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 ReadingAll I Want for Christmas (from the Supreme Court)
Following up on John Coyle’s post yesterday, I’ve prepared my own list of things I wish courts in the United States would do differently in transnational litigation. 1. Abandon the U.S.-Conduct Requirement for the Presumption Against Extraterritoriality The Supreme Court uses a presumption against extraterritoriality to determine the geographic scope of federal statutes. There have…
Continue ReadingCassirer Plaintiffs Ask Supreme Court to GVR
On Friday, the plaintiffs in Cassirer v. Thyssen-Bornemisza Collection Foundation filed a cert petition asking the Supreme Court to grant, vacate, and remand (GVR) the Ninth Circuit’s decision in light of new California legislation mandating the application of California law to the merits of the case. It would be standard practice for the Court to…
Continue ReadingHungary v. Simon Offers Supreme Court Stark Choice
(Editor’s Note: This article also appears in Just Security.) On Tuesday, the U.S. Supreme Court heard oral argument in Hungary v. Simon, a case brought by Holocaust survivors under the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). In 1944, Hungary rounded up Jews and transported them by train to death camps, expropriating their property…
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