Federal Judicial Center

International Litigation Guide

The Foreign Sovereign Immunities Act:

A Guide for Judges

2013

Federal Judicial Center

International Litigation Guide

The Foreign Sovereign Immunities Act: 

A Guide for Judges

David P. Stewart

Visiting Professor of Law, 

Georgetown University Law Center

Federal Judicial Center

2013

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to develop and conduct education programs for the 

judicial branch. While the Center regards the content as responsible and valuable, it does not reflect policy or recommendations of the Board of the Federal 

Judicial Center.
first printing
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Contents

I. Introduction, 1

A. The First Basic Rule, 2

B. The Second Basic Rule, 3

II. Purpose, Scope, and Rules of Application, 5

A. Purpose, 6

B. Scope, 6

C. Basic Rules of Application, 7

1. Exclusivity, 8

2. Retroactivity, 8

3. Treaty exception, 8

4. Other types of immunity, 8

5. Act of state, 10

6. Political question, 11

III. Jurisdictional, Procedural, and Evidentiary Issues, 13

A. Subject-Matter Jurisdiction, 13

B. Personal Jurisdiction, 14

1. Foreign states and political subdivisions, 14

2. Agencies and instrumentalities, 15

3. Minimum contacts, 16

C. Venue, 18

D. Applicable Law, 18

E. Procedural and Evidentiary Issues, 20

1. Jurisdictional discovery, 21

2. Interpleader, 23

3. Removal, 23

4. Non-jury trial, 24

5. Damages, 24

6. Default, 24

7. Appeal, 25
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IV. Entities and Persons Entitled to Immunity, 27

A. Foreign States, Components, and Political Subdivisions,

27

1. Foreign state or government, 27

2. Internal government components, 28

3. Government departments and ministries, 29

B. Agencies or Instrumentalities, 30

1. Separate legal entity, 30

2. Second criterion, 33

3. Non-U.S. nationality, 38

C. Individual Foreign Officials and Agents, 38

V. Exceptions to Immunity, 41

A. Waiver, 41

1. Explicit waivers, 42

2. Implied waivers, 42

B. Commercial Activity, 44

1. Definition of commercial activity, 44

2. “Based upon,” 49

3. Jurisdictional nexus, 50

C. Expropriations, 55

1. Rights in property, 55

2. Taken in violation of international law, 56

3. Commercial nexus, 58

D. Non-Commercial Torts in the United States, 59

1. Discretionary functions excluded, 60

2. Not extraterritorial, 61

3. No punitive damages, 61

E. Arbitration, 61

F. State-Sponsored Terrorism, 63

1. The new rule, 63

2. Limitations, 64

3. Designated state sponsors, 64

G. Counterclaims, 65
Contents

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VI. Attachment and Execution, 67

A. Post-judgment Attachment and Execution, 68

B. Pre-judgment Attachment, 68

C. States vs. Agencies and Instrumentalities, 69

D. Procedure, 70

E. Post-judgment Discovery, 71

F. Property of a Foreign State, 73

G. Location of the Property, 74

H. Used for a Commercial Purpose, 74

I. Other Requirements, 76

J. State Sponsors of Terrorism, 77

K. Agency or Instrumentality, 77

L. Exceptions, 78

VII. The FSIA and State-Sponsored Terrorism: Addendum, 81

A. Background and Purpose, 83

B. The Current Exception, 86

1. Exclusivity, 87

2. Statute of limitations, 89

3. Default, 89

4. Discovery, 90

C. Main Elements of a Claim Under § 1605A, 91

1. Nationality of claimant or victim, 91

2. Designated state sponsor of terrorism, 93

3. Scope of authority, 94

4. Listed acts, 96

5. Causation, 101

6. Personal injury or death, 103

7. Opportunity to arbitrate, 104

8. Damages, 105

9. Application of § 1605A to prior suits, 107

10. Challenges to the legality of the exception, 109
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D. Execution of Judgments in § 1605A Cases, 110

1. Generally, 111

2. Protected properties, 111

3. Section 1610, 113

4. TRIA, 114

5. Post-TRIA legislation, 117

6. Blocked assets, 119

7. Extent of property interest, 121

8. Blocked Iranian assets, 125

Table of Authorities, 127

About the Author, 147
1

I. Introduction

This guide provides an overview of the Foreign Sovereign Immunities Act of 1976 (FSIA).1 It is intended as a practical introduction 

for those who have little knowledge of or experience with the statute as interpreted and applied in U.S. courts. The focus is on the 

basic legal issues faced by U.S. courts in cases arising under the 

statute.

Following this brief Introduction, the guide discusses the statute’s purpose and scope of application. It reviews the jurisdictional, 

procedural, and evidentiary questions most likely to arise at the 

outset of litigation, and it discusses the entities entitled to immunity (in particular the distinctions between a “foreign state,” its “political subdivisions,” and its “agencies and instrumentalities”). It 

then provides an introductory description of the specific exceptions 

to immunity as well as the statutory regime applicable to execution 

of judgments and attachment of assets. The Addendum in Part VII

discusses the terrorism exception, which was recently revised by 

Congress. 

The FSIA governs all litigation in both state and federal courts 

against foreign states and governments, including their “agencies 

and instrumentalities.” It provides the exclusive basis for obtaining 

jurisdiction over these entities in U.S. courts (including special 

rules for service of process) and contains “a comprehensive set of 

legal standards governing claims of immunity in every civil action 

against a foreign state or its political subdivisions, agencies, or instrumentalities.”2

The FSIA recognizes immunity for “public acts, that is to say, 

acts of a governmental nature typically performed by a foreign 

 

1. Pub. L. No. 94-583, 90 Stat. 2891 (1976) (codified as amended at 28 

U.S.C. §§ 1330, 1391(f), 1441(d), and 1602-11 (2000)). 

2. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983). The 

reference to “civil actions” does not suggest, however, that states or their agencies or instrumentalities can be subject to criminal proceedings in U.S. courts; 

nothing in the text or legislative history supports such a conclusion. 
Foreign Sovereign Immunities Act

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state, but not for acts of a private nature even though undertaken 

by a foreign state.”3

A. The First Basic Rule

Under the FSIA, foreign states and governments, including their 

political subdivisions, agencies, and instrumentalities, are immune 

from suit unless one of the statute’s specific exceptions applies.

Thus, jurisdiction exists only when one of the exceptions to foreign 

sovereign immunity applies. If the claim does not fall within one of 

the enumerated exceptions, the defendant is entitled to immunity 

and the courts lack both subject-matter and personal jurisdiction.

All FSIA cases therefore require courts to address three related 

questions at the outset: 

1. Is the defendant a “foreign state or government” within the 

meaning of the statute?

2. Has valid service been made as provided by the statute?

3. Does a statutory exception to immunity apply?

If the answer to the first question is yes, the statute applies. Even 

when the answer to the second question is yes, the case nonetheless 

must be dismissed if no exception applies—“even in situations 

where the wrongfulness of the foreign sovereign’s conduct is clear 

and indisputable.”4

Where an exception does apply, so that the defendant lacks 

immunity and jurisdiction exists, the statute continues to govern 

the proceedings against qualified defendants. Reflecting the particular sensitivities of litigation against foreign governmental entities, 

the FSIA provides these entities with certain protections and benefits, such as extended time for answering complaints, a right of removal from state to federal court, entitlement to a non-jury trial, 

 

3. Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1026 (9th Cir. 2010), cert. 

denied, 131 S. Ct. 3057 (2011).

4. Bell Helicopter Textron Inc. v. Islamic Republic of Iran, 892 F. Supp. 2d

219, 225 (D.D.C. 2012).
I. Introduction

3

limitations on award of punitive damages, and constraints against 

attachment of and execution against government property. 

B. The Second Basic Rule

The statute also provides foreign states and their agencies and instrumentalities with immunity from execution of judgments and 

attachments. The rules governing this issue are in some respects 

more restrictive than the jurisdictional rules, so that a state or 

agency or instrumentality may validly be subject to a court’s jurisdiction but nonetheless be insulated from execution of a resulting 

judgment. 

The most common FSIA cases involve claims against foreign 

governmental entities for breach of commercial contracts for the 

purchase and sale of goods or services. U.S. courts are also likely to 

encounter suits involving the expropriation of property in a foreign 

country, torts committed in the United States (such as automobile 

accidents and slip-and-fall injuries), enforcement of foreign arbitral awards, and death or injury resulting from acts of statesponsored terrorism abroad.

5

II. Purpose, Scope, and Rules of Application

Historically, like most nations, the United States accorded foreign 

states and governments “absolute” immunity from suit in domestic 

court based on principles of customary international law.5 Moreover, determinations of immunity were traditionally made by the 

executive branch and communicated to the judiciary by way of 

“suggestions of immunity.”6

In 1952, the Department of State adopted the “restrictive” theory of sovereign immunity in the so-called “Tate Letter,”7 reflecting 

its view that customary international law had evolved to permit 

adjudication of disputes arising from a state’s commercial activities 

(acta jure gestionis) while preserving immunity for sovereign or 

“public” acts (acta jure imperii). Twenty-four years later, the FSIA 

codified and expanded upon that “restrictive” approach toward

immunity. It also shifted the decision making from the Department 

of State to the courts.8

 

5. See, e.g., The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 

(1812), in which Chief Justice Marshall, noting the “perfect equality and absolute 

independence of sovereigns,” observed that a “foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity, and the dignity of his nation . . . .” Id. at 137.

6. The term “suggestion of immunity” denotes the formal communication 

by which the executive branch traditionally communicates its decision to recognize a defendant’s immunity (for example, as a head of state or a foreign diplomat or other governmental official) without either intervening as a party or taking sides on an issue otherwise to be decided by the court. In contrast, when the 

views of the government are offered at the trial level in any case to which it is not 

a party, they are typically submitted in a “statement of interest.” The specific 

label, however, is not necessarily determinative. See generally 28 U.S.C § 517 

(2006).

7. Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dep’t of State, to 

Philip B. Perlman, Acting U.S. Attorney General (May 19, 1952) [“Tate Letter”], 

reprinted in 26 Dep’t St. Bull. 984–85 (1952) and Alfred Dunhill of London, Inc.

v. Republic of Cuba, 425 U.S. 682, 711–15 (1976). 

8. A useful recent summary of the background and purpose of the statute is 

set forth in Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir. 2010).
Foreign Sovereign Immunities Act

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A. Purpose

The FSIA created a clear statutory basis for the judiciary’s adjudication of claims by foreign sovereigns that they are immune from suit 

in U.S. courts. As stated in 28 U.S.C. § 1602, 

The Congress finds that the determination by United States courts of 

the claims of foreign states to immunity from the jurisdiction of such 

courts would serve the interests of justice and would protect the rights 

of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign 

courts insofar as their commercial activities are concerned, and their 

commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with 

the principles set forth in this chapter.

B. Scope

Application of the statute depends in the first instance on whether 

the defendant is a foreign state or government. For FSIA purposes, 

no distinction is drawn between the “state” and its “government.”

Thus, the statute applies whether the named defendant is, for example, China, the People’s Republic of China, the Government of 

China, or one of its integral governmental components (such as the 

National People’s Congress, the People’s Liberation Army, or the 

Ministry of State Security). 

However, § 1603(a) raises an additional distinction by defining 

the term “foreign state” to include (1) a political subdivision of a 

foreign state or (2) an agency or instrumentality of a foreign state.

As discussed in more detail below, the meaning of these terms can 

be elusive and somewhat confusing.

In most circumstances, political subdivisions are readily equated with the state (or government). To continue the example above, 

a suit against one or more of China’s twenty-three provinces, five 

autonomous regions, or four municipalities would be treated the 

same as a suit against the state or government. However, if the defendant is an “agency or instrumentality” (such as the National 
II. Purpose, Scope, and Rules of Application

7

Bauxite Trading Company of China), the statute’s rules for “agencies and instrumentalities” would apply. This important distinction 

between the sovereign itself and its separate agencies and instrumentalities is reflected throughout the FSIA and has concrete legal 

consequences, including those with respect to service of process, 

venue, punitive damages, attachment, and execution.

The U.S. Supreme Court recently held that the FSIA does not 

apply to suits against individual foreign officials in their personal 

capacity.

9 This issue is also addressed in Part IV.C infra.

C. Basic Rules of Application

The basic rule, stated in 28 U.S.C. § 1604, is the following:

Subject to existing international agreements to which the United States 

is a party at the time of enactment of this Act a foreign state is immune 

from suit in any civil action in any court of the United States unless, 

and to the extent that, one of the exceptions set forth in §§ 1605–1607 

applies.10

In other words, there is a statutory presumption in favor of immunity for entities that meet the definition of “foreign state.” The 

specific exceptions in 28 U.S.C. §§ 1605–1607 are discussed in Part 

V infra. It is useful to keep in mind several other essential principles and distinctions.

 

9. Samantar v. Yousuf, 560 U.S. 305 (2010).

10. See also Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Because immunity under the FSIA is expressly made “[s]ubject to existing international 

agreements to which the United States [was] a party at the time of” the statute’s 

enactment, immunity may in rare cases also be based in international agreements to which the United States was a party in 1976, to the extent they conflict 

with the statute’s immunity provisions. See, e.g., Moore v. United Kingdom, 384 

F.3d 1079 (9th Cir. 2004) (discussing NATO Status of Forces Agreement); 767 

Third Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 F.2d 295 (2d 

Cir. 1993) (discussing UN Charter, UN Headquarters Agreement, Convention 

on Privileges and Immunities of the United Nations, and Vienna Convention on 

Diplomatic Relations). Later-in-time treaties, such as bilateral investment treaties, are clearly excluded. See, e.g., S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 

99, 114–15 (D.D.C. 2012). 
Foreign Sovereign Immunities Act

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1. Exclusivity

In Argentine Republic v. Amerada Hess Shipping Corp., the U.S. Supreme Court held that “the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court . . . . ”11 In so 

doing, the Court rejected the argument that preexisting jurisdictional provisions (including the Alien Tort Statute, 28 U.S.C.

§ 1350, and general admiralty and maritime jurisdictional statutes) 

authorized alternative and independent bases for suit against foreign states for violations of international law. Thus, if the defendant qualifies as a “foreign state,” the suit must be adjudicated under the FSIA.

2. Retroactivity

The statute applies regardless of whether the conduct that is the 

subject of the suit occurred before or after the FSIA was enacted.12

3. Treaty exception

The FSIA is subject to preexisting international agreements in force 

when the statute was enacted, to the extent there is an express conflict between its terms and the agreement in question.13

4. Other types of immunity

Foreign sovereign immunity differs from, but is sometimes confused with, head of state immunity as well as diplomatic and consular immunity. In U.S. law, head of state immunity arises from 

rules of customary international law and applies to individual 

heads of state and government and certain other individuals (such 

 

11. 488 U.S. 428, 439 (1989).

12. Republic of Austria v. Altmann, 541 U.S. 677 (2004). Writing for the 

majority, Justice Stevens said that “Congress’ purposes in enacting such a comprehensive jurisdictional scheme would be frustrated if, in postenactment cases 

concerning preenactment conduct, courts were to continue to follow the same 

ambiguous and politically charged ‘standards’ that the FSIA replaced.” Id. at 699.

13. Moore v. United Kingdom, 384 F.3d 1079 (9th Cir. 2004); de Csepel v. 

Republic of Hungary, 714 F.3d 591 (D.C. Cir. 2013).
II. Purpose, Scope, and Rules of Application

9

as foreign ministers).14 Former heads of foreign states are entitled 

to a more limited form of immunity.15 By contrast, diplomatic and 

consular immunities are based on treaty law and apply to individual representatives of foreign governments (e.g., ambassadors, embassy officials, consuls) who have been duly accredited to the Department of State.16

The immunities of most international organizations in the 

United States are governed by separate instruments.17 International 

organizations themselves will not meet the definition of a “foreign 

state,” and the immunities they enjoy in U.S. law typically flow either from a relevant treaty obligation (such as the Convention on 

 

14. See, e.g., Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004); Manoharan v. Rajapaksa, 845 F. Supp. 2d 260 (D.D.C. 2012) (“State Department’s 

Suggestion of Immunity is conclusive and not subject to judicial review”); Smith 

v. Ghana Commercial Bank, Civ. No. 10-4655 (DWF) (JJK), 2012 WL 2930462, 

at *5–11 (D. Minn. June 18, 2012) (head of state and foreign official immunity in 

absence of suggestion of immunity). Cf. Tachiona v. United States, 386 F.3d 205 

(2d Cir. 2004); Habyarimana v. Kagame, 821 F. Supp. 2d 1244 (W.D. Okla. 

2011). Along with heads of states and governments, members of their immediate 

family and accompanying “entourage” may also be covered. Hazel Fox & Philippa Webb, The Law of State Immunity (3d ed. 2013), at 540–41.

15. See, e.g., Giraldo v. Drummond Co., 808 F. Supp. 2d 247 (D.D.C. 2011). 

16. See, e.g., Gomes v. ANGOP Angola Press Agency, No. 11-CV-0580 (DLI) 

(JO), 2012 WL 3637453, at *8–10 (E.D.N.Y. Aug. 22, 2012) (diplomatic immunity); Politis v. Gavriil, Civ. Action No. H-08-2988, 2008 WL 4966914, at *5–6

(S.D. Tex. Nov. 19, 2008) (consular immunity). Immunity depends in the first 

instance on certification by the executive branch that the individual is so entitled 

as an accredited diplomat or consular officer.

17. Including (but not limited to) the International Organizations Immunities Act, 22 U.S.C. § 288(a)–(l). See, e.g., Mendaro v. World Bank, 717 F.2d 610 

(D.C. Cir. 1983); Broadbent v. Org. of Am. States, 628 F.2d 27 (D.C. Cir. 1980). 

Questions concerning the status of the United Nations require reference, inter 

alia, to the United Nations Participation Act, 22 U.S.C. § 287 (2011), the 1947 

UN Headquarters Agreement, 22 U.S.C. § 287 note (2011), and the Convention 

on Privileges and Immunities of the United Nations, opened for signature Feb. 13, 

1946, 21 U.S.T. 1418, T.I.A.S. No. 6900 (entered into force with respect to the 

United States Apr. 29, 1970).
Foreign Sovereign Immunities Act

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Privileges and Immunities of the United Nations) or from the International Organizations Immunities Act, not from the FSIA.18

Foreign-owned works of art on loan to U.S. museums are generally covered by a separate statute, the Immunity from Seizure Act 

(22 U.S.C. § 2495), but occasionally have been the subject of actions under the “expropriation” exception to the FSIA.19

5. Act of state

Foreign sovereign immunity is sometimes confused by litigants 

with the “act of state” doctrine. Under that judicially fashioned 

doctrine, U.S. courts do not “sit in judgment on the validity of the 

acts” of another government performed under its law and within 

its own territory.20 However, the U.S. Supreme Court has held that 

“act of state” issues “only arise when a court must decide—that is, 

when the outcome of the case turns upon—the effect of official action by a foreign sovereign. When that question is not in the case, 

neither is the act of state doctrine.”21

 

18. See Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 

F.3d 916, 922 n.9 (11th Cir. 2003) (FSIA held inapplicable to OPEC because it is 

not a foreign state or political subdivision in its own right and, while its members are sovereign nation states, it is neither a governmental unit nor a subdivision). Cf. European Cmty. v. RJR Nabisco, Inc., 814 F. Supp. 2d 189 (E.D.N.Y. 

2011) (the European Community is neither a “foreign state,” a “political subdivision of a foreign state,” nor an “agency or instrumentality of a foreign state”). 

For the U.S. government’s view that the EC is an agency or instrumentality and 

thus covered by the FSIA, see its brief amicus curiae, 2011 WL 4734329 (2d Cir. 

Oct. 5, 2011). The Convention on Privileges and Immunities of the United Nations, opened for signature Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. No. 6900 (entered into force with respect to the United States Apr. 29, 1970). The International Organizations Immunities Act (IOIA), Dec. 29, 1945, ch. 652, Title I, 59 

Stat. 669 (codified as amended at 22 U.S.C. §§ 288–288l).

19. See, e.g., Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934 

(D.C. Cir. 2008); Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 

2005).

20. Ricaud v. Am. Metal Co., 246 U.S. 304, 309–10 (1918). This doctrine is 

of course subject to various exceptions. 

21. W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 406 

(1990). Thus, in In re Refined Petroleum Prods. Antitrust Litig., 649 F. Supp. 2d 
II. Purpose, Scope, and Rules of Application

11

6. Political question

Foreign sovereign immunity must also be distinguished from the 

“political question” doctrine, which can operate to preclude judicial review of claims that call into question the decisions of the legislative and executive branches in matters of foreign policy or national security constitutionally committed to their discretion.22 At 

the same time, actions against foreign sovereigns in U.S. courts can 

“raise sensitive issues concerning the foreign relations of the United 

States,”23 and because the U.S. government has a significant interest in the proper application of the FSIA, its views can be and have 

been sought in appropriate cases.24

 

572 (S.D. Tex. 2009), the court dismissed antitrust claims challenging crude oil 

production decisions of individual OPEC Member States and the Russian Federation because to adjudicate such claims would have required it to determine the 

legality of public acts taken by the sovereign members of OPEC within their sovereign territories. See also Provincial Gov’t of Marinduque v. Placer Dome, Inc.,

582 F.3d 1083 (9th Cir. 2009).

22. Baker v. Carr, 369 U.S. 186 (1962); Schneider v. Kissinger, 412 F.3d 190 

(D.C. Cir. 2005); 767 Third Ave. Assocs. v. Consulate Gen. of Socialist Fed. Republic of Yugoslavia, 218 F.3d 152 (2d Cir. 2000). 

23. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 (1983).

24. See, e.g., Figueiredo Ferraz e Engenharia de Projecto Ltda. v. Republic of 

Peru, 665 F.3d 384, 388 (2d Cir. 2011); Millen Indus., Inc. v. Coordination 

Council, 855 F.2d 879, 881–82 (D.C. Cir. 1988).

13

III. Jurisdictional, Procedural, and Evidentiary 

Issues

A. Subject-Matter Jurisdiction

Under 28 U.S.C. § 1330(a), federal district courts have 

original jurisdiction without regard to amount in controversy of any 

nonjury civil action against a foreign state as defined in section 1603(a) 

of this title as to any claim for relief in personam with respect to which 

the foreign state is not entitled to immunity either under sections 1605–

1607 of this title or under any applicable international agreement.25

Accordingly, in order to ascertain whether it has subject-matter 

jurisdiction, a court must first determine whether the defendant 

meets the definition of “foreign state” in § 1603(a) and then 

whether the claim falls within one of the stated exceptions to immunity under § 1605(a) or § 1605A. If the defendant qualifies and 

no exception applies, it is immune and the court lacks both personal and subject-matter jurisdiction (even if proper service has 

been made). In contrast, if the claim falls within an exception to 

immunity (and if proper service has been made), the court has personal and subject-matter jurisdiction. 

This unusual formula—conditioning subject-matter jurisdiction on the absence of immunity—creates some unique consequences, the most important of which is that it imposes an obligation on the court to determine the question of immunity as a first 

order of business in all cases. “[E]ven if the foreign state does not 

enter an appearance to assert an immunity defense, a District 

Court still must determine that immunity is unavailable under this 

Act.”26 At the same time, because immunity can be waived (see discussion of § 1605(a)(1) in Part V.A infra), a foreign state defendant 

in effect has the ability to provide the court with “subject-matter 

jurisdiction” it might otherwise lack in the given case. 

 

25. 28 U.S.C. § 1330(a) (2010).

26. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 495 n.20 (1983).
Foreign Sovereign Immunities Act

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B. Personal Jurisdiction

Under the statute, subject-matter jurisdiction together with valid 

service equals personal jurisdiction. As stated in § 1330(b), 

“[p]ersonal jurisdiction over a foreign state shall exist as to every 

claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 

of this title.”27

Section 1608 prescribes the exclusive means of service on both 

foreign states and their agencies and instrumentalities.28 These provisions are mandatory, but alternatives are specified in descending 

order of preference. Under § 1608(d), both states and their agencies and instrumentalities have sixty days from date of service to 

answer or respond to a complaint. In practice, however, effecting 

(and establishing proof of) service can be time-consuming and 

fraught with delays.

1. Foreign states and political subdivisions

Service on a foreign state or its political subdivisions must follow the 

requirements of § 1608(a). That section offers four alternative 

methods, in a descending hierarchy:

1. pursuant to a special arrangement between the plaintiff and 

the defendant state (for example, a contractual provision);

or 

2. under an international convention, such as the Hague Service Convention; or

3. if not possible under the first two, then the clerk of court 

may send the summons, complaint, and notice of suit by any 

form of mail requiring a signed receipt to the relevant foreign ministry; or 

 

27. 28 U.S.C. § 1330(b) (2010).

28. Implementing regulations can be found at 22 C.F.R. § 93 (2011). See also

Fed. R. Civ. P. 4(j).
III. Jurisdictional, Procedural, and Evidentiary Issues

15

4. if service cannot be made under (3) above within thirty days, 

then at the plaintiff’s request from the clerk to the Department of State for transmission via diplomatic channels.29

The third and fourth alternatives require the summons, complaint,

and notice of suit to be translated into the foreign state’s official 

language.30

2. Agencies and instrumentalities

By contrast, service on agencies and instrumentalities is governed by

§ 1608(b) and may be made

1. under any special arrangement between the parties; or

2. by personal delivery to an officer or authorized agent in the 

United States; or

3. if it cannot be made under (1) or (2) above, then by delivery 

of a copy of the summons and complaint as directed by letter rogatory, or by any form of mail requiring signed receipt, 

or “as directed by order of the court consistent with the law 

of the place where service is to be made.”31

 

29. See Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39 (D.D.C. 

2008) (diplomatic channels). Where service on a foreign state is made by mail 

under § 1608(a)(3), it must actually be sent to the head of the ministry of foreign 

affairs of the foreign state concerned. Attempted personal service on an embassy 

of a foreign state, foreign ambassador, or UN mission does not comply with the 

statutory requirements. Ellenbogen v. Canadian Embassy, No. Civ.A.05-

01553JDB, 2005 WL 3211428, at *2–3 (D.D.C. Nov. 9, 2005); Lewis & Kennedy, 

Inc. v. Permanent Mission of the Republic of Botswana, No. 05 Civ. 2591(HB), 

2005 WL 1621342, at *4–5 (S.D.N.Y. July 12, 2005); Liu v. Naomi, 208 F.3d 203 

(2d Cir. 2000) (unpublished opinion) (personal service upon the consul general 

of a foreign state is not effective as service of process upon that foreign state).

Service by U.S. diplomatic channels is governed by 22 C.F.R. § 93 (2011). Additional information on service under the FSIA is available on the Department of 

State’s website, http://travel.state.gov/law/judicial/judicial_693.html.

30. 28 U.S.C. § 1608(a)(3) and (4).

31. Id. § 1608(b).
Foreign Sovereign Immunities Act

16

It should be noted that a number of foreign states do not permit 

service by mail (including under the Hague Service Convention).32

The “state vs. agency or instrumentality” distinction has another consequence regarding service. Some courts have held that the 

requirements of § 1608(a) must be strictly complied with, while 

substantial compliance will suffice under § 1608(b).33

3. Minimum contacts

In Republic of Argentina v. Weltover, the U.S. Supreme Court assumed (without deciding) that foreign states could be “persons” 

for purposes of due process protections.34 Since then, several circuits have held that foreign states are not persons within the meaning of the Fifth Amendment and are thus not entitled to due process protections with respect to the requirement for “minimum 

contacts” with the jurisdiction.35 As the D.C. Circuit put it, as long 

as subject-matter jurisdiction exists under the FSIA and service was 

proper, there is no “need to examine whether [a foreign state defendant] has the minimum contacts that would otherwise be a prerequisite for personal jurisdiction under the Due Process Clause of 

the Fifth Amendment.”36

Whether the same conclusion applies to “political subdivisions” 

and “agencies and instrumentalities” remains an open and debated 

 

32. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, http://hcch.e-vision.nl/

index_en.php?act=conventions.text&cid=17. On service abroad generally, see

U.S. Department of State, Judicial Assistance—Service of Process Abroad, 

http://travel.state.gov/law/judicial/judicial_2513.html. 

33. See, e.g., Magness v. Russian Fed’n, 247 F.3d 609 (5th Cir. 2001); Agudas 

Chasidel Chabad of U.S. v. Russian Fed’n, 798 F. Supp. 2d 260 (D.D.C. 2011); 

Hilaturas Miel, S.L. v. Republic of Iraq, 573 F. Supp. 2d 781 (S.D.N.Y. 2008); 

O’Bryan v. Holy See, 490 F. Supp. 2d 826 (W.D. Ky. 2005).

34. 504 U.S. 607, 619 (1992).

35. See Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393 (2d Cir. 2009); Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 95 (D.C. Cir. 2002).

36. I.T. Consultants, Inc. v. Islamic Republic of Pakistan, 351 F.3d 1184, 

1191 (D.C. Cir. 2003).
III. Jurisdictional, Procedural, and Evidentiary Issues

17

issue. In the D.C. Circuit, the question turns on whether the state 

in question exercised sufficient or “plenary” control over the entity 

in question to make it an “agent of the [s]tate.”37

For example, in TMR Energy Ltd., the court found that the State 

of Ukraine had “plenary control” over the State Property Fund 

(SPF) of Ukraine because the regulations creating the SPF stated 

that “[t]he [SPF] is a body of the State which implements national 

policies in the area of privatization” and “[i]n the course of its activities, the [SPF] shall be subordinated and accountable to the Supreme Rada . . . . The activities of the [SPF] shall be governed by 

the Constitution and legislative acts of Ukraine, the Cabinet of 

Ministers of Ukraine and these Regulations.”38 The court noted 

that “the SPF’s chairman [was] ‘appointed and discharged by the 

President of Ukraine subject to the consent of the Supreme Rada,’ 

and the members of its board must be ‘approved by the Presidium 

of the Supreme Rada.’ ” The court also found it significant that the 

SPF’s budget was funded by the State of Ukraine. Considering these 

“structural features,” the court held:

[I]t is apparent that the SPF is an agent of the State, barely distinguishable for an executive department of the government, and should not be 

treated as an independent juridical entity. Therefore, the SPF—like its 

principal, the State of Ukraine—is not a “person” for purposes of the 

due process clause and cannot invoke the minimum contacts test to 

avoid the personal jurisdiction of the district court.39

In Valore, the U.S. District Court for the District of Columbia 

applied the logic of TMR Energy Ltd. to political subdivisions. Noting that the Iranian Ministry of Information and Security (MOIS)

“operates as the foreign and domestic intelligence agency of Iran, is 

funded by Iran and operates under the guidance of Iranian Supreme Leader Ayatollah Ali Khamenei,” the court held that Iran 

exerts “plenary control” over MOIS and, therefore, MOIS is not a 

 

37. TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 301–02 

(D.C. Cir. 2005); Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 71 n.13 

(D.D.C. 2010).

38. TMR Energy Ltd., 411 F.3d at 302.

39. Id.
Foreign Sovereign Immunities Act

18

“person” for the purpose of the Due Process Clause of the Fifth 

Amendment.40

C. Venue

Venue is governed by 28 U.S.C. § 1391(f), which provides that civil 

actions against a “foreign state” may be brought

(1) in any judicial district in which a substantial part of the events or 

omissions giving rise to the claim occurred, or a substantial part of 

property that is the subject of the action is situated; 

(2) in any judicial district in which the vessel or cargo of a foreign state 

is situated, if the claim is asserted under section 1605(b) of this title; 

(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought 

against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or 

(4) in the United States District Court for the District of Columbia if 

the action is brought against a foreign state or political subdivision 

thereof.41

D. Applicable Law

An action against a foreign sovereign arises under federal law for 

purposes of Article III jurisdiction.42 Jurisdiction and procedure are 

governed by the FSIA. However, for most purposes, the statute itself does not provide the substantive law, but provides, in 28 U.S.C.

§ 1606, that where no immunity exists, foreign states “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Thus, state substantive law is controlling on most issues of liability in FSIA cases.43 The exceptions 

 

40. Valore, 700 F. Supp. 2d at 71.

41. 28 U.S.C. § 1391(f) (2010).

42. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (1983).

43. See First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba,

462 U.S. 611, 620, 622 n.11 (1983) [hereinafter Bancec] (“The language and history of the FSIA clearly establish that the Act was not intended to affect the substantive law determining the liability of a foreign state or instrumentality, or the 

attribution of liability among instrumentalities of a foreign state. . . . [W]here 
III. Jurisdictional, Procedural, and Evidentiary Issues

19

are in the area of expropriations (under § 1605(a)(3), a court must 

determine whether the “taking” occurred in violation of international law) and state-sponsored terrorism (under new § 1605A, the 

statute provides a federal cause of action).44

However, there appears to be a circuit split on the question of 

which choice-of-law rule should be used by federal courts in deciding which substantive state law to apply in a suit under the FSIA. 

The Ninth Circuit applies the federal rule,45 while the Second, 

Fifth, and Sixth Circuits have applied the choice-of-law rule of the 

state in which the federal court sits.46

 

state law provides a rule of liability governing private individuals, the FSIA requires the application of that rule to foreign states in like circumstances.”).

44. See the discussions of §§ 1605(a)(3) and 1605A in Parts V.C and V.F, 

infra, and in the Addendum in Part VII infra. In reference to international law 

generally, see Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 

1294–95 (11th Cir. 1999): “We may look to international law as a guide to the 

meaning of the FSIA’s provisions. We find the FSIA particularly amenable to 

interpretation in light of the law of nations for two reasons. First, Congress intended international law to inform the courts in their reading of the statute’s 

provisions. . . . Second, the FSIA’s purposes included ‘promot[ing] harmonious 

international relations. . . .’” The United Nations has adopted a convention incorporating the “restrictive” view of sovereign immunity, but the treaty is not yet 

in force (and the United States has not yet signed, much less ratified, it). See

United Nations Convention on the Jurisdictional Immunities of States and Their 

Property, G.A. Res. 59/38, Annex, U.N. Doc. A/RES/59/38 (Dec. 2, 2004), 

http://untreaty.un.org/ilc/texts/instruments/english/conventions/4_1_2004.pdf.

45. See Liu v. Republic of China, 892 F.2d 1419, 1425–26 (9th Cir. 1989); 

Chuidian v. Philippine Nat’l Bank, 976 F.2d 561, 564 (9th Cir. 1992), abrogated 

on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010). 

46. See Barkanic v. Gen. Admin. of Civil Aviation of the People’s Republic of 

China, 923 F.2d 957, 960 (2d Cir. 1991); O’Bryan v. Holy See, 556 F.3d 361, 381 

(6th Cir. 2009); Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of Republic of Venezuela, 575 F.3d 491, 498 (5th Cir. 2009). 
Foreign Sovereign Immunities Act

20

E. Procedural and Evidentiary Issues

Because the issue is jurisdictional, a federal court must always inquire at the outset whether the defendant is entitled to immunity.47

In most cases, the issue will arise on motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), although sometimes it may 

be dealt with under Federal Rule of Civil Procedure 12(b)(6) as a 

failure to state a claim upon which relief can be granted. It may also 

be presented on motion for summary judgment under Federal Rule 

of Civil Procedure 56, on the basis that no genuine dispute exists as 

to any material fact and the movant is entitled to judgment as a 

matter of law. 

A defendant moving for dismissal for lack of subject-matter 

jurisdiction must present a prima facie case that it is a foreign state 

as that term is defined by the statute. Once the defendant establishes that prima facie case, the burden shifts to the plaintiff to show

claim that one of the exceptions articulated in the FSIA applies.

Nevertheless, the defendant retains the ultimate burden of persuasion to demonstrate, by a preponderance of the evidence, that an 

exception does not apply.48

 

47. Verlinden, 461 U.S. at 493–94 (“At the threshold of every action in a District Court against a foreign state, therefore, the court must satisfy itself that one 

of the exceptions applies—and in doing so it must apply the detailed federal law 

standards set forth in the Act.”).

