Foreign Sovereign Immunities Act Research Articles

Briefly Noted

This is the latest judgment in a case filed in 2020 by the state of Missouri against several named defendants and the Chinese Communist Party (CCP) for allegedly allowing COVID-19 to spread, engaging in a coverup of the virus, and hoarding PPE, such as high-quality masks, which caused the virus to spread further. In July 2022, the Eastern District of Missouri dismissed the complaint, finding that the Foreign Sovereign Immunities Act (FSIA) applied to all the defendants in the case, including the CCP and that neither the commercial activity exception or the noncommercial torts exception applied. The Court of Appeals affirmed, barring one difference. The Court of Appeals agreed with the lower court that the FSIA applied to all the defendants and that neither exception raised applied. However, it reversed the lower court's dismissal of the PPE hoarding claim, finding that that the taking over of “mask-producing factories and buying up a substantial portion of the world's supply of personal-protective equipment” was commercial in nature.

The Plea of Sovereign Immunity in Defence of a New York Convention Award Before the US Superior Courts: Process & Industrial Development v. The Federal Republic of Nigeria (P&ID v. FRN)

The sovereign immunity defence is a plea that had long served sovereign Convention awarddebtors well across jurisdictions worldwide. Although there was a noticeable gradual whittling down of its influence in several jurisdictions in the 1950s and 1960s, the unwary arbitration stakeholder might be mistaken to assume that the principle has gone extinct in popular arbitration jurisdictions. The United States appears to be one jurisdiction where the sovereign immunity plea has recently enjoyed a resurgence; in virtue of the subtle but practical distinction that American superior courts [in their interpretation of the Foreign Sovereign Immunities Act (FSIA), 1976], have drawn between the jurisdiction to entertain suits against a sovereign, founded on commercial activity involving the sovereign, and the jurisdiction to order execution upon the assets of the sovereign. The upshot of how US superior courts have interpreted the Act is that, while subjectmatter jurisdiction invests the US courts with power to entertain suits against a sovereign (as regards their commercial relations), they lack the corresponding power to order execution against the sovereign’s assets. Put differently, the sovereign has executional immunity over their assets but lacks subject matter immunity to be sued before a District Court, as long as it relates to a commercial activity involving the sovereign. The immunity of a sovereign’s asset from execution inevitably leaves the award creditor with a vacuous victory.

China's Foreign State Immunity Law: A View from the United States

On September 1, 2023, the Standing Committee of the National People's Congress promulgated the Foreign State Immunity Law (FSIL) of the People's Republic of China, which adopts the restrictive theory of foreign state immunity. This article has two goals. First, the article introduces China's FSIL to English language readers by explaining its provisions in some detail. Second, the article provides a U.S. perspective on the FSIL by comparing it to the U.S. Foreign Sovereign Immunities Act (FSIA) and discussing the U.S. experience with foreign state immunity.

Cassirer v. Thyssen-Bornemisza Collection Foundation (U.S. Sup. Ct.)

During the winters of 1897 and 1898, from the window of his Parisian hotel, Camille Pisarro painted one of his first urban scenes, Rue Saint-Honoré in the Afternoon. Effect of Rain (the Painting). The Painting marks a significant deviation from Pissarro's prior works, which primarily consisted of au plein air country landscapes. In addition to the Painting's art historical significance, it has now become one of Pissarro's most infamous paintings. Currently sitting in the Museo Nacional Thyssen-Bornemisza (TBC) in Madrid, this artwork has been the subject of a decades-long court battle over its ownership. After the Nazis assumed control of Germany, the original owner forcibly surrendered the Painting in order to obtain exit visas for her family. Decades later, the heirs of the original owners attempted to recover the Painting under the Foreign Sovereign Immunities Act (FSIA). After this decades-long litigation, the case went to the U.S. Supreme Court to resolve a procedural issue: what choice-of-law rule a court should apply in an FSIA case raising state claims.

