(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BOLIVARIAN REPUBLIC OF VENEZUELA ET AL. v. 

HELMERICH & PAYNE INTERNATIONAL DRILLING 

CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

No. 15–423. Argued November 2, 2016—Decided May 1, 2017 

The Foreign Sovereign Immunities Act (FSIA) shields foreign states 

from suits in United States Courts, 28 U. S. C. §1604, with specified

exceptions. The expropriation exception applies to “any case . . . in 

which rights in property taken in violation of international law are in

issue and that property . . . is owned or operated by an agency or instrumentality of the foreign state . . . engaged in a commercial activity in the United States.” §1605(a)(3).

A wholly owned Venezuelan subsidiary (Subsidiary) of an American company (Parent) has long supplied oil rigs to oil development

entities that were part of the Venezuelan Government. The American Parent and its Venezuelan Subsidiary (plaintiffs) filed suit in

federal court against those entities (Venezuela), claiming that Venezuela had unlawfully expropriated the Subsidiary’s rigs by nationalizing them. Venezuela moved to dismiss the case on the ground that 

its sovereign immunity deprived the District Court of jurisdiction.

Plaintiffs argued that the case falls within the expropriation exception, but Venezuela claimed that international law did not cover the 

expropriation of property belonging to a country’s nationals like the 

Subsidiary and that the American Parent did not have property 

rights in the Subsidiary’s assets. The District Court agreed as to the

Subsidiary, dismissing its claim on jurisdictional grounds. But it rejected the claim that the Parent had no rights in the Subsidiary’s 

property. The District of Columbia Circuit reversed in part and affirmed in part, finding that both claims fell within the exception. 

With respect to the Subsidiary’s claim, it concluded that a sovereign’s 

taking of its own nationals’ property would violate international law 
2 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

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Syllabus
 

if the expropriation unreasonably discriminated based on a company’s shareholders’ nationality. With respect to the Parent’s claim, it

held that the exception applied because the Parent had raised its 

rights in a nonfrivolous way. The court decided only whether the 

plaintiffs might have a nonfrivolous expropriation claim, making

clear that, under its standard, a nonfrivolous argument would be sufficient to bring a case within the scope of the exception. Given the 

factual stipulations, the court concluded, the Subsidiary had satisfied

that standard for purposes of surviving a motion to dismiss. 

Held: The nonfrivolous-argument standard is not consistent with the 

FSIA. A case falls within the scope of the expropriation exception only if the property in which the party claims to hold rights was indeed

“property taken in violation of international law.” A court should decide the foreign sovereign’s immunity defense “[a]t the threshold” of 

the action, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 

493, resolving any factual disputes as near to the outset of the case as 

is reasonably possible. Pp. 6–16. 

(a) The expropriation exception grants jurisdiction only where 

there is a legally valid claim that a certain kind of right is at issue

(property rights) and that the relevant property was taken in a certain way (in violation of international law). Simply making a nonfrivolous argument to that effect is not sufficient. This reading is

supported by the provision’s language, which applies in a “case. . . in 

which rights in property taken in violation of international law are in

issue.” Such language would normally foresee a judicial decision

about the jurisdictional matter. This interpretation is supported by 

precedent. See, e.g., Permanent Mission of India to United Nations v. 

City of New York, 551 U. S. 193, 201–202. It is also supported by a

basic objective of the FSIA, which is to follow international law principles, namely, that granting foreign sovereigns immunity from suit 

both recognizes the “absolute independence of every sovereign authority” and helps to “induc[e]” each nation state, as a matter of “international comity,” to “respect the independence and dignity of every 

other,” Berizzi Brothers Co. v. S. S. Pesaro, 271 U. S. 562, 575. Nothing in the FSIA’s history suggests that Congress intended a radical

departure from these principles in codifying the mid-20th-century 

doctrine of “restrictive” sovereign immunity, which denies immunity

in cases “arising out of a foreign state’s strictly commercial acts,” but 

applies immunity in “suits involving the foreign sovereign’s public

acts,” Verlinden, supra, at 487. It is thus not surprising that the expropriation exception on its face emphasizes conformity with international law, requiring both a commercial connection with the United 

States and a taking of property “in violation of international law.” 

A “nonfrivolous-argument” reading of the exception would under-
Cite as: 581 U. S. ____ (2017) 3 

Syllabus 

mine the objectives embedded in the statute’s language, history, and 

structure. It could also embroil a foreign sovereign in an American

lawsuit for some time by adopting a standard limited only by the 

bounds of a lawyer’s (nonfrivolous) imagination. And it could cause 

friction with other nations, leading to reciprocal actions against this 

country. Pp. 6–12.