48. See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 80 (2d 

Cir. 2008), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305 

(2010) (on motion to dismiss for lack of subject-matter jurisdiction, defendant 

must present a prima facie case that it is a foreign sovereign; plaintiff then bears 

the burden of showing that an exception applies; but the “ultimate burden of 

persuasion remains with the alleged foreign sovereign.”); see also O’Bryan, 556 

F.3d at 361; Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 847 (5th Cir. 

2000); Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 

(2d Cir. 2000); RSM Prod. Corp. v. Fridman, 643 F. Supp. 2d 382, 393 (S.D.N.Y. 

2009). For more recent discussion, see S.K. Innovation, Inc. v. Finpol, 854 F. 

Supp. 2d 99, 107–08 (D.D.C. 2012); Universal Trading & Inv. Co. v. Bureau for 

Representing Ukrainian Interests, 898 F. Supp. 2d 301, 309–10 (D. Mass. 2012), 

aff’d, 727 F.3d 10 (1st Cir. 2013).
III. Jurisdictional, Procedural, and Evidentiary Issues

21

1. Jurisdictional discovery

The complaint itself should contain sufficient factual allegations for 

this purpose.49 The court must review those allegations as well as 

any undisputed facts presented by the parties. While the FSIA aims 

to protect foreign sovereigns and their agencies and instrumentalities from not only liability but also discovery and other burdens of 

litigation, limited jurisdictional discovery may be allowed.50

The most widely stated standard specifies that discovery must 

be ordered “circumspectly and only to verify allegations of specific 

facts crucial to the immunity determination.”51 Absent specific 

 

49. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009). See also de Csepel v. 

Republic of Hungary, 808 F. Supp. 2d 113, 127 (D.D.C. 2011), aff’d in part, 714 

F.3d 591 (D.C. Cir. 2013) (“To the extent that jurisdiction depends on factual 

propositions independent of the merits, the plaintiff must, on a challenge by the 

defendant, present adequate supporting evidence.”).

50. Rubin v. Islamic Republic of Iran, 637 F.3d 783, 795 (7th Cir. 2011)

(“[I]t is widely recognized that the FSIA’s immunity provisions aim to protect 

foreign sovereigns from the burdens of litigation, including the cost and aggravation of discovery.”); Reiss v. Société Centrale du Groupe des Assurance Nationales, 235 F.3d 738, 748 (2d Cir. 2000) (“We think it essential for the district court 

to afford the parties the opportunity to present evidentiary material at a hearing 

on the question of FSIA jurisdiction. The district court should afford broad latitude to both sides in this regard and resolve disputed factual matters by issuing 

findings of fact.”).

51. Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534, 537 n.17 (5th Cir. 

1992) (“A necessary prerequisite to an order for limited discovery is a district 

court’s clear understanding of the plaintiff’s claims against a sovereign entity . . .

[and] discovery may be used to confirm specific facts that have been pleaded as a 

basis for enforcing the commercial activities exception, but it cannot supplant 

the pleader’s duty to state those facts at the outset of the case.”). See also Aero 

Union Corp. v. Aircraft Deconstructors Int’l LLC, No. 1:11-cv-00484-JAW, 2012 

WL 3679627, at *8 (D. Maine Aug. 24, 2012); Doe v. Bin Laden, 580 F. Supp. 2d 

93, 96 (D.D.C. 2008); Intelsat Global Sales & Mktg., Ltd. v. Cmty. of Yugoslav 

Posts, 534 F. Supp. 2d 32, 34 (D.D.C. 2008); Gabay v. Mostazafan Found. of 

Iran, 151 F.R.D. 250, 257 (S.D.N.Y. 1993).
Foreign Sovereign Immunities Act

22

facts providing a “reasonable basis for assuming jurisdiction,” jurisdictional discovery may be refused.52

Courts generally recognize two competing interests here: on the 

one hand, allowing plaintiffs sufficient discovery to establish that 

their causes of action fall within the statutory exceptions to immunity and, on the other hand, protecting the defendants’ legitimate claim to immunity, including from discovery. Thus, 

jurisdictional discovery should be permitted only if it is possible that 

the plaintiff could demonstrate the requisite jurisdictional facts sufficient to constitute a basis for jurisdiction and it should not be allowed 

when discovery would be futile [and] . . . only if the plaintiff presents 

non-conclusory allegations that, if supplemented with additional information, will materially affect the court’s analysis with regard to the 

applicability of the FSIA.53

Whether the FSIA applies to discovery requests directed at nonparties that may be entitled to immunity is a question of apparent 

first impression. One recent decision authorized issuance of letters 

rogatory to a foreign court requesting production of documentary 

and testimonial evidence from a foreign governmental instrumentality despite the latter’s claims of immunity.54

Note that § 1605(g) provides special rules regarding discovery

requests against the U.S. government in an action filed under the 

state-sponsored terrorism exception in § 1605A. These rules are 

discussed in the terrorism addendum in Part VII infra. In brief,

§ 1605(g) requires the court, upon request of the Attorney General, 

to stay 

any request, demand, or order for discovery on the United States that 

the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as 

 

52. See, e.g., Orkin v. Swiss Confederation, 444 F. App’x 469, 471 (2d Cir. 

2011). 

53. Peterson v. Islamic Republic of Iran, 563 F. Supp. 2d 268, 274 (D.D.C. 

2008) (internal quotations and citations omitted). See also Kelly v. Syria Shell 

Petroleum Dev. B.V., 213 F.3d 841, 849 (5th Cir. 2000).

54. Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp. 2d 769

(S.D.N.Y. 2012).
III. Jurisdictional, Procedural, and Evidentiary Issues

23

the Attorney General advises the court that such request, demand, or 

order will no longer so interfere.55

In addition to various time limits and other limitations,

§ 1605(g)(4) states that “a stay of discovery under this subsection 

shall constitute a bar to the granting of a motion to dismiss under 

rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure.”56

2. Interpleader

In Republic of Philippines v. Pimentel, the U.S. Supreme Court considered the operation of Federal Rule of Civil Procedure 19 in the 

context of foreign sovereign immunity.57 Because “[g]iving full effect to sovereign immunity promotes the comity interests that have 

contributed to the development of the immunity doctrine,” the 

Court held that where sovereign immunity has been asserted by 

parties whose participation is required by Rule 19(a), the entire action must be dismissed unless the sovereign’s substantive defenses 

are frivolous or its interests would not be prejudiced if the litigation proceeded without its participation.58

3. Removal

Few FSIA cases are filed in state courts. Notably, 28 U.S.C.

§ 1441(d) gives foreign states (and their agencies and instrumentalities) the right to remove to federal court any action filed against 

them in a state court. Removal is to the district court “for the district and division embracing the place where such action is pending.”59 If the petitioner does not qualify as a “foreign state,” the 

federal court may order the case remanded. Such orders are subject 

to substantially limited appellate review under 28 U.S.C.

§ 1447(d).

60

 

55. 28 U.S.C. § 1605(g) (2010).

56. Id.

57. 553 U.S. 851 (2008).

58. Id. at 866.

59. 28 U.S.C. § 1441(d) (2010).

60. Cf. Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 237 

(2007).
Foreign Sovereign Immunities Act

24

4. Non-jury trial

Foreign states (and their agencies and instrumentalities) have the 

right to a non-jury trial if they so elect. Under § 1441(d), “[u]pon 

removal the action shall be tried by the court without jury.”61

5. Damages

Under 28 U.S.C. § 1606, foreign states themselves are not liable for 

punitive damages, but this limitation does not apply to agencies 

and instrumentalities.62

6. Default

Title 28 U.S.C. § 1608(e) provides that a court may not enter 

judgment by default against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the 

court.”63 Thus, even if a foreign state does not enter an appearance, 

the court must determine that an exception to immunity applies 

and that an adequate legal and factual basis exists for the plaintiff’s 

claims.64 A copy of the proposed default judgment must first be 

 

61. A waiver of immunity is not a waiver of immunity from trial by jury. See

Aboeid v. Saudi Arabian Airlines, Inc., No. CV-10-2518 (SJ) (VVP), 2011 WL 

2222140, at *3 (E.D.N.Y. June 1, 2011).

62. A different rule applies in actions for personal injury or death brought 

under the state-sponsored terrorism exception, 28 U.S.C. § 1605A (2008), where 

punitive damages as well as economic damages, solatium, and compensation for 

pain and suffering may be awarded.

63. 28 U.S.C. § 1608(e) (2010).

64. See Jerez v. Republic of Cuba, 777 F. Supp. 2d 6, 18–19 (D.D.C. 2011).

Cf. Hill v. Republic of Iraq, 328 F.3d 680, 684–85 (D.C. Cir. 2003) (“[T]o recover 

damages a FSIA plaintiff must prove that the projected consequences are ‘reasonably certain’ (i.e., more likely than not) to occur, and must prove the amount 

of damages by a ‘reasonable estimate’ under this circuit’s application of [Story 

Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931)]. This is 

consistent with § 1606 and not inconsistent with § 1608(e), which is silent on 

damages, and assures that a FSIA plaintiff’s recovery of damages has some proportionality to the harm proved. It is fair to hold FSIA default-judgment winners 

to the same preponderance standard of damages as other default-judgment winners with regard to future damages, as at the damages stage the FSIA plaintiff is 
III. Jurisdictional, Procedural, and Evidentiary Issues

25

sent to the foreign state or political subdivision in accordance with

§ 1608(a).65

7. Appeal

While denial of a motion to dismiss for lack of personal or subjectmatter jurisdiction is generally not subject to interlocutory review, 

a majority of the circuits have expressly held that denial of a claim 

of immunity is immediately appealable under the collateral order 

doctrine in order to prevent parties from having to litigate claims 

over which the court lacks jurisdiction.66 An order granting a motion to dismiss on the basis of immunity is a final order from which 

an appeal may be taken under 28 U.S.C. § 1291.

 

no longer handicapped by the defendant’s absence and proof of future damages 

is likely in the plaintiff’s control.”).

65. Under § 1608(e), service must be made on all parties, and an opportunity to respond given, before entry of default; service on the state alone is insufficient when agency or instrumentality is also named. Murphy v. Islamic Republic 

of Iran, 778 F. Supp. 2d 70 (D.D.C. 2011). 

66. See, e.g., Abelesz v. OTP Bank, 692 F.3d 661 (7th Cir. 2012); Cassirer v. 

Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010); Abi Jaoudi & Ajar Trading Co. 

v. Cigna Worldwide Ins. Co., 391 F. App’x 173 (3d Cir. 2010); Hansen v. PT 

Bank Negara Indonesia (Persero), TBK, 601 F.3d 1059 (10th Cir. 2010); La Reunion Aerienne v. Socialist People’s Libyan Arab Jamahirya, 533 F.3d 837 (D.C. 

Cir. 2008); Filler v. Hanvit Bank, 378 F.3d 213 (2d Cir. 2004). Under the collateral order doctrine, appellate review is restricted to legal issues, but the jurisdictional issue is considered de novo because, as stated by the Sixth Circuit in 

Gould, Inc. v. Pechniney Ugine Kulhmann, 853 F.2d 445, 451 (6th Cir. 1988), deferring the question would “frustrate the significance and benefit of entitlement 

to immunity from suit.” See also Brief for the United States as Amicus Curiae

Supporting Defendant-Appellants, in Licea v. Curacao, Nos. 11-15909, 11-

15910, 11-15944, 2012 WL 3264655, at *8–14 (11th Cir. June 21, 2012).

27

IV. Entities and Persons Entitled to Immunity

In virtually every litigation under the FSIA, the first issue is whether the entity claiming protection of the statute qualifies as a “foreign state.” In this regard, the statute makes several important definitional distinctions.

Under 28 U.S.C. § 1603(a), the term “foreign state” includes 

(1) a political subdivision of a foreign state and (2) an agency or instrumentality of a foreign state. This fundamental distinction is reflected throughout the FSIA and has concrete legal consequences, 

since the statute provides for differing treatment of the two categories in various ways, including with respect to service of process, 

venue, punitive damages, execution, and attachment. 

In practice, however, the distinction to be made is almost always between a foreign state proper (including its integral governmental components and political subdivisions) and its separate 

agencies and instrumentalities.

A. Foreign States, Components, and Political Subdivisions

Despite the practical importance of the basic distinction, neither 

“foreign state” nor “political subdivision” is actually defined by the 

statute.

1. Foreign state or government

Clearly the FSIA applies to a suit against the sovereign entity itself, 

whatever it is called (the Commonwealth of W, the Republic of X, 

the Kingdom of Y, the State of Z, or any other independent country, nation, union, principality, confederation, etc.), as well as to its 

government (which may be a named defendant even if not a separate juridical entity).67

 

67. Not every entity aspiring to “statehood” qualifies (for example, the

“Principality of Seborga”). One possibly useful reference is the CIA’s World 

Factbook, https://www.cia.gov/library/publications/the-world-factbook. The Office of the Legal Adviser at the U.S. Department of State is another. Generally 

speaking, the term “state,” as used in international law, denotes “an entity that 
Foreign Sovereign Immunities Act

28

Formal diplomatic or political recognition of the foreign state 

or government by the United States is not a statutory prerequisite. 

However, in some circumstances, the fact that the U.S. Government has given formal recognition to a named defendant as a “foreign state” has been found relevant.

68 Full membership in the United Nations can also be a reliable indicator that an entity is a foreign 

state. However, if an entity has only “observer status” or lesser 

rights of participation, that would not necessarily be conclusive 

proof of lack of “statehood.” Some cases require difficult factual 

determinations.69

2. Internal government components

The term “foreign state” encompasses not only the national government but also internal governmental or administrative units,

such as provinces, prefectures and parishes, cantons and counties, 

governorates, states, autonomous republics or regions, capital districts, territories, dependencies, and possessions. As a matter of international law, such units are a part of the “state” just as Nevada 

or the District of Columbia is rightly considered part of the United 

States of America. Such entities may or may not have a separate 

legal personality or status under their own domestic law, but for 

purposes of the FSIA they are best considered as integral parts of 

their parent state as a whole. In Rong v. Liaoning Provincial Government, for example, the defendant (“a sovereign political subdivision of China”) was properly treated as the foreign state for FSIA 

purposes.70

 

has a defined territory and a permanent population, under the control of its own 

government, and that engages in, or has the capacity to engage in, formal relations with other such entities.” Restatement (Third) of Foreign Relations Law of 

the United States § 201 (1987).

68. See, e.g., O’Bryan v. Holy See, 556 F.3d 361, 372–73 (6th Cir. 2009).

69. See, e.g., Ungar v. Palestine Liberation Org., 402 F.3d 274, 292 (1st Cir. 

2005) (“[T]he defendants have not carried their burden of showing that Palestine satisfied the requirements for statehood under the applicable principles of 

international law at any point in time.”).

70. 362 F. Supp. 2d 83 (D.D.C. 2005).
IV. Entities and Persons Entitled to Immunity

29

3. Government departments and ministries

Main components of a national (or central) government (such as 

ministries of defense, foreign affairs, finance, commerce, or interior, as well as the armed forces) are also properly considered part of 

the state itself.71 The same is true of central banks.72 Foreign embassies, consulates, and the permanent missions of member states 

to the United Nations, the OAS, or other international organizations in the United States will normally be included within the definition of “foreign state” because they are integral parts of their 

governments and lack separate legal identities and the capacity to 

sue or be sued in their own right.73

 

71. Cf. Ministry of Def. & Support for Armed Forces of the Islamic Republic 

of Iran v. Elahi, 556 U.S. 366, 370 (2009) (describing the ministry “for present 

purposes [as] an inseparable part of the Iranian State”); Wye Oak Tech., Inc. v. 

Republic of Iraq, 666 F.3d 205, 214 (4th Cir. 2011) (“[A] foreign state and its 

armed forces are not legally separate for jurisdictional purposes”); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003) (foreign ministry);

Transaero, Inc. v. La Fuerza Aerea Boliviana, 39 F.3d 148, 153 (D.C. Cir. 1994)

(armed forces); Gomes v. ANGOP, Angola Press Agency, No. 11-CV-0580 (DLI) 

(JO), 2012 WL 3637453, at *11 (E.D.N.Y. Aug. 22, 2012) (ministries); Jerez v. 

Republic of Cuba, 777 F. Supp. 2d 6, 20 (D.D.C. 2011) (armed forces, ministry 

of interior). However, the decisions are not uniform. See, e.g., Magness v. Russian Fed’n, 247 F.3d 609, 613 n.7 (5th Cir. 2001) (Russian Ministry of Culture is 

a “political subdivision” for purposes of service requirements of § 1608). See 

generally Compagnie Noga D’Importation et D’Exportation, S.A. v. Russian 

Fed’n, 361 F.3d 676, 687–90 (2d Cir. 2004).

72. See, e.g., Howland v. Hertz Corp., 431 F. Supp. 2d 1238, 1242 (M.D. Fla. 

2006).

73. USAA Cas. Ins. Co. v. Permanent Mission of the Republic of Namibia, 

681 F.3d 103, 107 (2d Cir. 2012) (“A foreign state’s permanent mission to the 

United Nations is indisputably the ‘embodiment’ of that state.”); cf. Gray v. 

Permanent Mission of the People’s Republic of the Congo, 443 F. Supp. 816, 820 

(S.D.N.Y.), aff’d, 580 F.2d 1044 (2d Cir. 1978).
Foreign Sovereign Immunities Act

30

B. Agencies or Instrumentalities

Title 28 U.S.C. § 1603(b) does provide a definition of the term 

“agency or instrumentality of a foreign state”—if not an entirely 

unambiguous one. The term includes any entity that

1. is a separate legal person, corporate or otherwise; and 

2. either is an organ of a foreign state or political subdivision 

thereof, or a majority of its ownership interest is owned by a 

foreign state or political subdivision thereof; and

3. is neither a citizen of a state of the United States nor created 

under the laws of a third country.74

To qualify under this provision, all entities must meet the first 

and third criteria, as well as one of the two branches of the second 

criterion (“organ or political subdivision” or “majority of state 

ownership”).75

1. Separate legal entity

The FSIA’s legislative history clearly reflects that the term “agency 

or instrumentality” was intended to be interpreted broadly: 

[The] criterion, that the entity be a separate legal person, is intended to 

include a corporation, association, foundation, or any other entity 

which, under the law of the foreign state where it was created, can sue 

or be sued in its own name, contract in its own name or hold property 

in its own name. . . . As a general matter, entities which meet the definition of an “agency or instrumentality of a foreign state” could assume a 

variety of forms, including a state trading corporation, a mining enterprise, a transport organization such as a shipping line or airline, a steel

company, a central bank, an export association, a governmental procurement agency or a department or ministry which acts and is suable 

in its own name.76

 

74. 28 U.S.C. § 1603(b) (2010).

75. See EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 F.3d 

635, 639 (9th Cir. 2003).

76. H.R. Rep. No. 94-1487, at 15–16 (1976), as reprinted in 1976 

U.S.C.C.A.N. 6604, 6614.
IV. Entities and Persons Entitled to Immunity

31

In this regard, the statute reflects a fundamental policy of respecting the distinction between the state itself and its separate creations or appendages. This policy was elucidated in First National 

City Bank v. Banco Para El Comercio Exterior de Cuba,

77 where the 

U.S. Supreme Court noted Congress’s intent that “duly created instrumentalities of a foreign state are to be accorded a presumption 

of independent status.” It also said:

Freely ignoring the separate status of government instrumentalities 

would result in substantial uncertainty over whether an instrumentality’s assets would be diverted to satisfy a claim against the sovereign, and 

might thereby cause third parties to hesitate before extending credit to a 

government instrumentality without the government’s guarantee. As a 

result, the efforts of sovereign nations to structure their governmental 

activities in a manner deemed necessary to promote economic development and efficient administration would surely be frustrated.78

As stated by the district court in Seijas v. Republic of Argentina,

The principal-agent exception of Bancec has generally been characterized as referring to the question of whether the instrumentality is an 

“alter ego” of the sovereign. The alter ego relationship may exist if 

(1) the instrumentality was established to shield the sovereign from liability, (2) the sovereign ignored corporate formalities in running the instrumentality and the sovereign exercised excessive control over the instrumentality, or (3) the sovereign has directed the instrumentality to 

act on its behalf, and the instrumentality has done so. An alter ego finding is not, however, justified merely because the sovereign wholly owns 

the instrumentality or exercises its power as a controlling shareholder.79

 

77. Hereinafter Bancec, 462 U.S. 611 (1983). The opinion contains a description of a “typical governmental instrumentality.” Id. at 626–27. 

78. Id. at 626. As stated in Foremost-McKesson, Inc. v. Islamic Republic of 

Iran, 905 F.2d 438, 440 (D.C. Cir. 1990),

It is not enough to show that various governmental entities or officials represent a majority of the shareholders or constitute a majority of the board 

of directors of the applicable agency or instrumentality; in other words, 

mere involvement by the state in the affairs of an agency or instrumentality 

does not answer the question whether the agency or instrumentality is 

controlled by the state for purposes of FSIA.

79. Seijas v. Republic of Argentina, No. 10 Civ. 4300 (TPG), 2011 WL 

1137942, at *11 (S.D.N.Y. March 28, 2011), aff’d, 502 F. App’x 19 (2d Cir. 2012).
Foreign Sovereign Immunities Act

32

The Court’s reasoning in Bancec was guided by its understanding of the underlying goal of including agencies or instrumentalities in the FSIA. In so doing, Congress intended primarily to focus 

on “public commercial enterprises”—such as state trading corporations created for the purpose of doing business on behalf of the 

state. The different treatment of agencies and instrumentalities (as 

opposed to the state itself) serves two purposes in this regard: (1) it 

acknowledges the importance of separate corporate form (and the 

need to treat such entities as separate from the government itself), 

and (2) it permits the judicial resolution of disputes arising from 

commercial transactions and events for which no immunity is provided.

In Bancec, the specific question was whether the separate instrumentality could be held liable (as an “alter ego”) for the actions 

of the foreign state. Bancec had been created as an official, autonomous credit institution for foreign trade, wholly owned by the 

Cuban government. When it sued in U.S. court to collect on a letter of credit issued in its favor by First National City Bank, the bank 

counterclaimed and asserted a right to set off the value of its assets 

in Cuba which had been nationalized by the government. Under 

the circumstances, the Court held, the presumption of separate status could be overcome.

[W]here a corporate entity is so extensively controlled by its owner that 

a relationship of principal and agent is created, we have held that one 

may be liable for the actions of the other. . . . In addition, our cases have 

long recognized “the broader equitable principle that the doctrine of 

corporate entity, recognized generally and for most purposes, will not 

be regarded when to do so would work fraud or injustice.” . . . Giving 

effect to Bancec’s separate juridical status . . . would permit the real 

beneficiary of such an action, the Government of the Republic of Cuba, 

to obtain relief in our courts that it could not obtain in its own right 

without waiving its sovereign immunity and answering for the seizure 

of Citibank’s assets—a seizure previously held by the Court of Appeals 

to have violated international law.80

 

80. Bancec, 462 U.S. at 629, 632.
IV. Entities and Persons Entitled to Immunity

33

Courts occasionally confront the reverse situation, that is, 

whether the acts of the separate entity can be attributed to the state 

itself. The Ninth Circuit recently addressed that issue, noting that 

the presumption of the foreign state’s separate juridical status can 

only be overcome when the complaint alleges “day-to-day, routine 

involvement” by that state in the separate entity’s affairs, or when 

the presumption would work a fraud or an injustice.81

2. Second criterion

As indicated above, to qualify as an agency or instrumentality, the 

separate legal entity in question must also be either an organ of a 

foreign state or political subdivision thereof, or an entity a majority 

of whose ownership interest is owned by a foreign state or political 

subdivision thereof.

a. State-owned corporations

To take the easier (and more common) situation first, a foreign 

corporation incorporated in, and at least 50% owned by, a foreign 

state (or a political subdivision of that state) will typically qualify as 

an “agency or instrumentality” under the second criterion of

§ 1603(b). State-owned commercial banks are one example.82 Of 

course, as explained below, to the extent that the corporation’s activities fall within the “commercial activity” exception, it will not 

enjoy immunity.

b. Tiering

In certain fields, the question of separate entities arises in the context of more complex organizational structures involving a series of 

holding companies and subsidiaries. Under Dole Food Co. v. Patrickson, an entity qualifies under the majority ownership clause of

§ 1603(b)(2) only if the foreign state (or political subdivision) itself 

directly owns a majority of the entity’s shares (“one tier only”).83

 

81. See Sachs v. Republic of Austria, 695 F.3d 1021 (9th Cir. 2012).

82. See, e.g., Fir Tree Capital Opportunity Master Fund, LP v. Anglo Irish 

Bank, Ltd., No. 11 Civ. 0955(PGG), 2011 WL 6187077 (S.D.N.Y. Nov. 28, 2011).

83. 538 U.S. 468, 477 (2003).
Foreign Sovereign Immunities Act

34

The reasoning is that a corporation and its shareholders are distinct entities, and therefore “[a] corporate parent which owns the

shares of a subsidiary does not, for that reason alone, own or have 

legal title to the assets of the subsidiary; and, it follows with even 

greater force, the parent does not own or have legal title to the subsidiaries of the subsidiary.”84

Thus, an entity wholly owned by a corporate parent, which is in 

turn wholly owned by the sovereign, is not entitled to benefit from 

that sovereign’s immunity. (Dole also held that the entity’s status 

must be determined as of the time the complaint is filed, not when 

the alleged tort or other actionable conduct occurred.85)

In some situations, the separate entity in question may be majority-owned by more than one foreign state. Such “pooled entities” may meet the definition of “agency or instrumentality” under

§ 1603(b)(2).86

c. Organs or political subdivisions

In practice, the more difficult issue has been in applying the first 

branch of the second criterion of the definition of “agency or instrumentality”—that is, in determining whether a particular defendant is properly considered an organ of a foreign state or a distinct political subdivision thereof when it is a separate entity but not 

one in which the government has a majority ownership interest.

The distinction arose from a recognition that not all “public 

commercial enterprises” created by foreign governments take independent corporate form as understood in U.S. law. The point 

was that a non-corporate structure—one as to which the notion of 

“ownership interest” was inapposite—could still fall within the 

meaning of “agency or instrumentality” if it met the separate entity 

and nationality criteria. 

Organ. Again, unfortunately, the term “organ of a foreign state” 

is not defined by the statute. Clearly, an entity that is a “separate 

legal person” may be an “organ” and therefore an agency or in84. Id. at 475.

85. Id. at 479–80.

86. See LeDonne v. Gulf Air, Inc., 700 F. Supp. 1400 (E.D. Va. 1988).
IV. Entities and Persons Entitled to Immunity

35

strumentality entitled to immunity even if it is neither a corporation nor directly “owned” by a state. To be an “organ” for these 

purposes, the entity must have a clear measure of independence 

and autonomy from the foreign government.

To determine whether an entity satisfies this definitional test, 

courts typically examine 

• the circumstances surrounding the entity’s creation;

• its organizational structure;

• the purpose of its activities;

• the level of government supervision and financial support;

• whether the foreign state requires the hiring of public employees and pays their salaries; and 

• the entity’s status, obligations, and privileges under state 

law.87

In Alperin v. Vatican Bank, the Ninth Circuit held that the Vatican Bank constitutes an organ of the Vatican because of its status, 

structure, and role under Vatican law.88 The Vatican Bank was created by the Pope for the purpose of supporting religious and charitable work, and its highest administrative level is composed of 

high-ranking government officials appointed by the Vatican. Furthermore, it has exclusive control over several obligations assigned 

 

87. See, e.g., Alperin v. Vatican Bank, 360 F. App’x 847, 849 (9th Cir. 2009)

(Vatican Bank qualifies as an “organ” and therefore “agency or instrumentality”); Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004). In Murphy v. Korea 

Asset Management Corp., 421 F. Supp. 2d 627, 640 (S.D.N.Y. 2005), aff’d, 190 F. 

App’x 43 (2d Cir. 2006), the trial court observed that “the term ‘organ’ should be 

interpreted broadly to reflect Congress’ intent that it be ‘difficult for private litigants to bring foreign governments into Court, thereby affronting them.’” See 

also California v. NRG Energy, Inc., 391 F.3d 1011 (9th Cir. 2004); USX Corp. v. 

Adriatic Ins. Co., 345 F.3d 190 (3d Cir. 2003); EIE Guam Corp. v. Long Term 

Credit Bank of Japan, Ltd., 322 F.3d 635 (9th Cir. 2003). Cf. Compagnie Noga

D’Importation et D’Exportation, S.A. v. Russian Fed’n, 361 F.3d 676 (2d Cir. 

2004) (distinguishing “organ” from “political organ”).

88. 360 F. App’x 847 (9th Cir. 2009).
Foreign Sovereign Immunities Act

36

to it by Vatican law and is immune from suit in Italy as a foreign 

sovereign.89

In Filler v. Hanvit Bank, the Second Circuit affirmed the district 

court’s holding that the Korean Deposit Insurance Corporation is 

an organ of a foreign state, noting that it performs functions traditionally performed by the government (such as protecting depositors and promoting financial stability) and government officials 

appoint its upper-level managers and oversee its operations.90

Political subdivision. Section 1603(b)(3) covers components of 

the foreign government’s structure that are more properly considered “political subdivisions” than “organs.” Like organs, such entities must still have a separate legal identity or “personality” and the 

capacity to engage in commercial transactions, but they must function as part of the government structure itself. The difference between the two is admittedly unclear. Moreover, use of the term 

“political subdivision” here, as part of the definition of “agency and 

instrumentality,” as well as part of the definition of “foreign state” 

itself in § 1603(a), has understandably led to a certain amount of 

confusion.91

Core functions. More generally, the predominant mechanism 

for making the broad distinction between “foreign state” and 

“agency or instrumentality” has been the so-called “core functions” 

test. The test was initially developed with regard to the service pro-

 

89. Id. at 849.

90. 378 F.3d 213, 217 (2d Cir. 2004).

91. The court in California Department of Water Resources v. Powerex Corp.,

533 F.3d 1087, 1098 (9th Cir. 2008), reexamined the distinction between “organ” 

and “political subdivision” for purposes of § 1603(b). Citing Patrickson v. Dole 

Food Co., 251 F.3d 795, 807 (9th Cir. 2001), aff’d on other grounds, 538 U.S. 468 

(2003), the court said an entity is an organ of a foreign state (or political subdivision thereof) if it “engages in a public activity on behalf of the foreign government.” In the court’s view, the fact that Powerex was a “second tier” subsidiary 

of the provisional government was not dispositive of the question whether it 

qualified as an “organ.” The court stated that “[t]here is no reason to think Congress cared about the manner in which foreign states interact with their organs—

i.e., whether the foreign state supervises the organ directly or through an incorporated agent.” 533 F.3d at 1101.
IV. Entities and Persons Entitled to Immunity

37

visions of § 1608, not the distinctions in § 1603.92 However, the test 

has subsequently been applied in additional contexts. In the D.C. 

Circuit, for example, an entity that is an “integral part” of a foreign 

state’s political structure is treated as the state itself, but an entity 

which is commercial in its structure and “core function” is treated 

as an “agency or instrumentality.”93 In Garb v. Republic of Poland,

the Second Circuit referred to the core functions test in determining, for purposes of the “takings” exception, that Poland’s Ministry 

of the Treasury is “an integral part of Poland’s political structure” 

and not an agency or instrumentality.94

Agents. Although not expressly addressed in the statute itself, 

agents of foreign governments may also be covered. For example,

in Phaneuf v. Republic of Indonesia, the Ninth Circuit held that, in 

order to invoke the commercial activity exception, a government’s 

agent must have acted with actual authority.95 The Fourth Circuit 

concurred in Velasco v. Government of Indonesia, stating that 

“[w]hether a third party reasonably perceives that the sovereign has 

empowered its agent to engage in a transaction . . . is irrelevant if 

the sovereign’s constitution or laws proscribe or do not authorize 

the agent’s conduct and the third party fails to make a proper in-

 

92. In Transaero, Inc. v. La Fuerza Aerea Boliviana, 39 F.3d 148, 151 (D.C. 

Cir. 1994), for example, the D.C. Circuit had to decide whether the Bolivian Air 

Force was a “foreign state” or an “agency or instrumentality” for purposes of

§ 1608. Rather than relying on the factors listed in the legislative history cited 

above (e.g., could the entity sue and be sued in its own name, contract in its own 

name, or hold property in its own name, under its own law), it considered

“whether the core functions of the foreign entity are predominantly governmental or commercial.” Id. at 151–52. See also Magness v. Russian Fed’n, 247 F.3d 

609, 613 n.7 (5th Cir. 2001) (“[w]hether an entity is a ‘separate legal person’ depends upon the nature of its ‘core functions—governmental vs. commercial’—

and whether the entity is treated as a separate legal entity under the laws of the 

foreign state.”).

93. TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 300 

(D.C. Cir. 2005) (citing Transaero).

94. 440 F.3d 579, 594 (2d Cir. 2006).

95. 106 F.3d 302, 308 (9th Cir. 1997).
Foreign Sovereign Immunities Act

38

quiry.”96 In Batters v. Vance International, Inc., a private security 

company hired by a foreign government was found to be entitled 

to immunity as an agent.97

3. Non-U.S. nationality

Determining that the entity in question is neither a citizen of a state 

of the United States nor created under the laws of a third country 

ordinarily presents no difficulties. Generally speaking, for purposes 

of international law, a corporation has the nationality of the state 

under the laws of which the corporation is organized.98

C. Individual Foreign Officials and Agents

For some years, courts debated whether the FSIA should apply to 

claims against individual foreign government officials for actions 

taken in their official capacities on behalf of foreign states. A 

majority of circuits answered in the affirmative, following the socalled Chuidian doctrine, which treated individual officials as 

“agencies or instrumentalities” for FSIA purposes; other circuits

held the opposite.99

 

96. 370 F.3d 392, 410 (4th Cir. 2004).

97. 225 F.3d 462, 466 (4th Cir. 2000).

98. Rowell v. Franconia Minerals Corp., 706 F. Supp. 2d 891, 895 (N.D. Ill. 

2010) (citing Restatement (Third) of Foreign Relations Law of the United States

§ 213 (1986)).

99. In Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990), 

the appellate court held that FSIA immunity extends to individual officials of 

foreign states acting in their official capacity, since these officials are properly 

considered “agenc[ies] or instrumentalit[ies]” of the state and accordingly are 

protected by the FSIA. See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 538 

F.3d 71, 81 (2d Cir. 2008); Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008); 

Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002); Matar v. Dichter, 

500 F. Supp. 2d 284 (S.D.N.Y. 2007). The Seventh Circuit explicitly rejected 

Chuidian, noting that “[i]f Congress meant to include individuals acting in the 

official capacity in the scope of the FSIA, it would have done so in clear and unmistakable terms” (Enahoro v. Abubakar, 408 F.3d 877, 881–82 (7th Cir. 2005)), 

and the Fourth Circuit concluded on the basis of the FSIA’s “language and struc-
IV. Entities and Persons Entitled to Immunity

39

In 2010, the U.S. Supreme Court resolved the issue in favor of 

the minority view, rejecting the Chuidian doctrine and holding in 

Samantar v. Yousuf that an individual foreign official sued for conduct undertaken in his or her personal capacity is not a “foreign 

state” entitled to immunity from suit within the meaning of the 

FSIA.

100 The Court found nothing in the text or legislative history 

of the statute to suggest that the term “foreign state” should be read 

to include an official acting on its behalf, nor any reason to presume that when Congress codified state immunity, it also intended 

to codify the immunity of individual foreign government officials.

The Court took care, however, to note that a suit against such 

an official may nonetheless be precluded by principles of foreign 

sovereign immunity under the common law, following the practice 

that governed the immunity of individual foreign government officials prior to 1976. In this case, it remanded the suit for a determination whether Samantar might be entitled to immunity under the 

common law or have other valid defenses.101 It also noted that in 

some cases an action against an official in his or her official capaci-

 

ture” that it does not apply to “individual foreign government agents” (Yousuf v. 

