Immunity of Foreign States

Traditional rule of immunity states that any litigation arising from public acts of a foreign state
are immune from all jurisdiction.
Commercial exception – acts of commercial or private nature do not give rise to sovereign
immunity.

Executive branch determines whether immunity should be granted – the court must accept these
views regardless of what international law states.

Reasons the US Moved Towards Restrictive Immunity

1. Many other states were moving in this direction and therefore the US wished to reciprocate.
2. Rise of Global commerce through state negotiated treaties.
3. US Gov. loss of immunity in US domestic courts.

The Foreign Sovereignty Immunities Act: An Overview: 28 USC 1603-1605

1604
o Says that US courts don't have jurisdiction over foreign states. This is subject matter
and personal jurisdiction.
1605 (exceptions)
o (A)(1) a foreign state can waive its jurisdiction.
o (A)(2) If there is a commercial activity within the US or affects US commercial
activity
o (A)(3) Rights in property taken in violation of international law and the property is
within the US or in connection to commercial activity within the US
o (A)(5) For money damages related to torts within the US caused by a foreign state.

Entities Covered by FSIA

I. FSIA covers suits against 3 types of entities:
A. Foreign states proper
B. Their political subdivisions
C. Their agencies and instrumentalities
1. Separate Legal Person AND
2. Be an organ of foreign state/political subdivision or have a majority of shares
or other ownership interests owned by foreign state/political subdivision
a. Dole Food Co. v. Patrickson—foreign state must itself own a majority
of corporation’s shares if the corporation is to be deemed an
instrumentality of the state under FSIA
II. Foreign states proper and their political subdivisions receive more protection than agencies
and instrumentalities
A. Does not expressly address the immunity of individual foreign officials

Head of State Immunity (status based) is entitled to absolute deference.

Official Acts immunity (conduct based) are only entitled to substantial weight but when official
act is a violation of ius cogens, the person is not entitled to immunity on that ground.
Waiver Exception
 Under the FSIA waiver exception, a foreign state is not immune from suit if it has waived
its immunity either explicitly or by implication.
o What does it mean to waive implicitly?
 Legislative history: foreign state has agreed to arbitration in another
country or law of particular country should govern contract
 Foreign state filed a responsive pleading
 Courts construe it narrowly
o States have indicated a willingness to be sued in the US
o Selection of US law is considered a waiver, while selection of a
foreign law (to govern treaty is not)
 Nor is it considered a waiver to submit to jurisdiction of
foreign state
o Egregious conduct – like violating jus cogens is not considered a
waiver
. Counterclaim Exception
 An exception to immunity for counterclaims
 If a foreign state brings lawsuit in the US – it is denied immunity for
o Any claim that falls within an exception to immunity
o Any claim that arises out of the same transaction or occurrence as the sovereigns
claim
o Any claim up to the amount of the foreign state’s claim