(b) Plaintiffs’ arguments to the contrary are unpersuasive. They

suggest that the expropriation exception should be treated similarly

to 28 U. S. C. §1331’s “arising under” jurisdiction, which applies if a

plaintiff can make a nonfrivolous argument that a federal law provides the relief sought—even if, in fact, it does not, Bell v. Hood, 327 

U. S. 678 685. But §1331 differs from the exception in language and 

concerns. Section 1331 often simply determines which court doors—

federal or state—are open, and neither it nor related jurisdictional

sections seek to provide a sovereign foreign nation with immunity—

the FSIA’s basic objective. Nor does the text of §1331 suggest that

consistency with international law is of particular importance. 

Plaintiffs also claim that the nonfrivolous-argument approach will 

work little harm since the matter could be resolved by motion practice before the sovereign bears the expense of a full trial. But resolving a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or

summary judgment under Rule 56 may impose increased burdens of

time and expense upon the foreign nation. And a district court’s decision that there is a “violation of international law” as a matter of 

jurisdiction may be immediately appealable as a collateral order,

while the same decision made pursuant to a Rule 12(b)(6) or Rule 56

motion would be a decision on the “merits” not subject to immediate

appeal. Moreover, the Circuit would part with its nonfrivolousargument standard where a “violation of international law” is not an

element of the claim to be decided on the merits. This bifurcated approach is difficult to reconcile with the statute’s language, history, or 

purpose; and it creates needless complexity for judges and lawyers,

domestic and foreign. Pp. 12–16. 

784 F. 3d 804, vacated and remanded. 

BREYER, J., delivered the opinion of the Court, in which all other 

Members joined, except GORSUCH, J., who took no part in the consideration or decision of the case. 
 

 

_________________ 

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Cite as: 581 U. S. ____ (2017) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–423 

BOLIVARIAN REPUBLIC OF VENEZUELA, ET AL., 

PETITIONERS v. HELMERICH & PAYNE INTERNATIONAL DRILLING CO., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[May 1, 2017]

 JUSTICE BREYER delivered the opinion of the Court. 

The Foreign Sovereign Immunities Act of 1976 (FSIA or 

Act), provides, with specified exceptions, that a “foreign 

state shall be immune from the jurisdiction of the courts of 

the United States and of the States . . . .” 28 U. S. C. 

§1604. One of the jurisdictional exceptions—the expropriation exception—says that 

“[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States 

in any case . . . (3) in which rights in property taken in 

violation of international law are in issue and that 

property . . . is owned or operated by an agency or 

instrumentality of the foreign state . . . engaged in 

a commercial activity in the United States.” 

§1605(a)(3). 

The question here concerns the phrase “case . . . in which

rights in property taken in violation of international law 

are in issue.” 

Does this phrase mean that, to defeat sovereign immunity, a party need only make a “nonfrivolous” argument 
 

2 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

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Opinion of the Court 

that the case falls within the scope of the exception? Once 

made, does the existence of that nonfrivolous argument 

mean that the court retains jurisdiction over the case until

the court decides, say, the merits of the case? Or does a 

more rigorous jurisdictional standard apply? To put the

question more generally: What happens in a case where

the party seeking to rely on the expropriation exception

makes a nonfrivolous, but ultimately incorrect, claim that

his property was taken in violation of international law? 

In our view, a party’s nonfrivolous, but ultimately incorrect, argument that property was taken in violation of 

international law is insufficient to confer jurisdiction.

Rather, state and federal courts can maintain jurisdiction 

to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed

“property taken in violation of international law.” Put 

differently, the relevant factual allegations must make out

a legally valid claim that a certain kind of right is at issue 

(property rights) and that the relevant property was taken 

in a certain way (in violation of international law). A good

argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes 

about whether a party actually held rights in that property; those questions remain for the merits phase of the 

litigation.

