suit as is enjoyed by foreign governments the plain text of this provision coupled with the structure of the i o a and the drafting history make clear that the same immunity provision gi international organizations the same immunity that foreign governments are entitled to today and the foreign sovereign immunity act starting with the text my opponents do not dispute that as a general rule when a statutory provision refers to another body of law especially as here in the present tense that body of law is incorporated as of the moment to suit in any given case and indeed they don't just bute books that are looked up and going back forever don't say quite that they say that true as long as the changes are consistent with the purpose of the adopting statute and indeed the indian case you know the word was now was it now nineteen thirty four or now later in the case he wrote last term that just as gorsuch wrote the word was monetary relief is that meaning as of the past or does it mean what we call money relief now i mean there are many cases like that and here the word is is is the word is referred to the past is at the moment of passage or later the two arguments that i'd like you to address that are opposite you are one states to many things nations many many things and so if we take immunity from them for commercial things we leave lots of immunity with them for those other things but international organizations some of them do only one thing lend money or the equivalent and if we take immunity from them that's the end of the admittedly or close that's one argument the second is  decide against you and we've made a mistake or along comes a case where they really should have immunity the president and the state department can give it to them if we decide with you well if along comes a case where they should enjoy the immunity no nobody can do anything and i say that correctly you got the order to look at it said it backwards i don't know so i think you gave me two things and then one before it which was the statutory  me start with attach tory tax justice prior and the word is in this court's jurisprudence always always means at the time of suit not at the time the statute was passed and we've cited reams of cases to that effect my opponent cite only one case on the other side that's an career criminal act case even there is didn't mean at the time of suit it meant at the time of the prior conviction so is on our side of this case the in car shiri which is the now case the indian case the court went out of its way in that opinion to say the insertion of the word now takes this out of the ordinary situation which is when the reference law applies at the time of suit and so you can look at the southerland treatise which dates back to one thousand nine hundred four on this principle and look at it  in your own case justice breyer think i was going to give you one case it would be the steamboat vs chase case we cite in our reply brief that's interpreting the judiciary act which goes all the way back to the founding of course and says for the common law i competent to give a remedy such as such a remedy is permissible and in steamboat the court rejected the exact argument the other side makes here which is first of all that the law had to be incorporated at the time of suit and second of all that there was something different about the common law as to a statute at the of the enactment so all of the textual stuff is in our favor now you've also asked me two other questions and let me address them so starting with the commercial activity exception as applied to a group like the i f c when you answer when you think of that question it's a question of how close you can be put the lens into what's going on here so if you just take a foreign state as the as the compared are here a foreign state itself does all kinds of things like you said just as prior they were not commercial activity but a foreign state might have a bank for example that does almost all commercial activity and so the same thing is true with international organization and let me answer that in a few different states so first of all look at the sweep of international organizations many do things like regulation for example managing fisheries they do things like dispute resolution law enforcement interpol they do scientific research and agriculture research all of those things are noncommercial activities on the other side then you have the category the special category of lending banks but even within lending banks not all the things that lending banks do are commercial activity the i f c itself on its website talks about how it gives advice to foreign governments about legislation that ought to be passed regulating financial transactions with private sector that is not probably commercial activity and then even within the lending activities just as prior just take the world bank it has five separate institutions now the i f c is on one side with the i have see does as rich as loan money at market rates for profit for private sector projects there are other components of the world bank and there are other lending institutions that are international organizations that give grants for public works programs or that do the kind of spending that governments do in the government argue past cases and we think they're probably right that that is not commercial activity either so when the other side says well everything is commercial activity it's no different than the foreign state coming to this and saying well if the bank in switzerland does commercial activity then we're we're stuck well no no no it's just how closely you look at the problem if we decide with you we decide against you see that would mean there is sovereign immunity but there shouldn't be in a particular case the state department can waive it and they have the response that if we decide for you and then there's a case where there really shouldn't be sovereign immunity or rather whether there really should these i guess the that's what i'm getting it's not is if we decide against you and they really should mean in this case nobody can do anything so knowing nothing about the future it seems a little safer the first than the second well i'm going to turn back in a moment to the law and why that just can't fit within the law but as a just a policy question you're asking me though you look at a reason i ask policy questions is because hornbook said yes apply it as of now as long as it's consistent