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Federal Judicial Center

International Litigation Guide

The Foreign Sovereign Immunities Act:

A Guide for Judges

Second Edition

2018

Federal Judicial Center

International Litigation Guide

The Foreign Sovereign Immunities Act: 

A Guide for Judges

Second Edition

David P. Stewart

Professor from Practice

Georgetown University Law Center

Federal Judicial Center

2018

This Federal Judicial Center publication was undertaken in furtherance of 

ter’s statutory mission to develop and conduct education programs for th

branch. While the Center regards the content as responsible and valuable, it 

reflect policy or recommendations of the Board of the Federal Judicial Cent
first printing
v

Contents

Preface to the Second Edition, ix

I. Introduction, 1

A. The First Basic Rule, 2

B. The Second Basic Rule, 3

C. Typical Cases, 3

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

A. Purpose, 8

B. Scope, 8

C. Basic Rules of Application, 9

1. Exclusivity, 10

2. Retroactivity, 10

3. Treaty exception, 10

4. Other types of immunity, 11

5. Works of art, 13

6. Act of state, 14

7. Political question, 14

III. Jurisdictional, Procedural, and Evidentiary Issues, 17

A. Subject-Matter Jurisdiction, 17

B. Personal Jurisdiction: Service of Process, 18

1. Foreign states and political subdivisions, 18

2. Agencies and instrumentalities, 20

3. Minimum contacts, 20

C. Venue, 22

D. Applicable Law, 23

E. Procedural and Evidentiary Issues, 25

1. Pleading standards, 26

2. Jurisdictional discovery, 28

3. Interpleader, 30

4. Non-jury trial, 30

5. Damages, 30
vi

6. Default, 31

7. Appeal, 31

IV. Entities and Persons Entitled to Immunity, 33

A. Foreign States, Components, and Political Subdivisions, 

33

1. Foreign state or government, 33

2. Internal government components, 34

3. Government departments and ministries, 35

B. Agencies and Instrumentalities, 36

1. Separate legal entity, 36

2. Second criterion, 39

3. Non-U.S. nationality, 44

C. Individual Foreign Officials and Agents, 44

V. Exceptions to Immunity, 47

A. Waiver, 48

1. Express waivers, 48

2. Implied waivers, 49

B. Commercial Activity, 50

1. Definition of commercial activity, 51

2. “Based upon,” 56

3. Jurisdictional nexus, 57

C. Expropriations, 64

1. Rights in property, 65

2. Taken in violation of international law, 66

3. Commercial nexus, 69

D. Noncommercial Torts in the United States, 70

1. Discretionary functions excluded, 71

2. Not extraterritorial, 71

3. Damages, 72

4. Examples, 72

E. Arbitration, 74
vii

F. State-Sponsored Terrorism, 77

1. Section 1605A, 78

2. Limitations, 78

3. Designated state sponsors, 78

VI. Attachment and Execution, 81

A. Pre-judgment Attachment, 82

B. Post-judgment Attachment and Execution, 82

1. States vs. agencies and instrumentalities, 83

2. Excepted categories of property, 84

3. Procedure, 85

4. Post-judgment discovery, 87

5. Sanctions, 89

C. Property of a Foreign State, 90

1. Location of the property 90

2. Used for a commercial purpose, 92

3. Additional requirements, 94

4. State sponsors of terrorism, 95

D. Agency or Instrumentality, 96

VII. The FSIA and State-Sponsored Terrorism, 97

A. Background and Purpose, 99

B. The Current Exception, 102

1. Federal cause of action, 103

2. Third-party (or indirect) actions, 105

3. Exclusivity, 106

4. Applicable law/choice of law, 108

5. Statute of limitations, 109

6. Default, 109

7. Discovery, 110

C. Main Elements of a Claim Under § 1605A, 110

1. Designated state sponsor of terrorism, 110

2. Listed acts, 112

3. Scope of authority, 117

4. Causation, 118
viii

5. Personal injury or death, 121

6. Opportunity to arbitrate, 121

7. Damages, 122

8. Application of § 1605A to prior suits, 124

9. Challenges to the legality of the exception, 126

D. Execution of Judgments in § 1605A Cases, 126

1. Generally, 127

2. Protected properties, 128

3. Section 1610, 129

4. Terrorism Risk Insurance Act (TRIA), 131

5. Post-TRIA legislation, 134

E. Justice Against Sponsors of Terrorism Act (JASTA), 136

Table of Authorities, 139

About the Author, 163
ix

Preface to the Second Edition

It is an understatement to say that the Foreign Sovereign Imm

Act frames a dynamic area of the law. In the five years since t

edition of this guide was completed, the statute has twice been 

ed by Congress and has been addressed by the U.S. Supreme C

five separate occasions, by the courts of appeals in more than 15

sions, and by the district courts in excess of 500 times.