Briefly Noted

On August 6, 2021, the U.S. Court of Appeals for the Seventh Circuit issued its judgment in Scalin. The case involved descendants of Jewish people in France who were sent to concentration camps on trains operated by the defendant railroad company. The descendants sued the railroad for personal property stolen by the railroad workers an given to the Nazis, arguing that the expropriation exception in the Foreign Sovereign Immunities Act (FSIA) for cases applied and that therefore, the case could be heard by U.S. courts. The district court dismissed the complaint, holding that the plaintiff descendants should pursue their complaint within the French administrative claims framework set up specifically to compensate victims of the Nazi regime. The district court relied on precedent permitting U.S. courts to abstain in favor of compensation systems based in the state where the harm occurred. In the meantime, the DC District Court disagreed with that precedent, holding that abstention is never proper and the Seventh Circuit suspended the appeal while the Supreme Court considered the Philipp case. After that judgment, the plaintiffs in this case asked the Court to remand the case to the district court so that the district court could determine whether any of the plaintiffs' predecessors in interest were not French citizens at the time the property was taken. The Court opined that a remand of this nature would omit consideration of the essential question in this case: “what is the plaintiffs' claim in the first place?” The Court noted that this “is a triple-foreign suit: plaintiffs allege that nationals of a country other than the United States were injured by a foreign entity (SNCF) in a foreign nation (France).” Although one of the plaintiffs is a U.S. citizen, the case nonetheless involves a foreign claim.

Appraising the U.S. Supreme Court’s Philipp Decision

This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should not harm victims of expropriation who have availed themselves of the genocide exception in past years, because discriminatory takings are a violation of international property law. Similarly, in Philipp, the Supreme Court framed the issue as one of domestic takings, concluding that such takings cannot come within an exception to foreign sovereign immunity, but at the same time the Court did not reject prior case law which holds that a taking is not domestic in nature if made by a sovereign against its own vulnerable minorities if it did not treat them as full citizens at the time of the property expropriation. Thus, the same sorts of victims who were recovering under the recent FSIA genocide exception (and had been recovering before the FSIA genocide exception was created) should be able to continue to have their cases heard under the FSIA. This article also considers recent international law developments which maintain that international law is concerned with how states treat their own citizens, suggesting that the FSIA’s domestic versus alien expropriation test, not textually based in the statute, may be ripe for reconsideration, with a view to eliminating the distinction. While such an approach for FSIA’s property expropriation section would not contradict the statute’s text, it would contravene precedential authority, and would not be endorsed under Philipp’s reasoning.

The Restatement of Foreign Sovereign Immunity: Tutto il Mondo è Paese

Abstract Chapter 5 of the Restatement of the Law (Fourth): The Foreign Relations Law of the United States provides a systematic, discerning and accessible account of the US law of foreign sovereign immunity as laid down in the Foreign Sovereign Immunities Act (FSIA), accompanied by consistent comparative reference to the international and foreign domestic law of state immunity. From the perspective of a non-US reader, however, where Chapter 5 adds greater value in its own right is in the attention it pays in the comments and reporters’ notes to a range of preliminary issues of domestic law on the determination of which the provisions of the FSIA turn but that the latter do not regulate. These issues, although superficially peculiar to the US law of foreign sovereign immunity, arise similarly in connection with the corresponding international and foreign domestic rules. In this way, what are ostensibly the most particular aspects of Chapter 5 may be those of most universal interest.

U.S. Supreme Court Rules that the Foreign Sovereign Immunity Act's Expropriation Exception Does Not Extend to Domestic Takings

In Federal Republic of Germany v. Philipp, the U.S. Supreme Court unanimously held that a country's taking of property from its own nationals does not fall within the Foreign Sovereign Immunities Act (FSIA) exception for “rights in property taken in violation of international law.” The case involved a claim that Nazi officials coerced a consortium of three art firms owned by Jewish residents of Germany to sell a collection of “medieval relics and devotional objects known as the Welfenschatz” to Prussia for “approximately one-third of their value.” The plaintiffs—descendants of the members of the consortium—argued that the coerced sale constituted genocide, thus bringing their claim within the FSIA exception. The Supreme Court disagreed, holding that “the expropriation exception is best read as referencing the international law of expropriation rather than of human rights” and that international law does not bar a state's taking of the property of its own nationals. The Court declined to reach Germany's alternative argument that international comity required dismissal of the case, and it vacated and remanded a companion case, Republic of Hungary v. Simon, that also posed the comity question.