with the purpose of the statute and the purpose of the statute going back to nine hundred forty five in the un and everything was to get these organizations to locate here so it's not just policy for policy it's policy for purpose and perp tied into how you interpret the language so let me give you the practical answer in the purpose to answer on the practical answer organizations especially if they want to headquarter here or are headquartered here are fully able to to lobby congress or the executive branch for special immunity and there are many examples across international organizations to take the organization of american states away asin the saucer general discusses this in the organization and its brief in one thousand nine hundred four it negotiated a special immunity provision for itself to get more than the ordinary restrictive form of immunity that was available under the eye away so there are red there are pathways available and they have been used even more so remember the united states as you say has a hazard sometimes principal interest in these organizations so it is quite responsive to them when they come and say we need more than the i o a gives us but just as a buyer let me turn back to the or the original purpose which was the legislative history is quite clear on what the purpose was as you say this was partly to create a form of immunity to give some comfort to these organizations but the question is what form of immunity did they ask for and what did they get what they did is they came to congress and said treat us like foreign governments give us immunity as congress put it in the senate report governmental nature and so what did congress do it gave them exactly what they asked for it said we're going to treat you as a default measure like a foreign government and remember the words of the statute are same immunity same immunity as is enjoyed by federal government so we're going to give you the same immunity subject to the president's ability to in just to adjust it and subject to your own ability and your on treaty to negotiate for more and subject thirdly to congress's ability to give you some immunity that you don't have but assume that were in your regiment and just prior me the assumption that if a lawsuit came to us now under your theory and it was limited immunity that the president or congress could give immunity to the other side i don't think so you know it's the opposite the president can't decrease it correct so that problem still remains with you well  i think it it may or may not remain just a sort of mine or certain certainly we could we would say we can go forward on this suit because because there is no such law if that law were passed you'd have two questions one is did congress make it retroactive and you look to all and to think about how to judge the retroactivity of immunity provisions and then if it were retroactive whether that were permissible but you know we're a long way from from that sort of situation i think the important thing going forward and this is i think what the concern is on the other side is not so much about this case but about incentives and policies going forward they have every opportunity to negotiate in one form or another or to procure it in form of immunity and justice sotomayor let me say one more thing to you in just this prior about you know the idea of the executive branch getting involved this is one of the problems i submit with the other side's argument remember part of the goal of the f s a in the first section of the act in section sixty no two is to get is to get the executive branch out of the immunity business congress made the determination that it was a bad idea to have every case turning on interview two allies suggestions of immunity and executive branch political policy and so the other side by importing the common law of one nine hundred forty five would reintroduce that problem into international organization immunity in a way that we don't think would be very good politically or very workable in the courts and i hasten to add that even under the rule of hundred forty five if the question were what is the executive branch think about any given lawsuit or any given immunity for any given type of suit that would just lead you right back to the f s a and we would lead you back to the same conclusion that we submit to you here so either pathway whether justice breyer you start with the way you've always looked at cases with the word is and the word same and the reference can in that i've described and say all of those things lead you to a court this is going to give you the court's own language it's not for the court to give immunity where the executive branch has not seen fit to give it and if that were the test you'd come right back to where you say where i started here which is that the f s a would control where the bare minimum the executive branch position in this lawsuit on the type of immunity that ought to apply in the situation would you control mr coo so i can pick up on justice briar's question the reference can and i take all of your points but sometimes  let's say we have a statute that refers to another statute usually we would look at the second statute that's being incorporated as of the time of the adoption of the first statue right so if it is if it's  when we refer to a specific law we don't take it to evolve over time so for two reasons justice courses in one of them you'll forgive me is going to be something you said in the ellen conto opinion i was afraid of that but for two reasons one is congress has a choice to make when it writes legislation it can lock in a given rule by setting a specific statutory provision and says that's the rule we want just like of congress uses a particular word the time of the enactment the meaning of that word at the time of an act meant would be what congress would assume congress wanted or congress could do something different which is to say look we're not sure exactly to meet some bounds of the rule of the law we're just going to tie it to this other area of law as a general matter and that's what congress did here it did the latter so it took an area of there's just two different pathways congress can go down and it makes perfect sense i think in a situation like this especially where you have a common law doctrine being referenced at least a common law at the time and one that was ended not just any old common law doctrine but one that was in a great deal of flux