Consistent with the aim of the original publication, howev

edition notes these developments only where relevant to prov

fundamental understanding of the statute and the main issues 

sents. The guide does not attempt to compile all relevant decis

to explore all issues in depth.

This edition does take into account, however, the publicatio

Restatement of the Law Fourth, The Foreign Relations Law of the 

States (American Law Institute 2018), which includes a substan

cussion of the law of foreign sovereign immunity as defined 

plied by U.S. courts. (The author participated directly as a co-r

in the preparation of that publication.) Relevant sections of th

edition of the Restatement are referred to at the appropriate p

the discussion.

This edition of the guide is current through November 1, 2

1

I. Introduction

This guide provides an overview of the Foreign Sovereign Imm

Act of 1976 (FSIA).1 It is intended as a practical introduction fo

who have little knowledge of or experience with the statute a

preted and applied in U.S. courts. The focus is on the basic lega

faced by U.S. courts in cases arising under the statute. Case disc

and citations are illustrative rather than exhaustive, and few ref

are made to law journal articles or other secondary sources. 

Following this brief Introduction, the guide discusses the s

purpose and scope of application. It reviews the jurisdictional

dural, and evidentiary issues most likely to arise at the outse

igation, and it discusses the entities entitled to immunity (in pa

the distinctions between a “foreign state,” its “political subdiv

and its “agencies and instrumentalities”). It then provides a desc

of the specific exceptions to immunity as well as the statutory 

applicable to execution of judgments and attachment of assets. P

discusses the terrorism exception, which has recently been 

(again) by Congress. 

The FSIA governs all litigation in both state and federa

against foreign states and governments, including their “agenc

instrumentalities.” It provides the exclusive basis for obtainin

diction over these entities in U.S. courts (including special rules 

vice of process) and contains “a comprehensive set of legal sta

governing claims of immunity in every civil action against a 

state or its political subdivisions, agencies, or instrumentalities.”

1. Pub. L. No. 94-583, 90 Stat. 2891 (1976) (codified as amended at 2

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

2. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (19

gentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (19

reference to “civil actions” does not suggest, however, that states or their 

or instrumentalities can be subject to criminal proceedings in U.S. courts

in the text or legislative history supports such a conclusion. 
2

prescribes rules regarding enforcement of judgments against 

states and related entities. 

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

of a governmental nature typically performed by a foreign state, 

for acts of a private nature even though undertaken by a foreign 

A. The First Basic Rule

Under the FSIA, foreign states and governments, including the

ical subdivisions, agencies, and instrumentalities, are immun

suit (in both state and federal courts) unless one of the statute’s 

exceptions applies.4 Thus, jurisdiction exists only when one of 

ceptions to foreign sovereign immunity applies. If the claim d

fall within one of the enumerated exceptions, the defendant is 

to immunity and the courts lack both subject-matter and p

jurisdiction.

All FSIA cases therefore require courts to address three 

questions at the outset: 

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

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. H

even when the answers to the first and second questions are 

case must be dismissed if no statutory exception applies—“eve

uations where the wrongfulness of the foreign sovereign’s con

clear and indisputable.”5

If an exception does apply, the defendant lacks immunity 

risdiction exists, but the statute continues to govern the proc

against qualified defendants. Reflecting the particular sensitiv

 

3. Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1026 (9th Cir. 20

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

4. OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 394 (2015). 

5. Bell Helicopter Textron Inc. v. Islamic Republic of Iran, 892 F. 

219, 225 (D.D.C. 2012), aff’d, 734 F.3d 1175 (D.C. Cir. 2013).
3

litigation against foreign governmental entities, the FSIA p

these entities with certain protections and benefits, such as ex

time for answering complaints, a right of removal of the case fro

court to federal court, entitlement to a non-jury trial, limitat

award of punitive damages, and constraints against attachmen

execution against government property.