Samantar, 552 F.3d 371, 381 (4th Cir. 2009)).

100. 560 U.S. 305, 130 S. Ct. 2278 (2010).

101. Id. “[N]ot every suit can successfully be pleaded against an individual 

official alone. Even when a plaintiff names only a foreign official, it may be the 

case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because that party has ‘an interest relating to the 

subject of the action’ and ‘disposing of the action in the person’s absence may . . .

as a practical matter impair or impede the person’s ability to protect the interest

. . . . Or it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is 

the real party in interest.” 560 U.S. at 324–25, 130 S. Ct. at 2292. On remand, the 

Fourth Circuit determined that the district court had properly deferred to the 

State Department’s position that Samantar was not entitled to head of state immunity and furthermore that he was not entitled to immunity for jus cogens violations. Yousuf v. Samantar, 699 F.3d 763 (2012).
Foreign Sovereign Immunities Act

40

ty should be treated as a suit against the entity as the “real party” in 

interest.102

 

102. Samantar v. Yousuf, 560 U.S. 305 (2010). For such a case, see Odhiambo v. Republic of Kenya, 930 F. Supp. 2d 17, 34 (D.D.C. 2013) (“Odhiambo’s suit 

against the individual defendants will be governed by the FSIA because the suit is 

in all respects a suit against the Kenyan government.”).
41

V. Exceptions to Immunity

The FSIA creates nine distinct and independent exceptions to immunity from jurisdiction. Six of these are found in 28 U.S.C.

§ 1605(a), as amended: (1) waiver, (2) commercial acts, (3) expropriations, (4) rights in certain kinds of property in the United 

States, (5) non-commercial torts, and (6) enforcement of arbitral 

agreements and awards. The seventh involves cases arising from 

certain acts of state-sponsored terrorism (formerly § 1605(a)(7), 

this exception is now codified separately at § 1605A.) The eighth 

category involves maritime liens and preferred mortgages and is 

dealt with in §§ 1605(b), (c), and (d). Counterclaims under 28 

U.S.C. § 1607 constitute the ninth category. 

The most commonly invoked exceptions are waiver, commercial activity, expropriations, non-commercial torts, arbitration, and 

state-sponsored terrorism. Each of these exceptions is addressed 

briefly in this part, and citations are provided to facilitate further 

research as needed.103

It is worth emphasizing that “[a]t the threshold of every action 

in a District Court against a foreign state . . . the court must satisfy 

itself that one of the exceptions applies.”104

A. Waiver

Section 1605(a)(1) provides an exception to immunity when the 

foreign state has waived its immunity “either explicitly or by implication, notwithstanding any withdrawal of the waiver which the 

foreign state may purport to effect except in accordance with the 

 

103. While the “immovable property” exception in § 1605(a)(4) is infrequently invoked, it was recently interpreted by the U.S. Supreme Court to include an action to establish the validity of a tax lien. See Permanent Mission of 

India to the United Nations v. City of New York, 551 U.S. 193 (2007).

104. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 483 (1983).
Foreign Sovereign Immunities Act

42

terms of the waiver.”105 Like other exceptions, this provision operates to limit the statutory grant of federal question jurisdiction.106

1. Explicit waivers

Explicit waivers are typically found in contractual provisions, although they could arise from independent statements (for example, by a duly authorized governmental official). They are normally 

construed narrowly by U.S. courts in favor of the sovereign.107 In 

some situations, treaty provisions may also qualify, although the 

U.S. Supreme Court cautioned in Argentine Republic v. Amerada 

Hess Shipping Corp. that federal courts should not lightly imply a 

waiver based upon ambiguous treaty language.108

2. Implied waivers

As a rule, courts are even more reluctant to find implied waivers, 

requiring strong evidence of the foreign state’s intent.109 As noted 

in In re Republic of the Philippines,

110 implied waivers have traditionally been found only when (1) a foreign state has agreed to ar-

 

105. 28 U.S.C. § 1605(a)(1) (2010).

106. See Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 942 

n.4 (D.C. Cir. 2008) (citing Caleb Nelson, Sovereign Immunity as a Doctrine of 

Personal Jurisdiction, 115 Harv. L. Rev. 1559 (2002)).

107. See World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 

1154, 1162 (D.C. Cir. 2002) (“A foreign sovereign will not be found to have 

waived its immunity unless it has clearly and unambiguously done so.”); Capital 

Ventures Int’l v. Republic of Argentina, 552 F.3d 289, 293–94 (2d Cir. 2009) (accepting as a waiver a contractual provision that “[t]o the extent that the Republic 

has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction of any court or from any legal process . . ., the Republic hereby irrevocably waives such immunity in respect of its obligations under the Bonds to the 

extent it is permitted to do so under applicable law”).

108. 488 U.S. 428, 442 (1989). See also Carpenter v. Republic of Chile, 610 

F.3d 776, 779 (2d Cir. 2010) (waiver by treaty must be “clear and unambiguous” 

and treaty adherence did not qualify).

109. Cf. Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012); Fir 

Tree Capital Opportunity Master Fund, LP v. Anglo Irish Bank Ltd., No. 11 Civ. 

0955 (PGG), 2011 WL 6187077, at *14 (S.D.N.Y. Nov. 28, 2011). 

110. 309 F.3d 1143, 1151 (9th Cir. 2002). 
V. Exceptions to Immunity

43

bitration in another country,111 (2) a foreign state has agreed that a 

contract is governed by the law of another foreign country,112 or 

(3) a foreign state has filed a responsive pleading in a case without 

raising the defense of sovereign immunity.113

Allegations of implicit waiver by foreign government conduct 

in violation of the norms of international law (including acts alleged to be contrary to jus cogens, such as torture or genocide) have 

not been successful.114

 

111. See Ministry of Def. & Support for Armed Forces of Islamic Republic of 

Iran v. Cubic Def. Sys., Inc., 236 F. Supp. 2d 1140, 1151 (S.D. Cal. 2002); but see

S & Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292 (11th Cir. 2000). Waivers resulting in agreements to arbitrate are addressed in § 1605(a)(6), discussed 

below in Part V.E.

112. See World Wide Demil, L.L.C. v. Nammo, A.S., 51 F. App’x 403, 405 

(4th Cir. 2002); Phoenix Consulting, Inc. v. Republic of Angola, 35 F. Supp. 2d 

14, 19 (D.D.C. 1999).

113. See Haven v. Polska, 215 F.3d 727, 731–32 (7th Cir. 2000); Aquamar 

S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1291–92 (11th Cir. 

1999); Universal Trading & Inv. Co. v. Bureau for Representing Ukrainian Interests, 898 F. Supp. 2d 301, 310–11 (D. Mass. 2012), aff’d, 727 F.3d 10 (1st Cir. 

2013). By comparison, a clause providing that “[t]he Courts in India and USA 

[sic] only shall have jurisdiction in respect of [sic] all matters of dispute about 

the [bonds]” has been held insufficient to waive immunity. Poddar v. State Bank 

of India, 235 F.R.D. 592, 597 (S.D.N.Y. 2006).

114. See Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009) (“there is no general 

jus cogens exception to FSIA immunity”); Belhas v. Ya’alon, 515 F.3d 1279, 1286–

89 (D.C. Cir. 2008) (to same effect); Joo v. Japan, 332 F.3d 679, 686 (D.C. Cir. 

2004) (“[A] sovereign cannot realistically be said to manifest its intent to subject 

itself to suit inside the United States when it violates a jus cogens norm outside 

the United States.”), vacated on other grounds by Joo v. Japan, 542 U.S. 901 

(2004)); Doe I v. State of Israel, 400 F. Supp. 2d 86, 105 (D.D.C. 2005) (“Jus cogens violations, without more, do not constitute an implied waiver of FSIA immunity.”). Cf. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 719 

(9th Cir. 1992) (“if violations of jus cogens committed outside the United States 

are to be exceptions to immunity, Congress must make them so. The fact that 

there has been a violation of jus cogens does not confer jurisdiction under the 

FSIA.”).
Foreign Sovereign Immunities Act

44

B. Commercial Activity 

The “commercial activity” exception in § 1605(a)(2) lies at the 

heart of the restrictive theory of immunity, and not surprisingly it 

is the most litigated exception. Availability of the exception rests on 

the answers to several related questions: 

1. Does the activity of the state or government in question 

qualify as a “commercial activity”?

2. Is the plaintiff’s specific claim “based upon” that activity (or 

upon an act in connection with that activity)?

3. Does the activity in question have a sufficient jurisdictional 

nexus to the United States? 

1. Definition of commercial activity

Section 1603(d) defines “commercial activity” as “either a regular 

course of commercial conduct or a particular commercial transaction or act.”115 It is important to note that the provision also provides that “[t]he commercial character of the activity shall be determined by reference to the nature of the course of conduct or 

particular transaction or act, rather than by reference to its purpose.” (emphasis added). 

This “nature not purpose” criterion is fundamental to the exception. In Republic of Argentina v. Weltover, the U.S. Supreme 

Court stated: 

[W]hen a foreign government acts, not as regulator of a market, but in 

the manner of a private player within it, the foreign sovereign’s actions 

are “commercial” within the meaning of the FSIA. Moreover, because 

the Act provides that the commercial character of an act is to be determined by reference to its “nature” rather than its “purpose,” 28 U.S.C.

§ 1603(d), the question is not whether the foreign government is acting 

with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that 

the foreign state performs (whatever the motive behind them) are the 

type of actions by which a private party engages in “trade and traffic or 

commerce.”116

 

115. 28 U.S.C. § 1603(d) (2010).

116. 504 U.S. 607, 614 (1992).
V. Exceptions to Immunity

45

Thus, a state remains immune with respect to its sovereign or 

public acts (jure imperii) but not with respect to its acts that are 

private or commercial in character (jure gestionis).

[A] state engages in commercial activity under the restrictive theory 

where it exercises “only those powers that can also be exercised by private citizens,” as distinct from those “powers peculiar to sovereigns.”

Put differently, a foreign state engages in commercial activity for purposes of the restrictive theory only where it acts “in the manner of a private player within” the market.117

The phrase “commercial activity” thus refers to “the character of 

the foreign state’s exercise of power rather than its effects.”118

Applying these criteria in given factual situations has generated 

a substantial body of case law. A few of the main issues are summarized here.

a. Contracts

A contract between a foreign state and a private party for the purchase and sale of goods and services is presumptively commercial.119 Even “a contract to buy army boots or even bullets is a 

‘commercial’ activity, because private companies can similarly use 

sales contracts to acquire goods.”120 A motor vehicle lease is a 

 

117. Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993). The assumption of 

liability for bonds issued by a predecessor government was held to be a commercial act in Mortimer Off-Shore Services, Ltd. v. Federal Republic of Germany, 615 

F.3d 97 (2d Cir. 2010), cert. denied, 131 S. Ct. 1502 (2011) (relying on Weltover).

118. Rong v. Liaoning Provincial Gov’t, 452 F.3d 883, 888 (D.C. Cir. 2006).

“[T]here is no indication that Congress intended the presence of a profit motive 

on the part of the sovereign to be a threshold requirement for applying the commercial activity exception. In this regard the Legislative History merely states 

that ‘[c]ertainly, if an activity is customarily carried on for profit, its commercial 

nature could readily be assumed.’ H.R. Rep. No. 1487, 94th Cong., 2d Sess. 16, 

reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6615.” Joseph v. Office 

of Consulate Gen. of Nigeria, 830 F.2d 1018, 1024 (9th Cir. 1987).

119. See Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1549 

(D.C. Cir. 1987); cf. Hilaturas Miel, S.L. v. Republic of Iraq, 573 F. Supp. 2d 781 

(S.D.N.Y. 2008) (government agreement to purchase yarn). 

120. Weltover, 504 U.S. at 614–15. See also UNC Lear Servs., Inc. v. Kingdom 

of Saudi Arabia, 581 F.3d 210 (5th Cir. 2009), cert. denied, 559 U.S. 971 (2010)
Foreign Sovereign Immunities Act

46

“commercial” activity, even where usage is limited to official business of a foreign government mission to the United Nations.

121

Contracts for legal services have been held to fall within this exception.122

Distinctions are fact-based and sometimes difficult. In Globe 

Nuclear Services and Supply GNSS, Ltd. v. AO Techsnabexport, a 

Russian company wholly owned by the Russian Federation was 

held not to be entitled to immunity in respect of its contract to 

supply an American company with uranium hexafluoride extracted 

from dismantled nuclear warheads, because the transaction was the 

type of commerce engaged in by private parties.123 The court rejected the defendant’s argument that it was not merely dealing in 

uranium but was regulating its supply in a manner that no private 

party could do.124 In UNC Lear Services, Inc. v. Kingdom of Saudi 

Arabia, a contract for the provision of training and support services 

to the Royal Saudi Air Force for its fleet of F-5 fighter aircraft (including, for example, flight operations services; training in survival 

skills; and ejection over sea, desert, or mountain terrain) was 

deemed non-commercial, while a related contract for repair ser-

 

(repair services for F-5 aircraft parts and components); Samco Global Arms, Inc. 

v. Arita, 395 F.3d 1212 (11th Cir. 2005) (purchase and storage of arms); Ministry 

of Def. & Support for Armed Forces of Islamic Republic of Iran v. Cubic Def. 

Sys., Inc., 385 F.3d 1206 (9th Cir. 2004) (sale and servicing of Air Combat Maneuvering Range); Virtual Def. & Dev. Int’l Inc. v. Republic of Moldova, 133 F. 

Supp. 2d 1 (D.D.C. 1999) (contract for sale of MIG-29 aircraft).

121. Ford Motor Co. v. Russian Fed’n, No. 09 Civ. 1646 (JGK), 2010 WL 

2010867, at *4 (S.D.N.Y. May 10, 2010).

122. Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp. 2d 136, 

140–41 (D.D.C. 2012).

123. 376 F.3d 282 (4th Cir. 2004). See also Guevara v. Republic of Peru, 608 

F.3d 1297 (11th Cir. 2010) (offer of reward for information leading to capture of 

fugitive was commercial activity but was not “based upon” commercial activities 

within the United States); Universal Trading & Inv. Co. v. Bureau for Representing Ukrainian Interests, 898 F. Supp. 2d 301, 313–17 (D. Mass. 2012), aff’d, 727 

F.3d 10 (1st Cir. 2013) (government contract with private entity to recover misappropriated assets falls within commercial activity exception). 

124. Globe Nuclear Servs., 376 F.3d at 289.
V. Exceptions to Immunity

47

vices, parts, and components for those aircraft was found to fall 

within the commercial activities exception.125

In contrast, a private firm’s acts in providing basic health insurance to foreign government workers and monitoring compliance 

with the governmental mandate under the national social security 

program was held to be non-commercial.126

b. Illegal acts

While a commercial activity (at least for FSIA purposes) is presumptively one in which a private person can engage lawfully, in 

some situations even illegal or unenforceable contracts may be considered commercial. Money laundering, for example, has been held 

not to fall within the commercial activity exception.127 As recently 

stated by one court, “abuses of official power for corrupt ends . . .

could not be undertaken by private parties in a marketplace” and 

therefore cannot fall within the commercial activity exception.128

However, criminal acts in the course of business or trade, such as 

bribery, forgery, or fraud, can constitute commercial activity if they 

are conduct in which private parties can engage.129

 

125. 581 F.3d 210 (5th Cir. 2009), cert. denied, 130 S. Ct. 1689 (2010). See 

also Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 

F.3d 1159 (11th Cir. 2011), cert. denied, 132 S. Ct. 2379 (2012), and cert. denied, 

132 S. Ct. 2380 (2012) (sunken Spanish naval vessel entitled to immunity despite 

carrying private cargo for a charge); Abdullah v. Embassy of Iraq at Washington, 

DC, Civ. Action No. 12-2590, 2013 WL 4787225 (E.D. Pa. Sept. 9, 2013) (alleged 

breach of government-funded scholarship and employment agreement falls 

within commercial activity exception).

126. Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamosostek (Persero), 

600 F.3d 171 (2d Cir. 2010).

127. See In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 793 

(S.D.N.Y. 2005); Letelier v. Republic of Chile, 748 F.2d 790, 797–98 (2d Cir. 

1984) (alleged participation in an assassination is not a lawful activity and therefore not a commercial activity for FSIA purposes).

128. S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 111 (D.D.C. 2012).

129. See, e.g., Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 816 (6th Cir. 

2002).
Foreign Sovereign Immunities Act

48

c. Employment contracts

Employment relationships with foreign governments, embassies, 

missions, or other offices may or may not be considered “commercial,” depending on whether the duties in question involve official 

or “civil service” functions.130

d. Charitable donation

While a charitable intent behind a purchase is irrelevant under the 

“nature, not purpose” rule, a donation to charity may not be a 

“commercial activity.”131

e. Trade promotion

A government’s efforts to foster trade, commerce, and investment 

with a particular region within its territory is a “quintessential” 

government function and therefore not commercial activity.132

f. Regulatory or “police powers”

Regulation of the market, licensing the export of natural resources, 

seizure of goods for law enforcement purposes, or similar exercises 

of state authority (including eminent domain) are typically found 

to be non-commercial, since they are not the kinds of actions by 

 

130. See, e.g., Lasheen v. Embassy of the Arab Republic of Egypt, 485 F. 

App’x 203 (9th Cir. 2012); Hijazi v. Permanent Mission of Saudi Arabia to United Nations, 689 F. Supp. 2d 669 (S.D.N.Y. 2010); Kato v. Ishihara, 360 F.3d 106 

(2d Cir. 2004); Butters v. Vance Int’l, Inc., 225 F.3d 462 (4th Cir. 2000); ElHadad v. United Arab Emirates, 216 F.3d 29 (D.C. Cir. 2000); Crum v. Kingdom 

of Saudi Arabia, No. Civ.A.05-275, 2005 WL 3752271, at *3–4 (E.D. Va. July 13, 

2005). Cf. Sabbithi v. Al Saleh, 605 F. Supp. 2d 122, 127–28 (D.D.C. 2009) (employment of domestic workers by diplomats not “commercial” because incidental to daily life of diplomat).

131. See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71 (2d Cir. 2008) 

(donation to charity not “part of the trade and commerce engaged in by a merchant in the marketplace”). 

132. Best Med. Belgium, Inc. v. Kingdom of Belgium, 913 F. Supp. 2d 230, 

237–38 (E.D. Va. 2012).
V. Exceptions to Immunity

49

which private parties engage in trade, traffic, or commerce.133 Failure to investigate allegations of fraudulent commercial activity has 

been held to fall outside this exception.134

Governmental expropriations and nationalizations of private 

property by foreign governments are presumptively considered 

non-commercial.135 In Elbasir v. Kingdom of Saudi Arabia, the 

court concluded that a government’s provision of health care to its 

citizens and residents is not a “commercial” activity, but left open 

the possibility that promises of financial assistance might be, depending on the specific circumstances.136

g. Human rights violations and terrorism

Efforts to use the commercial activity exception in § 1605(a)(2) to 

reach human rights violations and terrorist activities have not been 

successful.137

2. “Based upon”

The complaint must be “based upon” a commercial activity.138 In 

Saudi Arabia v. Nelson, the Supreme Court said that an action is 

“based upon” the particular conduct that the plaintiff needs to 

prove in order to satisfy the elements of a claim that would entitle 

 

133. See First Merchants Collection Corp. v. Republic of Argentina, 190 F. 

Supp. 2d 1336, 1338 (S.D. Fla. 2002); MOL, Inc. v. People’s Republic of Bangladesh, 736 F.2d 1326 (9th Cir. 1984).

134. Community Fin. Group, Inc. v. Republic of Kenya, 663 F.3d 977 (8th 

Cir. 2011).

135. Cf. Garb v. Republic of Poland, 440 F.3d 579, 586 (2d Cir. 2006) (“Expropriation is a decidedly sovereign—rather than commercial—activity.”); Yang 

Rong v. Liaoning Prov. Gov’t, 452 F.3d 883, 889–91 (D.C. Cir. 2006).

136. 468 F. Supp. 2d 155, 161–62 (D.D.C. 2007).

137. See, e.g., Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 

1994) (hostage taking for profit did not fall within commercial activity exception).

138. See 28 U.S.C. § 1605(a)(2) (exception to immunity for actions “based 

upon a commercial activity”).
Foreign Sovereign Immunities Act

50

it to relief under its theory of the case (“something more than a 

mere connection with, or relation to, commercial activity”).139

Courts have taken varying approaches to this question, depending on the factual circumstances presented to them. For example, 

some courts have only required a causal (“but for”) relationship,140

while others have said there needs to be a “‘significant nexus’ . . .

between the commercial activity in [the foreign state] upon which 

the exception is based and a plaintiff’s cause of action.”141 In Kirkham v. Société Air France, the court of appeals held that a negligence suit for a personal injury sustained at Orly Airport in France 

was cognizable under § 1605(a)(2) because it was “based upon” the 

plaintiff’s purchase of a plane ticket in the United States; “the ticket 

sale is necessary to the ‘duty of care’ element of her negligence 

claim” and thus is sufficient to trigger the commercial activity 

exception.142

3. Jurisdictional nexus

Under § 1605(a)(2), a foreign state is not immune if the action 

brought against that state is based upon:

(1) A commercial activity carried on in the United States by the foreign 

state; or 

(2) An act performed in the United States in connection with a commercial activity of the foreign state elsewhere (i.e., outside the United 

States); or

 

139. 507 U.S. 349, 358 (1993).

140. See Transatlantic Shiffahrstkontor GmbH v. Shanghai Foreign Trade 

Corp., 204 F.3d 384, 390 (2d Cir. 2000).

141. Reiss v. Société Centrale du Groupe des Assurances Nationales, 235 

F.3d 738, 747 (2d Cir. 2000) (quoting NYSA-ILA Pension Trust Fund v. Indonesia, 7 F.3d 35, 38 (2d Cir. 1993)). See also Human Rights in China v. Bank of 

China, No. 02 Civ. 4361 (NRB), 2003 WL 22170648, at *4 (S.D.N.Y. Sept. 18, 

2003).

142. 429 F.3d 288, 295 (D.C. Cir. 2005).
V. Exceptions to Immunity

51

(3) An act outside the United States that was taken in connection with a 

commercial activity of the foreign state outside of the U.S. and that 

caused a direct effect in the United States.143

These three alternatives reflect, in descending order, different 

degrees of jurisdictional connection to the United States. The first 

requires the most substantial contacts and would presumptively be 

satisfied by import–export transactions involving sales to or purchases from parties in the United States, the negotiation or execution of a loan agreement in the United States, or the receipt of financing from a private or public lending institution located in the 

United States. Here, the particular conduct giving rise to the claim 

must be part of the commercial activity having substantial contact 

with the United States.144

The second alternative might be satisfied by an act in the United States that violated federal securities laws or involved the unlawful discharge of an employee in the United States working on a 

commercial activity carried on in a third country.

The Ninth Circuit recently distinguished the standards applicable to the three clauses of § 1605(a)(2) as follows: the first entails a 

“nexus” requirement; the second, a “material connection” requirement; and the third, a “legally significant acts” requirement.145

The third alternative has occasioned the most judicial analysis 

and commentary. In Republic of Argentina v. Weltover, the U.S. Supreme Court explained that a “direct effect” in the United States 

must follow “as an immediate consequence” of the defendant’s ac-

 

143. 28 U.S.C. § 1605(a)(2) (2010).

144. See Fir Tree Capital Opportunity Master Fund, LP v. Anglo Irish Bank 

Ltd., No. 11 Civ. 0955 (PGG), 2011 WL 6187077, at *14 (S.D.N.Y., Nov. 28, 

2011). For a recent decision based on lack of substantial contacts, see Triple A 

Int’l, Inc. v. Democratic Republic of the Congo, 852 F. Supp. 2d 839 (E.D. Mich. 

2012).

145. Terenkian v. Republic of Iraq, 694 F.3d 1122, 1127 (9th Cir. 2012), 

reh’g denied, 704 F.3d 814 (9th Cir. 2013), cert. denied sub nom. Pentonville Developers, Inc. v. Republic of Iraq, 134 S. Ct. 64 (2013), 2013 WL 1723794 (Oct. 7, 

2013).
Foreign Sovereign Immunities Act

52

tivity.146 However, some courts have declined to read “direct effect” 

quite so literally and, like the Ninth Circuit, instead require a “legally significant act” occurring in the United States before a “direct 

effect” can be found.147

Other courts have interpreted the “direct effect” test to require 

a contractual clause mandating the fulfillment of commercial obligations in the United States.148 For example, a default by a foreign 

state, agency, or instrumentality on a contractual obligation to pay 

in the United States has been held to have a direct effect in the 

United States.149 Alleged financial losses suffered in the United

States as the result of a failed investment opportunity abroad, a foreign government’s default on bonds, or breach of a contract to be 

 

146. 504 U.S. 607, 618 (1992). In Weltover, the issuance of sovereign bonds 

and the rescheduling of their repayment by the foreign government were held to 

be commercial activities with a direct effect in the United States because payments were due in dollars in New York. The Court rejected “any unexpressed 

requirement” of foreseeability or substantiality. 

147. See Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69, 77 (2d Cir. 

2010), cert. denied, 131 S. Ct. 1475 (2011) (discussing the “legally significant” 

test); cf. Bell Helicopter Textron Inc. v. Islamic Republic of Iran, 892 F. Supp. 2d

219, 227–28 (D.D.C. 2012) (infringement of intellectual property owned by U.S. 

company does not necessarily cause direct effect in United States). In VoestAlpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 895 (5th Cir. 1998), 

the court explicitly rejected the “legally significant act” test on the ground that it 

makes the third clause of the commercial activity exception under § 1605(a)(2) 

redundant with the second clause.

148. Atl. Tele-Network Inc. v. Inter-Am. Dev. Bank, 251 F. Supp. 2d 126, 

134 (D.D.C. 2003). Cf. Samco Global Arms, Inc. v. Arita, 395 F.3d 1212 (11th 

Cir. 2005); Samco Global Arms, Inc. v. Republic of Honduras, No. 10-20196-

CIV, 2012 WL 1372197, at *8 (S.D. Fla. Mar. 29, 2012).

149. See, e.g., Skanga Energy & Marine Ltd. v. Avervenca S.A., 875 F. Supp. 

2d 264 (S.D.N.Y. June 21, 2012). In contrast, the “direct effect” requirement has 

been held unsatisfied where no contractual requirement existed for payment to 

be made in the United States and no provision existed permitting the holder to 

designate a place of performance, Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 

131 (2d Cir. 2012).
V. Exceptions to Immunity

53

performed abroad have been held insufficiently direct to satisfy

§ 1605(a)(2).150

In 2010, the D.C. Circuit held that the alleged breach of a contract to provide cruise ship services in Canada had a direct effect in 

the United States because

• the plaintiff experienced financial losses caused by the termination of the contract;

• the contract had been negotiated in the United States;

• one of the cruise ships under the contract would have traveled through United States waters;

• the contract’s termination resulted in up to $40 million of 

lost cruise-related business in the United States; and

• contracts related to the terminated contract called for performance in the United States.151

The Sixth Circuit has also taken a more liberal approach, holding 

that because notes issued by a foreign government allowed the 

holder to demand payment anywhere, the government’s failure to 

pay a demand in Ohio created a “direct effect” in the United 

States.152

 

150. See Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t, 533 F.3d 

1183 (10th Cir. 2008); Can-Am Int’l, LLC v. Republic of Trinidad and Tobago, 

169 F. App’x 396 (5th Cir. 2006); see also Pons v. People’s Republic of China, 666 

F. Supp. 2d 406 (S.D.N.Y. 2009); Idas Resources N.V. v. Empresa Nacional de 

Diamantes de Angola E.P., No. 06-00570 (ESH), 2006 WL 3060017, at *6–7

(D.D.C. Oct. 26, 2006). In the Second Circuit, “direct effect” is interpreted liberally, see Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131, 138–40 (2d Cir. 2012); 

Securities Investor Prot. v. Bernard L. Madoff Inv. Sec. LLC, 480 B.R. 501, 513 

(S.D.N.Y. 2012). Cf. Princz v. Fed. Republic of Germany, 26 F.3d 1166 (D.C. Cir. 

1994, cert. denied, 513 U.S. 1121 (1995) (lingering effect of personal injury suffered overseas does not produce a direct effect in the United States when the injured person returns home).

151. Cruise Connections Charter 1, LP v. Attorney Gen. of Canada, 600 F.3d 

661 (D.C. Cir. 2010).

152. DRFP L.L.C. v. Republica Bolivariana de Venezuela, 622 F.3d 513 (6th 

Cir. 2010); but see Westfield v. Fed. Republic of Germany, 633 F.3d 409 (6th Cir. 

2011).
Foreign Sovereign Immunities Act

54

In Agrocomplect, AD v. Republic of Iraq,

153 the district court 

considered a claim by a Bulgarian corporation under a contract 

with an Iraqi government entity to perform work on a land reclamation project. The plaintiff’s machinery, production base, and 

camp facilities were allegedly destroyed by the U.S. military as a 

consequence of the Iraqi invasion and occupation of Kuwait. The 

court rejected arguments that the “direct effect” requirement was 

satisfied where (1) payment under the contract was to be made at 

least in part by and through banking institutions in the United 

States, (2) goods and services under the contract were to be supplied in part by commercial entities in the United States, and 

(3) the construction projects became “foreseeable targets of opportunity and necessity for the United States military.” As to payments, the court said, the direct effect test is properly interpreted to 

require an agreement that payment be made “through and into” a 

U.S. bank or to allow the party receiving payment the discretion to 

require payment in that fashion. In addition, use of American subcontractors and American supplies does not constitute a “direct 

effect” and neither does the destruction of American property 

abroad.

In contrast, in Foremost-McKesson, Inc. v. Islamic Republic of 

Iran, the complaint alleged that the government of Iran had illegally divested a U.S. company’s minority interest in an Iranian entity, 

causing the interruption of a contractually required flow of capital, 

management personnel, engineering data, machinery, equipment, 

materials, and packaging between Iran and the United States.154

The D.C. Circuit found that the foreseeable interruption substantially and directly affected the United States and was sufficient to 

satisfy the commercial activities exception.155

 

153. 524 F. Supp. 2d 16 (D.D.C. 2007), aff’d, 304 F. App’x 872 (D.C. Cir. 

2008).

154. 905 F.2d 438 (D.C. Cir. 1990).

155. Id. at 451. But see Bell Helicopter Textron, Inc. v. Islamic Republic of 

Iran, No. 12-7103, 2013 WL 5853916, at *5–10 (D.C. Cir. Nov. 1, 2013) (foreign 

sovereign’s intellectual property infringement occurring abroad insufficient to 

cause direct effect in United States).
V. Exceptions to Immunity

55

C. Expropriations

Section 1605(a)(3) grants jurisdiction against foreign states in any 

case “in which rights in property taken in violation of international 

law are in issue.” In addition to these three elements (“rights in 

property” that have been “taken” and “in violation of international 

law”), § 1605(a)(3) imposes a “commercial nexus” requirement 

(sometimes referred to as the “fourth prong”): 

• either the seized property in question (or property exchanged for such property) must be present in the United 

States in connection with a commercial activity carried on 

by the foreign state in the United States, or

• if that property (or property exchanged for it) is owned or 

operated by an agency or instrumentality of the foreign state, 

that agency or instrumentality must be engaged in commercial activity in the United States.156

1. Rights in property

Most courts have concluded that the alleged “taking” in question 

must relate to physical or tangible property, not the right to receive 

payment. Bank accounts have been held to be a form of intangible 

property and thus not within the scope of the expropriation exception.157 However, in Nemariam v. Federal Democratic Republic of 

Ethiopia,

158 the D.C. Circuit noted that neither the text of 

§ 1605(a)(3) nor its legislative history expressly states that the ex-

 

156. 28 U.S.C. § 1605(a)(3) (2010).

157. See generally Lord Day & Lord v. Socialist Republic of Vietnam, 134 F. 

Supp. 2d 549, 560–61 (S.D.N.Y. 2001); Peterson v. Royal Kingdom of Saudi Arabia, 332 F. Supp. 2d 189, 197 (D.D.C. 2004), aff’d, 416 F.3d 83 (D.C. Cir. 2005). 

Cf. Idas Resources N.V. v. Empresa Nacional de Diamantes De Angola E.P., No. 

06-00570 (ESH), 2006 WL 3060017, at *6–7 (D.D.C. Oct. 26, 2006) (license is a 

contractual right, thus not tangible property). A claim under § 1605(a)(3) based 

on the alleged confiscation of shares held in trust was rejected in Yang Rong v. 

Liaoning Provincial Government, 362 F. Supp. 2d 83, 100–101 (D.D.C. 2005), 

aff’d on other grounds, 452 F.3d 883 (D.C. Cir. 2006), because the property at 

issue was not “physical property” or taken in violation of international law.

158. 491 F.3d 470 (D.C. Cir. 2007).
Foreign Sovereign Immunities Act

56

propriation exception applies only to tangible property. “[T]here 

seems to us to be no reason to distinguish between tangible and 

intangible property when the operative phrase is ‘rights in property.’ We therefore conclude that the expropriation exception applies 

to the appellants’ bank accounts.”159

2. Taken in violation of international law

The term “taken” is not defined in the FSIA, but the provision was 

intended to refer to the nationalization or expropriation of property by a foreign sovereign without payment of prompt, adequate,

and effective compensation as required by international law.160 Judicial administration and sale of a financially struggling company 

does not constitute a “taking.”161 The reference to takings “in violation of international law” is therefore properly read as a reference 

to the international law of expropriation and state responsibility, 

not to other bodies of international law, such as human rights 

law.162 Thus, this exception does not reach takings by a foreign 

government of its own nationals’ property.163

 

159. Id. at 480. See also Abelesz v. Magyai Nemzeti Bank, 692 F.3d 661 (7th 

Cir. 2012).

160. See Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 

247, 251 (2d Cir. 2000) (“[T]he legislative history makes clear that the phrase 

‘taken in violation of international law’ refers to ‘the nationalization or expropriation of property without payment of the prompt, adequate and effective compensation required by international law,’ including ‘takings which are arbitrary 

or discriminatory in nature’” (quoting H.R. Rep. No. 94-1487, at 19 (1976), as 

reprinted in 1976 U.S.C.C.A.N. 6004, 6618).

161. Best Med. Belgium, Inc. v. Kingdom of Belgium, 913 F. Supp. 2d 230, 

239 (E.D. Va. 2012). Nor does “expropriation to satisfy a debt declared valid by a 

foreign court.” Id.

162. In Kalamazoo Spice Extraction Co. v. Provincial Military Government of 

Socialist Ethiopia, 729 F.2d 422 (6th Cir. 1984), the court allowed an expropriation claim to go forward based on alleged violations of a bilateral treaty of 

friendship, commerce, and navigation. However, in McKesson Corp. v. Islamic 

Republic of Iran, 539 F.3d 485, 491 (D.C. Cir. 2008), the court held that a plaintiff cannot base a § 1605(a)(3) expropriation claim on a treaty unless the text of 

the treaty specifically provides for court enforcement or otherwise indicates that 

the treaty parties intended treaty rights to be enforceable in their domestic 
V. Exceptions to Immunity

57

As recently stated by the U.S. District Court for the District of 

Columbia, a taking violates international law if “(1) it was not for a 

public purpose, (2) it was discriminatory, or (3) no just compensation was provided for the property taken.”164

In contrast to the terrorism provision, § 1605(a)(3) does not 

textually require a plaintiff to exhaust foreign remedies before 

bringing a suit against a foreign state or its agency or instrumentality, even though such a requirement is generally said to exist in 

international law.165 Several U.S. courts have suggested, however, 

 

courts. The court in McKesson Corp. v. Islamic Republic of Iran, Civ. Action No. 