at the time so it made every reason and made every good reason for congress to have a general reference not a specific one and then the second reason justice course which is the one you mentioned sitting on the tenth circuit which is that as time goes by it becomes all the more  position correctly basically the question they're having they would want every federal court to ask in these cases is what would the truman administration state department have wanted to do in this case and when you have things like this which didn't even  an organization they didn't even exist at the time sometimes doing activities that weren't even contemplated at the time things like sovereign wealth funds which foreign sovereigns now engage in for example who knows what the state department would have thought then i think there's every reason then to fall back on the reference canon and if i can say one more thing before reserving my time if you have any doubt about just the plain text argument given you i would urge you to compare the text in section two eighty eight a section two eighty eight d which has the exact dichotomy that i've been discussing today one subsection subsection a says that the same immunity rules apply and subsection b says that foreign officials i'm  sorry international organization officials are entitled to absolute immunity so this is yet another reason why if the other side were correcting of congress and wanted to lay down the rule they did why would they not have just used the absolute immunity language in subsection b of subsection d and that indeed was the original draft of this act it was discarded so i could go on but i'd rather see the rest of my time for a bottle thank you counsel ellis mr chief justice i may please the court if i could i'd just like to pick up right with my my friend left off there's been a lot of discussion so far this morning on the text of section two eighty eight we agree that the petitioners have the far better reading of that phrase in isolation but i think it really settled the deal when you look at the entire structure of the act the i a e a doesn't just grant immunity in section two eighty eight a b but it provides a whole host of immunity is and it does it in two different ways in several different provisions the act sets a fixed rule of immunity so archives are inviolable and officers and employees of the organizations are immune from suit in with respect to their official acts and then there are a host of a collection of three provisions that set the immunity by reference to foreign governments they're section two eighty eight a d section two d d a and they're section two to be the one issue here respondents can see that the referen language in those other two provisions do refer to the state of the law as it is today it's only the one that's at issue in this case that they say was frozen we don't see how that can be and that's particularly true when you look at the drafting history of my friend may first or ellis before you get to that a nother part of the structure is this provision that deals with present presidential authority and that's essentially a roll back authority of immunity and what doesn't that make a lot more sense that provision if you assume that congress meant for there to be absolute immunity in other words the presidential authority is a one way ratchet the president can only under this provision rule it back it can't increase it so to me if i if if if if the i'm in if the immunity is less than absolute you would think that they would have given the presidential authority both ways sure that the reason that argument doesn't work is because section two eighty eight the president's authority under that doesn't just apply to section two a b it applies to all of the immunities provided by the i a e a and as i was just describing some of those are fixed to me rules that are not absolute and so for instance the officers and employees of international organizations did not receive diplomatic immunity that was a big deal at the time and  the president can't couldn't grant ramp that up i think what that provision shows is that congress wanted to provide international organizations at most the immunity from suit and other privileges and immunities that foreign governments received and not more so and yet respondents are here today asking you for exactly that more input on that in foreign governments are the whatever other things it refers to the provision allows the president to waive immunity not to grant immunity and your argument is they have immunity right nor have i get this backwards is the third time i got it back sorry if the provision of allows the person to be sued is that right it does allow to be ok there's no i was right i had it backwards the first time but not the second not the third it allows the president to waive the immunity that's right ok it doesn't allow him to grant the immunity it doesn't souring to waive the immunity at least in this section amounts to nothing if they have no immunity because for example all they do is lend money so that's the end the other way it seems to work itself up understood a couple responses to that question i'm glad to be addressed that number number one just to be clear we do have a immunity i mean for international musicians and foreign states are presumptively immune and i would agree with almost everything that maybe everything that my friend said about why the commercial activity exception even with regard to i have see and most more important with regard to th organizations is not going to eliminate immunity i would add one more is that even a case like this we have serious doubts and think we think in fact from what we know this suit isn't going to be able to go forward regardless of the answer to the question presented because in addition to having to being connected in some way to commercial t v there must be a much stronger nexus a must be based on commercial activity that occurs in the united states we think the court's decision and o b b makes clear that the way you apply that is to ask what's the problem of the suit it's not enough to fall at the nation's headquarters or the driving accident in the streets of new york do you have any idea about how many of these kinds of organisations are headquartered in the united states i think the numbers are in the twenty to thirty range  there's about somewhere eighty some organizations that have been designated for protections on the i o a and twenty