Moreover, where jurisdictional questions turn upon 

further factual development, the trial judge may take

evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, 

namely, to free a foreign sovereign from suit, the court 

should normally resolve those factual disputes and reach a

decision about immunity as near to the outset of the case 

as is reasonably possible. See Verlinden B. V. v. Central 

Bank of Nigeria, 461 U. S. 480, 493–494 (1983). 
Cite as: 581 U. S. ____ (2017) 3 

Opinion of the Court 

I 

Since the mid-1970’s a wholly owned Venezuelaincorporated subsidiary (Subsidiary) of an American company (Parent) supplied oil rigs to oil development entities 

that were part of the Venezuelan Government. In 2011 

the American Parent company and its Venezuelan Subsidiary (the respondents here) brought this lawsuit in federal

court against those foreign government entities. (The 

entities go by their initials, PDVSA, but we shall normally 

refer to them as “Venezuela” or the “Venezuelan Government.”) The American Parent and the Venezuelan Subsidiary claimed that the Venezuelan Government had unlawfully expropriated the Subsidiary’s oil rigs. And they 

sought compensation.

According to stipulated facts, by early 2010 the Venezuelan Government had failed to pay more than $10 million that it owed the Subsidiary. At that point the government sent troops to the equipment yard where the rigs 

were stored, prevented the Subsidiary from removing the 

rigs, and issued a “‘Decree of Expropriation’” nationalizing the rigs. App. 72–74. Subsequently, the president of

the oil development entities led a rally at the Subsidiary’s

offices, where he referred to the Venezuelan Subsidiary as

an “‘American company’” with “‘foreign gentlemen investors.’” Id., at 54. 

Venezuela asked the court to dismiss the case on the 

ground that Venezuela possessed sovereign immunity and 

that the court consequently lacked “jurisdiction” to hear 

the case. See 28 U. S. C. §1604; Fed. Rules Civ. Proc. 

12(b)(1) and (b)(2); Verlinden, supra, at 485, n. 5 (explaining that a court lacks “subject-matter” and “personal”

jurisdiction over a foreign sovereign unless an FSIA exception applies). The companies replied that the case falls

within the expropriation exception. Venezuela in turn 

argued that the Subsidiary’s expropriation claim did not 

satisfy the exception because “‘international law does not 
 

 

4 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

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Opinion of the Court 

cover expropriations of property belonging to a country’s 

own nationals’”; the taking was not “‘in violation of international law,’” and the exception thus does not apply.

Record in No. 11–cv–01735 (D DC), Doc. 22, p. 13. Venezuela further argued that the American Parent’s nationality makes no difference because, “as a corporate parent,

[it] does not own [the Subsidiary’s] assets.” Id., Doc. 24, 

at 12. 

The parties agreed that the District Court should then 

decide whether the exception applies, and it should do so

on the basis of governing law, taking all of the plaintiffs’ 

well-pleaded allegations as true and construing the complaint in the light most favorable to the plaintiffs. App.

119. The court decided, in relevant part, that the exception did not apply to the Venezuelan Subsidiary’s claim

because the Subsidiary was a national of Venezuela. See 

971 F. Supp. 2d 49, 57–61 (2013). The court concluded 

that Venezuela consequently possessed sovereign immunity, and it dismissed the Subsidiary’s claim on jurisdictional grounds. It rejected, however, Venezuela’s argument 

that the Parent had no rights in property in the Subsidiary. It concluded that Venezuela’s “actions have deprived

[the Parent], individually, of its essential and unique 

rights as sole shareholder . . . by dismantling its voting 

power, destroying its ownership, and frustrating its control over the company.” Id., at 73. 

The Venezuelan Subsidiary appealed the dismissal of its 

expropriation claim, and Venezuela appealed the court’s

refusal to dismiss the Parent’s claim. The Court of Appeals for the District of Columbia Circuit reversed in part

and affirmed in part the District Court’s conclusions. It 

decided that both the Subsidiary’s and the Parent’s claims

fell within the exception.

With respect to the Subsidiary’s claim, the court agreed

that a sovereign’s taking of its own nationals’ property 

normally does not violate international law. But, the 
Cite as: 581 U. S. ____ (2017) 5 

Opinion of the Court 

court said, there is an “exception” to this rule. And that 

exception applies when a sovereign’s expropriation unreasonably discriminates on the basis of a company’s shareholders’ nationality, 784 F. 3d 804, 812 (CADC 2015)

(citing Banco Nacional de Cuba v. Sabbatino, 307 F. 2d 

845 (CA2 1962)). That exception, it added, might apply 

here, in which case the expropriation would violate international law, the FSIA’s expropriation exception would 

apply, and the federal courts would possess jurisdiction

over the case. 784 F. 3d, at 813. With respect to the

Parent’s expropriation claim, the court agreed with the

District Court that the expropriation exception applied 

because the Parent had “‘put its rights in property in issue 

in a non-frivolous way.’” Id., at 816. 

