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 ReadingNational Security Concerns as a “Burden” in Discovery Disputes
How should U.S. national security concerns be weighed in discovery disputes in cases that do not directly involve the U.S. government? That question is under consideration in Pao Taftneft v. Ukraine, a case currently before the U.S. District Court for the District of Columbia, in which Russian investors seek to enforce a foreign arbitral award…
Continue ReadingHavlish v. Taliban: Second Circuit Denies Rehearing En Banc
As of Spring 2026, Afghan central bank assets blocked by the U.S. government remain unavailable to satisfy terrorism-related judgments. In March, a divided Second Circuit denied rehearing en banc to victims of terrorist attacks who hold judgments against the Taliban and who seek to enforce those judgments against $3.5 billion in “blocked” assets held in…
Continue ReadingImmunity, Consent, and Arbitration Treaties
If a state agrees to arbitrate a dispute with a private party – through, for example, the operation of a bilateral investment treaty – and then loses the arbitration, has it waived its immunity in a suit to enforce the resulting judgment if it is a party to the Convention on the Recognition and Enforcement…
Continue Reading