some that have i think are headquartered in the united states that are commercial like no oh no no i did not know everybody's rights assuming a flood sure that is i want to point out that some of those organizations have their own immunity provision in their charter and so that's what we think if you look at the history that's what that's how it's been dealt with for organizations that require absolute immunity with the internet to agreements i would point again to the the state department is just crystal clear that what oh yes did in that agreement was to negotiate absolute immunity because they thought that's what they needed in order to put their headquarters near we agreed to that and we said but hey this is not our usual practice ordinarily we afford only restrictive immunity i guess i'm not sure i quite understood what you meant as to the core lending activities of these multinational development banks and other words making loans where private actors would not be loans do you have a view as to whether that counts as a commercial activity or not did you say that that would not count as a commercial activity because they're making loans to the private market would not make no i'm not saying that it's enough that they're making loans that a that probably couldn't find a proper party to provide i'm saying if the nature of the loan is such that it's not the sort of transaction that a private party would enter into so think about the i m f that grants that linz to sove gns and they do so on the requirement that the sovereign enact certain restriction regulations and change their their their laws in order to assure that they don't need the money again that is the sort of thing that's been held by lower courts and we've advocated it is not a commercial activity that's just not the sort of transaction that a private party can and enter into it's not just a private party didn't is that no one at that thought something that you can do that's a sovereign act can you give anything to a surety because when i look through this list i thought that there are development banks like the world bank which is a pretty big deal as well as in asia in africa we're trying to encourage development all over the world and suddenly by removing the sovereign immunity because the p will claim this is a commercial activity so we're not denying it and so what what is the assurance that the government can give us that this isn't going to lead to a lot of lawsuits and this isn't going to interfere with perhaps activity that the united states traditionally has been very much in favor of absolutely let me give you a couple things i think we've given you a number of points already this morning why we don't think the floodgates are open if there's one mother or say that just look at the the going to come up under commercial activity many of them are already going forward because the i have seen the world bank and others have waived their immunity and they need to because they need to because no one's going to enter into a financial transaction with them if they they know they can't sue if it if it goes south the other thing i want to also focus the court on this on the suits that we know we're not going to go forward on the absolute immunity side we're talking about suits by by us citizens and residents about domestic conduct and they're seeking redress and u s courts these are the suits that foreign governments are able to be sued of and don't have a unity and we don't see any reason why international organisations should not also be subject to suit in the circumstances and we think that's exactly what the congress trying to do and when it acted section t mr really thank you mr chief justice and may please the court the i o i a prescribes a standard of virtual absolute immunity that is fixed and not involving we know that because the text incorporated common law terms that have a settled meaning of virtually absolute immunity and because a fixed standard makes the most sense in light of the statutory context and purpose now the reason that congress and the act of the i a e a was to fulfill treaty obligations a committed us to provide virtually absolute immunity those treat obligations did not commit us to treat international organizations the same as foreign states were treated they committed us to the substantive standard of virtually absolute immunity and therefore if if if this is the language in se in the way my friends on the other side so light in congress say that the way it did in the other provisions of the sack and if it intended that it no change it could have said it and given the very exception which is that the president or the executive could reduce immunity which was the standard at the time so let me start with the basic question we think if the court applies to normal rules of construction that it applies and fast statue interpretation cases that congress did say that it was providing virtually absolute immunity and i think a case in particular i would point the court to is the nater decision five twenty seven us in particular to page twenty one of the nader decision that's a case by case of course was about whether male foreign wire fraud incorporated a materiality standard this is an opinion by chief justice rehnquist unanimous for the court on this point there's not an inquiry because an interpreter statutory language there's a necessary second step and this is on a come to the point that i think governs here which is that it is a well established rule of construction a rule of construction that we're congress uses terms that have accumulated subtle meaning out of the common law a court must infer must infer unless the statute dictates otherwise but congress means to incorporate the established meaning of those terms now respectfully suggest that is not a fair characterization of where things stood in one thousand nine hundred five at all it is true that some people within the state department in one thousand nine hundred five thought that community should move to a more restrictive standard but the justice department would not even in france that standard in this court i thought request of the of the state department and this court did not describe the immunity as being in flux this court said the standard was virtually absolute immunity one looks even in one thousand fifty two at the tate let in the tape letter didn't say the law was in flux in the united states it said the united states was hewing to the standard of