Foreign Sovereign Meaning in Law

On February 3, Chief Justice John Roberts ruled unanimously by Chief Justice John Roberts in Federal Republic of Germany v. Philipp that U.S. courts lacked jurisdiction over claims against Germany brought by German Jewish art dealer heirs who were forced to sell property to the German state of Prussia during the Nazi regime. Philipp was concerned the expropriation exception under the Foreign Sovereign Immunities Act (FSIA), which states that US courts may have jurisdiction over foreign sovereigns if property is taken in violation of international law. In its decision, the Supreme Court noted that the expropriation exception does not apply to the expropriation of the property of its own nationals by a foreign sovereign. The FSIA provides the proprietary methods to provide processes to a foreign state, political subdivision, agency, or instrument. See H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. (1976), reprinted 1976 U.S.

Code Cong. & Ad. News 6604, 6622-23. Service at a foreign embassy in the United States or a mission to the United Nations is not part of the delivery methods offered in the FSIA. The main exception to sovereign immunity is the commercial activity exception, 28 U.S.C. § 1605(a)(2). This article provides three grounds on which an applicant may sue a foreign state: In The case of Argentine Republic v. NML Capital, Ltd., the Supreme Court ruled on 16. In June 2014, Argentina appealed to a lower court that ruled that the Argentine government must comply with its contractual obligation to pay in full bondholders who refused to accept reduced payments negotiated after the Argentine government as part of an argentina-led restructuring of its foreign debt in 2005 and 2010. defaulted on its debts in 2001.

[22] Later in the day, the United States. The Supreme Court, in a 7-to-1 decision (Associate Justice Sonia Sotomayor dismissed both cases without explanation), granted these bondholders permission to obtain information about Argentine assets in the United States and abroad by issuing subpoenas to banks to locate those assets. [23] A certified copy of the diplomatic note sending the summons, complaint and statement of claim to the foreign state is forwarded by the Ministry of Foreign Affairs to the clerk of the court where the action is pending, as proof of service. A copy will be provided to the applicant`s lawyer. The FSIA is a judicial law. It specifies what conditions must be met for a prosecution to be brought against a foreign state, not what conduct of a foreign sovereign is punishable. Cassirer v. TBC, USA (2022). If a foreign defendant is considered a «foreign state» under the FSIA, the law provides that it is immune from prosecution in the United States. Court – federal or state – unless there is a legal exception to immunity.

The applicability of an exception to immunity is a matter of substantive jurisdiction, i.e. If there is no exception to immunity, a court cannot rule on the claim and must dismiss the claim. In Verlinden B.V. v. Central Bank of Nigeria, the defendant questioned the jurisdiction of the District Court, arguing that the FSIA could not confer jurisdiction on the District Court because it was not a «federal law» case. The Supreme Court went on to conclude that since any appeal to jurisdiction under the FSIA would necessarily include an analysis of exceptions to the FSIA, FSIA cases are by definition a matter of federal law. Prior to the U.S. trial, the plaintiffs first raised their claims before the federal government`s «Advisory Commission for the Restitution of Cultural Property Seized in Nazi Persecution, Especially Jewish Property.» The Advisory Commission, known as the Limbach Commission, was established according to the principles of the Washington Conference on Art Confiscated by the Nazis. After the Limbach Commission determined that the sale was fair and that the art did not need to be returned, the plaintiffs sued the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (Prussian Cultural Heritage Foundation), the federal agency responsible for operating the Berlin museum where the artifacts are currently located, in a U.S. federal court.

