Customary international law provides immunity to states from the jurisdiction of foreign national courts. The immunity extends to state agencies and to state-owned property, protecting them from adjudicatory jurisdiction and from enforcement measures. Foreign sovereign immunity has important exceptions, including for waiver, for some conduct or property related to commercial activity, and for some torts committed on the territory of the forum state. In the United States, all aspects of foreign sovereign immunity for cases in state or federal court are governed by a federal statute, the Foreign Sovereign Immunities Act.
A Primer on Foreign Sovereign Immunity
The immunity of states from the jurisdiction of foreign domestic courts is a long-standing and mostly uncontroversial principle of customary international law. The International Court of Justice has described foreign sovereign immunity as a procedural doctrine of international law, one that “derives from the principle of sovereign equality of the States.” As a practical matter,…
Continue Reading$16 billion judgment against Argentina reversed: breach of contract or expropriation?
Private investors in an Argentinian oil company (YPF) sued in the Southern District of New York when Argentina nationalized part of the ownership in YPF. Years of ensuing litigation under the Foreign Sovereign Immunities Act (FSIA) focused on whether the litigation was based on an expropriation (as the defendants argued) or a “commercial activity” (as…
Continue ReadingNew Legislation Aids Claims by Victims of Nazi Expropriations
Congress has passed legislation making it easier for plaintiffs to recover Nazi-looted art and other expropriated property. If the president signs the Holocaust Expropriated Art Recovery (“Hear”) Act of 2025 into law, defendants will have fewer procedural protections from such claims, including a more limited immunity defense for foreign sovereigns. The legislation illustrates how Congress…
Continue ReadingCan Parties Waive the Service Provisions of the Foreign Sovereign Immunities Act?
The answer is yes, sometimes. Failure to Raise the Defense To begin with the easiest situation, a defendant that fails to raise the defense of improper service of process, as required under the Federal Rules of Civil Procedure (FRCP), will waive the defense as provided by FRCP 12(b)(5) and (h). The strict timing requirements apply…
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