virtually absolute immunity but other countries were moving towards the standard restrictive immunity and therefore we ought to reconsider what we're doing so i just i mean the court can read these materials for the for of for itself but i just respectfully do not think it's a fair consideration of where things stood in one thousand nine hundred five out of all and then when i could i'd like to pick up on a related point that came up in the the united states is another statement in the brief unite states and came up with argument today that look this really isn't a problem because for those organizations that need a munity that goes beyond the restrictive immunity we've always understood that they get they can go get a special statute and they've gone and gotten special status and i say it says on page twenty seven of this brief precisely because the i o i didn't provide that level munity they give these three examples i m f world trade organization and organization american states and like to take a minute and go through each of them because it doesn't hold up with respect to each of them with respect to the i m f for example it is true the i m f you know that has a has a treaty there was a statute that gave the treaty effect u wasn't an act until five months later if you can't possibly substantiate what the government was saying if one looks at the w t o treaty so it is true with respect to that treaty that it committed us to a very wide scope of immunity so it said that the united that the united states will commit to providing all or virtually all of the immunity is provided under a whole different un convention the un convention on specialized agencies now that convention has walked kinds of tax immunities and property in fact the historical evidence i would think really to the extent that it points in any direction a point very much more in our direction and the best way to see that is with respect to the way the united nations was treated undermined by the executive get virtually absolute immunity not the same immunity as foreign states virtually absolute immunity now in the united states to not ratify that convention until one nine hundred seventy so on the theory that my friends on the other side have from the moment of hundred fifty two when foreign state immunity became restrictive and not virtually absolute anymore we were in violation of the commitment we made in the un charter now if that was true you would certainly expect the state department a to address it paid letter but there's nothing in there it's a classic case of a dog that didn't bark and b you expect them to try to do something about it like get the un convention ratified immediately because otherwise we're going to be out of our compliance our obligations to the granddaddy of all international organizations the united nations but it's not a from one nine hundred fifty two until the ratification of convention one hundred seventy you can't find one word by anybody in the executive branch ever saying that what you do for commercial activities was the u n doing at that time well i know today it's a very different organization but it's not clear to me that there was much going on that was commercial at its initial stages i take that point on it but what i would say in response is that there was a very great deal of sensitivity about the whole package of immunities that were available to the u n and its diplomats and its and its workers and there was concern all along hundred fifty to nine hundred seventy that that where the executive was urging congress to ratify the convention but the only things ever mentioned were the diplomatic immunity for diplomatic individuals and then when you get to one hundred seventy actually look at the absolute immunity and of course that's because it was and it was inactive to comply with our treaty obligations it wasn't and acted to make sure that that come what may that international organizations would get treated the same as foreign states that is you know and that's just i'm in the best way to think about it is it's just a completely inaccurate mystic way of thinking about the body of materials in front of you but even what you just said mr elie it wasn't an act it's to make sure that foreign organizations would get treated the same as foreign states i mean that's exactly what the language of the thing says well so i guess a couple of things about that i think the right way to think about the language of justice kagan is that it was hundred five when it was enacted it was not the end in itself to assure equivalence of treatment come what may it was the means by which congress ensured that it would fulfill its treaty commitments which were in those treaty commitments were to provide virtually absolute immunity and we know the senate report says we're an acting this provision to fulfill our treaty commitments in our treaty commitments again we're not to treat them the same they were to provide virtually absolute and do you think it was  would be inconceivable to anybody but what i can say is if one looks at the debates surrounding the passage of the i o i a is once again it's a dog that didn't bark you can't find a single person anywhere saying anything remotely like the proposition that we need to adopt a standard that will evolve over time because we have a concern that foreign sovereign immunity law will evolve over time that just was not any part of anybody's thing but the time they were trying to remember this is coming out of the bretton woods system we have bretton woods we set up all these organizations they have a they have a desperate mission in front of them to try to rebuild the world the world after the carnage of world war two there's a lot of pressure on congress to get these organizations up and going and give them the immunity we promised them so they can go out and do their work and that's what led to the nachman of the ira was none of these other things as i said i really think if you look at the historical materials the it's the gloss that my friends on the outside trying to put on is completely anachronistic they're taking a different concept that they've come up with now and trying to retrofit the historical facts to match it and it just isn't right is that the russians at that time forty five and so forth that were putting all these businesses into state entities so my guess is there were there were a number of cases and what i thought i heard mr fisher say is if we really go back and