Germany v. Philipp (U.S. Sup. Ct.)

In 1976, the U.S. Congress enacted the Foreign Sovereign Immunities Act (FSIA) to afford foreign sovereigns presumptive immunity from the jurisdictional reach of U.S. courts absent the application of one of the exceptions specifically enumerated in the statute. In Federal Republic of Germany v. Philipp, the U.S. Supreme Court considered whether a foreign sovereign's “taking of property from its own nationals” falls within FSIA's so-called expropriation exception for “property taken in violation of international law.”

Foreign Sovereign Immunity in the Enforcement of Investor-State Awards

This essay looks at the enforcement of investor-State arbitral awards under the U.S. Foreign Sovereign Immunities Act (FSIA). Part I considers immunity from suit, which tends not to be an obstacle because of the arbitration exception to immunity found in Section 1605(a)(6). Part II turns to the FSIA’s rules on venue, which, as currently interpreted, seem to require an initial action in the District of Columbia to reduce the arbitral award to judgment, followed by a second action to execute that judgment where the foreign State has assets. Part III discusses the FSIA’s provision on service of process, which sets forth four methods for serving foreign States that must be followed strictly and in order. Finally, Part IV considers the FSIA’s rules on the immunity of a foreign State’s property from execution. Although Section 1610(a)(6) contains an arbitration exception to immunity from execution that is parallel to Section 1605(a)(6)’s exception to immunity from suit, the property to which the exception applies is limited. Specifically, an investor can enforce its award only against property that is in the United States, is owned by the foreign State itself, and is used by the foreign State for a commercial activity in the United States. In the end, it is the immunity of a foreign State’s property from execution that poses the biggest obstacle to enforcing investor-State awards.

Brief of Foreign Sovereign Immunity Scholars as Amici Curiae in Support of Plaintiffs-Appellees, NSO Group Technologies Ltd. v. WhatsApp Inc.

This amicus brief of Foreign Sovereign Immunity Scholars was filed with the Ninth Circuit in NSO Group Technologies Ltd. v. WhatsApp Inc. The brief argues against NSO’s claim of conduct-based foreign official immunity on two grounds. First, the Foreign Sovereign Immunities Act (FSIA) comprehensively codified the immunity of corporations and other entities, and entities like NSO that do not fall within the FSIA cannot claim immunity from suit in U.S. courts. Second, under both international law and federal common law, foreign official immunity extends only to natural persons.

Hacks Dangerous to Human Life: Using JASTA to Overcome Foreign State Sovereign Immunity in Cyberattack Cases

State-sponsored cyber-attacks are on the rise. With the continually growing presence of automated and autonomous technologies in our lives, the ability to harm individuals behind a keyboard is becoming an increasingly plausible and desirable option for foreign states seeking to target persons abroad. Those particularly vulnerable to such attacks include political dissidents, activists, and any individuals deemed to be an enemy of the regime employing such cyber-attacks. In recent years, U.S. nationals victimized by foreign state-sponsored cyber-attacks have attempted to sue their foreign-state cyber-attackers in U.S. courts under the traditional exceptions to the Foreign Sovereign Immunities Act (FSIA), but to no avail. Commentators have offered a few suggestions to help these victims overcome the barrier of sovereign immunity, including an alternative interpretation of the FSIA’s noncommercial tort exception, or a cyber-attack exception amendment to the FSIA. This Note, however, offers a more concrete and accessible solution: the Justice Against Sponsors of Terrorism Act (JASTA). The recently passed JASTA creates the latest exception to the FSIA, which differs from the other exceptions in two important ways: (1) it does not require an alleged tort to have taken placed in the United States, and (2) it does not require the foreign state being sued to have been officially designated a state sponsor of terrorism by the U.S. government. Thus, under JASTA, many U.S. victims of state-sponsored cyber-attacks should be able to overcome sovereign immunity and finally attain justice against their foreign-state cyber-attackers in U.S. courts.