For present purposes, it is important to keep in mind 

that the Court of Appeals did not decide (on the basis of

the stipulated facts) that the plaintiffs’ allegations are 

sufficient to show their property was taken in violation of 

international law. It decided instead that the plaintiffs 

might have such a claim. And it made clear the legal

standard that it would apply. It said that, in deciding 

whether the expropriation exception applies, it would set 

an “exceptionally low bar.” Id., at 812. Any possible, i.e., 

“‘non-frivolous,’” ibid., claim of expropriation is sufficient, 

in the Court of Appeals’ view, to bring a case within the 

scope of the FSIA’s exception. In particular: If a plaintiff 

alleges facts and claims that permit the plaintiff to make 

an expropriation claim that is not “‘wholly insubstantial or 

frivolous,’” then the exception permits the suit and the

sovereign loses its immunity. Ibid. (emphasis added).

Given the factual stipulations, the Court of Appeals did 

not suggest further factfinding on this jurisdictional issue 

but, rather, decided that the Subsidiary had “satisfied this

Circuit’s forgiving standard for surviving a motion to

dismiss in an FSIA case.” Id., at 813. 

Venezuela filed a petition for certiorari asking us to 
6 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

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Opinion of the Court 

decide whether the Court of Appeals had applied the 

correct standard in deciding that the companies had met 

the expropriation exception’s requirements. We agreed to

do so. 

II 

Foreign sovereign immunity is jurisdictional in this case

because explicit statutory language makes it so. See 

§1604 (“[A] foreign state shall be immune from the jurisdiction of the courts of the United States and of the States 

except as provided” by the FSIA’s exceptions); §1605(a) (“A 

foreign state shall not be immune from the jurisdiction” of 

federal and state courts if the exception at issue here is

satisfied). Given the parties’ stipulations as to all relevant facts, our inquiry poses a “‘pure question of statutory 

construction,’” Republic of Austria v. Altmann, 541 U. S. 

677, 701 (2004). In our view, the expropriation exception 

grants jurisdiction only where there is a valid claim that 

“property” has been “taken in violation of international 

law.” §1605(a)(3). A nonfrivolous argument to that effect 

is insufficient. 

For one thing, the provision’s language, while ambiguous, supports such a reading. It says that there is jurisdiction in a “case . . . in which rights in property taken in

violation of international law are in issue.” Ibid. Such 

language would normally foresee a judicial decision about 

the jurisdictional matter. And that matter is whether a 

certain kind of “right” is “at issue,” namely, a property

right taken in violation of international law. To take a 

purely hypothetical example, a party might assert a claim

to a house in a foreign country. If the foreign country 

nationalized the house and, when sued, asserted sovereign

immunity, then the claiming party would as a jurisdictional matter prove that he claimed “property” (which a

house obviously is) and also that the property was “taken

in violation of international law.” He need not show as a 
Cite as: 581 U. S. ____ (2017) 7 

Opinion of the Court 

jurisdictional matter that he, rather than someone else, 

owned the house. That question is part of the merits of 

the case and remains “at issue.” 

We recognize that merits and jurisdiction will sometimes come intertwined. Suppose that the party asserted 

a claim to architectural plans for the house. It might be

necessary to decide whether the law recognizes the kind of

right that he asserts, or whether it is a right in “property”

that was “taken in violation of international law.” Perhaps that is the only serious issue in the case. If so, the 

court must still answer the jurisdictional question. If to 

do so, it must inevitably decide some, or all, of the merits 

issues, so be it. 

Our reading of the statute is consistent with its language. The case is one which the existence of “rights” 

remains “at issue” until the court decides the merits of the 

case. But whether the rights asserted are rights of a

certain kind, namely, rights in “property taken in violation 

of international law,” is a jurisdictional matter that the

court must typically decide at the outset of the case, or as 

close to the outset as is reasonably possible.

Precedent offers a degree of support for our interpretation. In Permanent Mission of India to United Nations v. 

City of New York, 551 U. S. 193 (2007), we interpreted a 

different FSIA exception for cases “in which . . . rights in 

immovable property situated in the United States are in

issue.” §1605(a)(4). We held that there was jurisdiction

over the case because the plaintiff ’s lawsuit to enforce a 

tax lien “directly implicate[d]” the property rights described by the FSIA exception. See id., at 200–201. We did 

not simply rely upon a finding that the plaintiff had made

a nonfrivolous argument that the exception applied.