at this we'll see that the status quo before this passed was not absolute immunity but the status quo was a kind of mess where sometimes the state department would say give them immunity and sometimes the state came gave to me if you know if you really get to get it right yeah aim click yes and i mean it's just not there i mean look at what this court's cases said this court cases didn't say anything like that the government's briefs to this court didn't say anything like that when also require you to go back to the process of the state department making an ad hoc case by case determination but that's wrong too and that's clear on the face of the statute then it's wrong and the really and and that's right in section two eighty eight grant an international organization the privileges and immunities and if you look at the face of the statute it's obvious that they are granted on a categorical basis in gross by an executive order not on a case by case basis by the state department one completely different than the situation that within that common law process that works so obviously congress made a judgment that was going to put different structure and system in place and the fact that congress did that i do say i do think quite clearly presupposes that there's an existence of a substantive standard being prescribed in the subset of standards i said as virtually absolute immunity and then in terms of the structural indicate in the statutory text that going back to a question you asked justice sotomayor i really think the most telling one to show you i think why my friends in the sides case is completely anachronistic and we're correct this section two eighty eight f which you can find it page six a of the appendix to the blue brief that provision says that the privileges exemptions and immunities international organizations and then of a members employees etc shall be granted notwithstanding the fact that similar privileges exemptions and immunities granted to a foreign government cetera et cetera maybe condition upon the existence of reciprocity by that foreign government so right there in the text it decouples the treatment of international organizations from the treatment of foreign states even a situation in which the united states would not grant the full range of virtually absolute immunity because it wasn't and i've been receiving reciprocal treatment this statute says international organization gets it had it would be god mean it we just shared that we can compare to a  the differences break down to two categories your honor there are some of the provisions do prescribe fixed standards that's true but those fics standards as we explained in our brief or at least try to are always situations in which the i a e a is conferring a narrower set of immunities on on diplomats and individuals than the common law would have at the time so incorporation of the standard in the way this to a b did would accomplish the objective there because that there were some there were quite consciously trying to narrow the overall scope of immunities and not give the individuals who work at these organizations the same full treatment that diplomats god who from foreign states now the second  subcategory are there provisions where the statute says that there should the treatment shall be the same but there's two things about that are significant one is it says they shall be the same as under another statutory provision as we said we think that's vitally important here we think it's quite clear that in addition to justice briar's points about the reference canon that the reference canon applies when one statute incorporates another it doesn't apply when one statute incorporates the common law and here they were incorporating statutes and if you look at those provisions anyway they're basically just instructions to the executive branch when you fingerprint the people when they're coming in what do you do about that this detail or that detail they don't go to the heart of the matter at all in the heart of the matter here is the immunity being conferred on these international organizations and just want to make a point about that and then if i could talk about the consequences that will ensue i think if we go down the path my friends on the other side are suggesting and i think this is a critical points i  to make sure it's clear another reason why we shouldn't draw this equivalence and that we can't be that congress really intended to draw the equivalence between foreign states and international organizations such that they were just moving tandem no matter what he said  carry out their functions effectively and just take let me take a minute and kind of elaborate that because i think it's critical number these are you know mine i'm afraid i'm about five minutes behind you here but go going back to your point on two eighty eight f you said it's their decoupling the international organizations and the foreign sovereigns but as i go back and read it it's simply not because the foreign sovereigns have the capability to use reciprocity in the fore and in the multi country organizations do not i don't i mean that's the difference they're drawing they're not something between that the scope of the actual immunities but i when i read it mr chief justice is what what they're doing they're saying even in a situation in which the united states concludes that it won't afford a foreign sovereign the full virtually absolute immunity because of reciprocity in other words we're not getting it back from them and even in that situation an international organization of where those sovereigns are members will still receive the full level of immunity and so i think what that tells us is that what congress is trying to do in this statute overall was prescribe a fix up to the standard not a floating standard where the two things move in tandem so i do think it supports that and if i could just go back to the functional point remember these are collective bodies and members come together they make they they take resources from each in their own countries they put them in these organizations they make collective decisions about how to deploy those resources and the point of the immunity here is so that the courts of of any country but especially the host country which for the most important organizations want to be here in the united states can't override collective judgments that they make about how their resources will be deployed and what conditions