B. The Second Basic Rule

The statute also provides foreign states and their agencies and 

mentalities with immunity from execution of judgments an

judgment attachments. The rules governing these issues are i

respects more restrictive than the jurisdictional rules, so a forei

or agency or instrumentality may validly be subject to a court

diction but its property may nonetheless be insulated from ex

of a resulting judgment. 

C. Typical Cases

The most common FSIA cases involve claims against foreign 

mental entities for breach of commercial contracts for the p

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

suits involving the expropriation of property in a foreign count

committed in the United States (such as automobile accidents a

and-fall injuries), enforcement of foreign arbitral awards, and d

injury resulting from acts of state-sponsored terrorism abroad. 

ceptions governing these situations (along with waivers of imm

are discussed in some detail in the following sections.

5

II. Purpose, Scope, and Rules of Application

Historically, like most nations, the United States accorded 

states and governments “absolute” immunity from suit in d

court.6 In 1952, however, the Department of State adopted the “

tive” theory of sovereign immunity in the so-called “Tate Lett

flecting its view that customary international law had evolved to 

adjudication of disputes arising from a state’s commercial a

(acta jure gestionis) while preserving immunity for sovereign, o

lic,” acts (acta jure imperii).8

Twenty-four years later, the FSIA codified and expanded up

“restrictive” approach toward immunity, adding several other 

tions.

9 Since then, the FSIA has provided “the sole basis for ob

jurisdiction over a foreign state in our courts.”10 As the U.S. S

Court has observed, the statute supplies a “comprehensive set 

 

6. The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116

(1812), in which Chief Judge John Marshall recognized the existence of “

cases in which every sovereign is understood to wave [sic] the exercise of 

its complete exclusive territorial jurisdiction” over other sovereigns (in t

a foreign warship), based on principles of “public law” and “common us

described in National City Bank of New York v. Republic of China, 348 

362 (1955), the doctrine was “one of implied consent by the territorial s

to exempt the foreign sovereign from its ‘exclusive and absolute’ jurisdic

implication deriving from standards of public morality, fair dealing, r

self-interest, and respect for the ‘power and dignity’ of the foreign sovere

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

B. Perlman, Acting U.S. Attorney General (May 19, 1952) [hereina

Letter], reprinted in 26 Dep’t St. Bull. 984–85 (1952); see also Alfred D

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

8. Under the “restrictive” theory, foreign states retain immunity for s

public acts but not for private commercial acts. See Republic of Austri

mann, 541 U.S. 677, 689–91 (2004).

9. Pub. L. No. 94–583, 90 Stat. 2891.

10. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 

(1989).
6

standards governing claims of immunity in every civil action a

foreign state.”11

It has sometimes been suggested that the courts initially con

the acceptance of foreign sovereign immunity to be only “a m

grace and comity” rather than a restriction imposed by the Co

tion or a reflection of customary international law.12 That pa

phrase is nowhere to be found, however, in Chief Justice Ma

seminal opinion in The Schooner Exchange, which by distinctio

to the usage and principles adopted by the unanimous consen

tions—what today we refer to as customary international law.13

The Tate Letter, moreover, was clearly premised on the U.S

standing of evolving principles of customary international law, 

FSIA itself was expressly understood to reflect and codify those 

ples.

14 Today, there can be little question that sovereign immu

flects principles of customary international law and is not based 

upon discretionary notions of “comity” or mutual respect.

15

 

11. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (19

12. Id. This suggestion has been repeated with distressing frequency; 

Leibovitch v. Islamic Republic of Iran, 297 F. Supp. 3d 816 (N.D. Ill. 2018

13. In fact, Marshall was quite clear on this point: “It seems then to th

to be a principle of public law, that national ships of war, entering the 

friendly power open for their reception, are to be considered as exempte

consent of that power from its jurisdiction.” The Schooner Exchange v

don, 11 U.S. 116, 145–46 (1812).

14. See Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 22

(2014), noting that in adopting the FSIA, Congress “replac[ed] the old ex

driven, factor-intensive, loosely common-law-based immunity regime 

Foreign Sovereign Immunities Act’s ‘comprehensive set of legal standa

erning claims of immunity in every civil action against a foreign state

Republic of Austria v. Altmann, 541 U.S. 677, 699 (2004)).

