FOREIGN SOVEREIGN IMMUNITIES ACT: SUING A FOREIGN COUNTRY

[1.0] WHAT IS THE FSIA
The Foreign Sovereign Immunities Act of 1976 allows for a lawsuit to be implemented against a foreign sovereign or its agencies and instrumentalities. Procedures enumerated by this act provide a guide to suing a foreign sovereign. Furthermore, the attachment of property for international debt recovery purposes is provided with measures for service of process and the execution of the judgment in said proceedings since foreign states mostly have immunity from litigation. The FSIA is the exclusive base for a lawsuit against a foreign sovereign in the United States.

Sovereign immunity has been held so long in the United States that the general principle is reflected in the 1812 case of The Schooner Exchange v McFadden, where the Supreme Court held that a private party could not sue the government of France. Without the FSIA in place, courts referred to suggestions of immunity filed by US State Department Authorities against foreign sovereigns, which could often blur the lines and lead to a blanket refusal to hear any claims against a foreign government, even in commercial activities.

In 1952, the US State Department, noting the development of immunity in other nations, adopted the Restrictive Theory of Sovereign Immunity. The Public Acts (Jure Imperii) of a Foreign State are entitled to immunity, while the Private Acts (Jure Gestionis) are not. Consequently, the FSIA attempts to [A.] transfer the onus of gauging immunity from the Department of State to the judiciary, [B.] delineate and codify the “restrictive” theory of immunity and [C.] create a uniform regime to determine instances and procedures outlining litigation against foreign states and governmental agencies. This also includes US citizens’ power to sue foreign powers over terrorist acts committed on US soil, as seen through the enactment of the Justice Against Sponsors of Terrorism Act in 2016.

[2.0] APPLICATION AND EXCEPTIONS TO IMMUNITY
Under the FSIA, foreign states and governments, including their political subdivisions, agencies, and instrumentalities, are immune from suit (in both state and federal courts) unless one of the statute’s specific exceptions applies. Commercial activity as a general indicator of exceptions under the FSIA was a vague rule for the courts. The statute for sovereign immunity-28 USC 1605 – not moved away from the same but has expanded the scope of the provision itself. While commercial activity in the US or in a foreign state that causes an effect onto the United States is an exception, the statute provides an exhaustive list of exceptions to the statute. All of the exceptions to immunity do require specific connections to the United States. The applicability of an exception to immunity is a matter of subject-matter jurisdiction. Without exception to immunity, a court cannot hear the claim and must dismiss the suit.

The primary exception to immunity comes from its explicit or implicit waiver by the state itself. Further exceptions can be property-centric: [A.] property taken in violation of international law or [B.] rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are at issue or [C.] money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state are covered by Subsection 28 USC 1505(a)3-5 and provide remedies for wrongs committed aligned to the same. Apart from this, action may be brought up against the foreign state to enforce an arbitration agreement to benefit a private party. Furthermore, a suit in admiralty is brought to enforce a maritime lien against a foreign state vessel or cargo. A maritime lien is based upon a commercial activity of the foreign state.

As mentioned before, US citizens have the right to sue foreign powers over terrorist acts committed on US soil. This means that money damages can be sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage-taking, or the provision of material support or resources for such an act if the foreign state is designated as a state sponsor of terrorism.

It must be understood that the burden of proof falls upon the defendant to establish that it qualifies to be a foreign state under the FSIA. Once this is achieved, the defendant qualifies for immunity. The onus is on the plaintiff to prove that an exception applies. It is necessary to understand both the types of actions to which immunity does not attach and the territorial nexus required for adjudication in U.S. courts. The long-form statute thus formed is the basis for the jurisdiction that the courts exercise over qualifying claims.  The exceptions are listed at 28 U.S.C. §§ 1605, 1605A, and 1607.

[3.0] WHO CAN QUALIFY AS A FOREIGN STATE
The FSIA only applies to lawsuits involving a “foreign state.” The FSIA defines “foreign state” to include three entities that are either a [A.] foreign state [B.] a political subdivision of a foreign state or [C.] “agency or instrumentality” of a foreign state. The latter is further explained to be an entity with an independent legal identity of its own but functions either as an “organ of a foreign state or political subdivision” or has majority shares or ownership interest held by the foreign state or political subdivision.

The reason that it is important to keep this differentiation in mind falls upon the jurisdiction conferred upon the courts. The FSIA confers original jurisdiction onto federal district courts as long as the right in personam is enforced against said ‘foreign state.’ Furthermore, the kind of service relevant in the case is different based on the category the claim falls in: service of an agency or instrumentality differs from a political subdivision.

About the commercial activity exception, the three bases for the exception falls upon whether [A.] the plaintiff’s claim is based upon a commercial activity carried on in the United States by the foreign state, [B.] the plaintiff’s claim is based upon an act by the foreign state which is performed in the United States in connection with commercial activity outside the United States or [C.]the plaintiff’s claim is based upon an act by the foreign state which is performed outside the United States in connection with commercial activity and which causes a direct effect in the United States. Consequently, the FSIA requires that courts look to the nature of the act itself, rather than the purpose for which the foreign sovereign engaged in the act.

