 42-85 (1927).

that an incorporated entity described by Chief Justice Marshall as "an artificial being, invisible, intangible, and existing only in contemplation of law" [ Footnote 21 ] -is not to be regarded as legally separate from its owners in all circumstances. Thus, where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, we have held that one may be held liable for the actions of the other. See NLRB v. Deena Artware, Inc., 361 U. S. 398, 361 U. S. 402 -404 (1960). In addition, our cases have long recognized

the broader equitable principle that the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when to do so would work fraud or injustice.

Taylor v. Standard Gas Co., 306 U. S. 307, 306 U. S. 322 (1939). See Pepper v. Litton, 308 U. S. 295, 308 U. S. 310 (1939). In particular, the Court has consistently refused to give effect to the corporate form where it is interposed to defeat legislative policies. E.g., Anderson v. Abbott, 321 U.S. at 321 U. S. 362 -363. And in Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., 417 U. S. 703 (1974), we concluded:

Although a corporation and its shareholders are deemed separate entities for most purposes, the corporate form may be disregarded in the interests of justice where it is used to defeat an overriding public policy…. [W]here equity would preclude the shareholders from maintaining an action in their own right, the corporation would also be precluded…. [T]he principal beneficiary of any recovery and itself estopped from complaining of petitioners' alleged wrongs, cannot avoid the command of equity through the guise of proceeding in the name of… corporations which it owns and controls.

Id. at 417 U. S. 713 (citations omitted).

C

We conclude today that similar equitable principles must be applied here. In National City Bank v. Republic of China, 348 U. S. 356 (1955), the Court ruled that, when a foreign sovereign asserts a claim in a United States court, "the consideration of fair dealing" bars the state from asserting a defense of sovereign immunity to defeat a setoff or counterclaim. Id. at 348 U. S. 365. See 28 U.S.C. 1607(c). As a general matter, therefore, the Cuban Government could not bring suit in a United States court without also subjecting itself to its adversary's counterclaim. Here there is apparently no dispute that, as the District Court found, and the Court of Appeals apparently agreed, see 658 F.2d at 916, n. 4, "the devolution of [Bancec's] claim, however viewed, brings it into the hands of the Ministry [of Foreign Trade], or Banco Nacional," each a party that may be held liable for the expropriation of Citibank's assets. 505 F.Supp. at 425. [ Footnote 22 ] See Banco Nacional de Cuba v. First National City Bank, 478 F.2d at 194. Bancec was dissolved even before Citibank filed its answer in this case, apparently in order to effect "the consolidation and operation of the economic and social conquests of the Revolution," particularly the nationalization of the banks ordered by Law No. 891. [ Footnote 23 ] Thus, the Cuban Government and Banco Nacional, not any third parties that may have relied on Bancec's separate juridical identity, would be the only beneficiaries of any recovery. [ Footnote 24 ]

In our view, this situation is similar to that in the Republic of China case.

We have a foreign government invoking our law but resisting a claim against it which fairly would curtail its recovery. It wants our law, like any other litigant, but it wants our law free from the claims of justice.

348 U.S. at 348 U. S. 361 -362 (footnote omitted). [ Footnote 25 ]

Giving effect to Bancec's separate juridical status in these circumstances, even though it has long been dissolved, would permit the real beneficiary of such an action, the Government of the Republic of Cuba, to obtain relief in our courts that it could not obtain in its own right without waiving its sovereign immunity and answering for the seizure of Citibank's assets -a seizure previously held by the Court of Appeals to have violated international law. [ Footnote 26 ] We decline to adhere blindly to the corporate form where doing so would cause such an injustice. See Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., supra, at 417 U. S. 713.