The heirs argued that the exception was due to the fact that the forced sale of their property «constituted an act of genocide» violating international human rights law. Germany argued, however, that the exception concerned the international right to property, which was protected by the «internal withdrawal rule». This rule, in Roberts` words, states that «the seizure of the property of its own nationals by a foreign sovereign remains an internal matter» outside the scope of international law. The case of Cicippio-Puleo v. The Islamic Republic of Iran in 2004 was tried under amendments to the 1996 Law on Combating Terrorism and the Effective Implementation of the Death Penalty and the Flatow Amendment to the FSIA, which concerned punitive damages for emotional distress by family members of a Lebanese hostage-taking from Iran. While a previous hostage-taking case in its original trial succeeded in obtaining damages, the DC Circuit Court ruled that the amended FSIA did not allow private lawsuits against a foreign nation, but only against individuals. This decision, filtered through other district courts, prompted Congress to substantially amend the terrorism-related exceptions in the 2008 NDAA to explicitly allow foreign countries to be sued for private actions, and retroactively applied this to other lawsuits pending at the time. [8] Moreover, the potential of the FSIA, undermining the foreign policy objectives of the executive branch is an ongoing problem.

[12] Foreign state immunity has a long history in U.S. courts. In a first case, The Schooner Exchange v. M`Faddon, 11 U.S. 116 (1812), the Supreme Court ruled that a private party could not sue the French government. In that case, the Supreme Court concluded that a plaintiff cannot sue a foreign sovereign claiming ownership of a warship that had sought refuge in Philadelphia. In accordance with international practice and common law principles, U.S. courts consistently refused to hear lawsuits against foreign governments, even when those claims related to commercial activities. The U.S. State Department has followed the absolute theory of immunity for foreign states, and courts have generally relied on proposals for state department immunity in actions against foreign sovereigns.

In 1952, citing changes in international practice, the U.S. Department of State adopted the restrictive theory of sovereign immunity, according to which public acts (jure imperii) of a foreign state are entitled to immunity while private acts (jure gestionis) do not. Letter dated 19 May 1952 addressed to the Acting Attorney General of the United States Department of State, Jack B. Tate (26 State Dept. Bull. 984 (1952)). The expert opinion in the Phillip case analysed both international and domestic law, with the tribunal finding that neither corroborated the claims of the descendants. Justice Roberts first focused on the historical foundations of international law, originally known as the «law of nations,» noting that it «generally concerns relations between sovereign states» rather than those between states and individuals. In this context, the expropriation of a foreigner`s property by a sovereign would be contrary to international law only because the ill-treatment of an alien was an affront to the sovereignty of the alien. «Domestic revenues, on the other hand, have not interfered with interstate relations,» Roberts noted. As international law «was increasingly seen as limiting how States interacted not only with other States, but also with individuals», the domestic revenue rule retained its importance. International human rights law, which emerged after World War II, is generally silent on property rights.

During this period, international tribunals continued to invoke the national withdrawal rule. As Roberts noted, some who have criticized the treatment of property rights in international law have done so «on the grounds that all sovereign withdrawals are outside the scope of international law.» 28 Section 1608(b) U.S.C. governs service to an agency or instrument of a foreign state. Republic of Argentina v. Weltover, 504 U.S. 607 (1992), concerned a breach of contract claim filed by the bondholder (two Panamanian companies and one Swiss bank) against the Government (Argentina), which issued the bonds in the event of default on the Argentine bonds. Under the terms of the bond, bondholders had the option of charging for the bonds in London, Frankfurt, Zurich or New York. Since this was a default in Argentina for bonds issued in Argentina (i.e. an act done outside the United States in the course of an activity outside the United States), the plaintiff could rely only on the third basis for establishing its jurisdiction to prosecute Argentina under the commercial activities exception. Argentina advanced two main arguments as to why the FSIA exemption should not apply to commercial activities: (1) the issuance of government bonds to investors is not a «commercial» activity and (2) the alleged default cannot be considered a «direct effect» in the United States. In a unanimous opinion by Justice Antonin Scalia, the Supreme Court ruled that Argentina was not entitled to sovereign immunity.

Arguing that «if a foreign government acts not as a regulator of a market, but as a private actor within a market, the foreign sovereign`s actions are `commercial`,» the tribunal concluded that Argentina`s issuance of the bonds was commercial in nature. With respect to «direct effect» in the United States, the Court rejected the suggestion that effects in the United States must necessarily be «significant» or «foreseeable» under the AMPA, and instead concluded that to be «immediate», the effect must follow only «as a direct consequence» of the defendant`s activity.