15. “The Act for the most part embodies basic principles of internat

long followed both in the United States and elsewhere.” Bolivarian Re

Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312, 131

Congress understood the FSIA to reflect such principles. See H.R. Rep

1487 (1976), at 6606 (“Sovereign immunity is a doctrine of internationa

der which domestic courts, in appropriate cases, relinquish jurisdiction o

eign state.”) and 6613 (“Section 1602 sets forth the central premise of the 

decisions on claims by foreign states to sovereign immunity are best ma
7

Moreover, while determinations of immunity had tradi

been made by the executive branch and communicated to the ju

by way of “suggestions of immunity,”16 the statute shifted the d

making from the Department of State to the courts.

17

Nonetheless, the courts have recognized that actions agai

eign sovereigns may well “raise sensitive issues concerning the 

relations of the United States.”18 Because the U.S. government h

nificant interest in the proper application of the FSIA, its views 

considered, and in fact have been sought with some frequency

propriate cases.

19

 

judiciary on the basis of a statutory regime which incorporates standard

nized under international law.”). See also Restatement (Fourth) of Fore

tions Law § 451 (Am. Law Inst. 2018) (“Under international law and th

the United States, a state is immune from the jurisdiction of the courts o

state, subject to certain exceptions.”).

16. The term “suggestion of immunity” denotes the formal commu

by which the executive branch traditionally communicates its decision 

nize a defendant’s immunity (for example, as a head of state or a foreign 

or other governmental official) without either intervening as a party o

sides on an issue otherwise to be decided by the court. In contrast, when t

of the government are offered at the trial level in any case to which it is no

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

ever, is not necessarily determinative. See generally 28 U.S.C. § 517 (2006

17. As noted in Samantar v. Yousuf, 560 U.S. 305, 323 n.19 (2010), 

Department both sought and supported the transfer of this function to t

18. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493 (19

19. See, e.g., Schermerhorn v. Israel, 235 F. Supp. 3d 249 (D.D.C. 20

Weinstein v. Islamic Republic of Iran, 831 F.3d 470 (D.C. Cir. 2016). The 

Court has often asked for the government’s views, for example, in Harris

public of Sudan, 838 F.3d 86 (2d Cir. 2016), petition for cert. docketed 

2017 (No. 16-1094), and Bolivarian Republic of Venezuela v. Helmerich 

International Drilling Co., 137 S. Ct. 1312 (2017). Cf. Republic of Austr

mann, 541 U.S. 677, at 701 (2004) (“nothing in our holding prevents 

Department from filing statements of interest suggesting that courts d

exercise jurisdiction in particular cases implicating foreign sovereign imm
8

A. Purpose 

The FSIA created a clear statutory basis for the judiciary’s adjud

of claims by foreign sovereigns that they are immune from suit 

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

The Congress finds that the determination by United States courts o

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

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

eign states and litigants in United States courts. Under international 

states are not immune from the jurisdiction offoreign courts insofar as 

commercial activities are concerned, and their commercial property ma

levied upon for the satisfaction of judgments rendered against them in 

nection with their commercial activities. Claims of foreign states to imm

ity should henceforth be decided by courts of the United States and o

States in conformity with the principles set forth in this chapter.

B. Scope 

Application of the statute depends in the first instance on whe

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

tinction is drawn between the “state” and its “government.” Th

statute applies whether the named defendant is, for example, 

the People’s Republic of China, the Government of China, or o

integral governmental components (such as the National P

Congress, the People’s Liberation Army, or the Ministry o

Security).20

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

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

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

cussed in more detail below, the meaning of these terms can be 

and somewhat confusing. 

In most circumstances, internal “political subdivisions” are 

equated with the state (or government). To continue the e

above, a suit against one or more of China’s twenty-three pro

 

20. For FSIA purposes, integral government departments, bureaus, 

and agencies should presumptively be considered part of the governme

rather than separate “political subdivisions.”
9

five autonomous regions, or four municipalities would be trea

same as a suit against the state or government.21

However, if the defendant qualifies as a separate “agency or 

mentality” (such as the National Bauxite Trading Company of 

the statute’s rules for “agencies and instrumentalities” would 

This important distinction between the sovereign itself and its s

agencies and instrumentalities is reflected throughout the FSIA 

concrete legal consequences, including those with respect to se

process, venue, punitive damages, attachment, and execution. 

