Simplifying the Foreign Sovereign Immunities Act: If a Foreign Sovereign Acts Like a Private Party, Treat it Like One
31 Pages Posted: 31 Jan 2008
This article focuses on the commercial activities exception of the Foreign Sovereign Immunities Act (FSIA). That exception is at the heart of the FSIA and basically states that if a foreign sovereign engages in private commercial activities like a private party then it should not be immune from suit in the United States. Unfortunately, the special guidelines set forth in the FSIA for applying the commercial activities exception to foreign sovereigns are confusing and have resulted in split opinions among the federal circuit courts.
My article argues that those guidelines should be thrown away. My proposal would first have courts assess whether foreign sovereigns are in fact engaging in private commercial activities. If the answer is yes, then the FSIA should direct courts to simply treat the foreign sovereign in the same way that it would treat a foreign private party for purposes of establishing jurisdiction. Namely, the courts should undertake the same minimum contacts due process analysis it has undertaken for decades with respect to foreign private parties. This solution avoids the complicated rubric established by the FSIA and accomplishing exactly what the FSIA had wanted to accomplish. It treats foreign sovereigns like private parties when and if they behave like them.
Keywords: FSIA, Foreign Sovereign Immunities Act
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