For another thing, one of the FSIA’s basic objectives, as

shown by its history, supports this reading. The Act for 

the most part embodies basic principles of international 

law long followed both in the United States and elsewhere. 
 

8 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

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Opinion of the Court 

See Schooner Exchange v. McFaddon, 7 Cranch 116, 136– 

137 (1812); see also Verlinden, 461 U. S., at 493 (explaining that the Act “comprehensively regulat[es] the amenability of foreign nations to suit in the United States”). Our 

courts have understood, as international law itself understands, foreign nation states to be “independent sovereign” 

entities. To grant those sovereign entities an immunity

from suit in our courts both recognizes the “absolute independence of every sovereign authority” and helps to “‘induc[e]’” each nation state, as a matter of “‘international 

comity,’” to “‘respect the independence and dignity of 

every other,’” including our own. Berizzi Brothers Co. v. 

S. S. Pesaro, 271 U. S. 562, 575 (1926) (quoting The Parlement Belge, [1880] 5 P. D. 197, 214–215 (appeal taken

from Admiralty Div.)).

In the mid-20th century, we, like many other nations,

began to treat nations acting in a commercial capacity like

other commercial entities. See Permanent Mission, supra,

at 199–200. And we consequently began to limit our 

recognition of sovereign immunity, denying that immunity 

in cases “arising out of a foreign state’s strictly commercial

acts,” but continuing to apply that doctrine in “suits involving the foreign sovereign’s public acts,” Verlinden, 461 

U. S., at 487 (emphasis added). 

At first, our courts, aware of the expertise of the Executive Branch in matters of foreign affairs, relied heavily

upon the advice of that branch when deciding just when 

and how this “restrictive” sovereign immunity doctrine

applied. Ibid. See also H. R. Rep. No. 94–1487, pp. 8–9

(1976) (similar). But in 1976, Congress, at the urging of

the Department of State and Department of Justice, began

to codify the doctrine. The resulting statute, the FSIA, 

“starts from a premise of immunity and then creates 

exceptions to the general principle.” Id., at 17; Verlinden, 

supra, at 493. Almost all the exceptions involve commerce

or immovable property located in the United States. E.g., 
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Opinion of the Court 

§§1605(a)(2) and (4); see also §1602 (expressing the finding 

that “[u]nder international law, states are not immune 

from the jurisdiction of foreign courts insofar as their

commercial activities are concerned”). The statute thereby 

creates a doctrine that by and large continues to reflect

basic principles of international law, in particular those

principles embodied in what jurists refer to as the “restrictive” theory of sovereign immunity. See, e.g., Restatement 

(Third) of Foreign Relations Law of the United States 

§451, and Comment a (1986) (describing the restrictive

theory of immunity); United Nations General Assembly, 

Convention on Jurisdictional Immunities of States and 

Their Property, Res. 59/38, Arts. 5, 10–12 (Dec. 2, 2004) 

(adopting a restrictive theory of immunity and withdrawing immunity for loss of property where, among other 

requirements, “the act or omission occurred in whole or in 

part in the territory of th[e] other State”); United Nations

General Assembly, Report of the Ad Hoc Committee on

Jurisdictional Immunities of States and Their Property, 

Supp. A/59/22 No. 1, pp. 7–11 (Mar. 1–5, 2004) (same).

We have found nothing in the history of the statute that

suggests Congress intended a radical departure from these

basic principles. To the contrary, the State Department,

which helped to draft the FSIA’s language (and to whose 

views on sovereign immunity this Court, like Congress, 

has paid special attention, Altmann, 541 U. S., at 696),

told Congress that the Act was “drafted keeping in mind

what we believe to be the general state of the law internationally, so that we conform fairly closely . . . to our accepted international standards,” Hearing on H. R. 3493 

before the Subcommittee on Claims and Governmental 

Relations of the House of Representatives Committee on

the Judiciary, 93d Cong., 1st Sess., 18 (1973). The Department added that, by doing so, we would diminish the 

likelihood that other nations would each go their own way, 

thereby “subject[ing]” the United States “abroad” to more 
10 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

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Opinion of the Court 

claims “than we permit in this country . . . .” Ibid. It is 

consequently not surprising to find that the expropriation 

exception on its face emphasizes conformity with international law by requiring not only a commercial connection 

with the United States but also a taking of property “in 

violation of international law.” 