U.S. Supreme Court Rules that Victims of State-Sponsored Terrorism Can Sue Foreign States for Retroactive Punitive Damages Under the Foreign Sovereign Immunities Act

In Opati v. Republic of Sudan, the Supreme Court upheld a $4.3 billion award of punitive damages against Sudan for its support of the 1998 bombings of U.S. embassies in Kenya and Tanzania. The Supreme Court held that Congress's 2008 amendments to the Foreign Sovereign Immunities Act (FSIA) authorized the plaintiffs to recover punitive damages from state sponsors of terrorism for acts committed prior to the enactment of these amendments. This case is part of a broader trend of U.S. litigation brought against states who are designated sponsors of terrorism or alternatively are deemed responsible for acts of terrorism within the United States.

Testimony of Chimène Keitner Before the Senate Judiciary Committee on 'The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability'

On June 23, 2020, the Senate Judiciary Committee held a hearing Committee on “The Foreign Sovereign Immunities Act, Corona-virus, and Addressing China’s Culpability.” This document contains the written testimony of Professor Chimène Keitner, as well as responses to 39 questions for the record posed by members of the committee. Professor Keitner’s opening statement emphasized three main points. First, the United States has more to lose than any other country by removing the shield of foreign sovereign immunity for a pandemic. Second, private litigation will not bring China to the negotiating table, and it will not produce answers or compensation for U.S. victims. Instead, Congress should focus on the inadequate federal response to COVID-19, and on restoring U.S. leadership in global public health. The questions for the record covered issues including the FSIA, other obstacles to obtaining damages from civil suits, the consequences of domestic suits against foreign states, alternative methods for pursuing accountability, U.S. exposure to litigation risk, discovery of U.S. government records in cases against China, regulating live wildlife markets and the international wildlife trade, and President Trump’s praise of China’s COVID-19 response.On July 20, Senator Martha McSally (R-AZ) and seven Republican cosponsors introduced a new bill entitled the “Civil Justice for Victims of COVID Act” that combines features of previous bills introduced to amend the Foreign Sovereign Immunities Act (FSIA) “to strip foreign sovereign immunity of certain foreign states to secure justice for victims of novel corona-virus in the United States.” A business meeting to consider the bill, along with several judicial nominations, was scheduled for July 30.

U.S. v. Assa Co. Ltd. (2d Cir.)

On August 9, 2019, the U.S. Court of Appeals for the Second Circuit decided United States v. Assa Co. The decision is significant for its holding that a civil forfeiture action in rem concerning property of a foreign state or its instrumentality is not an action against the foreign state or instrumentality for purposes of the jurisdictional and immunity provisions of the Foreign Sovereign Immunities Act (FSIA).

D.C. District Court Enters Over $300 Million Default Judgment Award Against Syria for the Death of Marie Colvin

On February 1, 2019, the United States District Court for the District of Columbia granted a motion for default judgment and entered a $302,511,836.00 award against the Syrian Arab Republic (“Syria”). The court found the Syrian government liable for the death of Marie Colvin, who died in an artillery shelling on February 22, 2012, at a media center in the city of Homs. Colvin was a heralded war correspondent who had previously “cover[ed] conflict zones in Iraq, Chechnya, the Balkans, East Timor, Sri Lanka, Sierra Leone, and Libya.” Colvin's heirs brought suit, claiming that because Syria had been designated a “state sponsor of terrorism,” it could be held liable for an extrajudicial killing of a U.S. national under the Foreign Sovereign Immunities Act (FSIA). Judge Amy Berman Jackson concluded that the plaintiffs met the evidentiary burden required to support their claim after finding personal and subject matter jurisdiction.