82-0220 (RJL), 2009 WL 4250767, at *3–4 (D.D.C. Nov. 23, 2009), found that 

the FSIA’s commercial activities exception permits a plaintiff to base an expropriation claim on customary international law. The U.S. government argued 

that, to the contrary, the commercial activities exception does not authorize U.S. 

courts to create a new federal common law cause of action by looking to customary international law. See Brief of the United States as Amicus Curiae, 

McKesson Corp. v. Islamic Republic of Iran, No. 10-7174, 2011 WL 3209069, at 

*6–15 (D.C. Cir. July 27, 2011).

163. Beg v. Islamic Republic of Pakistan, 353 F.3d 1323 (11th Cir. 2003); 

Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 711 (9th Cir. 1992); 

de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385 (5th Cir. 1985). Claims 

arising from a sovereign’s alleged failure to privatize state-owned assets do not 

give rise to a claim under this section, but the selling and reselling of vouchers 

and options in connection with the privatization program have been found to 

fall within the commercial activities exception. Daventree Ltd. v. Republic of 

Azerbaijan, 349 F. Supp. 2d 736, 751 (S.D.N.Y. 2004).

164. de Csepel v. Republic of Hungary, 808 F. Supp. 2d 113, 128 (D.D.C. 

2011), aff’d in part, 714 F.3d 591 (D.C. Cir. 2013).

165. See Restatement (Third), Foreign Relations Law of the United States,

§ 713 (1987) cmt. f:

Under international law, ordinarily a state is not required to consider a 

claim by another state for an injury to its national until that person has exhausted domestic remedies, unless such remedies are clearly sham or inadequate, or their application is unreasonably prolonged. There is no need to 

exhaust local remedies when the claim is for injury for which the respondent state firmly denies responsibility, for example a claim for injury due to 

the shooting down of a foreign commercial aircraft where the respondent 

state contends that the act was justified under international law.
Foreign Sovereign Immunities Act

58

that exhaustion might be appropriate as a prudential matter.166 In 

Abelesz v. Magyar Nemzeti Bank, the Seventh Circuit recently required plaintiffs either to exhaust remedies available to them in the 

foreign jurisdiction or to provide a “legally compelling explanation” for their failure to do so.167

The term “taking” refers to acts of a sovereign government, not 

those of private individuals or entities.168 In a case of first impression, the Ninth Circuit concluded that nothing in the plain language of § 1605(a)(3) requires that the foreign state against which 

the claim is made be the same foreign state that took property in 

violation of international law.169 Thus, a suit could proceed against 

the Kingdom of Spain for the recovery of a Camille Pissarro painting on display at a museum in Madrid, even though the painting 

was taken from the plaintiff’s grandmother in violation of international law in 1939 by an agent of the government of Nazi Germany.

3. Commercial nexus

The so-called “fourth prong” requires a connection between the 

taking and commercial activity in the United States. As is often the 

case under the FSIA, standards established for the foreign state dif-

 

See also id., Reporters’ Note 3: “In general, the availability of a domestic remedy 

does not relieve the state of responsibility for the injury under international law, 

although in principle the domestic remedy must be exhausted before international remedies can be pursued.”

166. See, e.g., Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1062–63 (9th 

Cir. 2009), aff’d in part on reh’g en banc, 616 F.3d 1019, 1034–37 (2010), cert. 

denied, 131 S. Ct. 3057 (2011); Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 

528 F.3d 934 (D.C. Cir. 2008). The U.S. government disagrees that exhaustion is 

required by § 1605(a)(3). See Brief of the United States as Amicus Curiae, Kingdom of Spain v. Estate of Cassirer, No. 10-786, 2011 WL 2135028, at *16–17

(U.S. Sup. Ct. on petition for writ of certiorari, May 27, 2011).

167. 692 F.3d 661 (7th Cir. 2012).

168. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 

251 (2d Cir. 2000).

169. Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1057 (9th Cir. 2009), aff’d 

in part on reh’g en banc, 616 F.3d 1019, 1031 (2010), cert. denied, 131 S. Ct. 3057 

(2011). 
V. Exceptions to Immunity

59

fer from those established for its agencies and instrumentalities. If 

the suit is against the foreign state itself, the seized property in 

question (or property exchanged for such property) must be present in the United States in connection with a commercial activity 

carried on by that foreign state in the United States. If the property 

in question (or property exchanged for it) is owned or operated by 

an agency or instrumentality of the foreign state, then all that is required is for that agency or instrumentality to be engaged in commercial activity in the United States.

In Agudas Chasidei Chabad of United States v. Russian Federation, the D.C. Circuit considered the application of § 1605(a)(3) to 

two entities that were admittedly agencies or instrumentalities of 

the Russian government. The court noted that Congress had intentionally used different wordings in the two parts of this “prong,” 

with the result that the second part (which concerns the commercial activities of a foreign state’s agencies and instrumentalities) is 

clearly less demanding than the first (which applies to activities 

“carried on by the foreign state”). It therefore rejected the defendants’ argument that the “substantiality” requirement of § 1603(e) 

should apply to the agencies and instrumentalities in question.170

D. Non-Commercial Torts in the United States 

Under § 1605(a)(5), a foreign state is not immune for acts (not 

otherwise covered by the commercial activity exception) in which 

money damages are sought for personal injury or death, or damage 

to or loss of property, occurring in the United States and caused by 

the tortious act or omission of that foreign state or of any official or 

employee of that foreign state while acting within the scope of his 

or her office or employment. Prototypical cases include injuries 

resulting from an automobile accident involving an embassy vehicle and a “slip and fall” in a foreign consulate. 

 

170. 528 F.3d 934, 947 (D.C. Cir. 2008).
Foreign Sovereign Immunities Act

60

Liability under this section is determined by reference to otherwise applicable tort law.171 The statute does not provide a federal

standard for assessing liability. Thus, in an action under

§ 1605(a)(5) alleging that a foreign mission to the United Nations 

failed to maintain the structural integrity of a common wall during 

construction, in violation of the New York City building code, state 

law applied.172

1. Discretionary functions excluded

The non-commercial tort exception does not apply to two important categories of claims, namely those

• “based upon the exercise or performance or the failure to 

exercise or perform a discretionary function regardless of 

whether the discretion is abused”; and

• “arising out of malicious prosecution, abuse of process, libel, 

slander, misrepresentation, deceit, or interference with contract rights.”173

 

171. Cf. Doe v. Holy See, 434 F. Supp. 2d 925, 948 (D. Or. 2006, aff’d in part, 

rev’d in part, 557 F.3d 1066 (9th Cir. 2009), cert. denied sub nom. Holy See v. 

Doe, 130 S. Ct. 3497 (mem.) (2010); Skeen v. Federative Republic of Brazil, 566 

F. Supp. 1414, 1417 (D.D.C. 1983).

172. USAA Cas. Ins. Co. v. Permanent Mission of the Republic of Namibia, 

681 F.3d 103 (2d Cir. 2012).

173. 28 U.S.C. § 1605(a)(5)(A–B) (2010). See Fagot Rodriquez v. Republic 

of Costa Rica, 297 F.3d 1, 8 (1st Cir. 2002) (“[T]respass claims are ‘based upon 

the exercise or performance . . . [of] a discretionary function . . . . ’”); Cabiri v. 

Gov’t of the Republic of Ghana, 165 F.3d 193 (2d Cir. 1999); Ortega Trujillo v. 

Banco Central del Ecuador, 17 F. Supp. 2d 1340, 1345 (S.D. Fla. 1998); In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 794 (S.D.N.Y. 2005) (“The 

FSIA’s discretionary function exception replicates the discretionary function 

exception in the Federal Tort Claims Act.”). In Doe v. Holy See, a complaint alleging injury inflicted by a sexually abusive priest was held not to fall within the 

commercial activities exception, but it was sufficient to sustain jurisdiction 

against the Holy See under the tort exception on a theory of respondeat superior; 

the alleged failure to warn parishioners about a known danger did not qualify as 

the exercise of a discretionary function. 434 F. Supp. 2d 925 (D. Or. 2006), aff’d 
V. Exceptions to Immunity

61

2. Not extraterritorial

The exception covers only torts occurring within the territorial jurisdiction of the United States. The exception does not apply when 

a tort occurring outside the United States is merely said to have had 

an effect in the United States.174 Most courts have concluded that 

“both the injury and the tortious act or omission must occur in the 

United States.”175 Claims based on personal injury and death occurring at a U.S. embassy overseas have been held not to fall within

§ 1605(a)(5).176

3. No punitive damages

Under 28 U.S.C. § 1606, punitive damages are not recoverable 

against a foreign state but are recoverable against an agency or instrumentality. As noted in Part V.F. infra, special rules apply to 

damages in actions under § 1605A against state sponsors of 

terrorism.

E. Arbitration

Under § 1605(a)(6), a foreign state, agency, or instrumentality is 

not immune from the jurisdiction of U.S. courts in any proceeding 

to enforce an arbitration agreement made by a foreign state (with 

 

in part, rev’d in part, 557 F.3d 1066 (9th Cir. 2009), cert. denied sub nom. Holy 

See v. Doe, 130 S. Ct. 3497 (mem.) (2010).

174. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 

(1989) (exception does not apply when injury occurs outside the United States); 

Jerez v. Republic of Cuba, ___ F. Supp. 2d ___, No. 09-466 (RWR), 2013 WL 

4578999, at *2–3 (D.D.C. Aug. 29, 2013) (unlike the commercial activity exception, the non-commercial tort exception covers only torts occurring within the 

territorial jurisdiction of the United States). 

175. Doe I v. State of Israel, 400 F. Supp. 2d 86, 108 (D.D.C. 2005). See also

O’Bryan v. Holy See, 556 F.3d 361, 382 (6th Cir. 2009) (the entire tort must occur in the United States); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 

370, 379 (7th Cir. 1985) (tortious act or omission, as well as injury, must occur 

in the United States).

176. Abur v. Republic of Sudan, 437 F. Supp. 2d 166, 174–75 (D.D.C. 2006).
Foreign Sovereign Immunities Act

62

or for the benefit of a private party) or to confirm an arbitration 

award pursuant to such an agreement if

(A) the arbitration takes place, or is intended to take place, in the United States,

(B) the agreement or award is (or may be) governed by a treaty or international agreement in force for the United States which calls for the 

recognition and enforcement of arbitral awards, or

(C) the underlying claim could have been brought in a U.S. court but 

for the agreement to arbitrate or if the foreign state has waived its immunity.177

Courts have utilized § 1605(a)(6), which was added in 1988, to 

exercise jurisdiction over foreign states in proceedings to enforce 

arbitration agreements and to recognize and enforce arbitral 

awards under the U.N. Convention on the Recognition and Enforcement of Arbitral Awards (“New York Convention”)178 as well 

as the Inter-American Convention on International Commercial 

Arbitration (“Panama Convention”).179 In contrast, courts have 

applied a waiver theory to the enforcement of awards against foreign states under the International Convention on the Settlement 

of Investment Disputes Between States and Nationals of Other 

States (“ICSID” or “Washington Convention”).180

 

177. 28 U.S.C. § 1605(a)(6) (2010).

178. U.N. Convention on the Recognition and Enforcement of Arbitral 

Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 [hereinafter New York 

Convention], implemented by Chapter 2 of the Federal Arbitration Act, 9 U.S.C. 

§§ 201–207 (2010); see S & Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292, 

1301–02 (11th Cir. 2000); Creighton Ltd. v. Qatar, 181 F.3d 118, 123–24 (D.C. 

Cir. 1999).

179. Inter-American Convention on International Commercial Arbitration, 

Jan. 30, 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336 (1975), implemented at 9 U.S.C.

§ 301 (2010).

180. See, e.g., Blue Ridge Invs., LLC, v. Republic of Argentina, 902 F. Supp. 

2d 367 (S.D.N.Y. 2012) (applying both § 1605(a)(1) and § 1605(a)(6)), aff’d, 735 

F.3d 72 (2d Cir. 2013); International Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (“ICSID” or “Washington Convention”), Mar. 18, 1965, 575 U.N.T.S. 159, 17 U.S.T. 1291, T.I.A.S. 

No. 6090. Under 22 U.S.C. § 1650a, ICSID awards are entitled to “the same full 
V. Exceptions to Immunity

63

Suits to enforce arbitral awards against foreign sovereigns may 

be subject to dismissal on forum non conveniens grounds.181

F. State-Sponsored Terrorism

Since 1996, when Congress amended the FSIA to remove the immunity of foreign states for certain acts of state-sponsored terrorism, more and more cases have been brought under this provision.

As enacted, § 1605(a)(7) provided that immunity did not apply in 

cases in which money damages were sought for personal injury or 

death caused by acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources if those acts were taken at a time when the state in question 

had been formally designated as a sponsor of terrorism. That provision was repealed in 2008 and replaced by an even broader exception, now codified at 28 U.S.C. § 1605A.182 The new statute is 

summarized here; a more detailed discussion is provided in Part 

VII, the Addendum.

1. The new rule

Under the 2008 amendment, a designated state sponsor of terrorism has no immunity in a case

in which money damages are sought for personal injury or death that 

was caused by an act of torture, extrajudicial killing, aircraft sabotage, 

hostage taking, or the provision of material support or resources for 

such an act if such act or provision of material support or resources is 

 

faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.”

181. See Figueiredo Ferraz e Engenharia de Projecto Ltda. v. Republic of 

Peru, 665 F.3d 384 (2d Cir. 2011).

182. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. 

No. 110-181, Div. A, § 1083(a) and (b) (2008), 122 Stat. 338, 341 (codified at 28 

U.S.C. § 1605A). For a comprehensive review of the new statute and pending 

litigation, see In re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp. 2d 

31 (D.D.C. Sept. 30, 2009).
Foreign Sovereign Immunities Act

64

engaged in by an official, employee, or agent of such foreign state while 

acting within the scope of his or her office, employment, or agency.183

2. Limitations

As the quoted provision indicates, the exception applies only to 

actions for money damages arising from specifically enumerated 

categories of acts which were engaged in by foreign officials, employees, or agents “acting within the scope of [their] office, employment, or agency.” In addition, the exception applies only if

1. the foreign state had been formally designated as a state 

sponsor of terrorism at the time of (or as a result of) the act 

in question;

2. the claimant or victim was a U.S. national, a member of the 

armed forces, or an employee or contractor of the United 

States government acting within the scope of employment;

and 

3. for acts occurring in the foreign state concerned, the state 

was given a “reasonable opportunity to arbitrate the claim in 

accordance with the accepted international rules of arbitration.”184

3. Designated state sponsors

For these purposes, a foreign state must have been formally designated by the Secretary of State as a government that has “repeatedly 

provided support for acts of international terrorism” pursuant to

§ 6(j) of the Export Administration Act of 1979, § 620A of the Foreign Assistance Act of 1961, § 40 of the Arms Export Control Act, 

or any other relevant provision of law. The list of designated state 

sponsors of terrorism is published officially. As of December 2013, 

four countries were on the list: Cuba, Iran, Sudan, and Syria.185

 

183. 28 U.S.C. § 1605A(a)(1) (2010).

184. Id. § 1605A(a)(2). This section includes additional requirements.

185. See U.S. Department of State, State Sponsors of Terrorism, http://www.

state.gov/j/ct/list/c14151.htm. South Yemen was removed from the list in 1990, 

Iraq in 2004, Libya in 2006, and North Korea in 2008.
V. Exceptions to Immunity

65

G. Counterclaims

Title 28 U.S.C. § 1607 provides that a foreign state shall not be accorded immunity with respect to any counterclaim

(a) for which a foreign state would not be entitled to immunity under 

section 1605 or 1605A of this chapter had such claim been brought in a 

separate action against the foreign state; or 

(b) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or 

(c) to the extent that the counterclaim does not seek relief exceeding in 

amount or differing in kind from that sought by the foreign state.186

With respect to counterclaims arising out of the transaction or 

occurrence that is the subject matter of the affirmative claim, the 

relevant test is the same as that for compulsory counterclaims under Federal Rule of Civil Procedure 13(a).187

 

186. 28 U.S.C. § 1607 (2010).

187. Reino de Espana v. Am. Bureau of Shipping, Inc., 328 F. Supp. 2d 489 

(S.D.N.Y. 2004).

67

VI. Attachment and Execution

In addition to immunity from jurisdiction, the FSIA provides for 

immunity from pre-judgment attachment and post-judgment execution. The general rule under 28 U.S.C. § 1609 is that the property 

in the United States of a foreign state or its agencies and instrumentalities is “immune from attachment arrest and execution except as provided in §§ 1610 and 1611,” and subject to existing international agreements to which the United States was a party at 

the time the FSIA was enacted. Therefore, courts must always satisfy themselves that they have jurisdiction before considering requests for attachment, arrest, execution, or post-judgment discovery, even when the foreign state, agency, or instrumentality fails to 

appear.

Immunity under these provisions has been held to be “an affirmative defense that only the foreign state has standing to invoke.”188 The Ninth Circuit recently held that when a court is asked 

to attach the property of a foreign state, it must raise and decide the 

issue of immunity from execution on its own initiative even if the 

defendant does not appear. The court of appeals recognized a 

statutory presumption in favor of immunity from attachment and 

execution where it is “apparent from the pleadings or uncontested” 

that the defendant is a foreign state: “Once the court has determined that the defendant is a foreign state, the burden of production shifts to the plaintiff to offer evidence that an exception 

applies.”189

It is important to note that the FSIA provides narrower exceptions to immunity with respect to attachment and execution than it 

 

188. Rubin v. Islamic Republic of Iran, 408 F. Supp. 2d 549, 555 (N.D. Ill. 

2005). But see Walker Int’l Holdings Ltd. v. Republic of the Congo, 395 F.3d 229, 

233 (5th Cir. 2004) (holding that a garnishee may also raise a sovereign immunity claim under the FSIA).

189. Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1125 (9th Cir. 

2010) (citing Phaneuf v. Republic of Indonesia, 106 F.3d 302 (9th Cir. 1997)); 

accord, Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 290 

(2d Cir. 2011). 
Foreign Sovereign Immunities Act

68

does with respect to jurisdiction.190 In addition, it contains more 

protective rules for foreign states than for their agencies and instrumentalities.

A. Post-judgment Attachment and Execution

Section 1610 sets forth limited exceptions to immunity for attachments in aid of execution and for execution of judgments obtained 

under the statute against foreign states (§ 1610(a)) and their agencies and instrumentalities (§ 1610(b)), respectively. In all cases, the 

property against which execution is sought must be “in the United 

States.”191 Moreover, under § 1610(c), no attachment or execution 

against either foreign states or their agencies or instrumentalities is 

permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has 

elapsed following the entry of judgment and the giving of any notice required under § 1608(e).192

B. Pre-judgment Attachment

Under § 1610(d), pre-judgment attachment of a foreign state’s 

property used for a commercial activity in the United States is 

available only if the foreign state in question has explicitly waived 

its immunity from such attachment and the purpose of the attachment is to secure satisfaction of an eventual judgment, not to ob-

 

190. The execution immunity afforded sovereign property is broader than 

the jurisdictional immunity afforded the sovereign itself. Walters, 651 F.3d at 

289.

191. Assets located outside the United States fall outside the FSIA’s exceptions to immunity. Walters v. People’s Republic of China, 672 F. Supp. 2d 573, 

574–75 (S.D.N.Y. 2009). 

192. Section 1608(e) states: “No judgment by default shall be entered by a 

court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. A 

copy of any such default judgment shall be sent to the foreign state or political 

subdivision in the manner prescribed for service in this section.”
VI. Attachment and Execution

69

tain jurisdiction.193 This provision has been held to prohibit writs 

of garnishment.194

C. States vs. Agencies and Instrumentalities

In respect of enforcing judgments (as with jurisdictional issues), 

courts have generally taken care to respect the distinction (codified 

in § 1610(a) and (b)) between the foreign state or government and 

its agencies and instrumentalities. A separate juridical entity cannot 

be held liable for a judgment against a foreign state.195

For example, in Alejandre v. Telefonica Larga Distancia de Puerto Rico, Inc., the Eleventh Circuit Court of Appeals vacated the district court’s decision issuing writs of garnishment over amounts 

owed to a Cuban telecommunications company that was majorityowned by companies owned and controlled by the Cuban government. Although the telecommunications company was found to be 

an instrumentality of the government of Cuba, it was held to be a 

separate entity and therefore not liable for execution of a judgment 

rendered against the government of Cuba.196 Relying on First National City Bank v. Banco Para El Comercio Exterior de Cuba

(“Bancec”), the court held that in cases of attachment or execution, 

there is a presumption of separate juridical status for governmental 

 

193. See Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 

F.3d 255, 262 (2d Cir. 2003); Venus Lines Agency v. CVG Industria Venezolana 

de Aluminio, C.A., 210 F.3d 1309, 1311–12 (11th Cir. 2000); Libancell S.A.L. v. 

Republic of Lebanon, No. 06-Civ. 2765 (HB), 2006 WL 1321328, at *3–5 

(S.D.N.Y. May 16, 2006) (central bank funds used for commercial activities). In 

International Insurance Co. v. Caja Nacional de Ahorro Y Seguro, 293 F.3d 392, 

399–400 (7th Cir. 2002), involving a petition to confirm an arbitral award, the 

defendant (an instrumentality of the Argentine government) was required to 

post pre-judgment security because the provisions of the New York Convention 

(a pre-FSIA agreement) took precedence under § 1609.

194. FG Hemisphere Assocs. LLC v. République du Congo, 455 F.3d 575 

(5th Cir. 2006).

195. Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1075 (9th Cir. 2002). 

196. 183 F.3d 1277, 1284–85 (11th Cir. 1999).
Foreign Sovereign Immunities Act

70

instrumentalities.197 That presumption can only be overcome either by piercing the corporate veil under state law or by applying 

the broader equitable principle that “the doctrine of corporate entity will not be regarded where to do so would work fraud or injustice or defeat overriding public policies.”198

D. Procedure

In actions under the FSIA, courts will generally apply the relevant 

procedures under applicable state law.199 However, § 1610(c) provides that “[n]o attachment or execution referred to in subsections 

(a) and (b) of this section shall be permitted until the court has ordered such attachment and execution after having determined that 

a reasonable period of time has elapsed following the entry of 

judgment and the giving of any notice required” under § 1608(e).

Thus, post-judgment and attachment can only occur by court order after the foreign state in question has received notice and an 

adequate time to respond.200

The purpose of this requirement is to give a government time 

to react to the judgment. It has been accepted as mandatory. According to the relevant House Report, the procedures mandated by 

§ 1610(c) exist to afford sufficient protection to foreign states in 

respect of efforts to attach or execute against their property in the 

United States (just as the United States would expect in reciprocal 

circumstances):

In some jurisdictions in the United States, attachment and execution to 

satisfy a judgment may be had simply by applying to a clerk or a local 

sheriff. This would not afford sufficient protection to a foreign state. 

This subsection contemplates that the courts will exercise their discre-

 

197. Id.; see First Nat’l City Bank v. Banco Para El Comercio Exterior de 

Cuba, 462 U.S. 611 (1983).

198. Alejandre, 183 F.3d at 1284–85.

199. See Fed. R. Civ. P. 69(a).

200. For a recent discussion of these requirements, see Agudas Chasidei 

Chabad of U.S. v. Russian Federation, 798 F. Supp. 2d 260 (D.D.C. 2011). See also

First City, Texas Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250, 256 (S.D.N.Y. 

2000).
VI. Attachment and Execution

71

tion in permitting execution. Prior to ordering attachment and execution, the court must determine that a reasonable period of time has 

elapsed following the entry of judgment . . . . In determining whether 

the period has been reasonable, the courts should take into account 

procedures, including legislation, that may be necessary for payment of 

a judgment by a foreign state, which may take several months; representations by the foreign state of steps being taken to satisfy the judgment; 

or any steps being taken to satisfy the judgment; or evidence that the 

foreign state is about to remove assets from the jurisdiction to frustrate 

satisfaction of the judgment.201

Consistent with this approach, courts have exercised their discretion to prevent undue hardships to foreign states in a variety of 

circumstances. For instance, the Second Circuit noted with approval the district court’s stay of a lawsuit brought by a lone creditor against the Peruvian government when it was attempting to negotiate an exchange offer with its creditors.202

E. Post-judgment Discovery

A court may order limited discovery of a foreign sovereign defendant for purposes of identifying assets against which a judgment 

might be executed. The same considerations that apply at the initial 

jurisdictional stage also apply here as a function of the presumptive 

immunity of those assets, even where the sovereign may have 

waived its jurisdictional immunities.203

 

201. H.R. Rep. No. 94-1487 (1976), at 30, as reprinted in 1976 U.S.C.C.A.N. 

6604, 6629.

202. Pravin Banker Assocs. Ltd. v. Banco Popular del Peru, 109 F.3d 850, 

854–56 (2d Cir. 1997) (district court granted two stays before granting summary 

judgment). See also Elliott Assoc. L.P. v. Banco de la Nacion, 948 F. Supp. 1203, 

1213–14 (S.D.N.Y. 1996) (prejudgment attachment denied); Morgan Guar. 

Trust Co. v. Republic of Palau, 702 F. Supp. 60 (S.D.N.Y. 1988) (amount of supersedeas bond reduced); Meridien Int’l Bank Ltd. v. Gov’t of Republic of Liberia, No. 92 Civ. 7039 (AGS), 1996 WL 22338, at *6 (S.D.N.Y. Jan. 22, 1996).

203. See generally Thai Lao Lignite (Thailand) Co. v. Gov’t of the Lao People’s Democratic Republic, No. 10 Civ. 5256 (KMU), 2011 WL 4111504, at *4–5

(S.D.N.Y. Sept. 13, 2011); Walters v. People’s Republic of China, 672 F. Supp. 2d 

573 (S.D.N.Y. 2009); Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108 

(N.D. Ill. 2004).
Foreign Sovereign Immunities Act

72

There is some debate about the permissible scope of postjudgment discovery in aid of execution. In Rubin v. Islamic Republic of Iran,

204 the plaintiffs obtained a default judgment against Iran 

for injuries sustained in a suicide bombing in Israel carried out by a 

terrorist organization with the assistance of Iranian material support and training. They registered that judgment in the Northern 

District of Illinois for the purpose of attaching two collections of 

Persian antiquities owned by Iran but on long-term academic loan 

to the University of Chicago’s Oriental Institute, as well as a third 

collection of Persian artifacts owned by Chicago’s Field Museum of 

Natural History. The court of appeals held that general-assets discovery of all Iranian assets in the United States was inconsistent 

with the presumption of sovereign immunity under § 1609:

To overcome the presumption of immunity, the plaintiff must identify 

the particular foreign-state property he seeks to attach and then establish that it falls within a statutory exception. The district court’s general-asset discovery order turns this presumptive immunity on its head. 

Instead of confining the proceedings to the specific property the plaintiffs had identified as potentially subject to an exception under the 

FSIA, the court gave the plaintiffs a “blank check” entitlement to discovery regarding all Iranian assets in the United States. This inverts the 

statutory scheme.205

In contrast, in EM Ltd. v. Republic of Argentina,206 the Second 

Circuit upheld subpoenas duces tecum that sought information 

from two non-party banks about Argentina’s assets located outside 

the United States. “[B]ecause the Discovery Order involves discovery, not attachment of sovereign property, and because it is directed at third-party banks, not at Argentina itself, Argentina’s sovereign immunity is not infringed.”207 Noting that it is not unusual 

for a judgment creditor to seek disclosure related to assets outside 

the United States, including from third parties, and that Argentina 

had expressly waived its immunity concerning the bond agree-

 

204. 637 F.3d 783 (7th Cir. 2011).

205. Id. at 796.

206. 695 F.3d 201 (2d Cir. 2012).

207. Id. at 203.
VI. Attachment and Execution

73

ments that were the basis of the plaintiffs’ claims, the court of appeals said:

Because sovereign immunity protects a sovereign from the expense, intrusiveness, and hassle of litigation, a court must be “circumspect” in 

allowing discovery before the plaintiff has established that the court has 

jurisdiction over a foreign sovereign defendant under the FSIA. . . . But 

[such concerns are not present when the plaintiff] seeks discovery from 

a defendant over which the district court indisputably had jurisdiction.208

Whether sanctions can be imposed for failure to comply with a 

discovery order has been contested. Recently, in FG Hemisphere 

Associates, LL.C. v. Democratic Republic of Congo, the D.C. Circuit 

held that contempt sanctions could in fact be imposed on a foreign 

sovereign for failure to respond to court-ordered discovery in an 

action to enforce an arbitral award, but the court distinguished the 

imposition of those sanctions from the attempt to enforce them 

(which it said could be “problematic”).209

F. Property of a Foreign State

Under § 1610(a), in order to be subject to attachment or execution, 

the property of a foreign state must be (a) located in the United 

States and (b) “used for a commercial activity.” (In contrast, under 

the separate test of § 1610(b)(2), it is sufficient if the agency or instrumentality itself is “engaged in commercial activity in the United 

 

208. Id. at 210.

209. 637 F.3d 373, 375 (D.C. Cir. 2011). In an amicus brief in that case, the 

U.S. government argued that the FSIA “does not permit the enforcement of 

monetary contempt sanctions against a state.” See 2010 WL 4569107 (Oct. 7, 

2010). In Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006), the 

court had concluded that a contempt order requiring a foreign sovereign to pay 

money into the court’s registry was inconsistent with the FSIA. In Autotech 

Technologies v. Integral Research & Dev., 499 F.3d 737 (7th Cir. 2007), the court

found no inherent limitation on the contempt power in the statute itself. See also

First City, Texas-Houston, N.A. v. Rafidain Bank, 281 F.3d 48 (2d Cir. 2002).
Foreign Sovereign Immunities Act

74

States.”) Moreover, the property must be in the United States when 

the court authorizes execution.210

G. Location of the Property

The FSIA does not apply to the property and assets of a sovereign 

defendant located outside the United States.211 The Ninth Circuit 

has held that the situs of an intangible right to payment, under applicable state law, was the location of the debtor, so that a debt 

obligation of a French corporation to the government of Iran did 

not constitute “property in the United States” for purposes of

§ 1610(a)(7).212

H. Used for a Commercial Purpose

In a commercial activity case, the property of the foreign state must 

be “used for the commercial activity upon which the claim is 

based.”213 Accordingly, the statutory definition of “commercial activity” under § 1603(d) (discussed above) is applicable.214 This requirement excludes such property as embassies and consulates, and 

military vessels and aircraft.215

 

210. See FG Hemisphere Assocs., LLC v. République du Congo, 455 F.3d 

575, 588–89 (5th Cir. 2006).

211. Walters v. People’s Republic of China, 672 F. Supp. 2d 573 (S.D.N.Y. 

2009).

212. Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir. 2010).

213. 28 U.S.C. § 1610(a)(2) (2010).

214. See also Republic of Argentina v. Weltover, 504 U.S. 607, 614 (1992). 

215. However, the question can still pose difficult factual determinations.

See, e.g., EM Ltd. v. Republic of Argentina, 473 F.3d 463, 482–83 (2d Cir. 2007)

(government repayment of debt to IMF is not a “commercial activity”); Af-Cap, 

Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1091 (9th Cir. 2007)

(“[P]roperty is ‘used for a commercial activity in the United States’ when the 

property in question is put into action, put into service, availed or employed for

a commercial activity, not in connection with a commercial activity or in relation to a commercial activity.”). In Connecticut Bank of Commerce v. Republic of 

Congo, 309 F.3d 240, 260–61 (5th Cir. 2002), royalty payments owed by oil companies in Texas to a foreign state were found not to be “used for a commercial

activity in the United States” because the revenue from a transaction is not “used 
VI. Attachment and Execution

75

The Second Circuit has held that the property in question must 

be “used for a commercial activity” at the time the writ of attachment or execution is issued.216 The question arose in the context of 

attempts by holders of defaulted bonds issued by the Republic of 

Argentina to execute their judgments against certain investment 

accounts administered in the United States by private corporations 

for the benefit of Argentine pensioners. The Argentine government 

had nationalized its private pension system and thus claimed the 

funds in the investment accounts. The district court determined 

that the assets were used for a commercial activity and ordered 

their attachment. The appellate court disagreed, noting that when 

the attachment was ordered, the only activity that the republic had 

engaged in was the adoption of a law taking legal control of the 

funds. Argentinian authorities had not had the opportunity to use 

the funds for any commercial activity whatsoever. Under § 1610(a), 

the Second Circuit said, “a sovereign’s mere transfer to a governmental entity of legal control over an asset does not qualify the 

property as being ‘used for a commercial activity.’”217

However, the Second Circuit has also held, in the context of a 

sale of scientific equipment by one private party to another, that a 

foreign government’s remittance of the purchase price to the seller 

 

for” that transaction. See also Walker Int’l Holdings Ltd. v. Republic of the Congo, 395 F.3d 229, 235–36 (5th Cir. 2004) (certain contractual payments held to 

not constitute “commercial activities”); but see Af-Cap, Inc. v. Republic of Congo, 383 F.3d 361, clarified on reh’g, 383 F.3d 503 (5th Cir. 2004) (intangible obligations to pay certain tax and royalty payments to a foreign government constituted a commercial activity, and the situs of the requirement payments was the 

situs of the prospective garnishees); NML Capital, Ltd. v. Spaceport Sys. Int’l, 

L.P., 788 F. Supp. 2d 111 (C.D. Cal. 2011) (scientific applications satellite not

“used for commercial purposes”). 

216. Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 

130 (2d Cir. 2009), cert. denied, 130 S. Ct. 1691 (2010). See also EM Ltd., 473 F.3d 

at 484 (“The plain language of the statute suggests that the standard is actual, not 

hypothetical, use.”).

217. Aurelius Capital Partners, LP, 584 F.3d at 131. “[W]e must respect the 

Act’s strict limitations on attaching and executing upon assets of a foreign state.” 

Id. at 132.
Foreign Sovereign Immunities Act

76

does constitute market activity even if the government purchased 

the equipment in order to implement a national program of scientific research and development, had no “profit motive,” and obtained no tangible benefit from the transaction.218 Since the funds 

were used for a commercial activity in the United States, they were 

accordingly subject to attachment under § 1610(a).

Several courts have interpreted this requirement to apply to the 

entirety of the funds at issue, so that, for example, the use of a portion of a bank account for commercial purposes does not deprive 

the entire account of its immunity.219

I. Other Requirements

In addition, for foreign state property to be amenable to execution, 

the moving party must also satisfy one of the subsidiary requirements in § 1610(a)(1)–(7), which correspond roughly to the exceptions from jurisdictional immunity set forth in § 1605. Thus,

§ 1610(a)(1) addresses waivers. As in the case of jurisdiction, express waivers with respect to attachment and execution are sometimes found in the relevant underlying contracts but must be clearly made on behalf of the foreign state in question.220 Under

§ 1610(a)(6), property of a foreign state in the United States which 

is “used for a commercial activity in the United States” may be attached upon a judgment “based on an order confirming an arbitral 

award rendered against the foreign state.”221

 

218. NML Capital, Ltd. v. Republic of Argentina, 680 F.3d 254 (2d Cir. 

2012), cert. denied, 133 S. Ct. 273 (2012).

219. Walker Int’l Holdings Ltd. v. Republic of the Congo, 395 F.3d 229, 

233–34 (5th Cir. 2004); Liberian E. Timber Corp. v. Gov’t of the Republic of 

Liberia, 659 F. Supp. 606, 610 (D.D.C. 1987).

220. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan 

Gas Bumi Negara, 313 F.3d 70, 82–83 (2d Cir. 2002); Af-Cap, 383 F.3d at 36–67.

