Clarification of Foreign Sovereign Immunity

The Foreign Sovereign Immunities Act (“FSIA”) renders foreign states (as well as the political subdivisions, agencies, and instrumentalities thereof) immune from suit in U.S. federal and state courts in most circumstances. The FSIA embraces the restrictive theory of sovereign immunity, which confines immunity to a foreign country’s public acts and excludes from immunity the private/commercial acts. Congress enacted FSIA to address a “modern world where foreign state enterprises are every day participants in commercial activities.” Samantar v. Yousuf, 560 U.S. 305, 323 (2010).  Section 1605 creates exceptions to immunity in limited circumstances set forth in 28 U.S.C. Section 1605. Some of the more frequently litigated exceptions include when the foreign state has explicitly or implicitly waived immunity, and when the subject of the lawsuit is the foreign state’s commercial activity involving the U.S. In a recent court decision addressing the commercial activity exception, one federal appeals court allowed a U.S. citizen to sue the railway service owned by the Republic of Austria for an accident that occurred in Austria. The court found that because the Austrian railway sold tickets in the U.S., this constituted commercial activity with the U.S. Sachs v. Republic of Austria, 737 F.3d 584 (9th Cir. 2013) (en banc). This decision, which is binding in certain western states such as California, appears to expand the commercial activity exception and thereby reduce the immunity of foreign governments in some situations.

Immunity does not prevent jurisdiction for acts of terrorism

Significantly, foreign sovereign immunity does not protect a foreign official sued for acts performed in an official capacity because the definition of “foreign state” does not include a “foreign official.” See Samantar v. Yousuf, 560 U.S. 305 (2010). In that case, the Supreme Court held that “an individual foreign official sued for conduct undertaken in his official capacity is not a ‘foreign state’ entitled to immunity from suit within the meaning of [FSIA].” Id. The Court emphasized that its holding was narrow and that the official may still invoke foreign sovereign immunity under the common law, including the immunity that applies to a foreign head of state. Id. at 325-26. Also important is the fact that to be sued in this country, the foreign official must have connections with the U.S. sufficient to constitute “minimum contacts”.

Along with other exceptions, foreign sovereign immunity does not prevent U.S. courts from having jurisdiction over foreign governments for personal injury or death resulting from acts of terrorism.