Recent Scholarship on Political Economy and the Foreign Sovereign Immunities Act
May 19, 2022
Professor Maryam Jamshidi (@MsJamshidi) just published an article highlighting the relationship between capitalism and the law of foreign sovereign immunity, especially in the United States. The article includes a detailed and rich account of current developments under the Foreign Sovereign Immunities Act (FSIA).
It comes as no surprise that the United States (and other global actors) sought to use immunity (and the exceptions thereto) to promote capitalism. Indeed, some the most enduring historical debates in immunity law aligned capitalist countries against countries with state-controlled means of production. The article does a nice job tracing the history of immunity as it relates to developments in capitalism, and it helpfully reminds us that nothing about the choices in immunity law are neutral or inevitable. The analysis of U.S. law and the ways that it has privileged corporate actors at the expense of individual plaintiffs through the interpretation of bland language such as “based upon” and “direct effect” is fascinating and rich.
The article prompts thinking about the global economic forces at work in various areas of immunity law. For example, high levels of central bank immunity from execution are generally favored not only by major financial centers that seek to attract investment from foreign central banks, but also by nations (like Russia, even before Ukraine) that have significant exposure to the execution of judgments against them in countries in which their central banks have deposited assets.
Professor Jamshidi’s article, The Political Economy of Foreign Sovereign Immunity, is highly recommended. Here is the abstract:
The Foreign Sovereign Immunities Act (“FSIA”) prohibits civil litigation against foreign states, their agencies, and instrumentalities unless one of several enumerated exceptions to immunity applies. The most important of these exceptions is for the commercial activity of foreign sovereigns. While underappreciated, various capitalist interests have comported with and been furthered by the FSIA. Applying a political economy lens, this Article demonstrates how the statutory framework for private litigation against foreign sovereigns has aligned with interests and prerogatives associated with particular stages of capitalist development—as evidenced by the historical evolution of foreign sovereign immunity doctrine and the FSIA’s eventual passage; the central role of the commercial activity exception in the foreign sovereign immunity scheme before and after the FSIA; and the ways courts have interpreted the FSIA’s commercial activity exception to privilege particular corporate interests and plaintiffs over other types of claims and claimants. While capitalism’s relationship with the FSIA is a story that has yet to be fully told, its telling benefits and enriches legal analysis and understanding of the FSIA itself and points the way to possible reforms of the statute.