221. See TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303

(D.C. Cir. 2005) (“SPF has not shown that Article V of the New York Convention provides any ground for non-enforcement of the arbitration award. Accordingly, we hold the district court correctly entered judgment against the SPF.”).
VI. Attachment and Execution

77

J. State Sponsors of Terrorism

As discussed at greater length in the Addendum in Part VII infra,

execution of judgments against designated state sponsors of terrorism based on § 1605A (which has replaced § 1605(a)(7)) is governed by the provisions of § 1610(f). Execution of such judgments 

against certain “blocked assets” is permitted by § 201 of the Terrorism Risk Insurance Act of 2002 (TRIA).222 In Ministry of Defense

and Support for Armed Forces of the Islamic Republic of Iran v. Elahi,

the U.S. Supreme Court held that a judgment creditor of Iran 

could not execute against a separate entity because (a) the latter 

judgment did not constitute a “blocked asset” for TRIA purposes at 

the time of the lower court decision and (b) in any event, the judgment creditor had waived his right to attachment by electing to 

take partial payment under the Victims of Trafficking and Violence 

Protection Act of 2000 judgment in favor of Iran.223

K. Agency or Instrumentality

Under § 1610(b), which applies to execution against property of an 

agency or instrumentality located in the United States, the agency 

or instrumentality itself must be “engaged in commercial activity in 

the United States.”224 Moreover, § 1610(b) provides that the property of a foreign agency or instrumentality engaged in commercial 

activity in the United States is subject to execution, or attachment 

in aid of execution, if that agency or instrumentality has specifically 

waived its immunity or if the judgment relates to a claim for which 

the agency or instrumentality is not immune, “regardless of whether the property is or was involved in the act upon which the claim 

is based.”225

 

222. Pub. L. No. 107-297, 116 Stat. 2322 (2002) (codified at 28 U.S.C. § 1610 

note) (2002); see Hegna v. Islamic Republic of Iran, 380 F.3d 1000, 1002–03 (7th 

Cir. 2004); Weininger v. Castro, 462 F. Supp. 2d 457, 479 (S.D.N.Y. 2006).

223. 556 U.S. 366, 369 (2009).

224. See Ministry of Def. & Support for the Armed Forces of the Republic of 

Iran v. Elahi, 546 U.S. 450, 452 (2006).

225. 28 U.S.C. § 1610(b) (2010).
Foreign Sovereign Immunities Act

78

Judgments against agencies and instrumentalities may, of 

course, also be enforced in any way that a judgment could be enforced against the concerned foreign state itself.

L. Exceptions

Under 28 U.S.C. § 1611, certain categories of property are immune 

from attachment and execution. These categories include property 

of international organizations that have been designated under the 

International Organizations Immunities Act226 (for example, funds 

being disbursed by the World Bank to a foreign state), property of 

a foreign central bank held for its own account, and property of a 

military character or used for a military activity.227

Funds held in the name of a central bank or monetary authority 

are presumed to be immune from attachment. In NML Capital, 

Ltd. v. Banco Central de la Republica Argentina,

228 the Second Circuit considered the language of § 1611(b)(1) providing that property “of a foreign central bank or monetary authority held for its 

own account” is immune from attachment or execution. Plaintiffs 

in that action had sought ex parte orders of pre-judgment attachment and post-judgment restraint over certain funds of Banco 

Central held at the Federal Reserve Bank of New York. They argued 

that because Banco Central was not in fact independent of the government (but rather its alter ego), the funds did not fall within the 

scope of that provision. The court of appeals disagreed, finding that

 

226. 22 U.S.C. § 288a–288f (1945).

227. See, e.g., Olympic Chartering S.A. v. Ministry of Industry & Trade of 

Jordan, 134 F. Supp. 2d 528 (S.D.N.Y. 2000) (central bank); EM Ltd. v. Republic 

of Argentina, 473 F.3d 463 (2d Cir. 2007) (central bank funds deposited in United States). In All American Trading Corp. v. Cuartel General Fuerza Aerea Guardia Nacional de Nicaragua, 818 F. Supp. 1552 (S.D. Fla. 1993), foreign military 

aircraft were held immune from execution under § 1611(b)(2) even though they 

were in the United States for alterations.

228. 652 F.3d 172 (2d Cir. 2011), cert. denied, 133 S. Ct. 23 (Mem.). This 

presumption is rebuttable, for example where it can be demonstrated that that 

the funds are not in fact used for central bank functions. Id. 
VI. Attachment and Execution

79

the plain language, history and structure of § 1611(b)(1) immunizes 

property of a foreign central bank or monetary authority held for its 

own account without regard to whether the bank or authority is independent from its parent state pursuant to Bancec. . . . [F]oreign central 

banks are not treated as generic “agencies or instrumentalities” of a foreign state under the FSIA: they are given “special protections” befitting 

the particular sovereign interest in preventing the attachment and execution of central bank property.229

Efforts to enforce judgments against property that is otherwise 

inviolable or immune (such as embassies, consulates, or their bank 

accounts falling under the Vienna Conventions on Diplomatic or 

Consular Relations) have been rejected.230

 

229. Id. at 187–88.

230. Cf. Hegna v. Islamic Republic of Iran, 376 F.3d 485 (5th Cir. 2004). 

81

VII. The FSIA and State-Sponsored Terrorism: 

Addendum

The Foreign Sovereign Immunities Act removes the immunity of 

certain foreign states with respect to specific acts of state-sponsored 

terrorism. This particular exception is almost unique to the United 

States, since to date only one other country has adopted a comparable limitation to the general rule of sovereign immunity.231 It is 

also invoked frequently. The exception was first enacted in 1996, 

and steadily growing numbers of plaintiffs have sought to take advantage of its provisions. Most complaints have been filed (and 

thus most decisions have been rendered) in the District of Columbia, but other courts are increasingly likely to encounter issues under this provision, particularly with regard to efforts to enforce 

judgments against the property and assets of state sponsors of 

terrorism.

The terrorism exception was originally adopted as 28 U.S.C.

§ 1605(a)(7).232 In response to various problems encountered by 

plaintiffs in the course of their litigation under this earlier provision, Congress replaced it in 2008 with an expanded exception, 

codified at 28 U.S.C. § 1605A.233 Cases have proliferated against 

Iran and Cuba, but over time against Libya, Iraq, North Korea, Su-

 

231. In March 2012, Canada amended its State Immunity Act to permit victims of terrorism who are Canadian citizens and permanent residents of Canada,

as well as others if the action has a “real and substantial” connection to Canada, 

to seek redress against designated state sponsors by way of a civil action for terrorist acts committed anywhere in the world on or after January 1, 1985. See

http://laws-lois.justice.gc.ca/PDF/S-18.pdf. To date, no suits have been brought 

under this new law. 

232. Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 

104-132, § 221, 110 Stat. 12241 (1996) (codified at 28 U.S.C. § 1605(a)(7)).

233. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 

110-181, Div. A, § 1083 (2008), 122 Stat. 338, 338–44 (NDAA) (codified at 28 

U.S.C. § 1605A).
Foreign Sovereign Immunities Act

82

dan, and Syria as well. A substantial body of interpretive decisional 

law has already emerged under the new statute.234

This Addendum provides an overview of the background and 

purpose of the FSIA’s “terrorism exception” (section A), describes 

the current statutory provision (section B), and then discusses in 

somewhat greater detail the main elements of a claim under the 

provision (section C). Section D summarizes the particular issues 

related to enforcement of judgments against state sponsors of terrorism under § 1605A.

This Addendum builds upon and occasionally refers to, but endeavors not to repeat, the analysis offered in the rest of this guide.

Litigation under the state-sponsored terrorism exception to the 

FSIA must be distinguished from suits against individuals and nonstate entities under the separate Anti-Terrorism Act (ATA), enacted in 1992. That statute provides that 

[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or 

her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages 

he or she sustains and the cost of the suit, including attorney’s fees.235

 

234. The D.C. District Court completed a lengthy, comprehensive review of 

the FSIA terrorism exception in In re Islamic Republic of Iran Terrorism Litig., 659 

F. Supp. 2d 31 (D.D.C. 2009) [hereinafter In re Terrorism Litig.]. For additional 

reading on the terrorism exception, see Danica Curavic, Note, Compensating 

Victims of Terrorism or Frustrating Cultural Diplomacy? The Unintended Consequences of the Foreign Sovereign Immunities Act’s Terrorism Provisions, 43 Cornell 

Int’l L.J. 381 (2010) (discussing the unintended consequences of the FSIA terrorism exception); Michael T. Kotlarcyzk, Note, The Provision of Material Support 

and Resources and Lawsuits Against State Sponsors of Terrorism, 96 Geo. L.J. 2029 

(2008); and Jennifer K. Elsea, Suits Against Terrorist States by Victims of Terrorism, CRS Report RL 31258 (Aug. 8, 2008).

235. 18 U.S.C. § 2333(a). See, e.g., Estate of Parsons v. Palestinian Auth., 651 

F.3d 118 (D.C. Cir. 2011); Kaplan v. Al Jazeera, No. 10 Civ. 5298, 2011 WL 

2314783, at *3–4 (S.D.N.Y. June 7, 2011); Sokolow v. Palestine Liberation Org., 

No. 04 CV 00397 (GBD), 2011 WL 1345086 (S.D.N.Y. Mar. 30, 2011). The ATA 

contains a definition of “international terrorism,” and a related provision provides civil liability for those engaged in “material support” of terrorist organizations. See 18 U.S.C.A. §§ 2331 and 2339B (2009).
VII. The FSIA and State-Sponsored Terrorism: Addendum

83

On occasion, a particular terrorist incident may give rise to claims 

under both statutes.236

A. Background and Purpose

Although victims’ groups had long advocated for a “terrorist” exception to foreign sovereign immunity, no such provision was included in the FSIA when it was originally enacted in 1976.237 Only 

after several significant terrorist incidents in the 1980s and 1990s 

(for example, the kidnapping of Joseph Ciccipio in Beirut and the 

destruction of Pan Am Flight 103 over Lockerbie, Scotland) did 

Congress amend the statute to permit suits against state sponsors 

of terrorism.238

State sponsors of terrorism

consider terrorism a legitimate instrument of achieving their foreign 

policy goals. They have become better at hiding their material support 

for their surrogates, which includes the provision of safe havens, funding, training, supplying weaponry, medical assistance, false travel documentation, and the like. . . . [A]llowing suits in the federal courts 

against countries responsible for terrorist acts where Americans and/or 

their loved ones suffer injury or death at the hands of the terrorist states 

is warranted. Section 804 will give American citizens an important economic and financial weapon against these outlaw states.239

 

236. See, e.g., the litigation concerning a Palestinian suicide bombing at a 

restaurant in Tel Aviv. Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24 

(D.D.C. 2012) (claims against Iran and Syria); Wultz v. Islamic Republic of Iran, 

762 F. Supp. 2d 18 (D.D.C. 2011) (claims against the Bank of China); Wultz v. 

Islamic Republic of Iran, 755 F. Supp. 2d 1 (D.D.C. 2010) (same).

237. The executive branch resisted because it feared that a terrorism exception would “cause other nations to respond in kind, thus potentially subjecting 

the American government to suits in foreign countries for actions taken in the 

United States.” Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 

89 (D.C. Cir. 2002); see also H.R. Rep. No. 103-702, at 12 (1994).

238. See Presidential Statement Upon Signing the Antiterrorism and Effective Death Penalty Act of 1996, 32 Weekly Comp. of Pres. Doc. 719 (Apr. 29, 

1996). 

239. H.R. Rep. No. 104-383, at 62 (1995).
Foreign Sovereign Immunities Act

84

As originally enacted, § 1605(a)(7) removed the immunity of 

foreign states with respect to cases seeking money damages for personal injury or death caused by certain enumerated acts taken by 

those states or their officials. The exception was limited to those 

few states that had been formally designated by the Secretary of 

State as sponsors of terrorism under § 6(j) of the Export Administration Act of 1979240 or § 620A of the Foreign Assistance Act of 

1961241 at the time the acts in question had occurred or as a result 

of such acts. In 1996, this list included Cuba, Iran, Libya, North 

Korea, Sudan, Syria, and Iraq.242

In addition, the original exception only permitted suits arising 

from acts of torture, extrajudicial killing, aircraft sabotage, hostage 

taking, or the provision of material support or resources, and only 

if such acts or provision of material support had been engaged in 

by an official, employee, or agent of the foreign state while acting 

within the scope of his or her office, employment, or agency.

The impact of § 1605(a)(7) as initially enacted was further circumscribed when courts interpreted it as “merely a jurisdictionconferring provision” that did not create an independent private 

right of action. In Flatow v. Islamic Republic of Iran, for example, 

the district court ruled that the statutory exception to sovereign 

foreign immunity did not itself create a federal cause of action.243

Instead, the statute operated merely as a “pass-through,” allowing 

plaintiffs to bring suit in federal court for claims based in state law.

Given the difficulties encountered by plaintiffs in seeking to recov240. Section 6(j) of the Export Administration Act of 1979 is codified at 50 

U.S.C. app. § 2405(j).

241. Section 620A of the Foreign Assistance Act of 1961 is codified at 22 

U.S.C. § 2371.

242. Iraq was removed in 2004, Libya in 2006, and North Korea in 2008. As 

of December 2013, the designees are Cuba, Iran, Sudan, and Syria. See the Department of State website at http://www.state.gov/j/ct/list/c14151.htm.

243. 999 F. Supp. 1 (D.D.C. 1998). Alisa Flatow, a Brandeis University student, had been killed by a terrorist attack while traveling on a bus in the Gaza 

Strip when a suicide bomber drove a van full of explosives into the bus. The failure of the litigation provoked sufficient political pressure to prompt legislative 

action.
VII. The FSIA and State-Sponsored Terrorism: Addendum

85

er for injuries occurring abroad under state tort statutes or general 

common law, this interpretation sharply limited the reach of the 

exception. Differences in state law also produced disparate results 

for victims of the same terrorist act, depending on their domicile at 

the time of the attack. 

In response, Congress passed the so-called Flatow Amendment.

244 This amendment sought to clarify the liability under the 

terrorism exception of any official, employee, or agent of a designated state sponsor of terrorism for personal injury or death caused 

to a U.S. national by acts of that official, employee, or agent while 

acting within the scope of his or her office, employment, or agency.

It also provided that money damages in FSIA suits could include 

economic damages, solatium, pain and suffering, and punitive 

damages.

However, the Flatow Amendment failed to resolve the most 

significant obstacles facing plaintiffs under the statute. While some 

courts held that it provided a cause of action against a foreign state 

itself,245 others found that it provided a cause of action only against 

the individual officials, employees, or agents of a foreign state. In 

Cicippio-Puleo v. Islamic Republic of Iran, for example, the D.C. 

Circuit held that neither § 1605(a)(7) nor the Flatow Amendment, 

nor the two taken in tandem, created a private right of action 

against foreign state sponsors of terrorism.246 In Acree v. Republic of 

Iraq, the same court held that plaintiffs could not state a cause of 

action under the “generic common law” or merely allude “to the 

 

244. See Civil Liability for Acts of State Sponsored Terrorism, Pub. L. No. 

104-208, Div. A, § 589, 110 Stat. 3009-172 (1996) (codified at 28 U.S.C. § 1605 

note (2006)).

245. See, e.g., Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 214 (D.D.C. 

2003); Kilburn v. Republic of Iran, 277 F. Supp. 2d 24 (D.D.C. 2003); Pugh v.

Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d 54 (D.D.C. 2003).

246. 353 F.3d 1024 (D.C. Cir. 2004). In so doing, it removed the basis for 

punitive damage awards. 
Foreign Sovereign Immunities Act

86

traditional torts . . . in their generic form” but must identify a “particular cause of action arising out of a specific source of law.”247

In consequence, § 1605(a)(7) was repealed and replaced in 

2008 by a further revision, now codified at 28 U.S.C. § 1605A. Although in many respects the new provision’s operative language is 

virtually identical to that of its predecessor, the new provision 

clearly established a private right of action, recodified the provisions for the award of punitive damages, authorized compensation 

for special masters to assist the courts in resolving cases, and incorporated new mechanisms for the enforcement of judgments.248

B. The Current Exception

By its terms, § 1605A(c) provides a private right of action under 

federal law for money damages against designated foreign state 

sponsors of terrorism (including their political subdivisions and 

agencies or instrumentalities). The action may be for personal injury or death resulting from certain listed acts caused by the designated state sponsor or its officials, employees, or agents. Claimed 

damages may include economic damages, solatium, pain and suffering, and punitive damages. A designated foreign state may be 

held to be vicariously liable for the acts of its officials, employees, 

or agents acting within the scope of their office, employment, or 

agency.249

 

247. 370 F.3d 41, 59–60 (D.C. Cir. 2004). For general background on the 

Flatow Amendment, see Joseph Keller, The Flatow Amendment and StateSponsored Terrorism, 28 Seattle U. L. Rev. 1029 (2005). For an example of “stateby-state” analysis of claims under § 1605(a)(7), see Estate of Heiser v. Islamic 

Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006) (“Heiser I”).

248. In re Terrorism Litig., 659 F. Supp. 2d 31, 39 (D.D.C. 2009).

249. In explicitly establishing a private right of action and in specifying the 

damages that may be claimed, the amended provisions were intended to resolve 

the issues created by Cicippio-Puleo, 353 F.3d at 1024 (holding that neither

§ 1605(a)(7) nor the Flatow Amendment, nor the two taken in tandem, created a 

private right of action against a foreign government), and Acree, 370 F.3d at 41

(holding that plaintiffs could not state a right of action under the “generic common law” or merely allude “to the traditional torts . . . in their generic from” but 
VII. The FSIA and State-Sponsored Terrorism: Addendum

87

Specifically, the claim must be for personal injury or death 

“caused by an act of torture, extrajudicial killing, aircraft sabotage, 

hostage taking, or the provision of material support or resources 

for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.”250

Additional requirements must also be satisfied. The exception 

applies only if

(i) the foreign state had been designated as a state sponsor of terrorism 

at the time of (or as a result of) the act in question,

(ii) the claimant or victim was a U.S. national, member of the U.S. 

armed forces or an employee or contractor of the U.S. Government acting within the scope of employment, and

(iii) when the acts in question occurred within the territory of the foreign state, that state has been given a “reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of 

arbitration.”251

1. Exclusivity

The generally accepted rule has been that, if the conduct in question constitutes “terrorism” within the scope of this exception, 

then none of the FSIA’s other exceptions may be applied. For example, the Second Circuit held in 2010 that although the acts listed 

in the terrorism exception are by definition “torts,” plaintiffs could 

not bring their claim under the FSIA’s non-commercial torts exception if it properly fell under the terrorism exception, since to do 

so would “evade and frustrate that key limitation” on the terrorism 

exception.252 Similarly, the Fifth, Seventh, and Ninth Circuits have 

 

must identify a “particular cause of action arising out of a specific source of 

law”). See, e.g., the discussion in Leibovitch v. Islamic Republic of Iran, 697 F.3d 

561 (7th Cir. 2012).

250. 28 U.S.C. § 1605A(a)(1) (2010).

251. Id. § 1605A(a)(2).

252. In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 88–89 (2d Cir. 

2008), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010).
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88

also rejected attempts by a plaintiff to “shoehorn” a claim properly 

brought under one exception into another.253

More recently, however, the Second Circuit has taken a different approach, holding that “the terrorism exception, rather than 

limiting the jurisdiction conferred by the noncommercial tort exception, provides an additional basis for jurisdiction.”254 In so deciding, the court focused on the fact that Congress had expressly 

limited the exception to “any case not otherwise covered by [the 

FSIA],” meaning that it was intended “to cover some injuries that 

the noncommercial tort exception does not reach.”255 The court 

acknowledged that its holding conflicted with the 2010 decision but 

said that the panel in that earlier case had been presented “with 

sparse and one-sided argument on this point in the context of a 

very large and complex case that focused on other aspects of the 

FSIA.”256

Whether the availability of a federal cause of action excludes 

the possibility of recovery under state law remains unclear, however. In Gates v. Syrian Arab Republic, the U.S. District Court for the 

District of Columbia held that “state law no longer controls the nature of the liability and damages that may be sought . . .; Congress 

has provided the ‘specific source of law’ for recovery.”257 Yet in 

Valore v. Islamic Republic of Iran, the same court found that 

“[a]lthough the FSIA terrorism exception now includes an independent federal cause of action . . . plaintiffs may still pursue claims 

based on law of states of the United States . . . under the FSIA ter253. See de Sanchez v. Banco Cent. De Nicaragua, 770 F.2d 1385, 1398–99

(5th Cir. 1985); Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 254 

(7th Cir. 1983); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1106 (9th Cir. 

1990).

254. Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir. 2011).

255. Id. at 70.

256. Id. at n.10.

257. 580 F. Supp. 2d 53, 66 (D.D.C. 2008). Cf. Rux v. Republic of Sudan, 672 

F. Supp. 2d 726 (E.D. Va. 2009), aff’d, 410 F. App’x 581 (4th Cir. 2011) (holding, 

in a case arising from the bombing of the U.S.S. Cole in October 2000, that the 

federal Death on the High Seas Act provided plaintiffs’ exclusive cause of action 

and precluded reliance on state law as well as § 1605A).
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89

rorism exception’s jurisdiction-conferring provisions, § 1605A(a)-

(b).”258 In another case, Wyatt v. Syrian Arab Republic, the parties 

were required to submit additional briefing on whether the plaintiff’s state tort claims were appropriate with respect to the new federal cause of action language in § 1605A.259

2. Statute of limitations

Under § 1605A, there is a ten-year limitations period; the action 

must be brought or maintained no later than ten years after the 

date on which the cause of action arose or after April 24, 1996, 

whichever is later.260 This latter provision represented a significant 

change from the previous version of the exception, under which a 

number of cases were dismissed because they had been filed after 

the ten-year period following the acts in question.261

3. Default

In the majority of state-sponsored terrorism cases brought under

§ 1605A, neither the foreign state nor the individuals named as defendants appear or answer. However, because jurisdiction under 

the FSIA depends on a determination that the defendants in such 

cases are not entitled to immunity, the court must nonetheless determine whether the case falls within the terms of the exception 

and that the defendant is not entitled to immunity. Service of pro-

 

258. 700 F. Supp. 2d 52, 81 n.15 (D.D.C. 2010).

259. 736 F. Supp. 2d 106, 114 (D.D.C. 2010).

260. Section 1605A(b) provides that an action 

may be brought or maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this section) or section 589 of the Foreign 

Operations, Export Financing, and Related Programs Appropriations Act, 

1997 (as contained in section 101(c) of division A of Public Law 104-208) 

not later than the latter of (1) ten years after April 24, 1996; or (2) ten years 

after the date on which the cause of action arose.

261. See, e.g., Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 21–23 (D.D.C. 

2006), rev’d in part sub nom. Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 

2008), rev’d sub nom. Republic of Iraq v. Beaty, 556 U.S. 848 (2009).
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90

cess must still be attempted in accordance with the methods specified in § 1608.

Moreover, § 1608(e) provides that a default judgment can be 

entered against a foreign state only after the plaintiff “establishes 

his claim or right to relief by evidence that is satisfactory to the 

court.” In making that determination, the court may not simply 

accept the plaintiff’s unsupported allegations, but must conduct 

further inquiry before entering judgment.262 It may accept as true 

uncontroverted evidence offered by the plaintiff and may take judicial notice of court records in related proceedings.263 Several recent 

decisions have addressed when and to what extent a court may take 

judicial notice of prior findings of fact in related proceedings before the same court.264

4. Discovery

Since default is the norm, discovery requests directed to the defendants do not typically pose problems in terrorism cases. Regarding discovery requests directed to the U.S. government, the special 

rules set forth in § 1605(g) remain applicable. That provision requires the court, upon request of the U.S. Attorney General, to stay 

any request, demand, or order for discovery on the United States that 

the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as 

the Attorney General advises the court that such request, demand, or 

order will no longer so interfere.

 

262. Beer v. Islamic Republic of Iran, No. 08-cv-1807 (RCL), 2010 WL 

5105174, at *11–12 (D.D.C. Dec. 9, 2010); Reed v. Islamic Republic of Iran, 845 

F. Supp. 2d 204 (D.D.C. 2012).

263. Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24 (D.D.C. 2012); 

Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1 (D.D.C. 2011); Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48 (D.D.C. 2011).

264. See Wultz, 864 F. Supp. 2d at 29; Fain v. Islamic Republic of Iran, 856 F. 

Supp. 2d 109 (D.D.C. 2012)); Harrison v. Republic of Sudan, 882 F. Supp. 2d 23

(D.D.C. 2012); Anderson v. Islamic Republic of Iran, 753 F. Supp. 2d 68 (D.D.C. 

2010); Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163 (D.D.C. 2010). 
VII. The FSIA and State-Sponsored Terrorism: Addendum

91

In addition to various time limits and other limitations,

§ 1605(g)(4) provides that “a stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss 

under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure.”

C. Main Elements of a Claim Under § 1605A

The following sections consider the main requirements of a claim 

brought under § 1605A.

1. Nationality of claimant or victim

Under § 1605A(c), a claim may be pursued by four categories of 

individuals: 

1. a national of the United States;

2. a member of the U.S. armed forces;

3. an employee of the U.S. government or of an individual performing a contract awarded by the U.S. government, acting 

within the scope of the employee’s employment; or

4. a legal representative of such a person.265

Plaintiffs may include family members as well as those who 

were directly harmed by the acts in question. One district court has 

distinguished between victims (defined as “those who suffered injury or died as a result of the attack”) and claimants (defined as 

“those whose claims arise out of those injuries or deaths but who 

 

265. The term “national” is of course broader than the term “citizen.” See 28 

U.S.C. § 1605A(a)(2)(A)(ii), which refers to the definition provided in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(22): “The term ‘national of 

the United States’ means (A) a citizen of the United States, or (B) a person who, 

though not a citizen of the United States, owes permanent allegiance to the United States.” See the discussion in Mohammadi v. Islamic Republic of Iran, 947 F. 

Supp. 2d 48 (D.D.C. 2013). But see Acosta v. Islamic Republic of Iran, 574 F. 

Supp. 2d 15, 26 (D.D.C. 2008) (Congress did not intend that “a cause of action 

under § 1605A remain available to those persons who voluntarily and deliberately renounce American citizenship”).
Foreign Sovereign Immunities Act

92

might not be victims themselves”).266 Under this approach, victims 

may include those who were killed or physically or emotionally injured, as well as members of a victim’s immediate family who suffered from intentional infliction of emotional distress.

Regardless of whether the plaintiff is a victim or a claimant, the 

standing requirements must be satisfied. Most commonly, that 

means that either the claimant or the victim of the terrorist attack 

must have been a U.S. citizen at the time of the attack. In Acosta v. 

Islamic Republic of Iran, for example, the claims arose from the 

1990 assassination of Israeli Rabbi Meir Kahane in New York City.

Because Rabbi Kahane was not a U.S. citizen, claims on his behalf 

fell outside the statute, but claims for severe mental anguish of his 

wife and family, who were citizens, were allowed to proceed.267

Several courts have rejected claims by individuals who were not 

“immediate family members” at the time of the attack in question.268 As one court stated, 

The very nature of a claim for solatium or intentional infliction of emotional distress necessitates a relationship between the victim and the 

claimant at the time of the attack. Intentional infliction of emotional 

distress requires an element of shock. If the definition of emotional distress were expanded to include claimants who were not immediate family members at the time of the attack, the potential number of claimants 

would be unidentifiable, changing with every new marriage or new 

child.269

Non-citizens and non-nationals can satisfy this requirement 

only if, at the relevant time, they were either members of the U.S. 

armed forces or “otherwise an employee of the Government of the 

United States, or of an individual performing a contract awarded 

 

266. Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 65 (D.D.C. 

2010).

267. Acosta, 574 F. Supp. 2d at 15.

268. See, e.g., Murphy, 740 F. Supp. 2d at 51; Peterson v. Islamic Republic of 

Iran, 515 F. Supp. 2d 25, 45 (D.D.C. 2007); Bettis v. Islamic Republic of Iran, 315 

F.3d 325, 334–35 (D.C. Cir. 2003). 

269. Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48, 

75 (D.D.C. 2011).
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93

by the United States Government, acting within the scope of the 

employee’s employment.”270

In Estate of Doe v. Islamic Republic of Iran, the court held that

the foreign (non-U.S.-citizen) family members of foreign national 

employees of the U.S. embassy in Beirut who were killed or injured 

in terrorist attacks lacked a federal cause of action under

§ 1605A.271 Similarly, in Owens v. Republic of Sudan, the court 

found that foreign national family members of the victims of the 

bombings of the U.S. embassies in Dar es Salaam and Nairobi 

could not proceed under § 1605A, although they “may continue to 

pursue claims under applicable state and/or foreign law.”272

2. Designated state sponsor of terrorism

At the time of (or as a result of) the act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material 

support or resources in question, the Secretary of State must have 

formally designated the foreign state as a government that has “repeatedly provided support for acts of international terrorism” pursuant to § 6(j) of the Export Administration Act of 1979, § 620A of 

the Foreign Assistance Act of 1961, § 40 of the Arms Export Control Act, or any other relevant provision of law.273

The list of designated state sponsors of terrorism is published 

on April 30 of each year. If the foreign state is not on the list at the 

time of the act or as a result of the act, the terrorism exception does 

 

270. 28 U.S.C. § 1605A(a)(2)(ii)(III) (2008).

271. 808 F. Supp. 2d 1 (D.D.C. 2011).

272. 826 F. Supp. 2d 128, 153 (D.D.C. 2011).

273. 28 U.S.C. § 1605A(h)(6) (2008). See also 28 U.S.C. § 1605A(a)(2)(A)

(i)(II) (2008) (if the action is a “related” or “prior” action, the foreign state must 

have been designated as a state sponsor of terrorism when the original action or 

the related action was filed).
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94

not apply.274 As of December 2013, four countries were on the list: 

Cuba, Iran, Sudan, and Syria.275

The removal of a state from the list of designated state sponsors 

does not automatically impact pending litigation. However, following the overthrow of Saddam Hussein, Congress passed legislation 

that permitted the President to make the terrorism exception to 

immunity under former § 1605(a)(7) inapplicable to Iraq, depriving the courts of jurisdiction over then-pending actions. In Republic of Iraq v. Beaty,

276 the Supreme Court upheld the President’s exercise of this authority: “When the President exercised his authority 

to make inapplicable to Iraq all provisions of law that apply to 

countries that have supported terrorism, the exception to foreign 

sovereign immunity for state sponsors of terrorism became inoperative as against Iraq.”277

3. Scope of authority

The private right of action provided by § 1605A recognizes that 

both the foreign state itself and any official, employee, or agent of 

that state can be held liable for personal injury or death resulting 

from any of the enumerated acts specified by the statute.278 The 

 

274. 28 U.S.C. § 1605A(a)(2)(A)(i)(I) (2008); In re Terrorist Attacks on 

Sept. 11, 2001, 538 F.3d 71, 75 (2d Cir. 2008), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010).

275. See U.S. Department of State, State Sponsors of Terrorism, http://www.

state.gov/j/ct/list/c14151.htm.

276. 556 U.S. 848 (2009), upholding Pres. Determ. No. 2003-23, 68 Fed. 

Reg. 26459 (May 7, 2003), under sections 1503 and 1504 of the Emergency Wartime Supplemental Act of 2003, Pub. L. No. 108–11, 117 Stat 559.

277. 556 U.S. at 866. In so doing, the Court overruled several lower courts. 

See, e.g., Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 78 (D.D.C. 2006)

(“[T]he acts in question occurred while the defendant was designated as a state 

sponsor of terrorism, and the Presidential Determination [removing Libya from 

the list] does not divest the court of jurisdiction over the case.”); Fisher v. Great 

Socialist People’s Libyan Arab Jamahiriya, 541 F. Supp. 2d 46, 51–52 (D.D.C. 

2008); Hartford Fire Ins. Co. v. The Socialist People’s Libyan Arab Jamahiriya, 

Civ. No. 98-3096 (TFH), 2007 WL 1876392, at *2 (D.D.C. June 28, 2007).

278. 28 U.S.C. § 1605A(c) (2008). This distinguishes the terrorism exception 

from the other exceptions in the FSIA, since the Supreme Court recently held, in
VII. The FSIA and State-Sponsored Terrorism: Addendum

95

acts must have been committed by the official, employee, or agent 

“while acting within the scope of his or her office, employment or 

agency.” The statute expressly makes the foreign state “vicariously 

liable for the acts of its officials, employees, or agents.”279

Whether the specific acts in question fall within “the scope of a 

defendant’s office, employment, or agency” appears to be addressed as a factual question. In Rux v. Republic of Sudan, for example, the Fourth Circuit found that plaintiffs had “easily” satisfied 

this requirement by alleging that Sudanese President Bashir had 

authorized Al-Qaeda operatives to enter Sudan and had given AlQaeda special authority to avoid paying taxes and duties.280 Bashir, 

the court said, was clearly “an official, employee, or agent” of Sudan by virtue of his elected position, and his alleged actions fell 

“within the scope of his . . . office, employment, or agency” because 

each involved the exercise of the governmental authority vested in 

the office of president by Sudan’s constitution.281 The court also 

acknowledged other actions that involved governmental officials 

acting within the scope of their offices, including using diplomatic 

pouches, allowing the “establishment and operation of terrorist 

training camps, and establishing financial joint ventures between 

Sudan and Al-Qaeda.”282

In Taylor v. Islamic Republic of Iran, which arose from the 

bombing of the U.S. Marine barracks in Beirut, the court determined that Iran had been “directly tied to the actions undertaken 

by the members of Hezbollah” and played a “crucial and necessary 

role in planning and ordering” the attack.283

 

Samantar v. Yousuf, 560 U.S. 305, 324–325 (2010), that the statute does not apply 

to individuals. In its decision, the Court referred to § 1605A(c) as an example of 

Congress’s ability to distinguish between “foreign states” and their officers, employees, and agents.

279. 28 U.S.C. § 1605A(c) (2010).

280. 461 F.3d 461, 472 (4th Cir. 2006).

281. Id. at 471.

282. Id. at 472 n.5.

283. 811 F. Supp. 2d 1, 9–10 (D.D.C. 2011). 
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96

4. Listed acts 

Under § 1605A(a)(1), the plaintiff must sufficiently allege that one 

of the following specified acts has been committed: “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the 

provision of material support or resources for such an act.”

a. Torture

For purposes of § 1605A, “torture” has the meaning given to that 

term in section 3 of the Torture Victim Protection Act of 1991:

Torture means any act, directed against an individual in the offender’s 

custody or physical control, by which severe pain or suffering (other 

than pain or suffering arising only from or inherent in, or incidental to, 

lawful sanctions), whether physical or mental, is intentionally inflicted 

on that individual for such purposes as obtaining from that individual 

or a third person information or a confession, punishing that individual 

for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a 

third person, or for any reason based on discrimination of any kind.284

One of the most important elements of this definition is its severity requirement. Courts must examine the “degree of pain and 

suffering that the alleged torturer intended to, and actually did, inflict upon the victim.”285 The purpose is to ensure that the conduct 

proscribed by the 1984 United Nations Convention Against Torture286 and the Torture Victim Protection Act is “sufficiently extreme and outrageous to warrant the universal condemnation that 

the term ‘torture’ both connotes and invokes.”287 This examination 

will typically require a factual inquiry. As the court in Price v. Socialist People’s Libyan Arab Jamahiriya pointed out, torture does 

 

284. 28 U.S.C. § 1605A(h)(7) (2008). The Torture Victim Protection Act of 

1991, § 3(b)(1), Pub. L. No. 102-256, 106 Stat. 73, is codified at 28 U.S.C. § 1350 

Note (1992).

285. Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93 

(D.C. Cir. 2002).

286. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, ___U.S.T. ___, 

1465 U.N.T.S. 85.

287. Id. at 92.
VII. The FSIA and State-Sponsored Terrorism: Addendum

97

not automatically result whenever an individual in custody is the 

subject of physical assault.288 However, deprivation of adequate 

food, light, toilet facilities, and medical care over a prolonged period of captivity has been found to meet the statutory requirement.289

b. Extrajudicial killing

The term “extrajudicial killing” also has the meaning given in the 

Torture Victim Protection Act, namely, “a deliberate killing not 

authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”290 An assassination 

qualifies.291

In Campuzano v. Islamic Republic of Iran, the U.S. District 

Court for the District of Columbia held that suicide bombings resulting in injury to the plaintiffs constituted extrajudicial killings 

within the scope of the state-sponsored terrorism exception.292

However, in Wyatt v. Syrian Arab Republic, an extrajudicial killing 

claim did not succeed when two soldiers, unknown and unrelated 

to the plaintiffs, were killed when attempting to rescue the plaintiff-hostages.293 The Wyatt court distinguished Campuzano by 

288. Id. at 93 (“Not all police brutality, not every instance of excessive force 

used against prisoners, is torture under the FSIA.”).