The statute does not apply to suits against heads of state or 

ment, to accredited diplomats or consular officers, or to other i

ual foreign officials in their personal capacity.22 This issue is ad

in Part IV.C infra. 

C. Basic Rules of Application

The basic rule, as stated in the statute, is the following:

Subject to existing international agreements to which the United State

party at the time of enactment of this Act[,] a foreign state is immune f

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

extent that, one of the exceptions set forth in §§ 1605–1607 applies.23

In other words, there is a statutory presumption in favor of im

for entities that meet the definition of “foreign state.” The spec

ceptions in 28 U.S.C. §§ 1605–1607 are discussed in Part V inf

useful to keep in mind several other essential principl

distinctions.

 

21. In much the same way, New York State, New York County, and N

City are considered “political subdivisions” of the United States.

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

23. The FSIA provides “the sole basis for obtaining jurisdiction over 

state in the courts of this country” and renders a foreign governme

sumptively immune from the jurisdiction of United States courts unless o

Act’s express exceptions to sovereign immunity applies.” OBB Persone

AG v. Sachs, 136 S. Ct. 390, 394 (2015). See 28 U.S.C. § 1330(a) (conferr

diction over “any claim . . . with respect to which the foreign state is not 

to immunity”). See also Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)
10

1. Exclusivity

In Argentine Republic v. Amerada Hess Shipping Corp., the U

preme Court held that “the FSIA provides the sole basis for ob

jurisdiction over a foreign state in federal court . . . . ”24 In so do

Court rejected the argument that preexisting jurisdictional pro

(such as the Alien Tort Statute, codified at 28 U.S.C. § 1350, and 

admiralty and maritime jurisdictional statutes) authorized alte

and independent bases for suit against foreign states for viola

international law. Thus, if the defendant qualifies as a “foreign 

the suit must be adjudicated under the FSIA.25

2. Retroactivity

The statute applies regardless of whether the conduct that is the 

of the suit occurred before or after the FSIA was enacted.26Whe

statute’s basic jurisdictional requirement is met (i.e., whether th

in question qualifies as a foreign state), however, depends on “t

of things at the time the action [is] brought.”27

3. Treaty exception

Because immunity under the FSIA is expressly made “[s]ubjec

isting international agreements to which the United States [was] 

at the time of” the statute’s enactment, immunity may be base

international agreement to which the United States was a party i

 

24. 488 U.S. 428, 439 (1989); see also Republic of Argentina v. Welto

U.S. 607, 611 (1992).

25. Cf. Micula v. Government of Romania, 714 F. App’x 18 (2d C

(FSIA as exclusive mechanism for enforcing ICSID award).

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

jority, Justice Stevens said that “Congress’ purposes in enacting such a 

hensive jurisdictional scheme would be frustrated if, in postenactment c

cerning preenactment conduct, courts were to continue to follow t

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

27. Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003).
11

to the extent there is an express conflict between the FSIA’s ter

the terms of the agreement.

28

4. Other types of immunity

Foreign sovereign immunity differs from, but is sometimes co

with, head of state immunity as well as diplomatic and consu

munity, foreign official immunity, and the immunities of intern

organizations. 

In U.S. law, head of state immunity arises from rules of cus

international law and applies to visiting heads of state and gove

and certain other individuals (such as foreign ministers).29 

heads of foreign states are entitled to a more limited form of i

ity.30 By contrast, diplomatic and consular immunities are ba

treaty law and apply to individual representatives of foreign 

ments (e.g., ambassadors, embassy officials, consuls) who hav

duly accredited by their governments to the Department of Sta

 

28. See, e.g., de Csepel v. Republic of Hungary, 859 F.3d 1094 (D.C. C

petition for cert. docketed No. 17-1165 (Feb. 16, 2018); Simon v. Rep

Hungary, 812 F.3d 127 (D.C. Cir. 2016); Moore v. United Kingdom, 384 F

(9th Cir. 2004) (NATO Status of Forces Agreement); 767 Third Ave. A

Permanent Mission of Republic of Zaire, 988 F.2d 295 (2d Cir. 1993) (UN 

UN Headquarters Agreement, Convention on Privileges and Immuniti

United Nations, and Vienna Convention on Diplomatic Relations). Later

treaties, such as bilateral investment treaties, are clearly excluded. See, 

Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 114–15 (D.D.C. 2012).