Respondent contends, however, that the transfer of Bancec's assets from the Ministry of Foreign Trade or Banco Nacional to Empresa and Cubazucar effectively insulates it from Citibank's counterclaim. We disagree. Having dissolved Bancec and transferred its assets to entities that may be held liable on Citibank's counterclaim, Cuba cannot escape liability for acts in violation of international law simply by retransferring the assets to separate juridical entities. To hold otherwise would permit governments to avoid the requirements of international law simply by creating juridical entities whenever the need arises. Cf. Federal Republic of Germany v. Elicofon, 358 F.Supp. 747, 757 (EDNY 1972), aff'd, 478 F.2d 231 (CA2 1973), cert. denied, 415 U.S. 931 (1974). See n 25, supra. We therefore hold that Citibank may set off the value of its assets seized by the Cuban Government against the amount sought by Bancec.

IV

Our decision today announces no mechanical formula for determining the circumstances under which the normally separate juridical status of a government instrumentality is to be disregarded. [ Footnote 27 ] Instead, it is the product of the application of internationally recognized equitable principles to avoid the injustice that would result from permitting a foreign state to reap the benefits of our courts while avoiding the obligations of international law. [ Footnote 28 ]

The District Court determined that the value of Citibank's Cuban assets exceeded Bancec's claim. Bancec challenged this determination on appeal, but the Court of Appeals did not reach the question. It therefore remains open on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


Notes

[ Footnote 1 ]

Law No. 934 provides that

[a]ll the functions of a mercantile character heretofore assigned to [Bancec] are hereby transferred and vested in the foreign trade enterprises or houses set up hereunder, which are subrogated to the rights and obligations of said former Bank in pursuance of the assignment of those functions ordered by the Minister.

App. to Pet. for Cert. 24d.

[ Footnote 2 ]

Citibank's answer alleged that the suit was

brought by and for the benefit of the Republic of Cuba by and through its agent and wholly-owned instrumentality,… which is in fact and law and in form and function an integral part of and indistinguishable from the Republic of Cuba.

App. 113.

[ Footnote 3 ]

The bulk of the evidence at trial was directed to the question whether the value of Citibank's confiscated branches exceeded the amount Citibank had already recovered from Cuba, including a setoff it had successfully asserted in Banco Nacional de Cuba v. First National City Bank, 478 F.2d 191 (CA2 1973) Banco I, the decision on remand from this Court's decision in First National City Bank v. Banco Nacional de Cuba, 406 U. S. 759 (1972). Only one witness, Raul Lopez, testified on matters touching upon the question presented. (A second witness, Juan Sanchez, described the operations of Bancec's predecessor. App. 185-186.) Lopez, who was called by Bancec, served as a lawyer for Banco Nacional from 1953 to 1965, when he went to work for the Foreign Trade Ministry. He testified that "Bancec was an autonomous organization that was supervised by the Cuban Government but not controlled by it." Id. at 197. According to Lopez, under Cuban law, Bancec had independent legal status, and could sue and be sued. Lopez stated that Bancec's capital was supplied by the Cuban Government, and that its net profits, after reserves, were paid to Cuba's Treasury, but that Bancec did not pay taxes to the Government. Id. at 196.

The District Court also took into evidence translations of the Cuban statutes and resolutions, as well as the July, 1961, stipulation for leave to file a motion to file an amended complaint substituting the Republic of Cuba as plaintiff. The court stated that the stipulation would be taken "for what it is worth," and acknowledged respondent's representation that it was based on an "erroneous" interpretation of Cuba's law. Id. at 207-209.

[ Footnote 4 ]

Judge van Pelt Bryan, before whom the case was tried, died before issuing a decision. With the parties' consent, Judge Brieant decided the case based on the record of the earlier proceedings. 505 F.Supp. 412. 418 (1980).

[ Footnote 5 ]

The District Court stated that the events surrounding Bancec's dissolution "naturally inject a question of real party in interest' into the discussion of Bancec's claim," but it attached "no significance or validity to arguments based on that concept." Id. at 425. It indicated that, when Bancec was dissolved, the claim on the letter of credit was "the sort of asset, right and claim peculiar to the banking business, and accordingly, probably should be regarded as vested in Banco Nacional…." Id. at 424. Noting that the Court of Appeals, in Banco I, had affirmed a r