289. See, e.g., Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27, 32 

(D.D.C. 2001), aff’d sub nom. Bettis v. Islamic Republic of Iran, 315 F.3d 325 

(D.C. Cir. 2003); Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27 

(D.D.C. 2001) (The court found that the “deprivation of adequate food, light, 

toilet facilities, and medical care for over six years amounts to torture. . . .”).

290. 28 U.S.C. § 1605A(h)(7) (2008); Torture Victim Protection Act of 

1991, § 3(a), 28 U.S.C. § 1350 Note (1992). See Estate of Doe v. Islamic Republic 

of Iran, 808 F. Supp. 2d 1 (D.D.C. 2011); Haim v. Islamic Republic of Iran, 784 

F. Supp. 2d 1 (D.D.C. 2011); Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 

52, 74 (D.D.C. 2010); Kilburn v. Islamic Republic of Iran, 699 F. Supp. 2d 136, 

152–53 (D.D.C. 2010).

291. Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 107 (D.D.C. 

2000).

292. 281 F. Supp. 2d 258, 269–70 (D.D.C. 2003).

293. 362 F. Supp. 2d 103, 111–12 (D.D.C. 2005).
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98

pointing out that the death of the soldiers in Wyatt caused no physical injury to the plaintiffs, whereas the Campuzano suicide bombs 

physically injured the plaintiffs.294

c. Aircraft sabotage

The statute defines “aircraft sabotage” by reference to Article 1 of 

the 1971 Convention for the Suppression of Unlawful Acts Against 

the Safety of Civil Aviation, commonly referred to as the Montreal 

Convention.295 Under that article, a person commits an offense if 

he or she unlawfully and intentionally: 

(a) performs an act of violence against a person on board an aircraft in 

flight if that act is likely to endanger the safety of that aircraft; 

(b) destroys an aircraft in service or causes damage to such an aircraft 

which renders it incapable of flight or which is likely to endanger its 

safety in flight;

(c) places or causes to be placed on an aircraft in service, by any means 

whatsoever, a device or substance which is likely to destroy that aircraft, 

or to cause damage to it which renders it incapable of flight, or to cause 

damage to it which is likely to endanger its safety in flight;

(d) destroys or damages air navigation facilities or interferes with their 

operation, if any such act is likely to endanger the safety of aircraft in 

flight; or 

(e) communicates information which he knows to be false, thereby 

endangering the safety of an aircraft in flight.296

A person also commits an offense if he or she (a) attempts to 

commit any of the offenses mentioned above or (b) is an accomplice of a person who commits or attempts such an offense.

Aircraft sabotage claims were sustained in Pugh v. Socialist People’s Libyan Arab Jamahiriya297 and Rein v. Socialist People’s Libyan 

 

294. Id. at 112.

295. 28 U.S.C. § 1605A(h)(1). Convention for the Suppression of Unlawful 

Acts Against the Safety of Civil Aviation, 974 U.N.T.S. 178, 24 U.S.T. 564, 

T.I.A.S. No. 7570 (entered into force on Jan. 26, 1973). (Montreal Convention). 

The offenses are criminalized in the United States by 18 U.S.C. § 32(a)(3) & (6)

(2006).

296. Montreal Convention, at 1.

297. 290 F. Supp. 2d 54 (D.D.C. 2003).
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99

Arab Jamahiriya.

298 In Pugh, claims were brought on behalf of seven American citizens killed on September 19, 1989, when UTA 

Flight 772, en route from Brazzaville to Paris, exploded in mid-air 

over southeastern Niger, killing all aboard. Rein involved claims by 

the survivors and representatives of persons killed aboard Pan Am 

Flight 103 above Lockerbie, Scotland.

d. Hostage taking

The statute adopts the definition of “hostage taking” used in Article 

1 of the International Convention Against the Taking of Hostages, 

according to which hostage taking occurs when a person “seizes or 

detains and threatens to kill, to injure or to continue to detain another person . . . in order to compel a third party. . . to do or abstain from doing any act as an explicit or implicit condition for the 

release of the hostage. . . .”299

An essential element of this claim is that the “intended purpose 

of the detention be to accomplish the sort of third-party compulsion described in the convention.”300 For instance, in Price v. Socialist People’s Libyan Arab Jamahiriya, this compulsion element 

was not satisfied when the detention of the plaintiffs was undertaken to “express[] support for illegal behavior” rather than to compel 

a third party to act.301

Additionally, because the definition of “hostage taking” focuses 

on the state of mind of the individual detaining the hostages, it is 

not necessary for the hostage-taker to communicate his or her in-

 

298. 162 F.3d 748 (2d Cir. 1998), aff’d in part, 162 F.3d 748 (2d Cir. 1998), 

cert. denied, 527 U.S. 1003 (1999).

299. 28 U.S.C. § 1605A(h)(2); International Convention Against the Taking 

of Hostages, G.A. Res. 146 (XXXIV), U.N. GAOR, 34th Sess., Supp. No. 45, U.N. 

Doc. A/34/45, at 245 (June 3, 1983), 1316 U.N.T.S. 205, T.I.A.S. No. 1108, 18 

ILM 1456 (entered into force for the United States Jan. 6, 1985).

300. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 

235 (D.C. Cir. 2003).

301. 294 F.3d 82, 94 (D.C. Cir. 2002).
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100

tended purpose to a third party in order for the element to be fulfilled.302

e. Material support or resources

This statutory element incorporates the broad meaning given to the 

term “material support or resources” in the Anti-Terrorism Act, 

which lists various types of support, including “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or 

identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel . . ., and transportation, except medicine or religious materials.”303 A plaintiff may satisfy this 

requirement by identifying conduct by the defendant that falls 

within the “meaning of any one of these listed forms of material 

support.”304

Evidence that a foreign state has provided financial, technical, 

logistical, and other material support and resources to terrorist 

groups for the purpose of carrying out any of the aboveenumerated acts is sufficient.305 It is important to note that it is not 

necessary for the material support to have directly contributed to 

the specific act under which the claims arose. However, at least one 

 

302. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 356, 

360 (D.C. Cir. 2006).

303. 18 U.S.C. §§ 2339A(b)(1), 1605A(h)(3). See Taylor v. Islamic Republic 

of Iran, 811 F. Supp. 2d 1 (D.D.C. 2011); Estate of Doe v. Islamic Republic of 

Iran, 808 F. Supp. 2d 1 (D.D.C. 2011); Haim v. Islamic Republic of Iran, 784 F. 

Supp. 2d 1 (D.D.C. 2011); Owens v. Republic of Sudan, 412 F. Supp. 2d 99 

(D.D.C. 2006).

304. Rux v. Republic of Sudan, 461 F.3d 461, 470 (4th Cir. 2006). If the type 

of material support alleged in the complaint is not included in 18 U.S.C § 2339A, 

the definition should be construed in accordance with its ordinary or natural 

meaning in a manner that “effectuates congressional intent.” Id. at 476.

305. See, e.g., Beer v. Islamic Republic of Iran, No. 08-cv-1807 (RCL), 2010 

WL 5105174, at *11–12 (D.D.C. Dec. 9, 2010).
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of the listed acts above must occur as a result of the material support in order for the terrorism exception to apply.306

5. Causation

Causation is a jurisdictional requirement of the FSIA’s statesponsored terrorism provisions. Like its predecessor, § 1605A(a)(1) 

requires that the injury or death have been “caused by” one of the 

listed acts (and that such act was “engaged in by an official, employee, or agent of such foreign state while acting within the scope 

of his or her office, employment, or agency”). Both the D.C. and 

Fourth Circuits have rejected a “but for” interpretation of the 

“caused by” language found in both § 1605(a)(7) and § 1605A in 

favor of “proximate cause.”307

In Kilburn v. Socialist People’s Libyan Arab Jamahiriya, the D.C. 

Circuit distinguished the issue of jurisdictional causation under the 

state-sponsored terrorism exception from the proof necessary to 

prevail on a substantive cause of action.308 With regard to the first

issue, which may arise on a motion to dismiss, the court of appeals 

said that proximate cause exists so long as there is “some reasonable connection between the act or omission of the defendant and 

the damages which the plaintiff has suffered.”309

In Rux v. Republic of Sudan, which involved claims against Sudan by the relatives of seventeen U.S. sailors killed in the terrorist 

bombing of the U.S.S. Cole, the Fourth Circuit found the allega-

 

306. Wyatt v. Syrian Arab Republic, 362 F. Supp. 2d 103, 111 (D.D.C. 2005).

307. Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 

1127–28 (D.C. Cir. 2004) (court considered extensively the question of using 

“but for” versus “proximate cause” for the causation standard); accord, Rux v. 

Republic of Sudan, 461 F.3d 461, 472 (4th Cir. 2006). See also Wyatt v. Syrian 

Arab Republic, 736 F. Supp. 2d 106 (D.D.C. 2010) (proximate cause); Valore v. 

Islamic Republic of Iran, 700 F. Supp. 2d 52, 75 (D.D.C. 2010) (“[t]here is no 

but-for causation requirement under the FSIA; proximate causation is sufficient.”).

308. 376 F.3d 1123, 1127–29 (D.C. Cir. 2004).

309. Id. at 1128–29 (citing Prosser & Keeton on the Law of Torts 263 (5th 

ed. 1984)).
Foreign Sovereign Immunities Act

102

tions sufficient to satisfy jurisdictional causation.310 The plaintiffs 

alleged that Sudan had provided “material support or resources” to 

the al-Qaeda operatives who planned the attack; Sudan challenged 

the sufficiency of the specific allegations. The court of appeals said 

that the statute only required the plaintiffs to allege facts “sufficient 

to establish a reasonable connection between a country’s provision 

of material support to a terrorist organization and the damage arising out of a terrorist attack.”311 It noted that at the jurisdictional 

stage, the “proximate cause” standard “serves simultaneously to 

weed out the most insubstantial cases without posing too high a 

hurdle to surmount at a threshold stage of the litigation.”312

In comparison, in Davis v. Islamic Republic of Iran, in ruling on 

a special master’s recommendations regarding damages following 

entry of a default judgment, the U.S. District Court for the District 

of Columbia stated that the FSIA requires plaintiffs to prove that 

the consequences of the defendants’ conduct were “reasonably certain,” that is, “more likely than not” to occur.313 More generally, 

causation and liability will be determined by reference to established principles of law, as reflected for example in the Restatement 

(Second) of Torts314 and as adopted in state jurisdictions. In this regard, a series of decisions from the U.S. District Court for the District of Columbia reminds plaintiffs that the statute requires them 

to prove “a theory of liability” articulating a justification for the 

recovery of damages, “generally expressed ‘through the lens of civil 

tort liability.’”315

 

310. 461 F.3d 461 (4th Cir. 2006).

311. Id. at 473. This decision applied § 1605(a)(7).

312. Id.

313. Davis v. Islamic Republic of Iran, 882 F. Supp. 2d 7 (D.D.C. 2012); see 

also Fain v. Islamic Republic of Iran, 885 F. Supp. 2d 78 (D.D.C. 2012).

314. Restatement (Second) of Torts (1965).

315. Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 54 (D.D.C. 

2012) (quoting Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 175–76 

(D.D.C. 2010)); see also Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24 

(D.D.C. 2012); Fain v. Islamic Republic of Iran, 856 F. Supp. 2d 109 (D.D.C. 

2012); Harrison v. Republic of Sudan, 882 F. Supp. 2d 23 (D.D.C. 2012).
VII. The FSIA and State-Sponsored Terrorism: Addendum

103

Additional discussion of theories of recovery for wrongful 

death, survival, and intentional infliction of emotional distress can 

be found in Beer v. Islamic Republic of Iran.316

6. Personal injury or death 

Section 1605A(a)(1) does not specifically state the elements required for establishing “personal injury or death.” In interpreting 

the provisions, courts have looked to “general principles of tort 

law,” including the Restatement (Second) of Torts, as a “proxy for 

state common law.”317 Courts accordingly describe the harm to 

plaintiffs as constituting such torts as assault, battery, and intentional infliction of emotional distress. 

As the Valore court stated, “The FSIA does not restrict the personal injury or death element to injury or death suffered directly by 

the claimant; instead, such injury or death must merely be the bases of a claim for which money damages are sought.”318 The court 

therefore found claims were permissible not only for the deaths of 

the 241 servicemen killed in the attack on the Marine barracks in

Beirut and the physical injuries suffered by those who survived the 

 

316. No. 08-cv-1807 (RCL), 2010 WL 5105174, at *11–12 (D.D.C. Dec. 9, 

2010). For a recent discussion of causation under the civil remedy provisions of 

the Anti-Terrorism Act, 18 U.S.C. § 2333(a), see Gill v. Arab Bank, PLC, 893 F. 

Supp. 2d 474, 507–08 (E.D.N.Y. 2012).

317. Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2003). 

See also Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48 

(D.D.C. 2011); Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51 (D.D.C. 

2010); Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20, 24 (D.D.C. 2009)

(hereinafter “Heiser II”). The Heiser II court noted that the application of general 

principles of tort law is “an approach that in effect looks no different from one 

that explicitly applies federal common law” but “. . . because these actions arise 

solely from statutory rights, they are not in theory matters of federal common 

law.” Heiser II, 659 F. Supp. 2d at 24. Cf. Bettis, 315 F.3d at 333 (D.C. Cir. 2003)

(“[B]ecause the FSIA instructs that ‘the foreign state shall be liable in the same 

manner and to the same extent as a private individual under like circumstances, 

28 U.S.C. § 1606, it in effect instructs federal judges to find the relevant law, not 

to make it.”).

318. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.C. 

2010).
Foreign Sovereign Immunities Act

104

attack, but also for “emotional and financial injury to survivors, 

decedents, decedent’s estates, and decedent’s family members.”319

7. Opportunity to arbitrate 

When the act or acts in question took place in the foreign state’s 

territory, the government in question must be given an opportunity to arbitrate the claim before its immunity can be removed under 

section 1605A.

320 In effect, the arbitration provision operates as a 

type of “exhaustion of remedies” requirement, giving the foreign 

state an arbitration alternative to litigation in U.S. courts. To date, 

no state sponsor of terrorism has agreed to such arbitration.

Nonetheless, the statutory requirement must be satisfied. One 

court found it sufficient that the plaintiff had mailed to the foreign 

state an offer to arbitrate subject to certain conditions. The conditions included demands that arbitration would be “conducted ‘by a 

third-party organization with extensive experience in arbitrating 

international disputes’ and that the arbitration would ‘not require 

[the plaintiff’s] absence from the United States.’”321 Notably, the 

plaintiff did not need to make the offer to arbitrate prior to the filing of the compliant.322

 

319. Id. Under § 1605A(c), the estates of covered individuals are permissible 

plaintiffs. “[S]ection 1605A(a)(1) does not require that the injury to a plaintiff 

result from the actual ‘extrajudicial killing,’ but rather from an ‘act of extrajudicial killing.’ A deadly terrorist act, taken as a whole, clearly constitutes an ‘act’ of 

extrajudicial killing,” Calderon-Cardona v. Democratic People’s Republic of 

Korea, 723 F. Supp. 2d 441, 459 (D.P.R. 2010). In La Reunion Aerienne v. Socialist People’s Libyan Arab Jamahiriya, 477 F. Supp. 2d 131, 138 (D.D.C. 2007), the 

court barred recovery for insurers of a French airliner destroyed by a terrorist 

act, holding that the exception only applied to suits for personal injury or death, 

not for insurance payments.

320. 28 U.S.C. § 1605A(a)(2)(A)(iii) (2010). See Daliberti v. Republic of

Iraq, 97 F. Supp. 2d 38, 44 (D.D.C. 2000) (act occurred inside Iraq and the plaintiffs properly offered to arbitrate); Murphy v. Islamic Republic of Iran, 740 F. 

Supp. 2d 51 (D.D.C. 2010) (bombing occurred outside the territory of the defendant state, therefore the arbitration requirements do not apply).

321. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 

232 (D.C. Cir. 2003).

322. Id. at 233.
VII. The FSIA and State-Sponsored Terrorism: Addendum

105

If the terrorist act in question occurred outside the defendant 

state, the arbitration requirement does not apply.323

8. Damages 

The terrorism exception applies only to suits seeking money damages. Although FSIA § 1606 generally prohibits the award or recovery of punitive or noncompensatory damages against foreign states 

(but not their agencies or instrumentalities), § 1605A(c)(4) explicitly provides that money damages against foreign states as well as 

their officials, employees, and agents may include “economic damages, solatium, pain and suffering, and punitive damages.” The U.S. 

District Court for the District of Columbia has adopted a standardized approach for calculating various categories of damages in 

state-sponsored terrorism cases.324

Punitive damages are awarded both to punish defendants and 

to deter future terrorist acts. In calculating those damages, courts 

have looked to four factors initially articulated in Flatow v. Islamic 

Republic of Iran: 

1. the nature of the defendant’s act;

2. the circumstances of its planning;

3. the defendant’s economic status with regard to its ability to 

pay; and 

4. the basis on which a court might determine the amount of 

an award reasonably sufficient to deter like conduct in the 

future.325

 

323. See Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1123 (9th Cir. 

2010); Murphy, 740 F. Supp. 2d at 51.

324. See Fain v. Islamic Republic of Iran, 885 F. Supp. 2d 78 (D.D.C. 2012); 

Taylor v. Islamic Republic of Iran, 881 F. Supp. 2d 19 (D.D.C. 2012).

325. 999 F. Supp. 1 (D.D.C. 1998). See, e.g., Harrison v. Republic of Sudan, 

882 F. Supp. 2d 23, 50 (D.D.C. 2012) (citing Flatow, 999 F. Supp. at 32–34 

(D.D.C. 1998)): 

Synthesizing these factors, courts in similar cases have generated two 

numbers that, together, determine the punitive damages award: (1) the 

multiplicand and (2) the multiplier (the factor by which the multiplicand 

should be multiplied to yield the desired deterrent effect). Depending on 
Foreign Sovereign Immunities Act

106

In recent cases, courts have applied a “multiplier” to the amount of 

compensatory damages, to arrive at a figure deemed appropriate to 

deter future terrorist conduct.326

In Beer v. Islamic Republic of Iran, Chief Judge Lamberth of the 

U.S. District Court for the District of Columbia evaluated and sustained the “Flatow Method” in light of recent U.S. Supreme Court 

decisions.327 His decision in large part rested on determinations 

that foreign states do not enjoy the same “due process” protections 

as individuals do under the U.S. Constitution.328

Since the same terrorist incident may give rise to multiple 

claims under § 1605A, it is possible that a given defendant might be 

subject to multiple punitive damage awards for the same conduct.

This possibility was recently addressed in Murphy v. Islamic Republic of Iran, where the court expressed concern about “overpunishing the same conduct through repeated [punitive damage] 

awards with little additional deterrent effect” but concluded that 

“when punitive damages are personal to plaintiffs in a given case, 

they are not necessarily excessive when awarded in a subsequent 

 

the evidence available, the multiplicand is either the magnitude of defendant’s annual expenditures on terrorist activities . . . or the amount of 

compensatory damages already awarded . . . (using compensatory damages 

as the multiplicand and 3.44 as the multiplier, based on a ratio set forth in 

earlier cases). Here, plaintiffs have not presented evidence relating to Sudan’s actual expenditures on terrorist activities. The Court will thus use the 

compensatory damages value as the multiplicand.

326. See, e.g., Estate of Brown v. Islamic Republic of Iran, 872 F. Supp. 2d 37

(D.D.C. 2012) (applying a 3.44 multiplier); In re Terrorist Attacks on Sept. 11, 

2011, Nos. 03 Civ. 9848 (GBD) (FM), 03 MDL 1570 (GBD) (FM), 2012 WL 

3090979, at *6 (S.D.N.Y. July 30, 2012) (same); Taylor, 881 F. Supp. 2d at 19

(same). 

327. 789 F. Supp. 2d 14, 18 (D.D.C. 2011) (“In awarding damages following 

passage of the NDAA, courts have generally identified the Flatow Method as the 

procedure that best serves the retribution and deterrence interests that Congress 

sought to promote in enacting the 2008 Amendments.”).

328. Id. at 20–22.
VII. The FSIA and State-Sponsored Terrorism: Addendum

107

case, even arising out of the same fact, if the subsequent case involves different plaintiffs.”329

9. Application of § 1605A to prior suits

New cases filed after the effective date of the new statute (January

28, 2008) must be considered on that basis alone. However,

§ 1605A was intended to have at least some retroactive effect. The 

specific provisions are complicated.330

If a party had filed a claim, but did not obtain relief under the 

previous statute (§ 1605(a)(7)), the party could claim the benefits 

of new § 1605A by filing a motion to convert its pending case to a 

new action under § 1605A.331 These have been called “prior actions.” The deadline for filing them was 60 days after the effective 

date of the statute, that is, March 28, 2008.

Alternatively, plaintiffs whose actions had been timely commenced under the prior statute and were pending or had gone to 

judgment when the new provision went into effect were permitted 

to refile under § 1605A under certain circumstances. These suits 

have been termed “related actions.”332 Plaintiffs relying on the 

 

329. 740 F. Supp. 2d 51, 81–82 (D.D.C. 2010).

330. For a comprehensive review, see In re Islamic Republic of Iran Terrorism 

Litig., 659 F. Supp. 2d 31 (D.D.C. 2009). See also Simon v. Republic of Iraq, 529 

F.3d 1187, 1191 (D.C. Cir. 2008), rev’d on other grounds sub nom. Republic of 

Iraq v. Beaty, 556 U.S. 848 (2009) (“[T]he new terrorism exception in § 1605A 

by its terms does not provide a substitute basis for jurisdiction over all cases 

pending under § 1605(a)(7) when § 1605A replaced it.”).

331. Section 1083(c)(2) of the National Defense Authorization Act for Fiscal 

Year 2008, Pub. L. No. 110–181, § 1083, 122 Stat. 3, defined a “prior action” as 

one in which the action was brought under § 1605(a)(7) before January 28, 2008; 

relied upon § 1605(a)(7) as creating a cause of action; was adversely affected on 

the grounds that the provision failed to create a cause of action against the state; 

and as of January 28, 2008, the action was before the courts in “any form.”

332. § 1083(c)(3). A related action is any “action arising out of the same act 

or incident” that was timely commenced under § 1605(a)(7). See generally Estate 

of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1 (D.D.C. 2011); Rimkus v. 

Islamic Republic of Iran, 750 F. Supp. 2d 163 (D.D.C. 2010); Murphy, 740 F. 

Supp. 2d at 51. In Wyatt v. Syrian Arab Republic, 736 F. Supp. 2d 106 (D.D.C. 

2010), the defendant contended that the action did not qualify as a “related ac-
Foreign Sovereign Immunities Act

108

“related action” provision must have sought the benefits of the new 

statute not later than sixty days after the date of the entry of judgment in the original action or January 28, 2008, whichever was 

later.333

Taylor v. Islamic Republic of Iran334 is a recent example of a related action. The immediate family members of eight U.S. servicemen killed in the 1983 bombing of the Marine barracks in Beirut 

had sued Iran, alleging that it had not only created and supported 

the terrorist organization Hezbollah but also directed it to conduct 

the attack. As the Taylor court noted, the incident spawned a 

“lengthy history of litigation,” leading to several prior judgments 

under the previous version of the state-sponsored terrorism exception.335 Because the new action was filed within sixty days after entry of judgment in one of the prior cases, it qualified as a “related 

action” and § 1605A could be applied retroactively to the plaintiffs’ 

claim for relief.

The extent to which a court may take judicial notice of prior 

findings of fact in related proceedings before the same court has 

been addressed in several decisions. In Oveissi v. Islamic Republic of 

 

tion” under § 1083(c)(3) because it was identical to the original action under

§ 1605(a)(7). The court found that there is no statutory requirement that “a related action be distinct from the prior action in any way.” 

333. § 1083(c)(3).

334. 811 F. Supp. 2d 1 (D.D.C. 2011). For a comprehensive review of the 

issues, see In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31 

(D.D.C. 2009) (no res judicata effect for prior actions). See also Simon v. Republic of Iraq, 529 F.3d 1187, 1191 (D.C. Cir. 2008), rev’d sub nom. Republic of Iraq 

v. Beaty, 556 U.S. 848 (2009) (“[T]he new terrorism exception in § 1605A by its 

terms does not provide a substitute basis for jurisdiction over all cases pending 

under § 1605(a)(7) when § 1605A replaced it.”); Roeder v. Islamic Republic of 

Iran, 646 F.3d 56 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2680 (May 29, 2012) 

(holding that the state-sponsored terrorism amendments to the FSIA did not 

abrogate the Algiers Accords). See also Kumar v. Republic of Sudan, Civil Action 

No. 2:10CV171, 2011 WL 4369122, at *6–10 (E.D. Va. Sept. 19, 2011).

335. Taylor, 811 F. Supp. 2d at 5. See Peterson v. Islamic Republic of Iran, 

264 F. Supp. 2d 46 (D.D.C. 2003); Valore v. Islamic Republic of Iran, 700 F. 

Supp. 2d 52 (D.D.C. 2010).
VII. The FSIA and State-Sponsored Terrorism: Addendum

109

Iran, for example, Chief Judge Lamberth said that “a FSIA court 

may ‘take judicial notice of related proceedings and records in cases 

before the same court.’”336

10. Challenges to the legality of the exception 

Defendants have repeatedly argued that the terrorism exception is 

unconstitutional, and courts have repeatedly rejected the claims. In

Wyatt v. Syrian Arab Republic, for example, the court denied the 

defendant’s claim that the exception “‘exposes’ the final judgments 

of Article III courts to potential rescission by the president and 

Congress, thereby violating the separation of powers between the 

judicial and political branches.”337

Defendants have also argued that the terrorism exception violates international law. The D.C. Circuit has rejected the contention that the exception violates the United Nations Charter by abrogating foreign sovereign immunity for those states designated as 

sponsors of terrorism and thereby denies such states “equality with 

others in violation of Article 2.1 of the United Nations Charter.”338

In Gates v. Syrian Arab Republic, the court rejected the defendant government’s claim that the executive branch’s designation of 

a state as a sponsor of terrorism, which constitutes a critical element of the abrogation of sovereign immunity under the statute, 

 

336. 879 F. Supp. 2d 44, 49 (D.D.C. 2012) (quoting Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 59 (D.D.C. 2010)). See also Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24, 29 (D.D.C. 2012); Fain v. Islamic Republic of 

Iran, 885 F. Supp. 2d 78 (D.D.C. 2012); Harrison v. Republic of Sudan, 882 F. 

Supp. 2d 23 (D.D.C. 2012); Anderson v. Islamic Republic of Iran, 753 F. Supp. 

2d 68 (D.D.C. 2010); Rimkus, 750 F. Supp. 2d at 163.

337. 736 F. Supp. 2d 106, 113 (D.D.C. 2010). See also Wultz v. Islamic Republic of Iran, No. 08-cv-1460 (RCL), 2010 WL 4190277, at *3 (D.D.C. Oct. 20. 

2010); Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79 (D.D.C. 2009); Owens 

v. Republic of Sudan, 531 F.3d 884 (D.C. Cir. 2008) (addressing claim that terrorism exception was an unconstitutional delegation of power).

338. Wyatt v. Syrian Arab Republic, 266 F. App’x 1 (D.C. Cir. 2008). See also

Wultz, 2010 WL 4190277 at *1–2; Gates, 646 F. Supp. 2d at 88.
Foreign Sovereign Immunities Act

110

inherently constitutes a non-justiciable “political question” under 

Baker v. Carr.

339

D. Execution of Judgments in § 1605A Cases

Many of the judgments rendered under the terrorism exception 

have been substantial, sometimes exceeding $100 million.340 Most 

have been default judgments. And most have remained unsatisfied.

Despite the FSIA’s specific provisions concerning the enforcement 

of terrorism judgments against state sponsors, successful plaintiffs 

have had great difficulty with actual execution.341 Problems result 

partly from the restrictive provisions of the law itself, but more 

generally from the fact that designated state sponsors of terrorism 

have taken steps to minimize or eliminate any property or assets in 

the United States that might be subject to execution.

In response, the FSIA has been amended several times with regard to judgments against state sponsors of terrorism, and several 

separate but related statutes have also been enacted. This section 

 

339. 646 F. Supp. 2d at 87–88; Baker v. Carr, 369 U.S. 186 (1962). See also

Simon v. Republic of Iraq, 529 F.3d 1187, 1197 (D.C. Cir. 2008), rev’d sub nom.

Republic of Iraq v. Beaty, 556 U.S. 848 (2009). The Gates court also rejected Syria’s arguments that the designation violates the doctrine of sovereign equality 

under the UN Charter and contravenes the constitutional principle of separation 

of powers. 646 F. Supp. 2d at 88.

340. E.g., Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15, 31–32

(D.D.C. 2008) ($300 million in punitive damages); Beer v. Islamic Republic of 

Iran, 789 F. Supp. 2d 14, 26 (D.D.C. 2011) ($300 million in punitive damages); 

Wultz, 864 F. Supp. 2d 24, 42 ($300 million in punitive damages); Wyatt v. Syrian Arab Republic, 908 F. Supp. 2d 216, 233 (D.D.C. 2012) ($300 million in punitive damages).

341. See In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 

37 (D.D.C. 2009), where the court concluded that “civil litigation against Iran 

under the FSIA state sponsor of terrorism exception represents a failed policy. . . . The cases do not achieve justice for victims, are not sustainable, and 

threaten to undermine the President’s foreign policy initiatives.” (To support 

this assertion, the court noted that at the time of the decision, there were currently $45 million of Iranian assets in the United States and over $10 billion in 

outstanding court judgments.)
VII. The FSIA and State-Sponsored Terrorism: Addendum

111

provides a description of these developments and the specific issues 

relating to the enforcement of judgments rendered in cases brought 

under § 1605A. These issues are discussed within the context of the 

FSIA’s broader provisions concerning attachment and execution of 

judgments against foreign states and their agencies and instrumentalities, and in light of successive statutory amendments. With a 

changing legislative framework (which has in turn stimulated various judicial interpretations), this area of law remains complicated 

and continues to evolve.

1. Generally

Under the FSIA, the property of a foreign state (including its agencies and instrumentalities) in the United States is presumptively 

immune, and the lack (or waiver) of immunity of the state from 

jurisdiction under the FSIA does not guarantee that a resulting 

judgment will be enforceable against the foreign state’s assets. This 

is true because the statute provides broader immunity from execution than from jurisdiction. Under § 1609, even if a valid judgment 

has been entered, the property of a foreign state (or its agencies and 

instrumentalities) remains immune and can only be subject to attachment and execution as specifically provided in §§ 1610 and 

1611.

Accordingly, the burden remains on the judgment creditor to 

demonstrate that specific property is subject to attachment or execution. Limited discovery may be allowed to aid in the execution of 

judgments against foreign state property, but only with regard to 

specific property believed to be subject to attachment.342

2. Protected properties

Section 1610 sets out the rules regarding attachment and execution,

and they are discussed in detail in this section. However, additional 

 

342. Rubin v. Islamic Republic of Iran, 637 F.3d 783 (7th Cir. 2011) (general 

asset discovery order incompatible with FSIA; plaintiffs must identify specific 

property subject to attachment and plausibly allege an exception to § 1609). 
Foreign Sovereign Immunities Act

112

limitations apply. Specifically, § 1611 exempts certain categories of 

property from those rules. These categories include

1. the property of international organizations that have been 

designated under the International Organizations Immunities Act;

343

2. the property of a foreign central bank held for its own account (as well as funds held in the name of a central bank or 

monetary authority);

344

3. property of a military character or used for a military activity;

345 and

4. in actions brought under § 302 of the Cuban Liberty and 

Democratic Solidarity (LIBERTAD) Act of 1996, a facility or 

installation used by an accredited diplomatic mission for official purposes.346

In addition, certain types of property are protected by operation of other rules; for example, foreign embassies, consulates, and 

other missions, along with their bank accounts, are generally immune and inviolable under the Vienna Conventions on Diplomatic

Relations and Consular Relations.347

 

343. 28 U.S.C. § 1611(a) (1996) (not subject to “attachment or any other 

judicial process impeding the disbursement of funds to, or on the order of, a 

foreign state as the result of an action brought in the courts of the United States 

or of the States”). The International Organizations Immunities Act (IOIA), Dec. 

29, 1945, ch. 652, Title I, 59 Stat. 669, is codified at 22 U.S.C. § 288–288l. The list 

of organizations designated under the IOIA can be found at 22 U.S.C. § 288 

note. 

344. 28 U.S.C. 1611(b)(1). But see Weininger v. Castro, 462 F. Supp. 2d 457, 

498–99 (S.D.N.Y. 2006) (Terrorism Risk Insurance Act overrides immunity 

granted in § 1611 so that property of foreign central bank of terrorist party was 

not immune from attachment and execution to satisfy judgment obtained 

against terrorist party pursuant to FSIA).

345. 28 U.S.C. § 1611(b)(2).

346. 28 U.S.C. § 1611(c).

347. Under Article 22 of the 1961 Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95 (entered into force for 

the United States Dec. 13, 1972), the premises of the mission are inviolable and 
VII. The FSIA and State-Sponsored Terrorism: Addendum

113

3. Section 1610

When the FSIA was amended in 1996 to include the statesponsored terrorism exception to jurisdiction in § 1605(a)(7), a 

parallel provision was included regarding enforcement of judgments rendered under that section. Thus, § 1610(a)(7) was added 

to permit execution of judgments related to claims for which foreign states were no longer immune under the new provision, but it 

allowed execution only against property of that state used for 

commercial purposes in the United States “regardless of whether 

the property in question was involved with the act on which the 

claim was based.”348 Under the amended § 1610(b)(2), property in 

the United States of an agency or instrumentality of a foreign state 

engaged in commercial activity in the United States was no longer 

entitled to immunity from execution, or attachment in aid of execution, upon a U.S. judgment relating to a claim for which that 

agency or instrumentality was not immune by virtue of 

§§ 1605(a)(7). This was true regardless of whether the property was 

“involved in the act” upon which the claim was based at any time.

In addition, the 1996 amendments included a provision permitting execution against frozen or diplomatic assets of state sponsors of terrorism. Section 1610(f)(1) provided that, notwithstanding any other provision of law, “any property with respect to which 

financial transactions are prohibited or regulated” under various 

statutory authorities, including the Trading With the Enemy Act 

(TWEA) and the International Emergency Economic Powers Act 

(IEEPA), was made subject to execution to satisfy any judgment 

relating to a claim for which a foreign state or its agency or instru-

 

are (together with their furnishings and other property) immune from search, 

requisition, attachment, or execution. More limited protections are provided for 

consular premises and property under the 1963 Vienna Convention on Consular 

Relations, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 (entered into force 

for the United States Dec. 24, 1969).

348. Pub. L. No. 104-132, § 221(b), 110 Stat. 1214 (April 24, 1996). The 

commercial property exception under § 1610(a)(7) only applies where the foreign sovereign itself engages in the relevant commercial activity. See Rubin v. 

Islamic Republic of Iran, 456 F. Supp. 2d 228, 234 (D. Mass. 2006).
Foreign Sovereign Immunities Act

114

mentality was not immune under § 1605(a)(7).349 However, recognizing that such execution could cause significant foreign policy 

issues, the amendments also explicitly authorized the President, in 

the interests of national security, to waive that provision, which he 

did right after it was enacted.350 Section 1610(f)(1) has never become operative.