The Extraterritorial Application of Post-Judgment Discovery under the U.S. Foreign Sovereign Immunities Act

미국 외국주권면제법은 외국정부에 대한 주권면제와 주권면제의 적용배제에 대해 규정하고 있다. 주권면제는 미국법원의 관할권으로부터의 면제와 판결집행에 대한 면제가 있다. 그러나 미국 내에 있는 외국정부의 재산이 상업적 활동으로 사용된 경우, 그 재산에 대해 외국정부는 집행에 대한 주권면제를 주장할 수 없다. 2014년 Republic of Argentina v. NML Capital, Ltd. 판결에서 미국 연방대법원은 아르헨티나 정부의 채무불이행 재판에서 승소한 미국 헤지펀드가 아르헨티나 정부의 재산에 대해 집행하기 위해, 아르헨티나 정부의 미국 국내 재산은 물론 국외 재산에 대한 정보를 수집하고자 제3자 은행에게 재산정보를 제공할 것을 요청하는 하급심 법원의 개시절차 소환장을 허가하였다. 외국주권면제법의 해석과 적용에 관한 위 판결은 향후 투자자-국가 분쟁(ISD)에서 만약 외국 투자자가 외국(또는 한국) 정부에 대해 승소하고, 중재판정에 대한 승인 및 집행 판결을 미국 법원에서 결정할 경우, 외국주권면제법에 의해 외국 투자자가 외국(또는 한국) 정부의 국내외 재산에 대한 광범위하게 집행 또는 적어도 재산에 대한 정보를 요구할 수 있음을 시사하는 판결로 향후 이 판결에 대한 평가나 적용이 어떻게 진행되는지 파악하는 것이 필요하다.The United States Foreign Sovereign Immunities Act ( FSIA ) contains provisions of exceptions to jurisdictional and execution immunity of a foreign state. In Republic of Argentina v. NML Capital, Ltd., the United States Supreme Court interpreted the immunity exceptions under the FSIA broadly and even applied extraterritorially. The Court in NML did not limit power of the U.S. court to order post-judgment discovery to search for the assets around the world of the judgment debtor, Argentina. The decision in NML may significantly affect later FSIA cases to enforce the judgment of a court in the U.S. against a foreign state because this case approved the broad discovery order of the U.S. court to enforce judgment execution of judgment creditors on the property of judgment debtors, in the United States or abroad. The judgment execution on the assets abroad under the FSIA expands the scope of the Act extraterritorially. To grasp the rules on execution under the FSIA, this paper reviews the FSIA s execution immunity and its exceptions, focusing on issues related to judgment execution against a foreign state. The paper analyzes the rationale of the Court in NML to find out how the judgment execution and its exception under the FSIA had been applied. Although the NML Court discussed the questions on discovery in the post-judgment discovery proceedings, it can be a good reference to see how the execution exceptions under the FSIA to judgment execution in the future will be interpreted, especially in any recognition and enforcement judgment related to the Investor-State Disputes in the U.S. court.

U.S. Supreme Court Holds that a Provision of the Foreign Sovereign Immunities Act Does Not Lift Immunity from Attachment of Iranian Artifacts

The U.S. Supreme Court recently held unanimously that § 1610(g) of the Foreign Sovereign Immunities Act (FSIA) does not lift the immunity from attachment of certain artifacts belonging to Iran. The case, Rubin v. Islamic Republic of Iran, stemmed from the petitioners’ attempt to satisfy a prior judgment against Iran for injuries sustained in Hamas suicide bombings in Jerusalem in 1997.

Diag Human SE v Czech Republic-Ministry of HealthA Broad Interpretation of the ‘Arbitration Exception’ of the Foreign Sovereign Immunities Act

Diag Human SE v Czech Republic-Ministry of HealthA Broad Interpretation of the ‘Arbitration Exception’ of the Foreign Sovereign Immunities Act

New Legislation Seeks to Confirm Immunity of Artwork and Facilitate Cultural Exchange

On December 16, 2016, President Obama signed into law the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA). This act amends the Foreign Sovereign Immunity Act (FSIA) in order to confirm the jurisdictional immunity of foreign states in connection with lending artwork to the United States for temporary exhibit. The FCEJICA contains two exceptions, described below, that introduce some uncertainty about the extent of protection the statute provides to foreign states.