29. See, e.g., Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004); Hm

Lao People’s Democratic Republic, No. 2:15-cv-2349 TLN AC, 2016 WL 

(E.D. Cal. May 17, 2016); Sikhs for Justice v. Singh, 64 F. Supp. 3d 190 

2014). Cf. Manoharan v. Rajapaksa, 711 F.3d 178 (D.C. Cir. 2013); Haby

v. Kagame, 821 F. Supp. 2d 1244 (W.D. Okla. 2011), aff’d, 696 F.3d 1029 (

2012). Along with heads of state and government, members of their im

family and accompanying “entourage” may also be covered. Hazel Fox & 

Webb, The Law of State Immunity (3d ed. rev. 2015), at 544–67.

30. See, e.g., Giraldo v. Drummond Co., 808 F. Supp. 2d 247 (D.D.

aff’d per curiam, 493 F. App’x 106 (D.C. Cir. 2012). 

31. See, e.g., United States v. Al Sharaf, 183 F. Supp. 3d 45 (D.D.C. 201

v. Islam, 305 F.R.D. 53 (S.D.N.Y. 2015); United States v. Khobragade, 15 

3d 383 (S.D.N.Y. 2014); Gomes v. ANGOP, Angola Press Agency, No
12

As discussed in more detail below,

32 immunity under the 

must also be distinguished from the immunities accorded to 

other visiting foreign officials, which also derive from customar

national law. As a general matter, the FSIA does not apply to ind

governmental officials.33

The immunities of most international organizations in the 

States are governed by separate instruments.34 International or

tions themselves will not meet the definition of a “foreign sta

the immunities they enjoy in U.S. law typically flow from their 

tutive documents (e.g., the UN Charter or the World Bank Ar

Agreement), from a relevant treaty obligation (such as the Con

on Privileges and Immunities of the United Nations), or from 

ternational Organizations Immunities Act, but not from the FS

 

0580 (DLI) (JO), 2012 WL 3637453 (E.D.N.Y. Aug. 22, 2012), aff’d, 541 

141 (2d Cir. 2013); Politis v. Gavriil, Civil Action No. H-08-2988, 2

4966914 (S.D. Tex. Nov. 19, 2008). Immunity depends in the first ins

certification by the executive branch that the individual is so entitle

accredited diplomat or consular officer.

32. See infra section IV.C. 

33. Samantar v. Yousuf, 560 U.S. 305, 314–15 (2010). The court left 

possibility that in some circumstances the immunity of the foreign state 

to an individual for acts taken in his or her official capacity and that in

officials acting in their official capacities may otherwise be entitled to im

under the common law. Id. at 322–24. 

34. Including (but not limited to) the International Organizations I

ties Act (IOIA), Dec. 29, 1945, ch. 652, Title I, 59 Stat. 669 (codified as a

at 22 U.S.C. §§ 288a–288l). See, e.g., Jam v. International Fin. Corp., 860 

(D.C. Cir. 2017), cert. granted, 138 S. Ct. 2026, May 21, 2018; Atkinson 

American Dev. Bank, 156 F.3d 1335 (D.D.C. 1998). Questions concer

status of the United Nations require reference, inter alia, to the UN Part

Act, 22 U.S.C. § 287 (2011), the 1947 UN Headquarters Agreement, 2

§ 287 note (2011), and the Convention on Privileges and Immunities of th

Nations, opened for signature Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. No. 6

tered into force with respect to the United States Apr. 29, 1970).

35. See Georges v. United Nations, 834 F.3d 88 (2d Cir. 2016); Lav

United Nations, 279 F. Supp. 3d 394 (E.D.N.Y. 2017) (app. pending); cf

Enters., Inc. v. Organization of Petroleum Exporting Countries, 353 F.3d 

n.9 (11th Cir. 2003) (FSIA held inapplicable to OPEC because it is not 
13

5. Works of art

Foreign-owned works of art on loan to U.S. museums are ge

covered by a separate statute, the Immunity from Seizure A

U.S.C. § 2459).