4. TRIA

Despite these 1996 amendments, most plaintiffs with judgments 

against state sponsors remained unable to obtain satisfaction because, then as now, (a) the states in question typically do not engage in commercial activity in the United States and (b) any assets 

they might have in the United States are typically seized or frozen 

as a result of government sanctions.

To overcome this hurdle, Congress subsequently enacted the 

Terrorism Risk Insurance Act of 2002 (TRIA), which created a 

temporary federal program of “shared public and private compen-

 

349. Specifically, 28 U.S.C. § 1610(f)(1)(A) (2010) stated: 

Notwithstanding any other provision of law . . . any property with respect 

to which financial transactions are prohibited or regulated pursuant to section 5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b)), section 

620(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2370(a)), sections 

202 and 203 of the International Emergency Economic Powers Act (50 

U.S.C. 1701–1702), or any other proclamation, order, regulation, or license issued pursuant thereto, shall be subject to execution or attachment 

in aid of execution of any judgment relating to a claim for which a foreign 

state (including any agency or instrumentality or such state) claiming such 

property is not immune under § 1605(a)(7) (as in effect before the enactment of section 1605A) or 1605A.

The introductory “notwithstanding any other provision of law” phrase has been 

determined to override any immunity provided in the FSIA but not other sanctions regimes (such as the Cuban Assets Control Regulations) or state law. See, 

e.g., Calderon-Cardona v. JPMorgan Chase Bank, N.A., 867 F. Supp. 2d 389

(S.D.N.Y. 2011). But see Weininger v. Castro, 462 F. Supp. 2d 457 (S.D.N.Y. 

2006) (TRIA overrides Cuban sanctions).

350. 28 U.S.C. § 1610(f)(3); Pres. Determ. No. 99-1, 63 Fed. Reg. 59,201 

(Oct. 21, 1998). See also Pres. Determ. No. 2001-03, 63 Fed. Reg. 66,483 (Oct. 28, 

2000).
VII. The FSIA and State-Sponsored Terrorism: Addendum

115

sation for insured losses resulting from acts of terrorism” and (in

§ 201) specifically allowed for attachment and execution of terrorism judgments for compensatory damages against the “blocked assets of the terrorist party” (including those of its agencies and instrumentalities) which might otherwise have been immune.

351

The simplicity of this formulation is misleading. Each of these 

elements is further defined in the statute, the relevant provisions 

have subsequently been amended, and their application has been 

the subject of continuing judicial interpretation, making this (to 

say the least) a challenging area to summarize.

TRIA defined the term “terrorist party” to mean “a terrorist, a 

terrorist organization . . . or a foreign state designated as a state 

sponsor of terrorism.”352 Moreover, the enforcement of judgments 

provision only applied in cases based on (a) an “act of terrorism” 

or (b) an act for which the terrorist party lacks immunity under 

351. Pub. L. No. 107-297, §§ 101(b) and 201(a), 116 Stat. 2322, 2337 (2002

(codified at 28 U.S.C. § 1610 note). Specifically, § 201(a) stated: 

Notwithstanding any other provision of law, . . . in every case in which a 

person has obtained a judgment against a terrorist party on a claim based 

upon an act of terrorism, . . . the blocked assets of the terrorist party (including the blocked assets of any agency or instrumentality of that terrorist 

party) shall be subject to execution or attachment in aid of execution in 

order to satisfy such judgment to the extent of any compensatory damages 

for which such terrorist party has been adjudged liable.

See Jerez v. Republic of Cuba, 777 F. Supp. 2d 6 (D.D.C. 2011). TRIA’s constitutionality was upheld in Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2d Cir. 

2010), cert. denied sub nom. Bank Melli Iran New York Rep. Office v. Weinstein, 

133 S. Ct. 21 (2012).

352. Pub. L. No. 107-297, § 201(d)(4). “Terrorist organization” has the 

meaning specified in § 212(a)(3)(B)(vi) of the Immigration and Nationality Act, 

8 U.S.C. § 1182(a)(3)(B)(vi). The “designation” must be one under § 6(j) of the 

Export Administration Act of 1979 (codified at 50 U.S.C. app. 2405(j)), or

§ 620A of the Foreign Assistance Act of 1961 (codified at 22 U.S.C. § 2371). In 

Calderon-Cardona v. JPMorgan Chase Bank, N.A., 867 F. Supp. 2d 389, 396

(S.D.N.Y. 2011), the court interpreted the term “terrorist party” to require that a 

state sponsor have been so designated “both at the time of the underlying judgment and at the time of the enforcement proceeding.” Because the 1998 designation of North Korea had been rescinded in October 2008, even before the entry 

of judgment, TRIA did not apply in that case.
Foreign Sovereign Immunities Act

116

§ 1605(a)(7).353 These are separate requirements. The term “act of 

terrorism” was defined somewhat confusingly to mean either 

(a) any act certified by the Secretary of the Treasury, in conjunction 

with the Secretary of State and the Attorney General, as provided in

§ 102 of the statute354 or (b) to the extent not covered by the preceding clause, any terrorist activity falling within the definition of 

terrorist activities, excluding certain classes of aliens under the 

Immigration and Nationality Act (INA).

355 Violence failing to meet 

the criteria in one or the other accordingly does not qualify as an 

“act of terrorism” for TRIA purposes.356

Finally, TRIA defined the term “blocked assets” to include, in 

pertinent part, “any asset seized or frozen by the United States” 

under the authority of relevant sections of the Trading With the 

Enemy Act (TWEA) or the International Emergency Economic 

Powers Act (IEEPA).357 At the same time, it explicitly excluded 

property subject to a license issued by the U.S. government under 

IEEPA or the United Nations Participation Act.358

For several reasons, these TRIA provisions were less than effective. Generally, determining whether particular assets are blocked 

requires reference to Office of Foreign Assets Control (OFAC) reg-

 

353. Pub. L. No. 107-297, § 201(a).

354. See TRIA § 102(1), codified as a note to 15 U.S.C. § 6701.

355. Specifically, those under INA § 212(a)(3)(B)(iii) (codified at 8 U.S.C. 

§ 1182(a)(3)(B)(iii)).

356. Jerez v. Republic of Cuba, 777 F. Supp. 2d 6, 29 (D.D.C. 2011). However, TRIA’s requirements may otherwise be satisfied if they are acts for which the 

relevant state has been found liable under the FSIA’s terrorism exception. For an 

example, see Weininger v. Castro, 462 F. Supp. 2d 457 (S.D.N.Y. 2006).

357. § 201(d)(2)(A), 116 Stat. at 2339. The specific provisions are § 5(b) of 

the Trading With the Enemy Act, 50 app. U.S.C.A. § 5(b), and § 202 or 203 of 

the International Emergency Economic Powers Act, 50 U.S.C.A. §§ 1701 and 

1702.

358. § 201(d)(2)(B)(i). The UN Participation Act of 1945, 59 Stat. 619, is 

codified at 22 U.S.C. § 287–287e-3. See Hausler v. JP Morgan Chase Bank, N.A., 

740 F. Supp. 2d 525, 534 (S.D.N.Y. 2010) (citing Ministry of Def. & Support for 

the Armed Forces of the Islamic Republic of Iran v. Elahi, 556 U.S. 366 (2009)

(an arbitral award is not a blocked asset under TRIA)).
VII. The FSIA and State-Sponsored Terrorism: Addendum

117

ulations.

359 When they are blocked, transactions in those assets are 

prohibited, and the assets may thus not be available to judgment 

creditors of state sponsors regardless of any sovereign immunity 

shield. When transactions have been licensed, the assets are “unblocked” to the extent of the license and thus by definition outside 

of TRIA § 201.360 One purpose of TRIA, of course, was to override 

OFAC’s regulations and permit attachment and execution even 

when no OFAC license had been issued. In any event, few assets of 

state sponsors that could be blocked remain in the United States.

Moreover, TRIA excluded property used exclusively for diplomatic 

or consular purposes and thus entitled to immunity and inviolability under the Vienna Conventions.361 As a result, the practical impact of TRIA was limited.

5. Post-TRIA legislation

When the FSIA was further amended in 2008 to replace

§ 1605(a)(7) with § 1605A, the additional modifications were made 

with respect to judgments.362 The most important changes were 

made by adoption of § 1610(g), in which Congress further expanded the category of property subject to attachment for cases involving state sponsors.

 

359. Sanctions under TWEA and IEEPA are administered by the Office of 

Foreign Assets Control (OFAC) in the U.S. Department of the Treasury. A general description of OFAC, its authorities, and its functions can be found at 

http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-ofForeign-Assets-Control.aspx.

360. Estate of Heiser v. Islamic Republic of Iran, 807 F. Supp. 2d 9 n.6 

(D.D.C. 2011) (“Heiser III”). In Weinstein v. Islamic Republic of Iran, 299 F. 

Supp. 2d 63, 75 (S.D.N.Y. 2004), the court rejected the argument that the term 

“blocked assets” includes all assets “regulated” or “licensed” under IEEPA by 

OFAC.

361. § 201(d)(2(B)(ii). These terms were further defined in § 201(d)(3).

Execution is not permitted against diplomatic and consular property being used 

for those purposes, Bennett v. Islamic Republic of Iran, 618 F.3d 19 (D.C. Cir. 

2010).

362. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 

110-181, Div. A, § 1083 (2008), 122 Stat. 338 (codified at 28 U.S.C. § 1605A).
Foreign Sovereign Immunities Act

118

The first major change was to eliminate (for judgment purposes) the distinction between the state itself and its agencies or 

instrumentalities. Thus, § 1610(g)(1) provides that both the property of a foreign state against which a judgment is entered under

§ 1605A and the property of an agency or instrumentality of such a 

state (including “property that is a separate juridical entity or is an 

interest held directly or indirectly in a separate juridical entity”) are 

subject to attachment and execution.363 In addition, the statute 

states that this amenability to execution is to be determined regardless of

(A) the level of economic control over the property by the government 

of the foreign state; 

(B) whether the profits of the property go to that government; 

(C) the degree to which officials of that government manage the property or otherwise control its daily affairs; 

(D) whether that government is the sole beneficiary in interest of the 

property; or 

(E) whether establishing the property as a separate entity would entitle 

the foreign state to benefits in United States courts while avoiding its 

obligations.364

The property must still be used in commercial activity, but the 

distinction between states and their agencies and instrumentalities 

is attenuated. Judgment creditors proceeding under § 1610(g)(1) 

must nonetheless establish that the entity in question meets the requirements of “agency or instrumentality.”365 At least one court, 

however, has declined to give this provision a broad reading.366

 

363. This provision was an apparent effort to limit the effect of the decision 

in First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 

611 (1983), in which the U.S. Supreme Court held, inter alia, that duly created 

instrumentalities of a foreign state are presumed to have independent status.

364. § 1610(g)(1).

365. See, e.g., Heiser III, 807 F. Supp. 2d at 9.

366. Calderon-Cardona v. JPMorgan Chase Bank, N.A, 867 F. Supp. 2d 389, 

406 (S.D.N.Y. 2011) (refusing to interpret the phrase “interest held directly or 

indirectly in a separate juridical entity” to mean any property in the United 

States in which the judgment debtor has “any interest whatsoever”).
VII. The FSIA and State-Sponsored Terrorism: Addendum

119

The 2008 amendment’s second change addressed the issue of 

blocked assets. Under § 1610(g)(2), the fact that the U.S. government has regulated the property in some way, such as through enforcement under the Trading with the Enemy Act or the International Emergency Economic Powers Act, does not shield it from 

execution. 

Finally, in an evident effort to provide a measure of protection

to uninvolved third parties with interests in the property in question, § 1610(g)(3) reserved the authority of a court to “prevent appropriately the impairment of an interest held by a person who is 

not liable” in the underlying action under § 1605A that gives rise to 

the judgment in question.367

6. Blocked assets

In practice, the complicated interplay between TRIA and amended

§ 1610 has given rise to a number of sharply litigated issues. One 

set of issues involves the particular assets to which the provisions

apply.

For example, the U.S. District Court for the Southern District 

of New York addressed the attachment of funds frozen under the 

Cuban Assets Control Regulations in Weininger v. Castro,

368 reading TRIA to permit enforcement of a judgment against a foreign 

state by execution against the blocked assets of that state’s agency 

or instrumentality. The court stated, “[W]here a judgment against 

a terrorist party exists, not only its blocked assets, but the assets of 

its agencies and instrumentalities can be used to satisfy the judgment.”369

In Weininger, the plaintiffs sought to enforce a judgment 

against the Republic of Cuba by seizing funds held in accounts at 

 

367. As stated by Chief Judge Lamberth in Estate of Heiser v. Islamic Republic 

of Iran, 885 F. Supp. 2d 429, 443 (D.D.C. 2012) (“Heiser IV”), section 1610(g)(3)

“provides courts with the important power to protect interests held by thirdparties where Iran has some ownership of a property.”

368. 462 F. Supp. 2d 457 (S.D.N.Y. 2006).

369. Id. at 485, 487. The decision also found that TRIA superseded the immunity granted a central bank by § 1611. Id. at 498–99.
Foreign Sovereign Immunities Act

120

JPMorgan Chase Bank; these funds were alleged to be owed to various agencies and instrumentalities of the Cuban government, but 

the accounts had been frozen under the Cuban Assets Control 

Regulations. The court concluded that the plain language of TRIA

§ 201(a) permits execution against funds held by or owed to those 

agencies and instrumentalities.

370 The court found that the rationale in the Supreme Court’s decision in First National City Bank 

v. Banco Para El Comercio Exterior de Cuba371 (recognizing the independence of separate government instrumentalities) did not apply in the TRIA context.

The assets must be identified with specificity and proven to be 

those of the state sponsor and/or its agencies or instrumentalities.

Thus, in Bennett v. Islamic Republic of Iran,

372 the U.S. District 

Court for the Northern District of California found that TRIA’s 

requirements had not been satisfied because the plaintiffs had 

failed to demonstrate that the assets in question were owned by 

Iran or its agencies or instrumentalities. In that case, plaintiffs attempted to enforce default judgments rendered by the U.S. District 

Court for the District of Columbia against “tangible and/or intangible assets” held in two banks which, they alleged, were blocked by 

the U.S. government and which were owned by, or had a nexus 

with, the Islamic Republic of Iran and its agents and instrumentalities. Because the plaintiffs had provided only “vague, indeterminate 

information,” the court said, it was unable to determine whether 

there were in fact any “blocked assets” of Iran within TRIA’s scope.

Moreover, while TRIA does not require the separate agency or 

instrumentality to be a named party to the litigation resulting in 

the judgment, the assets of that separate agency or instrumentality 

 

370. Id. at 487 (“[T]his Court finds that TRIA allows for execution of the 

blocked assets of “juridically separate” entities to satisfy a judgment against a 

designated terrorist party, as defined by TRIA, when such entities are agencies or 

instrumentalities of that terrorist party”). 

371. 462 U.S. 611 (1983).

372. Bennett v. Islamic Republic of Iran, No. CV 11-80065 MISC CRB 

(NJV), 2011 WL 3157089, at *6 (N.D. Cal. July 26, 2011); see also Bennett v. Islamic Republic of Iran, 927 F. Supp. 2d 833 (N.D. Cal. 2013).
VII. The FSIA and State-Sponsored Terrorism: Addendum

121

must also have been “blocked.” In Weinstein v. Islamic Republic of 

Iran, the Second Circuit held that the requirements of § 201(a) had 

been satisfied because the assets of an Iranian bank held by a New 

York bank had been blocked by Executive Order.373 Even though 

the Iranian bank had not been a named party to the original litigation or the resulting judgment, it had conceded its status as an 

agency or instrumentality of the Government of Iran and thus met 

the explicit language of TRIA.374

At least one court has read TRIA narrowly to exclude from its 

reach assets blocked under other authority than TWEA and 

IEEPA.375

7. Extent of property interest

One sharply contested set of questions concerns the extent of the 

terrorist party’s interest in the blocked assets required for attachment and the appropriate choice of law in making this determination.

In Calderon-Cardona v. JPMorgan Chase Bank, N.A., the court 

rejected the plaintiffs’ argument that TRIA should be interpreted to 

reach any asset in which the terrorist party “has a property inter-

 

373. 609 F.3d 43, 50 (2d Cir. 2010), cert. denied sub nom. Bank Melli Iran

New York Rep. Office v. Weinstein, 133 S. Ct. 21 (2012) (concluding that TRIA

allows “post-judgment execution and attachment . . . against property held in the 

hands of an instrumentality of the judgment-debtor, even if the instrumentality 

is not itself named in the judgment.” In a brief filed by the U.S. government amicus curiae opposing certiorari in this case (see 2012 WL 1883085 (May 24, 

2012)), the government supported the court of appeals’ conclusion that under 

TRIA § 201(a), the agency or instrumentality need not be the “terrorist party” 

against which the judgment was entered.

374. The Second Circuit also rejected a constitutional (separation of powers) 

challenge to TRIA as well as the argument that it conflicted with the 1955 bilateral Treaty of Amity between Iran and the United States. Id. at 52–54.

375. In Stansell v. Revolutionary Armed Forces of Columbia, 704 F.3d 910, 915

(11th Cir. 2013), the court of appeals stated that for purposes of TRIA, “blocked 

assets” must be read to cover only those assets frozen under specified sections of 

the Trading Act and the Economic Powers Act, and thus not to extend to assets 

frozen under different authority.
Foreign Sovereign Immunities Act

122

est.”376 The plaintiffs included victims of a terrorist attack in Israel 

and their families seeking to satisfy a judgment against the Democratic Republic of Korea and its main intelligence agency by seizing 

accounts at various banks containing funds (wire transfers) that 

had been blocked pursuant to the North Korea Sanctions Regulations.377 The court said that in order to be subject to execution under TRIA § 201, “the blocked assets of that terrorist party” must be 

both “blocked assets” and assets “of that terrorist party.”378 However, TRIA itself does not define “property” or “property interest”;

nor does it preempt state law. The court looked to relevant New 

York law, under which the word “of” signifies “ownership.”379 The 

plaintiffs could not prove that North Korea owned the proceeds of 

the electronic funds transfers (EFTs) that had been blocked pursuant to OFAC sanctions, and as a result TRIA was inapplicable. 

In its analysis of this issue, the Calderon-Cardona court rejected 

an earlier Southern District of New York decision, Hausler v. 

JPMorgan Chase Bank, N.A., which held that § 201 preempts state 

law and, when read in conjunction with the Cuban Assets Control 

Regulations,380 extends to assets in which a terrorist party has an 

interest, even if they are not owned by that party.381 Following Calderon-Cardona, the Hausler court again addressed the issue, in a 

related proceeding, and responded by reiterating its conclusion 

that TRIA does preempt state property law and permits execution 

against assets from blocked EFT accounts from banks that were 

 

376. 867 F. Supp. 2d 389 (S.D.N.Y. 2011).

377. 31 C.F.R. ch. V, pt. 510 (2011).

378. Calderon-Cardona, 867 F. Supp. 2d at 394.

379. Calderon-Cardona also held that § 1610(g) itself creates no property 

rights but “merely attaches consequences, federally defined, to rights created 

under state law.” Id. at 406 (citing Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper 

Co., 609 F.3d 111, 117 (2d Cir. 2010)).

380. 31 C.F.R. § 515.101–901 (2013).

381. Calderon-Cardona, 867 F. Supp. 2d at 404–05, distinguishing Hausler v. 

JPMorgan Chase Bank, N.A., 740 F. Supp. 2d 525, 529–41 (S.D.N.Y. 2010). The 

Hausler court had explicitly rejected the views of the executive branch on the 

issue. Id. at 537–38.
VII. The FSIA and State-Sponsored Terrorism: Addendum

123

admittedly agencies and instrumentalities of the Cuban government.382 On the first issue, the Hausler court stated:

In essence, the TRIA, supplemented by the [Cuban Assets Control Regulations] and the OFAC procedures, represents Congress’s policy determination that under some circumstances, such as those prevailing 

here, in a choice between a claim to assets asserted by a victim of an act 

of a terrorist state and embodied in a judgment interest obtained under 

federal law, and a claim of an interest in the same assets arising from a 

commercial transaction and asserted under state law, the federal interest is superior and must be given priority in any court dispute over release of the assets.383

As of December 2013, the appeal from Calderon-Cardona and 

the second Hausler decision remained pending before the Second 

Circuit.384

However, the reasoning in Calderon-Cardona was followed by 

the court in Rubin v. Islamic Republic of Iran,

385 in which the plaintiffs obtained a default judgment against Iran and sought to execute 

it against antiquities that were in the possession of the Museum of 

Fine Arts and Harvard University but were allegedly the property 

of Iran. Noting that TRIA does not specify the mechanism for execution and attachment, the district court looked to Massachusetts 

law to discern the meaning of property “of the defendant.” Under 

Massachusetts law, this phrase means “belonging to the defendant.”386

On appeal, the First Circuit affirmed the district court’s decision but on a narrower ground.387 The court of appeals agreed with 

 

382. Hausler v. JPMorgan Chase Bank, N.A., 845 F. Supp. 2d 553 (S.D.N.Y. 

2012 (“Hausler II”), appeal docketed, Nos. 12-1264 (Mar. 20, 2012) & 12-1272 

(Apr. 5, 2012) (2d Cir.).

383. Id. at 563. Hausler II was followed in Levin v. Bank of New York Mellon,

No. 09 Civ. 5900 (RPP), 2013 WL 5312502 (S.D.N.Y. Sept. 23, 2013).

384. Both cases were argued on Feb. 11, 2013. The brief of the United States 

amicus curiae in the Calderon-Cardona appeal is available at 2012 WL 4509846 

(Sept. 21, 2012).

385. 810 F. Supp. 2d 402 (D. Mass. 2011), aff’d, 709 F.3d 49 (1st Cir. 2013).

386. Id. at 403–06. 

387. Rubin v. Islamic Republic of Iran, 709 F.3d 49 (1st Cir. 2013).
Foreign Sovereign Immunities Act

124

the U.S. government’s position (submitted in a brief amicus curiae)

that TRIA’s terms permit attachment only of “the blocked assets of 

[the] terrorist party”388 and TRIA “does not give judgment creditors a property interest in blocked assets greater than that of the 

terrorist party itself.”389 Therefore, the government argued, TRIA 

does not permit plaintiffs “to attach the artifacts possessed by the 

Museum if those assets are not owned by Iran.”390 The court declined to reach the question of ownership (or whether that should 

be decided under state or federal law), however, because it found 

that Iran had never asserted a claim to (or directed the transfer of) 

the antiquities in question; as a result, ownership of those antiquities was not “contested” within the meaning of OFAC regulations,

and they were not “blocked” for TRIA purposes.391

The U.S. District Court for the District of Columbia has also 

addressed these issues in Estate of Heiser v. Islamic Republic of 

Iran.

392 Chief Judge Lamberth agreed with Calderon-Cardona on 

the question of the necessary ownership interest, concluding that 

“Congress intended to permit terrorist victims to execute on only 

the assets ‘of’—or, in other words, ‘belonging to’—the terrorist 

state committing the act.”393 On the issue of applicable law, he 

agreed with Hausler, holding that TRIA § 201 and FSIA § 1610(g)

“implicate exclusively federal interests and, therefore, preempt District of Columbia law.”394 The U.S. Court of Appeals for the Dis-

 

388. Rubin v. Islamic Republic of Iran, No. 11-2144, 2012 WL 2192627

(Appellate Brief at 11) (1st Cir. June 7, 2012).

389. Id. at *12.

390. Id. at *14.

391. Rubin v. Islamic Republic of Iran, 709 F.3d 49, 52 (1st Cir. 2013).

392. 885 F. Supp. 2d 429 (D.D.C. 2012) (“Heiser IV”)

393. Id. at 438. See also Peterson v. Islamic Republic of Iran, 938 F. Supp. 2d 

93 (D.D.C. 2013), appeal docketed, No. 13-7086 (D.C. Cir. May 28, 2013).

394. Heiser IV, 885 F. Supp. 2d at 444. Noting that the D.C. Circuit has cautioned against labeling actions under FSIA as “federal common law” cases, the 

court proceeded to analyze sources to “find and apply what are generally considered to be the well-established standards of state common law, a method of evaluation which mirrors—but is distinct from—the ‘federal common law’ ap-
VII. The FSIA and State-Sponsored Terrorism: Addendum

125

trict of Columbia Circuit affirmed this decision on the first point 

(noting that nothing in the relevant legislative histories suggests 

congressional intent to enable attachment of property not owned 

by the foreign states in question) but said that because §§ 201 and 

1610(g) are controlling as a matter of federal law, “it is not correct 

to treat this as an issue of preemption.”395

8. Blocked Iranian assets

The current state of the law has continued to frustrate judgment 

creditors, especially those who have been the victims of Iraniansponsored terrorist acts. In 2009, Chief Judge Lamberth of the U.S. 

District Court for the District of Columbia described their situation in some detail, noting that despite the various legislative 

amendments, “the vast majority of victims have not collected so 

much as a dime on their court judgments against Iran.”396 He noted cases such as Peterson v. Islamic Republic of Iran,397 in which Iran 

was determined to have furnished money, weapons, training, and 

guidance to Hezbollah in direct support of a terrorist plot that 

culminated in a large-scale suicide bombing attack on the U.S. Marine barracks in Beirut, Lebanon, on October 23, 1983, killing more 

than 200 American servicemen and injuring many others. The 

plaintiffs received one of the largest FSIA judgments (over $2.6 billion) but have been unable to recover, since most of Iran’s property 

or interests in property in the United States have been frozen or 

otherwise regulated, are otherwise unreachable under the FSIA, or 

are held by financial institutions that are themselves entitled to 

immunity as agencies or instrumentalities of other foreign nations.

 

proach.” Id. at 445 (citing Estate of Doe v. Islamic Republic of Iran, 808 F. Supp.

2d 1, 23 n.7. (D.D.C. 2011)).

395. Heiser v. Islamic Republic of Iran, 735 F.3d 934, 940 (D.C. Cir. 2013).

396. In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 127 

(D.D.C. 2009).

397. 264 F. Supp. 2d 46 (D.D.C. 2003); Peterson v. Islamic Republic of Iran,

515 F. Supp. 2d 25 (D.D.C. 2007); Peterson v. Islamic Republic of Iran, 563 F. 

Supp. 2d 268 (D.D.C. 2008).
Foreign Sovereign Immunities Act

126

Chief Judge Lamberth called for meaningful legislative reform with 

respect to civil actions against Iran.

A limited change was made in August 2012, addressed specifically to the situation in Peterson. Section 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012398 makes available for 

execution certain Iranian blocked financial assets held in the United States for a foreign securities intermediary doing business in the 

United States. These assets are deemed “equal in value to a financial 

asset of Iran . . . that such foreign securities intermediary or a related intermediary holds abroad.” Before assets can be turned over 

under this provision, a court is required to make a determination 

that Iran holds “equitable title to, or the beneficial interest in, the 

assets” and that “no other person possesses a constitutionally protected interest” in them.399 However, the effect of this provision is 

expressly limited to assets at issue in Peterson.400

Moreover, the term “blocked asset” is defined in the statute to 

mean any asset seized or frozen by the United States under § 5(b) 

of TWEA or § 202 or § 203 of IEEPA and to exclude property 

(1) subject to a license specifically required by any other provision 

of law or (2) subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations or “that 

enjoys equivalent privileges and immunities under the laws of the 

United States, and is being used exclusively for diplomatic or consular purposes.”401 Even this expanded access to Iranian assets for 

the plaintiffs in Peterson is extremely limited, and it reflects the 

overall heavy burden that remains on judgment creditors under the 

FSIA to establish that specific property is subject to attachment or 

execution. 

 

398. Pub. L. No. 112-158, § 502, 126 Stat. 1214 (2012) (codified at 22 

U.S.C.A. § 8772).

399. Id. § 502(a)(2)(A).

400. Id. § 502(b).

401. Id. § 502(d)(1)(B)(ii).
127

Table of Authorities

Cases

767 Third Ave. Assocs. v. Consulate Gen. of Socialist Fed. Republic of 

Yugoslavia, 218 F.3d 152 (2d Cir. 2000), 11

767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 

F.2d 295 (2d Cir. 1993), 7

Abdullah v. Embassy of Iraq at Washington, DC, Civ. Action No. 12-

2590, 2013 WL 4787225 (E.D. Pa. Sept. 9, 2013), 47 

Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012), 42, 56

Abelesz v. OTP Bank, 692 F.3d 661 (7th Cir. 2012), 25

Abi Jaoudi & Ajar Trading Co. v. Cigna Worldwide Ins. Co., 391 F. App’x 

173 (3d Cir. 2010), 25

Aboeid v. Saudi Arabian Airlines, Inc., No. CV-10-2518 (5v)(VVP), 2011 

WL 2222140, at *3 (E.D.N.Y. June 1, 2011), 24

Abur v. Republic of Sudan, 437 F. Supp. 2d 166 (D.D.C. 2006), 61

Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15 (D.D.C. 2008), 91, 

92

Acree v. Republic of Iraq, 271 F. Supp. 2d 179 (D.D.C. 2003), 85

Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), 85–86

Aero Union Corp. v. Aircraft Deconstuctors Int’l LLC, No. 1:11-cv00484-JAW, 2012 WL 3679627, at *8 (D. Maine Aug. 24, 2012), 21

Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006), 73

Af-Cap, Inc. v. Republic of Congo, 383 F.3d 361, clarified on reh’g, 383 

F.3d 503 (5th Cir. 2004), 75, 76

Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080 (9th Cir. 

2007), 74

Agrocomplect, AD v. Republic of Iraq, 524 F. Supp. 2d 16 (D.D.C. 2007), 

aff’d, 304 F. App’x 872 (D.C. Cir. 2008), 54

Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934 (D.C. 

Cir. 2008), 10, 42, 58

Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 798 F. Supp. 2d 260 

(D.D.C. 2011), 16, 70

Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250 (7th Cir. 

1983), 88
Foreign Sovereign Immunities Act

128

Alejandre v. Telefonica Larga Distancia de Puerto Rico, Inc., 183 F.3d 

1277 (11th Cir. 1999), 69, 70

All Am. Trading Corp. v. Cuartel General Fuerza Aerea Guardia Nacional 

de Nicaragua, 818 F. Supp. 1552 (S.D. Fla. 1993), 78

Alperin v. Vatican Bank, 360 F. App’x 847 (9th Cir. 2009), 35, 36

Anderson v. Islamic Republic of Iran, 753 F. Supp. 2d 68 (D.D.C. 2010), 

90, 109

Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamosostek (Persero), 600 

F.3d 171 (2d Cir. 2010), 47

Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279 

(11th Cir. 1999), 19, 43

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 

(1989), 8, 42, 61

Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528 (5th Cir. 1992), 21

Ashcroft v. Iqbal, 556 U.S. 662 (2009), 21

Atl. Tele-Network Inc. v. Inter-Am. Dev. Bank, 251 F. Supp. 2d 126 

(D.D.C. 2003), 52

Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120 (2d 

Cir. 2009), 75

Autotech Technologies v. Integral Research & Dev., 499 F.3d 737 (7th 

Cir. 2007), 73

Baker v. Carr, 369 U.S. 186 (1962), 11, 110

Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48 

(D.D.C. 2011), 90, 92, 103

Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255 

(2d Cir. 2003), 69

Barkanic v. Gen. Admin. of Civil Aviation of the People’s Republic of 

China, 923 F.2d 957 (2d Cir. 1991), 19

Beer v. Islamic Republic of Iran, 789 F. Supp. 2d 14 (D.D.C. 2011), 106, 

110

Beer v. Islamic Republic of Iran, No. 08-cv-1807 (RCL), 2010 WL 

5105174, at *11–12 (D.D.C. Dec. 9, 2010), 90, 100, 103

Beg v. Islamic Republic of Pakistan, 353 F.3d 1323 (11th Cir. 2003), 57

Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008), 38, 43
Table of Authorities

129

Bell Helicopter Textron Inc. v. Islamic Republic of Iran, 892 F. Supp. 2d 

219 (D.D.C. 2012), 2, 52

Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, No. 12-7103, 

2013 WL 5853916, at *5–10 (D.C. Cir. Nov. 1, 2013), 54

Bennett v. Islamic Republic of Iran, 618 F.3d 19 (D.C. Cir. 2010), 117

Bennett v. Islamic Republic of Iran, 927 F. Supp. 2d 833 (N.D. Cal. 2013), 

120

Bennett v. Islamic Republic of Iran, No. CV 11-80065 MISC CRB (NJV), 

2011 WL 3157089, at *6 (N.D. Cal. July 26, 2011), 120

Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39 (D.D.C. 2008), 

15

Best Med. Belgium, Inc. v. Kingdom of Belgium, 913 F. Supp. 2d 230 

(E.D. Va. 2012), 48, 56

Bettis v. Islamic Republic of Iran, 315 F.3d 325 (D.C. Cir. 2003), 92, 97, 

103

Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t, 533 F.3d 1183 

(10th Cir. 2008), 53

Blue Ridge Invs., LLC v. Republic of Argentina, 902 F. Supp. 2d 367 

(S.D.N.Y. 2012), aff’d, 735 F.3d 72 (2d Cir. 2013), 62

Broadbent v. Org. of Am. States, 628 F.2d 27 (D.C. Cir. 1980), 9

Butters v. Vance Int’l, Inc., 225 F.3d 462 (4th Cir. 2000), 48

Cabiri v. Gov’t of the Republic of Ghana, 165 F.3d 193 (2d Cir. 1999), 60

Calderon-Cardona v. Democratic People’s Republic of Korea, 723 F. 

Supp. 2d 441 (D.P.R. 2010), 104

Calderon-Cardona v. JPMorgan Chase Bank, N.A, 867 F. Supp. 2d 389 

(S.D.N.Y. 2011), 114, 115, 118, 121, 122, 123, 124

California Dep’t of Water Resources v. Powerex Corp., 533 F.3d 1087 

(9th Cir. 2008), 36

California v. NRG Energy, Inc., 391 F.3d 1011 (9th Cir. 2004), 35

Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (D.D.C. 

2003), 97

Can-Am Int’l, LLC v. Republic of Trinidad and Tobago, 169 F. App’x 396 

(5th Cir. 2006), 53

Capital Ventures Int’l v. Republic of Argentina, 552 F.3d 289 (2d Cir. 

2009), 42
Foreign Sovereign Immunities Act

130

Carpenter v. Republic of Chile, 610 F.3d 776 (2d Cir. 2010), 42

Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009), 58

Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010), cert. denied,

131 S. Ct. 3057 (2011), 2, 25

Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990), 38, 88

Chuidian v. Philippine Nat’l Bank, 976 F.2d 561 (9th Cir. 1992), 19

Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994), 49

Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 

2004), 85, 86

Community Fin. Group, Inc. v. Republic of Kenya, 663 F.3d 977 (8th Cir. 

2011), 49

Compagnie Noga D’Importation et D’Exportation, S.A. v. Russian Fed’n, 

361 F.3d 676 (2d Cir. 2004), 29, 35

Conn. Bank of Commerce v. Republic of Congo, 309 F.3d 240 (5th Cir. 

2002), 74

Creighton Ltd. v. Qatar, 181 F.3d 118 (D.C. Cir. 1999), 62

Cruise Connections Charter 1, LP v. Attorney Gen. of Canada, 600 F.3d 

661 (D.C. Cir. 2010), 53

Crum v. Kingdom of Saudi Arabia, No. Civ.A.05-275, 2005 WL 3752271, 

at *3–4 (E.D. Va. July 13, 2005), 48

Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38 (D.D.C. 2000), 104

Daventree Ltd. v. Republic of Azerbaijan, 349 F. Supp. 2d 736 (S.D.N.Y. 

2004), 57

Davis v. Islamic Republic of Iran, 882 F. Supp. 2d 7 (D.D.C. 2012), 102

De Csepel v. Republic of Hungary, 714 F.3d 591 (D.C. Cir. 2013), 8

De Csepel v. Republic of Hungary, 808 F. Supp. 2d 113 (D.D.C. 2011), 

aff’d in part, 714 F.3d 591 (D.C. Cir. 2013), 21, 57

de Sanchez v. Banco Cent. De Nicaragua, 770 F.2d 1385 (5th Cir. 1985), 

57, 88

Doe v. Bin Laden, 580 F. Supp. 2d 93 (D.D.C. 2008), 21

Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011), 88

Doe v. Holy See, 434 F. Supp. 2d 925 (D. Or. 2006), aff’d in part, rev’d in 

part, 557 F.3d 1066 (9th Cir. 2009), cert. denied sub nom. Holy See v. 