they want to impose and cetera on by the intervention of domestic law and u s courts and can't read direct the funds that are put into these organizations to pay massive class action toward judgments because of course the member countries are contributing this money because they believe is going to be put to the use that the for example the development that development bank decides it should be put to not to pay massive torch arguments and i think in one place you see this very clearly if you look at the report of the san francisco conference about the founding of the u n the state department parlance response coming out a report coming out of that conference specifically says this it says of course the united nations can be subject to the jurisdiction of any one state or its courts and for exactly this reason the same thing is true generally that's why you give it not for functional reasons i mean scuse me not for reasons of status but for functional reasons and i think key another key reason why we shouldn't be thinking about this as a our time so that those functional reasons don't evolve down over time but what about the point that most of the concerns you have are going to be dealt with by the requirement of a nexus to activity in the united states as care of a lot of these problems i guess what i would say about that is in the unlikely event you don't agree with me i hope they're right but there's no guarantee that they're right you are they are the lending decisions  which may be fairly detailed and may include dozens of conditions made within the united states or yes i think that's a big part of the problem and it is is there are there lawsuits that could say that  negligence in determining in a different country who the persons were the conditions under which the money would be spent is that an american lawsuit saying what you've done here is commit the act of negligence or failure to be a fiduciary here that's this lawsuit that's this lawsuit justice prior that's exactly what they're alleging well but i mean is that consistent with our opinion in the o b b case which i think if the complaint is based the gravimeter the complaint not specific steps along the way and that was the issue we dealt with in that case and i appreciate the fact that it's you know to some extent depending on the facts and particular allegations but it would seem to me to require a lot more than simply the specific decisions i think where talk about the organizations that are going to be exposed in a way that they wouldn't be under the law and then just aspiring to cater earlier it's important remember this has been the long of the circuit for decades and is over and people have ordered their fair is based on the assumption that there was virtually absolute but with respect but with respect to the consequences and the groups affected and then the types of effects with respect to the groups affected you've got the enemies like us the multilateral development banks so just as far as identified many of them now the the main ones are here and here in washington d c and they're making their decisions here and i think critically to their billions of dollars of assets here now we're going to make the o b b argument for sure and i hope we win if we have to make the argument i hope we w but who knows how courts are gonna come out on that issue we're going to have a lot of fighting about that they're probably going to be matters of degree they're certainly going to be significant disincentives arising out of that uncertainty there's a whole nother group of entities that unlike the banks at least have articles of agreement where we can try and fall back on those for alternative argument and unity where there munity depends entirely on the statutory grant you know national committee of the red cross the world health organization the fund to fight the global fund to fight aids in tuberculosis and and malaria they're all entirely dependent on the i a e a for their immunities and those communities are drastically different after this and then we do have the issue i think with the some organizations that we may even actually now be out of our compliance with our treaty commitments and what's going to happen here's what i think is going to happen and i think this lawsuit helps you see it that now wading into the basis of this lawsuit is the  loans money here it's loaning money in in parts of the world where private capital won't go unless we go in there and very often they have undeveloped legal systems and they certainly don't have robust environmental  protections or labor protections so that what the i have seen has done is lean into the laws as it put those kinds of environmental standards and labor standards into its agreements and you want this money to do this development project these are the standards that you've got to live up to and and the this lawsuit is that the energy that we loan this money to didn't live up to the standards and it's our fault and so we're being sued here what's going to create it that kind of a suit can go forward and hopefully it won't be able to  justice but if it can it's certainly going to create an extraordinary disincentive for his asians like ours to lean into those kinds of standards because we're going to hold spiral to tart and we've also got a robust internal accountability mechanism with people think something's gone wrong and one of our projects they can come to us and they can say they can say look there's a problem here and they and where and we investigate we take internal remedial measures if we find there's a problem or you know the factual basis of a lawsuit is the report of our internal accountability process so they can just grab that and taken into court and make it the basis for a class action tort law suit which they can make a claim for all this money is going to create a powerful disincentive for us not to engage in that kind of self policing activity and i would submit that you know even if things ultimately work there so themselves out under the f s a i hope they do i hope we don't have to deal with that but even if we do it's going to take a very long time they're going to be a lot of difficult cases at the margin they're going to be very serious disincentives immediately and converse leigh you know we're a big fat target here these organizations have lots of money and of course for implants want to sue here they can bring a class action they get little discovery they can get damages