Diplomatic representations of foreign states in the U.S. often lack adequate legal understanding necessary to properly handle legal actions or law suits filed in U.S. courts against themselves or their governments. Most claims pertain to breach of commercial agreements, and enforcement of foreign arbitral awards or execution of judgments.
This practical guide offers, members of foreign diplomatic missions based in the U.S., an overview of key aspects of the U.S. Foreign Sovereign Immunities Act (FSIA), which governs all litigations against foreign states and governments.
It seeks to dispel some confusion that may exist with immunities of foreign diplomats and other government officials. It also offers useful information on some procedural considerations, and relevant information on enforcement of foreign arbitral awards and execution of judgments on property of foreign states located in the U.S.
Principe of Immunity
The FSIA, adopted in 1976, provides the exclusive basis for obtaining jurisdiction over foreign states and governments in U.S. courts. Under this statute, foreign states and governments, including their political subdivisions, agencies, and instrumentalities, are immune from suit, execution of judgments and attachments, unless one of the statute’s exceptions applies.
What is a foreign state under the FSIA?
The FSIA does not actually provide a definition of the term “foreign state”, which it describes instead. Pursuant to this statute, a foreign state includes (i) a political subdivision of a foreign state or (ii) an agency or instrumentality of a foreign state. The statute does not define the term political subdivision either, but defines agency or instrumentality as any entity: that is a separate legal person, corporate or otherwise; and which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof; and which is neither a citizen of a state of the U.S. nor created under the laws of a third country.
Foreign embassies, consulates, and permanent missions of member states to the United Nations, or other international organizations in the U.S. are typically included within the definition of foreign state because they are integral parts of their governments and lack separate legal identities and the capacity to sue or be sued in their own right.
However, individual representatives of foreign states such as ambassadors, consuls or other staffs of diplomatic missions are not considered as foreign states entitled to immunity from suit within the meaning of the FSIA. They, however, do enjoy special privileges and immunities under the Diplomatic Relations Act of 1978.
Exceptions to Immunity
Pursuant to the FSIA, jurisdiction over foreign states exists only when one of the exceptions to immunity, provided in the statute, applies. If a claim does not fall within one of the enumerated exceptions, the foreign state is entitled to immunity and the courts lack both subject-matter and personal jurisdiction.
There are nine exceptions to immunity from jurisdiction: (i) waiver by the state of its immunity; (ii) commercial activity; (iii) expropriations; (iv) rights in certain kinds of property in the U.S; (v) non-commercial torts; (vi) enforcement of arbitral agreements and awards; (vii) acts of state-sponsored terrorism; (viii) maritime liens and preferred mortgages; and (ix) counterclaims.
This article will only discuss the two most litigated exceptions: the commercial activity and arbitration exceptions.
Commercial activity exception
The commercial activity exception is defined, under the FSIA, as either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. This means that a state remains immune with respect to its sovereign or public acts, but not with respect to its acts that are private or commercial in character.
However, the availability of the commercial activity exception depends on the answers to several related questions, not all addressed in this article, such as whether the plaintiff’s claim is based upon that activity, or upon an act in connection with that activity, and whether the activity in question has a sufficient jurisdictional nexus to the U.S.
Arbitration exception
A foreign state is not immune from the jurisdiction of U.S. courts in any proceeding to enforce an arbitration agreement made by the foreign state or to confirm an arbitration award pursuant to such an agreement under certain conditions: if (i) the arbitration takes place, or is intended to take place, in the U.S.; (ii) the agreement or award is, or may be, governed by a treaty or international agreement in force in the U.S. which calls for the recognition and enforcement of arbitral awards; or (iii) the underlying claim could have been brought in a U.S. court but for the agreement to arbitrate; or (iv) if the foreign state has waived its immunity.
Post-judgment attachment and execution
The issue of a court’s jurisdiction over a foreign state is distinct from that of execution of a resulting judgment.
Attachment of properties or assets of foreign states located in the U.S. or execution of a judgment against such parties is possible only if a U.S. court has ordered such attachment or execution.
There are limited exceptions to immunity from attachment for execution of judgments obtained under the statute against foreign states.
In order to be subject to attachment or execution, the property of a foreign state must be located in the U.S., and be used for a commercial activity upon which the claim is based. Based on the FSIA definition of commercial activity, properties such as embassies, consulates, and other missions are generally excluded.
Certain categories of property are immune from attachment and execution, such as property of a foreign central bank held for its own account.
Procedural Considerations
Lawsuits under the FSIA are generally filed in Federal courts. The statute gives foreign states the right to remove to federal court any action filed against them in a state court.
Service of process must be effected exclusively in accordance with the FSIA. Translation of the summons, complaint and notice of suit, into the foreign state’s official language, is required when service is made by clerk of the court or the clerk of the U.S. Department of State.
The foreign state, its agency or instrumentality have 60 days from the date service is effected in which to file an answer or other responsive pleading.
U.S. courts handle a fair amount of cases filed against foreign states and governments.
Representations of foreign states based in the U.S. should familiarize themselves with applicable local laws that impact them, including the FSIA, in order to handle better legal actions against them or their governments. A better understanding of the relevant laws would prevent past mistakes made by some states, such as ignoring a summons or subpoena, or settling claims that would have been dismissed for lack of jurisdiction by virtue of the immunities provided by the FSIA.
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