Doe, 130 S. Ct. 3497 (mem.) (2010), 60–61

Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005), 43, 61
Table of Authorities

131

DRFP L.L.C. v. Republica Bolivariana de Venezuela, 622 F.3d 513 (6th 

Cir. 2010), 53

EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 F.3d 635 

(9th Cir. 2003), 30, 35

Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (D.D.C. 2000), 97

Elbasir v. Kingdom of Saudi Arabia, 468 F. Supp. 2d 155 (D.D.C. 2007), 

49

El-Hadad v. United Arab Emirates, 216 F.3d 29 (D.C. Cir. 2000), 48

Ellenbogen v. Canadian Embassy, No. Civ.A.05-01553JDB, 2005 WL 

3211428, at *2–3 (D.D.C. Nov. 9, 2005), 15

Elliott Assoc. L.P. v. Banco de la Nacion, 948 F. Supp. 1203 (S.D.N.Y. 

1996), 71

EM Ltd. v. Republic of Argentina, 695 F.3d 201 (2d Cir. 2012), 72

EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d Cir. 2007), 74, 75, 78

Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp. 2d 136 

(D.D.C. 2012), 46

Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005), 38

Estate of Brown v. Islamic Republic of Iran, 872 F. Supp. 2d 37 (D.D.C. 

2012), 106

Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1 (D.D.C. 

2011), 93, 97, 100, 107, 125

Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 

2006) (“Heiser I”), 86

Estate of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20 (D.D.C. 

2009) (“Heiser II”), 103

Estate of Heiser v. Islamic Republic of Iran, 807 F. Supp. 2d 9 (D.D.C. 

2011) (“Heiser III”), 117

Estate of Heiser v. Islamic Republic of Iran, 885 F. Supp. 2d 429 (D.D.C. 

2012) (“Heiser IV”), aff’d, Heiser v. Islamic Republic of Iran, 735 F.3d 

934 (D.C. Cir. 2013), 119, 124, 125

Estate of Parsons v. Palestinian Auth., 651 F.3d 118 (D.C. Cir. 2011), 82

European Cmty. v. RJR Nabisco, Inc., 814 F. Supp. 2d 189 (E.D.N.Y. 

2011), 10

Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper Co., 609 F.3d 111 (2d Cir. 

2010), 122
Foreign Sovereign Immunities Act

132

Fagot Rodriquez v. Republic of Costa Rica, 297 F.3d 1 (1st Cir. 2002), 60

Fain v. Islamic Republic of Iran, 885 F. Supp. 2d 78 (D.D.C. 2012), 105

Fain v. Islamic Republic of Iran, 856 F. Supp. 2d 109 (D.D.C. 2012), 90

FG Hemisphere Assocs., LL.C. v. Democratic Republic of Congo, 637 

F.3d 373 (D.C. Cir. 2011), 73

FG Hemisphere Assocs., L.L.C. v. République du Congo, 455 F.3d 575 

(5th Cir. 2006), 69, 74

Figueirdo Ferraz e Engenharia de Projecto Ltda. v. Republic of Peru, 665 

F.3d 384 (2d Cir. 2011), 11, 63

Filler v. Hanvit Bank, 378 F.3d 213 (2d Cir. 2004), 25, 35, 36

Fir Tree Capital Opportunity Master Fund, LP v. Anglo Irish Bank Ltd., 

No. 11 Civ. 0955 (PGG), 2011 WL 6187077, at *14 (S.D.N.Y. Nov. 28, 

2011), 33, 42, 51

First City, Texas Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250 

(S.D.N.Y. 2000), 70

First City, Texas-Houston, N.A. v. Rafidain Bank, 281 F.3d 48 (2d Cir. 

2002), 73

First Merchants Collection Corp. v. Republic of Argentina, 190 F. Supp. 

2d 1336 (S.D. Fla. 2002), 49

First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 

U.S. 611 (1983), 18, 31, 70, 118, 120

Fisher v. Great Socialist People’s Libyan Arab Jamahiriya, 541 F. Supp. 2d 

46 (D.D.C. 2008), 94

Flatow v. Islamic Republic of Iran, 308 F.3d 1065 (9th Cir. 2002), 69

Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998), 84, 105

Ford Motor Co. v. Russian Fed’n, No. 09 Civ. 1646 (JGK), 2010 WL 

2010867, at *4 (S.D.N.Y. May 10, 2010), 46

Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C. 

Cir. 1990), 31, 54

Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 

1985), 61

Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 

582 F.3d 393 (2d Cir. 2009), 16

Gabay v. Mostazafan Found. of Iran, 151 F.R.D. 250 (S.D.N.Y. 1993), 21

Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006), 37, 49
Table of Authorities

133

Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008), 88

Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79 (D.D.C. 2009), 109

Gill v. Arab Bank, PLC, 893 F. Supp. 2d 474 (E.D.N.Y. 2012), 103

Giraldo v. Drummond Co., 808 F. Supp. 2d 247 (D.D.C. 2011), 9

Globe Nuclear Servs. & Supply GNSS, Ltd. v. AO Techsnabexport, 376 

F.3d 282 (4th Cir. 2004), 46

Gomes v. ANGOP, Angola Press Agency, No. 11-CV-0580 (DLI) (JO), 

2012 WL 3637453, at *11 (E.D.N.Y. Aug. 22, 2012), 9, 29

Gould, Inc. v. Pechniney Ugine Kulhmann, 853 F.2d 445 (6th Cir. 1988), 

25

Gray v. Permanent Mission of the People’s Republic of the Congo, 443 F. 

Supp. 816 (S.D.N.Y.), aff’d, 580 F.2d 1044 (2d Cir. 1978), 29

Guevara v. Republic of Peru, 608 F.3d 1297 (11th Cir. 2010), 46

Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69 (2d Cir. 2010), cert. 

denied, 131 S. Ct. 1475 (2011), 52

Habyarimana v. Kagame, 821 F. Supp. 2d 1244 (W.D. Okla. 2011), 9

Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1 (D.D.C. 2011), 90, 

97, 100

Hansen v. PT Bank Negara Indonesia (Persero), TBK, 601 F.3d 1059 

(10th Cir. 2010), 25

Harrison v. Republic of Sudan, 882 F. Supp. 2d 23 (D.D.C. 2012), 90, 

102, 105, 109

Hartford Fire Ins. Co. v. The Socialist People’s Libyan Arab Jamahiriya, 

Civ. No. 98-3096 (TFH), 2007 WL 1876392, at *2 (D.D.C. June 28, 

2007), 94

Hausler v. JP Morgan Chase Bank, N.A., 740 F. Supp. 2d 525 (S.D.N.Y. 

2010), 116, 122

Hausler v. JPMorgan Chase Bank, N.A., 845 F. Supp. 2d 553 (S.D.N.Y. 

2012) (“Hausler II”), appeal docketed, Nos. 12-1264 (Mar. 20, 2012) & 

12-1272 (Apr. 5, 2012) (2d Cir.), 123

Haven v. Polska, 215 F.3d 727 (7th Cir. 2000), 43

Hegna v. Islamic Republic of Iran, 376 F.3d 485 (5th Cir. 2004), 79

Hegna v. Islamic Republic of Iran, 380 F.3d 1000 (7th Cir. 2004), 77

Hijazi v. Permanent Mission of Saudi Arabia to United Nations, 689 F. 

Supp. 2d 669 (S.D.N.Y. 2010), 48
Foreign Sovereign Immunities Act

134

Hilaturas Miel, S.L. v. Republic of Iraq, 573 F. Supp. 2d 781 (S.D.N.Y. 

2008), 16, 45

Hill v. Republic of Iraq, 328 F.3d 680 (D.C. Cir. 2003), 24

Howland v. Hertz Corp., 431 F. Supp. 2d 1238 (M.D. Fla. 2006), 29

Human Rights in China v. Bank of China, No. 02 Civ. 4361 (NRB), 2003 

WL 22170648, at *4 (S.D.N.Y. Sept. 18, 2003), 50

I.T. Consultants, Inc. v. Islamic Republic of Pakistan, 351 F.3d 1184 

(D.C. Cir. 2003), 16

Idas Resources N.V. v. Empresa Nacional de Diamantes de Angola E.P., 

No. 06-00570 (ESH), 2006 WL 3060017, at *6–7 (D.D.C. Oct. 26, 

2006), 53, 55

In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31 

(D.D.C. 2009), 63, 82, 86, 107, 108, 110, 125

In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71 (2d Cir. 2008), 20, 

87

In re Terrorist Attacks on Sept. 11, 2011, Nos. 03 Civ. 9848 (GBD) (FM), 

03 MDL 1570 (GBD) (FM), 2012 WL 3090979, at *6 (S.D.N.Y. July 30, 

2012), 106

Intelsat Global Sales & Mktg., Ltd. v. Cmty. of Yugoslav Posts, 534 F. 

Supp. 2d 32 (D.D.C. 2008), 21

Int’l Ins. Co. v. Caja Nacional de Ahorro Y Seguro, 293 F.3d 392 (7th Cir. 

2002), 69

Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27 (D.D.C. 2001), 97

Jerez v. Republic of Cuba, ___ F. Supp. 2d ___, No. 09-466 (RWR), 2013 

WL 4578999, at *2–3 (D.D.C. Aug. 29, 2013), 61

Jerez v. Republic of Cuba, 777 F. Supp. 2d 6 (D.D.C. 2011), 24, 29, 115, 

116

Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2004), 43

Joo v. Japan, 542 U.S. 901 (2004), 43

Joseph v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018 (9th Cir. 

1987), 45

Kalamazoo Spice Extraction Co. v. Provincial Military Gov’t of Socialist 

Ethiopia, 729 F.2d 422 (6th Cir. 1984), 56

Kaplan v. Al Jazeera, No. 10 Civ. 5298, 2011 WL 2314783, at *3–4 

(S.D.N.Y. June 7, 2011), 82
Table of Authorities

135

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas 

Bumi Negara, 313 F.3d 70 (2d Cir. 2002), 76

Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004), 48

Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002), 38, 47

Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841 (5th Cir. 2000), 20, 

22

Kilburn v. Islamic Republic of Iran, 699 F. Supp. 2d 136 (D.D.C. 2010), 

97

Kilburn v. Republic of Iran, 277 F. Supp. 2d 24 (D.D.C. 2003), 85

Kilburn v. Republic of Iran, 441 F. Supp. 2d 74 (D.D.C. 2006), 94

Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C. 

Cir. 2004), 101

Kingdom of Spain v. Estate of Cassirer, No. 10-786, 2011 WL 2135028, at 

*16–17 (U.S. Sup. Ct.) (Brief of United States as Amicus Curiae on

petition for writ of certiorari, May 27, 2011), 58

Kirkham v. Société Air France, 429 F.3d 288 (D.C. Cir. 2005), 50

Kumar v. Republic of Sudan, Civil Action No. 2:10CV171, 2011 WL 

4369122, at *6–10 (E.D. Va. Sept. 19, 2011), 108

La Reunion Aerienne v. Socialist People’s Libyan Arab Jamahiriya, 477 F. 

Supp. 2d 131 (D.D.C. 2007), 104

La Reunion Aerienne v. Socialist People’s Libyan Arab Jamahirya, 533 

F.3d 837 (D.C. Cir. 2008), 25

Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp. 2d 769 

(S.D.N.Y. 2012), 22

Lasheen v. Embassy of the Arab Republic of Egypt, 485 F. App’x 203 (9th 

Cir. 2012), 48

LeDonne v. Gulf Air, Inc., 700 F. Supp. 1400 (E.D. Va. 1988), 34

Leibovitch v. Islamic Republic of Iran, 697 F.3d 561 (7th Cir. 2012), 87

Letelier v. Republic of Chile, 748 F.2d 790 (2d Cir. 1984), 47

Levin v. Bank of New York Mellon, No. 09 Civ. 5900 (RPP), 2013 WL 

5312502 (S.D.N.Y. Sept. 23, 2013), 123

Lewis & Kennedy, Inc. v. Permanent Mission of the Republic of 

Botswana, No. 05 Civ. 2591(HB), 2005 WL 1621342, at *4–5 (S.D.N.Y. 

July 12, 2005), 15
Foreign Sovereign Immunities Act

136

Libancell S.A.L. v. Republic of Lebanon, No. 06-Civ. 2765 (HB), 2006 WL 

1321328, at *3–5 (S.D.N.Y. May 16, 2006), 69

Liberian E. Timber Corp. v. Gov’t of the Republic of Liberia, 659 F. Supp. 

606 (D.D.C. 1987), 76

Licea v. Curacao, Nos. 11-15909, 11-15910, 11-15944, 2012 WL 3264655, 

at *8–14 (11th Cir. June 21, 2012), 25

Liu v. Naomi, 208 F.3d 203 (2d Cir. 2000), 15

Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989), 19

Lord Day & Lord v. Socialist Republic of Vietnam, 134 F. Supp. 2d 549 

(S.D.N.Y. 2001), 55

Magness v. Russian Fed’n, 247 F.3d 609 (5th Cir. 2001), 16, 29, 37

Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005), 10

Manoharan v. Rajapaksa, 845 F. Supp. 2d 260 (D.D.C. 2012), 9

Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007), 38

Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009), 43

McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485 (D.C. Cir. 

2008), 56

McKesson Corp. v. Islamic Republic of Iran, Civ. Action No. 82-0220 

(RJL), 2009 WL 4250767, at *3–4 (D.D.C. Nov. 23, 2009), 57

McKesson Corp. v. Islamic Republic of Iran, No. 10-7174, 2011 WL 

3209069, at *6–15 (D.C. Cir. July 27, 2011), 57

Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983), 9

Meridien Int’l Bank Ltd. v. Gov’t of Republic of Liberia, No. 92 Civ. 7039 

(AGS), 1996 WL 22338, at *6 (S.D.N.Y. Jan. 22, 1996), 71

Millen Indus., Inc. v. Coordination Council, 855 F.2d 879 (D.C. Cir. 

1988), 11

Ministry of Def. & Support for Armed Forces of Islamic Republic of Iran 

v. Cubic Def. Sys., Inc., 236 F. Supp. 2d 1140 (S.D. Cal. 2002), 43

Ministry of Def. & Support for Armed Forces of Islamic Republic of Iran 

v. Cubic Def. Sys., Inc., 385 F.3d 1206 (9th Cir. 2004), 46

Ministry of Def. & Support for the Armed Forces of the Islamic Republic 

of Iran v. Elahi, 556 U.S. 366 (2009), 29, 77, 116

Ministry of Def. & Support for the Armed Forces of the Islamic Republic 

of Iran v. Elahi, 546 U.S. 450 (2006), 77
Table of Authorities

137

Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48 (D.D.C. 

2013), 91

MOL, Inc. v. People’s Republic of Bangladesh, 736 F.2d 1326 (9th Cir. 

1984), 49

Moore v. United Kingdom, 384 F.3d 1079 (9th Cir. 2004), 7, 8

Morgan Guar. Trust Co. v. Republic of Palau, 702 F. Supp. 60 (S.D.N.Y. 

1988), 71

Mortimer Off-Shore Servs., Ltd. v. Fed. Republic of Germany, 615 F.3d 

97 (2d Cir. 2010), cert. denied, 131 S. Ct. 1502 (2011), 45

Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51 (D.D.C. 2010), 

92, 103, 104, 105, 107

Murphy v. Islamic Republic of Iran, 778 F. Supp. 2d 70 (D.D.C. 2011), 25

Murphy v. Korea Asset Mgmt. Corp., 421 F. Supp. 2d 627 (S.D.N.Y. 

2005), aff’d, 190 F. App’x 43 (2d Cir. 2006), 35

Nemariam v. Fed. Democratic Republic of Ethiopia, 491 F.3d 470 (D.C. 

Cir. 2007), 55

NML Capital, Ltd. v. Banco Central de la Republica Argentina, 652 F.3d 

172 (2d Cir. 2011), 78

NML Capital, Ltd. v. Republic of Argentina, 680 F.3d 254 (2d Cir. 2012), 

cert. denied, 133 S. Ct. 273 (2012), 76

NML Capital, Ltd. v. Spaceport Sys. Int’l, L.P., 788 F. Supp. 2d 111 (C.D. 

Cal. 2011), 75

Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of Republic of 

Venezuela, 575 F.3d 491 (5th Cir. 2009), 19

O’Bryan v. Holy See, 490 F. Supp. 2d 826 (W.D. Ky. 2005), 16

O’Bryan v. Holy See, 556 F.3d 361 (6th Cir. 2009), 19, 28, 61

Odhiambo v. Republic of Kenya, 930 F. Supp. 2d 17 (D.D.C. 2013), 40

Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 

657 F.3d 1159 (11th Cir. 2011), cert. denied, 132 S. Ct. 2379 (2012), 

and cert. denied sub nom. De Aliaga v. Kingdom of Spain, 132 S. Ct. 

2380 (2012), 47

Olympic Chartering S.A. v. Ministry of Industry & Trade of Jordan, 134 

F. Supp. 2d 528 (S.D.N.Y. 2000), 78

Orkin v. Swiss Confederation, 444 F. App’x 469 (2d Cir. 2011), 22
Foreign Sovereign Immunities Act

138

Ortega Trujillo v. Banco Central del Ecuador, 17 F. Supp. 2d 1340 (S.D. 

Fla. 1998), 60

Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44 (D.D.C. 2012), 

102, 108–109

Owens v. Republic of Sudan, 531 F.3d 884 (D.C. Cir. 2008), 109

Owens v. Republic of Sudan, 412 F. Supp. 2d 99 (D.D.C. 2006), 100

Owens v. Republic of Sudan, 826 F. Supp. 2d 128 (D.D.C. 2011), 93

Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001), 36

Pension Trust Fund v. Indonesia, 7 F.3d 35 (2d Cir. 1993), 50

Permanent Mission of India to the United Nations v. City of New York, 

551 U.S. 193 (2007), 41

Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003), 

108, 125

Peterson v. Islamic Republic of Iran, 938 F. Supp. 2d 93 (D.D.C. 2013), 

appeal docketed, No. 13-7086 (D.C. Cir. May 28, 2013), 124

Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (D.D.C. 2007), 

92, 125

Peterson v. Islamic Republic of Iran, 563 F. Supp. 2d 268 (D.D.C. 2008), 

22, 125

Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir. 2010), 5, 67, 

74, 105

Peterson v. Royal Kingdom of Saudi Arabia, 332 F. Supp. 2d 189 (D.D.C. 

2004), aff’d, 416 F.3d 83 (D.C. Cir. 2005), 55

Phaneuf v. Republic of Indonesia, 106 F.3d 302 (9th Cir. 1997), 37, 67

Phoenix Consulting, Inc. v. Republic of Angola, 35 F. Supp. 2d 14 

(D.D.C. 1999), 43

Poddar v. State Bank of India, 235 F.R.D. 592 (S.D.N.Y. 2006), 43

Politis v. Gavrill, Civil Action No. H-08-2988, 2008 WL 4966914, at *5–6 

(S.D. Tex. Nov. 19, 2008), 9

Pons v. People’s Republic of China, 666 F. Supp. 2d 406 (S.D.N.Y. 2009), 

53

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007), 23

Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543 (D.C. Cir. 

1987), 45
Table of Authorities

139

Pravin Banker Assocs. Ltd. v. Banco Popular del Peru, 109 F.3d 850 (2d 

Cir. 1997), 71

Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 

916 (11th Cir. 2003), 10

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 

2002), 16, 83, 96, 99

Princz v. Fed. Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994), cert. 

denied, 513 U.S. 1121 (1995), 53

Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083 (9th 

Cir. 2009), 11

Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d 54 

(D.D.C. 2003), 85, 98

Reed v. Islamic Republic of Iran, 845 F. Supp. 2d 204 (D.D.C. 2012), 90

Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 

1998), aff’d in part, 162 F.3d 748 (2d Cir. 1998), cert. denied, 527 U.S. 

1003 (1999), 98–99

Reino de Espana v. Am. Bureau of Shipping, Inc., 328 F. Supp. 2d 489 

(S.D.N.Y. 2004), 65

Reiss v. Société Centrale du Groupe des Assurance Nationales, 235 F.3d 

738 (2d Cir. 2000), 21, 50

Republic of Argentina v. Weltover, 504 U.S. 607 (1992), 16, 44, 45, 51–52

Republic of Austria v. Altmann, 541 U.S. 677 (2004), 8

Republic of Iraq v. Beaty, 556 U.S. 848 (2009), 89, 94, 107, 108, 110

Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), 23

Ricaud v. Am. Metal Co., 246 U.S. 304 (1918), 10

Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163 (D.D.C. 2010), 

90, 102, 107, 109

Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003), 29

Roeder v. Islamic Republic of Iran, 646 F.3d 56 (D.C. Cir. 2011), cert. 

denied, 132 S. Ct. 2680 (May 29, 2012), 108

Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131 (2d Cir. 2012), 52, 53

Rong v. Liaoning Provincial Gov’t, 452 F.3d 883 (D.C. Cir. 2006), 45

Rong v. Liaoning Provincial Gov’t, 362 F. Supp. 2d 83 (D.C. Cir. 2005), 

28
Foreign Sovereign Immunities Act

140

Rowell v. Franconia Minerals Corp., 706 F. Supp. 2d 891 (N.D. Ill. 2010), 

38

RSM Prod. Corp. v. Fridman, 643 F. Supp. 2d 382 (S.D.N.Y. 2009), 20

Rubin v. Islamic Republic of Iran, No. 11-2144, 2012 WL 2192627

(Appellate Brief at 11) (1st Cir. June 7, 2012), 124

Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108 (N.D. Ill. 2004), 

71

Rubin v. Islamic Republic of Iran, 408 F. Supp. 2d 549 (N.D. Ill. 2005), 67

Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228 (D. Mass. 2006), 

113

Rubin v. Islamic Republic of Iran, 637 F.3d 783 (7th Cir. 2011), 21, 72, 

111

Rubin v. Islamic Republic of Iran, 709 F.3d 49 (1st Cir. 2013), 123, 124

Rubin v. Islamic Republic of Iran, 810 F. Supp. 2d 402 (D. Mass. 2011), 

aff’d, 709 F.3d 49 (1st Cir. 2013), 123

Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006), 95, 100, 101–102

Rux v. Republic of Sudan, 672 F. Supp. 2d 726 (E.D. Va. 2009), 88

S & Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292 (11th Cir. 

2000), 43, 62

S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99 (D.D.C. 2012), 7, 20, 

47

Sabbithi v. Al Saleh, 605 F. Supp. 2d 122 (D.D.C. 2009), 48

Sachs v. Republic of Austria, 695 F.3d 1021 (9th Cir. 2012), 33

Samantar v. Yousuf, 560 U.S. 305 (2010), 7, 19, 20, 39, 40, 87, 94, 95

Samco Global Arms, Inc. v. Arita, 395 F.3d 1212 (11th Cir. 2005), 46, 52

Samco Global Arms, Inc. v. Republic of Honduras, No. 10-20196-CIV, 

2012 WL 1372197, at *8 (S.D. Fla. Mar. 29, 2012), 52

Saudi Arabia v. Nelson, 507 U.S. 349 (1993), 7, 45, 49–50

Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), 11

Securities Investor Prot. v. Bernard L. Madoff Inv. Sec. LLC, 480 B.R. 501 

(S.D.N.Y. 2012), 53

Seijas v. Republic of Argentina, No. 10 Civ. 4300, 2011 WL 1137942, at 

*11 (S.D.N.Y. March 28, 2011), aff’d, 502 F. App’x 19 (2d Cir. 2012), 

31
Table of Authorities

141

Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992), 

43, 57

Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 2008), 89, 107, 108, 

110

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230 (D.C. 

Cir. 2003), 99, 104

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 356 (D.C. 

Cir. 2006), 100

Skanga Energy & Marine Ltd. v. Avervenca S.A., 875 F. Supp. 2d 264 

(S.D.N.Y. June 21, 2012), 52

Skeen v. Federative Republic of Brazil, 566 F. Supp. 1414 (D.D.C. 1983), 

60

Smith v. Ghana Commercial Bank, Civ. No. 10-4655 (DWF) (JJK), 2012 

WL 2930462, at *5–11 (D. Minn. June 18, 2012), 9

Sokolow v. Palestine Liberation Org., No. 04 CV 00397 (GBD), 2011 WL 

1345086 (S.D.N.Y. Mar. 30, 2011), 82

Stansell v. Revolutionary Armed Forces of Columbia, 704 F.3d 910 (11th 

Cir. 2013), 121

Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 

(1931), 24

Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27 (D.D.C. 2001), 

97

Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004), 9

Taylor v. Islamic Republic of Iran, 881 F. Supp. 2d 19 (D.D.C. 2012), 105, 

106

Taylor v. Islamic Republic of Iran, 811 F. Supp. 2d 1 (D.D.C. 2011), 95, 

100, 108

Terenkian v. Republic of Iraq, 694 F.3d 1122 (9th Cir. 2012), reh’g denied,

704 F.3d 814 (9th Cir. 2013), cert. denied sub nom. Pentonville 

Developers, Inc. v. Republic of Iraq, 134 S. Ct. 64 (2013), 2013 WL 

1723794 (Oct. 7, 2013), 51

Thai Lao Lignite (Thailand) Co. v. Gov’t of the Lao People’s Democratic 

Republic, No. 10 Civ. 5256 (KMU), 2011 WL 4111504, at *4–5 

(S.D.N.Y. Sept. 13, 2011), 71

The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), 5
Foreign Sovereign Immunities Act

142

TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 

2005), 17, 37, 76

Transaero, Inc. v. La Fuerza Aerea Boliviana, 39 F.3d 148 (D.C. Cir. 

1994), 29, 37

Transatlantic Shiffahrstkontor GmbH v. Shanghai Foreign Trade Corp., 

204 F.3d 384 (2d Cir. 2000), 50

Triple A Int’l, Inc. v. Republic of the Congo, 852 F. Supp. 2d 839 (E.D. 

Mich. 2012), 51

UNC Lear Servs., Inc. v. Kingdom of Saudi Arabia, 581 F.3d 210 (5th Cir. 

2009), cert. denied, 559 U.S. 971 (2010), 45

Ungar v. Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005), 28

Universal Trading & Inv. Co. v. Bureau for Representing Ukrainian 

Interests, 898 F. Supp. 2d 301 (D. Mass. 2012), aff’d, 727 F.3d 10 (1st 

Cir. 2013), 20, 43, 46

USAA Cas. Ins. Co. v. Permanent Mission of the Republic of Namibia, 

681 F.3d 103 (2d Cir. 2012), 29, 60

USX Corp. v. Adriatic Ins. Co., 345 F.3d 190 (3d Cir. 2003), 35

Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52 (D.D.C. 2010), 17, 

88–89, 97, 101, 103, 108, 109

Velasco v. Gov’t of Indonesia, 370 F.3d 392 (4th Cir. 2004), 37–38

Venus Lines Agency v. CVG Industria Venezolana de Aluminio, C.A., 210 

F.3d 1309 (11th Cir. 2000), 69

Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (1983), 1, 11, 13, 

18, 41 

Vine v. Republic of Iraq, 459 F. Supp. 2d 10 (D.D.C. 2006), 89

Virtual Def. & Dev. Int’l Inc. v. Republic of Moldova, 133 F. Supp. 2d 1 

(D.D.C. 1999), 46

Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887 (5th 

Cir. 1998), 52

W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400 (1990), 10

Walker Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229 (5th Cir. 

2004), 67, 75, 76

Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280 (2d 

Cir. 2011), 67, 68
Table of Authorities

143

Walters v. People’s Republic of China, 672 F. Supp. 2d 573 (S.D.N.Y. 

2009), 68, 71, 74

Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004), 9

Weininger v. Castro, 462 F. Supp. 2d 457 (S.D.N.Y. 2006), 77, 112, 114, 

116, 119

Weinstein v. Islamic Republic of Iran, 299 F. Supp. 2d 63 (S.D.N.Y. 

2004), 117

Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2d Cir. 2010), cert. 

denied sub nom. Bank Melli Iran New York Rep. Office v. Weinstein,

133 S. Ct. 21 (2012), 115, 121

Westfield v. Fed. Republic of Germany, 633 F.3d 409 (6th Cir. 2011), 53

World Wide Demil, L.L.C. v. Nammo, A.S., 51 F. App’x 403 (4th Cir. 

2002), 43

World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154 

(D.C. Cir. 2002), 42

Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1 (D.D.C. 2010), 83

Wultz v. Islamic Republic of Iran, 762 F. Supp. 2d 18 (D.D.C. 2011), 83

Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24 (D.D.C. 2012), 83, 

90, 102, 110

Wultz v. Islamic Republic of Iran, No. 08-cv-1460 (RCL), 2010 WL 

4190277, at *3 (D.D.C. Oct. 20, 2010), 109

Wyatt v. Syrian Arab Republic, 266 F. App’x 1 (D.C. Cir. 2008), 109

Wyatt v. Syrian Arab Republic, 362 F. Supp. 2d 103 (D.D.C. 2005), 97, 

101

Wyatt v. Syrian Arab Republic, 736 F. Supp. 2d 106 (D.D.C. 2010), 89, 

101, 107, 109

Wyatt v. Syrian Arab Republic, 908 F. Supp. 2d 216 (D.D.C. 2012), 110

Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205 (4th Cir. 2011), 29

Yang Rong v. Liaoning Provincial Gov’t, 362 F. Supp. 2d 83 (D.D.C. 

2005), 55

Yang Rong v. Liaoning Provincial Gov’t, 452 F.3d 883 (D.C. Cir. 2006), 

49

Yousuf v. Samantar, 699 F.3d 763 (2012), 39

Yousuf v. Samantar, 552 F.3d 371 (4th Cir. 2009), 39
Foreign Sovereign Immunities Act

144

Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247 (2d 

Cir. 2000), 20, 56, 58

International Sources

1963 Vienna Convention on Consular Relations, 21 U.S.T. 77, T.I.A.S.

No. 6820, 596 U.N.T.S. 261 (entered into force for the United States 

Dec. 24, 1969), 113

1961 Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, 

T.I.A.S. No. 7502, 500 U.N.T.S. 95 (entered into force for the United 

States Dec. 13, 1972), 112

Convention for the Suppression of Unlawful Acts Against the Safety of 

Civil Aviation (Montreal Convention), 974 U.N.T.S. 178, 24 U.S.T.

564, T.I.A.S. No. 7570 (entered into force on Jan. 26, 1973), 98

Convention on Privileges and Immunities of the United Nations, opened 

for signature Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. No. 6900 (entered 

into force with respect to the United States Apr. 29, 1970), 9, 10

Convention on the Service Abroad of Judicial and Extrajudicial 

Documents in Civil or Commercial Matters (Hague Service 

Convention), Nov. 15, 1965, http://hcch.e-vision.nl/index_en.php?

act=conventions.text&cid=17, 14, 16 

Inter-American Convention on International Commercial Arbitration

(Panama Convention), Jan. 30, 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336 

(1975), implemented at 9 U.S.C. § 301 (2010), 62 

International Convention Against the Taking of Hostages, G.A. Res. 146 

(XXXIV), U.N. GAOR, 34th Sess., Supp. No. 45, U.N. Doc. A/34/45, at 

245 (June 3, 1983), 1316 U.N.T.S. 205, T.I.A.S. No. 1108, 18 ILM 1456 

(entered into force for the United States Jan. 6, 1985), 99

International Convention on the Settlement of Investment Disputes 

Between States and Nationals of Other States (ICSID or Washington 

Convention), Mar. 18, 1965, 575 U.N.T.S. 159, 17 U.S.T. 1291, T.I.A.S. 

No. 6090, 62

United Nations Convention Against Torture and Other Cruel, Inhuman 

or Degrading Treatment or Punishment, Dec. 10, 1984, ___ U.S.T. 

___, 1465 U.N.T.S. 85, 96

United Nations Convention on the Jurisdictional Immunities of States 

and Their Property, G.A. Res. 59/38, Annex, U.N. Doc. A/RES/59/38 
Table of Authorities

145

(Dec. 2, 2004), http://untreaty.un.org/ilc/texts/instruments/english/

conventions/4_1_2004.pdf., 19

U.N. Convention on the Recognition and Enforcement of Arbitral 

Awards (New York Convention), June 10, 1958, 21 U.S.T. 2517, 330 

U.N.T.S. 3, implemented by Chapter 2 of the Federal Arbitration Act, 

9 U.S.C. §§ 201–207 (2010), 62

Acts

Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, § 221, 110 Stat. 12241 (1996) (codified at 28 U.S.C. § 1605(a)(7)), 

81, 113

Civil Liability for Acts of State Sponsored Terrorism, Pub. L. No. 104-

208, Div. A, § 589, 110 Stat. 3009-172 (1996) (codified at 28 U.S.C.

§ 1605 note (2006)), 85

Export Administration Act of 1979 § 6(j), Pub. L. No. 96-72, Sept. 29, 

1979, 93 Stat. 503 (codified at 50 U.S.C. app. § 2405(j)), 84, 115 

Federal Arbitration Act, ch. 2, 9 U.S.C. §§ 201–207 (2010), 62

Foreign Assistance Act of 1961 § 620A, Pub. L. No. 87-195, as amended 

(codified at 22 U.S.C. § 2371), 64, 84, 93, 114, 115

Immigration and Nationality Act § 212(a)(3)(B)(iii) (codified at 8 U.S.C. 

§ 1182(a)(3)(B)(iii)), 91, 115

Immunity from Seizure Act (22 U.S.C. § 2495), 10

International Emergency Economic Powers Act (IEEPA), Pub. L. No. 95-

223, Dec. 28, 1977, 91 Stat. 1626, as amended (codified at 50 U.S.C. 

§§ 1701–1706), 113, 116, 117, 121, 126

International Organizations Immunities Act (IOIA), Dec. 29, 1945, ch. 

652, Title I, 59 Stat. 669 (codified as amended at 22 U.S.C. §§ 288–

288l), 10, 112

Iran Threat Reduction and Syria Human Rights Act of 2012, Pub. L. No. 

112-158, § 502, 126 Stat. 1214 (Aug. 10, 2012) (codified at 22 U.S.C.A. 

§ 8772), 126

National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 

110-181, Div. A, § 1083 (2008), 122 Stat. 338 (codified at 28 U.S.C. 

§ 1605A), 63, 81, 117

Terrorism Risk Insurance Act (TRIA), Pub. L. No. 107-297, 116 Stat. 

2322 (2002) (codified at 28 U.S.C. § 1610 note), 77, 114–15

147

About the Author

David P. Stewart is Visiting Professor of Law at Georgetown University Law Center, where he teaches courses in public and private 

international law, foreign relations law, international criminal law, 

and international law in domestic courts. Professor Stewart joined 

the Georgetown faculty following his retirement from the U.S. Department of State, where he served as Assistant Legal Adviser for 

Private International Law and Assistant Legal Adviser for Diplomatic Law and Litigation, among other positions. Before joining 

the government, he was in private practice with Donovan Leisure 

Newton & Irvine in commercial and antitrust litigation.

Professor Stewart was recently selected by the American Law 

Institute to serve as one of the reporters working on the Restatement (Fourth), Foreign Relations Law of the United States. In 2012 

he was re-elected to the Inter-American Juridical Committee, 

which advises the Organization of American States on juridical 

matters of an international nature and promotes the progressive 

development and codification of international law. He is currently 

President-elect of the American Branch of the International Law 

Association and a member of the Board of Editors of the American 

Journal of International Law, the Executive Council of the American Society of International Law, the Executive Council of the 

ABA’s Section of International Law, and the Secretary of State’s 

Advisory Committee on Private International Law.

Comments and suggestions about the guide should be sent to 

the author at stewartd@law.georgetown.edu.
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