Latest Posts

Feb 3

Appeals in arbitration?

The American Arbitration Association (“AAA”) and its international counterpart, the International Centre for Dispute Resolution (“ICDR”), have implemented a new set of Optional Appellate Arbitration Rules (“Appellate Rules”) effective November 1, 2013. Under these rules, a party may seek appellate review of an arbitral decision within 30 days of judgment. The parties, however, cannot invoke


May 10

No Immunity for Certain Counterclaims Under the FSIA

In an action initiated by a state or in which a state intervenes, Section 1607 restricts that state from asserting immunity against the following counterclaims: (a) for which a foreign state would not be entitled to immunity under section 1605 or 1605A of this chapter had such claim been brought in a separate action against


May 10

Non-Commercial Torts and Terrorism

Sections 1605(a)(5) (non-commercial torts) and 1605A (terrorism) are related sections dealing with much the same situation:  claims by U.S. citizens against foreign states for non-commercial torts (in particular, personal injury or death) caused by a foreign state or its agents acting within the scope of their employment.  There are 2 key differences between scope of


May 10

Consent to Arbitration

Under  § 1605(a)(6) of the FSIA, a foreign State is not immune from jurisdiction in any action that is brought: to enforce an agreement made by the foreign state with . . . a private party to submit to arbitration all or any differences . . .  between the parties . . . concerning a


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