We emphasize this point, embedded in the statute’s 

language, history, and structure, because doing so reveals

a basic objective of our sovereign immunity doctrine, 

which a “nonfrivolous-argument” reading of the expropriation exception would undermine. A sovereign’s taking or

regulating of its own nationals’ property within its own 

territory is often just the kind of foreign sovereign’s public

act (a “jure imperii”) that the restrictive theory of sovereign immunity ordinarily leaves immune from suit. See 

Permanent Mission, 551 U. S., at 199 (describing the

FSIA’s distinction between public acts, or jure imperii, and 

purely commercial ones); Restatement (Third) of Foreign 

Relations Law of the United States §712, at 196 (noting 

that, under international law, a state is responsible for a 

“taking of the property of a national of another state” 

(emphasis added)). See also Restatement (Fourth) of 

Foreign Relations Law of the United States §455, Reporter’s Note 12, p. 9 (Tent. Draft No. 2, Mar. 22, 2016) (noting 

that “[n]o provision comparable” to the exception “has yet 

been adopted in the domestic immunity statutes of other 

countries” and that expropriations are considered acts jure 

imperii); United States v. Belmont, 301 U. S. 324, 332 

(1937); B. Cheng & G. Schwarzberger, General Principles 

of Law as Applied by International Courts and Tribunals 

37–38 (1953) (collecting cases describing “the power of the

sovereign State to expropriate” (internal quotation marks 

omitted)); Jurisdictional Immunities of the State (Germany 

v. Italy), 2012 I. C. J. 99, 123–125, ¶¶56–60 (Judgt. of Feb.

3) (noting consistent state practice in respect to the distinction between public and commercial acts and describ­
Cite as: 581 U. S. ____ (2017) 11 

Opinion of the Court 

ing an international law of immunity recognizing such a 

difference); Altmann, supra, at 708 (BREYER, J., concurring) (describing the French Court of Appeals’ decision 

about whether a King who has abdicated the throne is

“‘entitled to claim . . . immunity’” as “‘Hea[d] of State’” 

when his sovereign status at the time of suit was in doubt 

(quoting Ex-King Farouk of Egypt v. Christian Dior, 84 

Clunet 717, 24 I. L. R. 228, 229 (CA Paris 1957))).

To be sure, there are fair arguments to be made that a

sovereign’s taking of its own nationals’ property sometimes amounts to an expropriation that violates international law, and the expropriation exception provides that 

the general principle of immunity for these otherwise 

public acts should give way. But such arguments are

about whether such an expropriation does violate international law. To find jurisdiction only where a taking does 

violate international law is thus consistent with basic 

international law and the related statutory objectives and 

principles that we have mentioned. But to find jurisdiction where a taking does not violate international law (e.g.,

where there is a nonfrivolous but ultimately incorrect 

argument that the taking violates international law) is

inconsistent with those objectives. And it is difficult to 

understand why Congress would have wanted that result. 

Moreover, the “nonfrivolous-argument” interpretation

would, in many cases, embroil the foreign sovereign in an

American lawsuit for an increased period of time. It would 

substitute for a more workable standard (“violation of

international law”) a standard limited only by the bounds

of a lawyer’s (nonfrivolous) imagination. It would create 

increased complexity in respect to a jurisdictional matter 

where clarity is particularly important. Hertz Corp. v. 

Friend, 559 U. S. 77, 94–95 (2010). And clarity is doubly

important here where foreign nations and foreign lawyers

must understand our law. 

Finally, the Solicitor General and the Department of 
12 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

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Opinion of the Court 

State also warn us that the nonfrivolous-argument interpretation would “affron[t]” other nations, producing friction in our relations with those nations and leading some 

to reciprocate by granting their courts permission to embroil the United States in “expensive and difficult litigation, based on legally insufficient assertions that sovereign

immunity should be vitiated.” Brief for United States as 

Amicus Curiae 21–22. (At any given time the Department 

of Justice’s Office of Foreign Litigation represents the 

United States in about 1,000 cases in 100 courts around 

the world. Ibid.) See also National City Bank of N. Y. v. 

Republic of China, 348 U. S. 356, 362 (1955) (noting that 

our grant of immunity to foreign sovereigns dovetails with 

our own interest in receiving similar treatment). 

