2012 April

Apr 5

Real property located in the United States

Section 1605(a)(4) restricts state immunity in cases “in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue.”  The two exceptions to immunity found in this clause are conceptually distinct. The first part of this provision creates a “successor


Apr 5

Property illegally taken under international law

Section 1605(a)(3) allows suits to be brought against sovereigns relating to property rights taken in violation of international law where: the property (or any property exchanged for such property) is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property (or


Apr 5

The “Commercial Activity” Exception to Sovereign Immunity

§1605(a)(2) allows U.S. district courts to assert jurisdiction over a foreign State in actions based upon: a commercial activity carried on in the United States by the foreign state; or an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or an act outside the territory of


Apr 5

Express and Implied Waivers of Sovereign Immunity

FSIA Section 1605(a)(1) reads: a foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case– (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to


Apr 5

Personal Jurisdiction and the Foreign Sov. Immunities Act

The FSIA establishes separate rules for service of process on states and their agencies or instrumentalities in §1608, and compliance with these rules forms a statutory basis for personal jurisdiction over foreign states.  See 28 U.S.C. § 1330 (also granting U.S. district courts original subject matter jurisdiction over civil actions against foreign states). Foreign states


Apr 5

Who is Entitled to Sovereign Immunity under the FSIA

§1603 of the FSIA defines a foreign state to include its political subdivisions as well as its agencies or instrumentalities.  Please note that “agency or instrumentality” is a term of art and that the potential differences between these two entities have been of little to no interest to federal courts interpreting the FSIA.  If a


Apr 5

An Introduction to the Foreign Sovereign Immunities Act

State immunity is a concept enshrined in many domestic legal systems as well as various sources of international law.  The maxim par in parem non habet imperium (“an equal has no power over an equal”) is a principle of customary international law enjoying near universal acceptance which establishes a basic assumption of state immunity to


Apr 5

New Supreme Court decision on Arbitration (KPMG LLP v. Cocchi)

The Supreme Court has issued an opinion in KPMG LLP v. Cocchi, reaffirming the position that, when considering a motion to compel the arbitration of multiple claims, courts must consider the arbitrability of each claim separately, “even if this will lead to piecemeal litigation.”  2011 U.S. LEXIS 7924, at * 2 (Nov. 7, 2011).  (The