get all of these advantages by suing here so instead of suing the person actually injure them the power play in india they come here and sue us and i really think we you're going to see here is that this is just going to become another version of the sorts of foreign cubed lawsuits that the court has been concerned about out of the alien tort statute where the international organization is just going to be subbed in for the foreign defendant and it's going to be sub down in a situation where a very significant pile of money and if i could just close with this thought i get you going to pick up on justice briars thought the law in the district of columbia where virtually all these organizations have been housed are headquartered has been virtually absent unity under d c circuit law for decades that's the standard everybody's been operating nobody suggested that anything has gone wrong kind of the statute with any built areas policy consequences but the interesting united states are adversely affected in any way fact if you look at the amicus brief from the former secretaries of treasury and state that they think that the policy the government arguing now is going to disrupt the united states ability to function effectively with these organizations it's all been fine and what they're asking you essentially to repeat a metaphor is before to jump off a cliff and hopefully it'll be a soft landing but we don't it could easily result in a lot of disruption to the good work that these organizations do and i guess what i would suggest is that if that's going to happen it ought to happen through legislation congress can look at this congress can change lawful wants to but this is been the law for a very you i'd like to make four points and i'd like to start with the text of the statute itself and simply say mr verily talks about the need or doctrine in the common law doctrine that you look at the term a terms meaning at the time of an accident he's mixing apples and oranges and i think all the citations in our reply brief should make it absolutely clear that there's a doctrine on the one hand that talks about incorporating a body of law and the doctrine on the other hand about giving meaning to a specific term we're in the former camp here and as to the point about whether the common law was of all the at the time two things will stand on the papers as to the fact that it was somewhat in flux but the more important point is even if it weren't in flux it wouldn't matter one w because the other side is making a sweeping proposition which is any general reference to common law is fixed in time that would disrupt any number of federal statutory regimes from the total federal tort claims act year after this statute equal access to justice act the federal government's piracy statute federal rule of evidence five zero one i could go on and on with federal statutory regimes that reference the common law in fact the same way the statute does here the civil rights act of eight hundred sixty six if you want one more all of those would come out the other way from this court through its prudence and from all the understanding if the other side is right about statutory interpretation so i think the only thing the other side has is they have a bunch of policy points to make for this  we don't think they should control but let me answer them so first as to our treaty obligations so one about at the moment of the nachman my friend kept saying that there were various agreements in place that required virtually absolute immunity none of the agreements used those words instead with those agreements said is that certain organizations were entitled to immunity to allow them to perform their necessary functions that's a very different thing than at absolute immunity and it's very different because none of the organizations involved were performing just the sort of my work commercial activities that were essential to their core functions not the un not any of the other organizations so we weren't in breach of any treaty rights and if you have any doubt on that i would urge you to look to the federal government's position then and now it's not just a brief filed in this court it is the position that four different presidential administrations have taken the carter administration right after the f s a was passed the george h w bush administration the clinton administration and now the trumpe  ministration have all consistently held that the f s a rules are incorporated into the fs next on the floodgates concern i explained earlier and i hope you'll think about the fact that while the core activities of the c might be commercial activity not all of the i have sees activities are and certainly not all the activities of international organizations are but let me add one more thing might my friend talked about big lawsuits of ruinous right liability will lose two very easy ways to control that one is to the extent any claims are on contracts they can write their own contracts a negotiated their own contracts as this or general points out they can even deal with third party beneficiaries in their contracts if they choose secondly as to tort claims they can in fact commonly do indemnify themselves against tort lawsuits in this very case their agreement indemnifies them against any judgement and all legal fees so these organizations have every manner of method to deal with any potential liability in fact they suggestion that they think they're absolutely immune from lawsuit finally let me say one thing about the so called foreign cube problem of the facts of this case now obviously we think that we would satisfy the grab and test they have never made that argument if they want to make it we can we can have that conversation in the lower courts but bear in mind what you're being asked to do in this case is to announce a categorical rule for all cases dealing with international organizations so my friend the solicitor general's office talked about just regular tort slip and fall cases in the like in the united states let me give you one other thing to think about some international organizations actually do their work in the united states the border cooperation the border environmental cooperation commission does waste water treatment plants in texas and california i can't think of any reason why they would be immune from those infrastructure projects in a way that no private business or public government would be thank you counsel the case is submitted