III 

The plaintiffs make two important arguments to the 

contrary. First, they point to the federal statute that gives 

federal courts jurisdiction over cases “arising under the 

Constitution, laws, or treaties of the United States,” 28 

U. S. C. §1331. They note that in Bell v. Hood, 327 U. S. 

678 (1946), this Court held that the “arising under” statute confers jurisdiction if a plaintiff can make a nonfrivolous argument that a federal law provides the relief he

seeks—even if, in fact, it does not. See id., at 685 (jurisdiction exists where, if the “Constitution and laws of the 

United States are given one construction,” a claim will be 

“sustained,” but if the laws are given a different construction, the claim “will be defeated”). And the plaintiffs say 

we should treat the expropriation exception similarly. 

Section 1331, however, uses different language from the

expropriation exception (“arising under”) and focuses on

different concerns. Section 1331 often simply determines

which court’s doors are open (federal or state). Cf. Mims v. 

Arrow Financial Services, LLC, 565 U. S. 368, 375–379 

(2012). Unlike the FSIA, neither that jurisdictional sec­
Cite as: 581 U. S. ____ (2017) 13 

Opinion of the Court 

tion nor related jurisdictional sections seeks to provide a 

sovereign foreign nation (or any party) with immunity—

the basic FSIA objective. See Dole Food Co. v. Patrickson, 

538 U. S. 468, 479 (2003) (FSIA’s objective is to give “protection from the inconvenience of suit as a gesture of

comity”); Republic of Philippines v. Pimentel, 553 U. S. 

851, 866 (2008). And unlike the expropriation exception, 

the “arising under” statute’s language does not suggest 

that consistency with international law is of particular

importance.

Moreover, this Court has interpreted other jurisdictional 

statutes differently. Where jurisdiction depends on diversity of citizenship, for example, courts will look to see 

whether the parties are in fact diverse, not simply whether 

they are arguably so. See Indianapolis v. Chase Nat. 

Bank, 314 U. S. 63, 69 (1941); McNutt v. General Motors 

Acceptance Corp., 298 U. S. 178, 189 (1936); see also 13E 

C. Wright, A. Miller, & E. Cooper, Federal Practice and 

Procedure §3611 (2009). We do not believe either jurisdictional analogy (28 U. S. C. §1331 or §1332) is particularly 

helpful, but the expropriation exception’s substantive 

goals suggest that the diversity jurisdiction example provides a marginally closer analogy.

Second, the plaintiffs argue that the nonfrivolousargument approach will work little harm. They say that a

court faced with an arguable, but ultimately incorrect,

claim of jurisdiction can simply decide the same question—say, whether there was a “violation of international 

law”—as part of its decision on the merits. Thus a foreign

sovereign defendant (in court because a plaintiff has made

a nonfrivolous but incorrect argument that its property 

was taken in violation of international law) can simply 

move for judgment on the merits under Rule 12(b)(6),

which provides for judgment where a plaintiff does not 

“state a claim upon which relief can be granted.” Or the 

defendant could move for summary judgment under Rule 
14 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

PAYNE INT’L DRILLING CO. 

Opinion of the Court 

56. In a word, the defendant may not need to undergo a

full trial and judgment, remaining in court until the bitter 

end. 

These alternatives, however, have their own problems. 

For one thing, they will sometimes mean increased delay,

imposing increased burdens of time and expense upon the

foreign nation. For another, where a district court decides 

that there is a “violation of international law” as a matter 

of jurisdiction, then (according to the Courts of Appeals)

the losing sovereign nation can immediately appeal the

decision as a collateral order. But the same decision made 

to dispose of, say, a Rule 12(b)(6) motion or a Rule 56 

motion would not be a “collateral order.” It would be a 

decision on the “merits.” And the foreign sovereign would

not enjoy a right to take an immediate appeal. See Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978) (permitting interlocutory appeal of a collateral order that

“resolve[s] an important issue completely separate from

the merits of the action”); Will v. Hallock, 546 U. S. 345, 

349 (2006) (same). See also Intel Corp. v. Commonwealth 

Scientific, 455 F. 3d 1364, 1366 (CA Fed. 2006) (permitting 

collateral appeal of an FSIA jurisdictional decision denying immunity); Rubin v. Islamic Republic of Iran, 637 

F. 3d 783, 785 (CA7 2011) (same); Compania Mexicana de 

Aviacion v. Central Dist. of Cal., 859 F. 2d 1354, 1356 

(CA9 1988) (per curiam) (same); Foremost-McKesson v. 

Islamic Republic of Iran, 905 F. 2d 438, 443 (CADC 1990) 

(same).