[4.0] HOW IS SERVICE OF PROCESS ENACTED
The FSIA has laid down a hierarchy of service of process on foreign defendants. While compliance is mandatory, the Act offers four alternative service of process  methods; in a descending hierarchy, the first step is according to an agreement between the plaintiff and the foreign state, moving onto [B.] as prescribed in an applicable international agreement and then [C.] via mail from the court clerk to the head of the foreign state’s Ministry of Foreign Affairs or finally [D.] via the diplomatic channel.

The defendant cannot be a natural person under the FSIA and requires the plaintiff to have first attempted service through other methods before via diplomatic channels. A statement in writing must be recorded by the Department of State emanating from the plaintiff or the clerk, assuring them that the attempts were made. Service exclusively on a foreign embassy or the United Nations is not enumerated under the FSIA. It can consequently not be assumed permissible since the methods of service in the FSIA are closed and in a strict edict.

It must be considered that service by agreement or by the applicable international treaty or convention [in this case being Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters and the Inter-American Convention on Letters Rogatory and Additional Protocol since the US is a party to these multi-lateral treaties] is often considered to be most acceptable. However, if this service cannot be provided, the plaintiff needs to send a copy of the summons and complaint and a notice of suit. It is imperative to include translations of the same to the foreign state. If the service of process on a foreign state is made by mail under §1608(a)(3), the complaint must be sent to the head of the ministry of foreign affairs of the foreign state concerned.

The assorted documents, when sent by mail, must be signed and have a receipt. The court clerk is responsible for transmitting the same after they have adequately verified the address to the head of the ministry of foreign affairs of the foreign state concerned. If service by mail is not allowed by the receiving country, it insufficient grounds to proceed under Section 1608(a)(4) through diplomatic channels.

Service by diplomatic channels

It must be noted that service under Section 1608 (a)(4) is only possible after thirty days have passed since preceding methods attempted service. The summons’ service, complaint, and a notice of suit can thus be furnished, but the relevant documents need to be in order, including the copies of translations mandated. It is necessary to prove that service has been attempted under the previous sections by obtaining assurance of the same by the requesting courts or the plaintiff’s counsel, including a copy of the denial of the foreign central authority appointed by the Hague Service Convention to furnish the service. The complaint itself should contain sufficient factual allegations justifying jurisdictional discovery and must be reviewed alongside the parties’ allegations and undisputed facts.

Proof of service under this method also differs, necessitating a certified copy of the diplomatic note responsible for the transmission of the requisite documents to be supplied by the Department of State, Office of Policy Review & Interagency Liaison, Overseas Citizens Services to the clerk of the court with the pendant action. Documents that are not a summons, complaint, a notice of the suit, or the default judgment will be transmitted through these channels on a casewise basis.

Two copies are necessary to be provided of either [A.] the summons, complaint, and notice of the suit or [B.] a default judgment and notice of default (depending on the request). Furthermore, it, i.e., imperative that the notice thus provides subscribes to the document conformity requirements as laid down within 22 CFR 93.2. The notice must contain a copy of the FSIA. The relevant FSIA service fee that the US Department of State charges for supplying the service in each instance is to be paid via cashier’s check addressed to the US Department of State or the specific US Embassy or Consulate involved.

For all service methods, two sets of the documents must be provided with photocopies of each.  Section 1608 prescribes the exclusive means of service on both foreign states and their agencies and instrumentalities. These provisions are mandatory, but alternatives are specified in descending order of preference. Under§1608(d), both states and their agencies and instrumentalities have sixty days from the service date to answer or respond to a complaint. However, in practice, effecting (and establishing proof of) service can be time-consuming and fraught with delays.

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Sources

1.Title 28, §§ 1330, 1332, 1391(f), 1441(d),

2.11 U.S. 116 (1812),

3.1605(a) (1)

4.Under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App 2405(j) or Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).

5.28 U.S.C. § 1603(a)

6.28 U.S.C. § 1603(b)

7.Section 1330(a)

8.28 U.S.C. 1608(a)(3).

9.§ 93.2 Notice of suit (or of default judgment).

(a) A Notice of Suit prescribed in section 1608(a) of title 28, United States Code, shall be prepared in the form that appears in the Annex to this section.

(b) In preparing a Notice of Suit, a party shall, in every instance, supply the information specified in items 1 through 5 of the form appearing in the Annex to this section. A party shall also supply information specified in item 6 if notice of a default judgment is served.

(c) In supplying the information specified in item 5, a party shall in simplified language summarize the nature and purpose of the proceeding (including principal allegations and claimed bases of liability), the reasons why the foreign state or political subdivision has been named as a party in the proceeding. The nature and amount of relief sought. The purpose of item 5 is to enable foreign officials unfamiliar with American legal documents to ascertain the above information.

(d) A party may attach additional pages to the Notice of Suit to complete information under any item.

(e) A party shall attach, as part of the Notice of Suit, a copy of the Foreign State Immunities Act of 1976 (Pub. L. 94-583; 90 Stat. 2891).

10.§ 22.1 Schedule of fees.

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