In the wake of the global recession at the end of 2008 and beginning of 2009, companies sought security for potential claims. In the context of maritime claims, one favorable venue was New York, an international financial center and home to the Clearing House banks, which acted as an exchange for electronic U.S. dollar wire transfers. Unfortunately, due in part to the high volume of claims, in 2009, the U.S. Court of Appeals for the Second Circuit in Shipping Corp. of India v. Jaldhi Overseas PTE LTD held that U.S. dollar electronic fund transfers ("EFTs") that passed through New York banks were no longer subject to attachment pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure ("Rule B").
In Jaldhi, the Shipping Corporation of India sought and was granted an ex parte maritime attachment order pursuant to Rule B. By serving the order of attachment on various banks in New York, EFTs that originated in foreign banks, but momentarily passed through New York-based banks, were restrained. Having considered the various arguments of the parties and amicus briefs, the Second Circuit held that "because there is no governing federal law on the issue and New York law clearly prohibits attachment of EFTs, we conclude that EFTs being processed by an intermediary bank in New York are not subject to Rule B attachment"
As the attachment of EFTs was no longer possible pursuant to Rule B, parties sought alternatives. On such option presented itself in the form of the Court of Appeals of New York decision in Koehler v. Bank of Bermuda Ltd., which appeared to allow parties the ability to reach a debtors' assets that were held by a foreign bank. In Koehler, the Court reasoned that Article 52 of the New York Civil Practice Law and Rules allowed a New York court to order a bank, which was admittedly subject to the personal jurisdiction of the court, to deliver stock certificates held in its foreign bank branch to a judgment creditor in New York.
Pursuant to Koehler, parties attempted to restrain assets in foreign banks via New York branch office, but decisions from the New York State Supreme Court and the Court of Appeals of New York held to the contrary. In Gliklad v. Bank Hapoalim BM, the New York State Supreme Court (i.e., trial level court) held that parties could not reach the assets held in the foreign banks because they lacked jurisdiction. More importantly, the court found that under New York law, the "Separate Entity" rule protected foreign banks from the reach of New York courts. Under that rule, each branch office of a bank is to be regarded as a separate entity and, therefore, one bank branch office cannot be required to interfere with assets held in another branch office.
Likewise, in Motorola Credit Corp. v. Standard Chartered Bank, the New York State Court of Appeals of New York held that foreign banks were protected under the Separate Entity rule. However, the Court of Appeals also held that its reliance on the Separate Entity rule in Motorola did not expressly overturn Koehler because the separate entity rule was not raised in Koehler. The Court of Appeals explained that the Separate Entity rule did not apply in Koehler because neither bank branches nor assets held in bank accounts were involved.
Although Gliklad and Motorola did not explicitly overturn Koehler, the use of Koehler as a basis for seizing foreign assets has been clarified and significantly limited.