Moreover, what is a court to do in a case where a “violation of international law,” while a jurisdictional prerequisite, is not an element of the claim to be decided on the 

merits? The Circuit has suggested that they arise when

the plaintiffs’ claim is not an “expropriation claim,” but

rather a simple common-law claim of conversion, restitution, or breach of contract, the merits of which do not 

involve the merits of international law. See Simon v. 
 

Cite as: 581 U. S. ____ (2017) 15 

Opinion of the Court 

Republic of Hungary, 812 F. 3d 127, 141–142 (2016). The 

Circuit has recognized that there are such cases, id., at 

141, and a cursory survey of the principal district courts in

which these cases are brought confirms the reality of the 

problem. See, e.g., Philipp v. Federal Republic of Germany, ___ F. Supp. 3d ___, 2017 WL 1207408 (DC, Mar. 31, 

2017) (deciding whether the expropriation exception is 

satisfied where the complaint pleads only common-law or 

statutory claims for relief); De Csepel v. Hungary, 169 

F. Supp. 3d 143 (DC 2016) (similar); Pablo Star Ltd. v. 

Welsh Government, 170 F. Supp. 3d 597 (SDNY 2016) 

(similar); Chettri v. Nepal, 2014 WL 4354668 (SDNY,

Sept. 2, 2014) (similar); Order Granting Defendants’ Motion To Dismiss in Lu v. Central Bank of Republic of 

China, No. 2:12–cv–317 (CD Cal., June 13, 2013) (similar); 

Orkin v. Swiss Confederation, 770 F. Supp. 2d 612 (SDNY 

2011) (similar); Hammerstein v. Federal Republic of Germany, 2011 WL 9975796 (EDNY, Aug. 1, 2011) (similar); 

Cassirer v. Kingdom of Spain, 461 F. Supp. 2d 1157 (CD 

Cal. 2006) (similar). Indeed, cases in which the jurisdictional inquiry does not overlap with the elements of a 

plaintiff ’s claims have been the norm in cases arising 

under other exceptions to the FSIA. E.g., Republic of 

Argentina v. Weltover, Inc., 504 U. S. 607, 610 (1992) 

(deciding whether a plaintiffs’ breach-of-contract 

claim satisfied the jurisdictional requirements of the 

commercial-activity exception, §1605(a)(2)). 

To address the problem raised by these cases in which 

the “jurisdictional and merits inquiries” are not fully

“overlap[ping],” the Circuit has held that a district court is 

not to apply its nonfrivolous-argument standard in such 

cases. Simon, 812 F. 3d, at 141. Rather, a court is to ask 

“whether the plaintiffs’ allegations satisfy the jurisdictional standard.” Ibid. 

We can understand why the Circuit has departed from

its nonfrivolous-argument standard in these latter cases. 
 

16 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH & 

PAYNE INT’L DRILLING CO. 

Opinion of the Court 

For, unless it did so, how could a foreign nation ever obtain a decision on the merits of the nonfrivolous argument

that a plaintiff has advanced? But what in the statutory

provision suggests that sometimes courts should, but

sometimes they should not, simply look to the existence of 

a nonfrivolous argument when they decide whether the

requirements of the expropriation exception are satisfied? 

It is difficult, if not impossible, to reconcile this bifurcated

approach with the statute’s language. It receives little, if 

any, support from the statute’s history or purpose. And, it 

creates added complexity, making it more difficult for 

judges and lawyers, domestic and foreign, to understand 

the intricacies of the law. 

IV 

We conclude that the nonfrivolous-argument standard is

not consistent with the statute. Where, as here, the facts 

are not in dispute, those facts bring the case within the 

scope of the expropriation exception only if they do show 

(and not just arguably show) a taking of property in violation of international law. Simply making a nonfrivolous

argument to that effect is not sufficient. Moreover, as we 

have previously stated, a court should decide the foreign

sovereign’s immunity defense “[a]t the threshold” of the 

action. Verlinden, 461 U. S., at 493. As we have said, 

given the parties’ stipulations as to all relevant facts, the 

question before us is purely a legal one and can be resolved at the outset of the case. If a decision about the 

matter requires resolution of factual disputes, the court

will have to resolve those disputes, but it should do so as 

near to the outset of the case as is reasonably possible. 

* * * 

The judgment of the Court of Appeals is vacated, and

the case is remanded for further proceedings consistent

with this opinion. 
Cite as: 581 U. S. ____ (2017) 17 

Opinion of the Court 

It is so ordered.

 JUSTICE GORSUCH took no part in the consideration or 

decision of this case.