36 The Foreign Cultural Exchange Jurisdiction

munity Clarification Act of 201637 added § 1605(h) to the FSI

viding that activities of a foreign state associated with the tem

exhibition or display of works of art in the United States shal

considered “commercial activity” within the meaning of the ex

ation exception (§ 1605(a)(3)) if (inter alia) the President dete

that the artwork is “of cultural significance” and its temporary 

tion or display is in the national interest.

The Holocaust Expropriated Art Recovery Act of 201638 cr

six-year statute of limitations for beginning civil actions to 

works of art or other property confiscated during the period Jan

1933–December 31, 1945. 

 

state or political subdivision in its own right); European Cmty. v. RJR 

Inc., 814 F. Supp. 2d 189 (E.D.N.Y. 2011). For the U.S. government’s view 

European Community (EC) is an agency or instrumentality and thus co

the FSIA, see its brief amicus curiae in European Community v. RJR Nab

11-2475-CV, 2011 WL 4734329 (2d Cir. Oct. 5, 2011). 

36. See, e.g., Magness v. Russian Fed’n, 84 F. Supp. 2d 1357 (S.D. Al

Foreign seizures of art and other culturally significant works have occ

been the subject of actions under the “expropriation” exception to the F

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

2008); Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 200

37. Pub. L. No. 114–319, Dec. 16, 2016, 130 Stat. 1618 (codified at 2

§ 1608(h) (2016)), responding to Malewicz v. City of Amsterdam, 517 F. 

322, 328–30 (D.D.C. 2007). Exceptions are provided for “Nazi-era clai

claims that the property was taken as part of a “systematic campaign of 

confiscation or misappropriation of works from members of a targ

vulnerable group.”

38. Pub. L. No. 114-308, 130 Stat. 1524 (2016) (codified at 22 U.S.C

note), applied in Cassirer v. Thyssen-Bornemisza Collection Found., 862 

(9th Cir. 2017), cert. denied, 138 S. Ct. 1992 (2018).
14

6. Act of state

Foreign sovereign immunity is sometimes confused by litigan

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

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

other government performed under its law and within its ow

tory.39 However, the U.S. Supreme Court has held that “act of s

sues “only arise when a court must decide—that is, when the o

of the case turns upon—the effect of official action by a foreign 

eign. When that question is not in the case, neither is the act 

doctrine.”40

7. Political question

Foreign sovereign immunity must also be distinguished from t

litical question” doctrine, which can operate to preclude judicia

of claims that call into question the decisions of the legislative 

ecutive branches in matters of foreign policy or national secur

stitutionally committed to their discretion.41 In light of the FSIA

cific grants of jurisdiction, courts have been reluctant to find th

falling within the statutory exceptions raise “political question

 

39. Ricaud v. American Metal Co., 246 U.S. 304, 309–10 (1918). This 

is of course subject to various exceptions. See also Banco National de Cub

batino, 376 U.S. 398 (1964).

40. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 

406 (1990). For recent discussions of the doctrine, see Sea Breeze Sal

Mitsubishi Corp., 899 F.3d 1064 (9th Cir. 2018); Von Saher v. Norton Sim

seum of Art at Pasadena, 897 F.3d 1141 (9th Cir. 2018); and Nnaka v. Fe

public of Nigeria, 238 F. Supp. 3d 17, 31–34 (D.D.C. 2017). See also Res

(Fourth) of Foreign Relations Law § 441 (Am. Law Inst. 2018). In Meze

Republica Bolivariana de Venezuela, 785 F.3d 545 (11th Cir. 2015), cert

136 S. Ct. 800 (2016), the court noted that the act of state doctrine can 

with the FSIA’s expropriation exception and the two should be int

consistently.

41. Baker v. Carr, 369 U.S. 186 (1962); Zivotofsky ex rel. Zivotofsky v. 

566 U.S. 189 (2012); cf. Republic of Austria v. Altmann, 541 U.S. 677, 71

(referring to “the most sensitive area of foreign relations”).
15

on occasion they have found that the recognition of immunity 

plementary to the “act of state” doctrine.42

 

42. Compare Simon v. Republic of Hungary, 812 F.3d 127 (D.C. C

with Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007), aff’d on other 

563 F.3d 9 (2d Cir. 2009).

17

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 n

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

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

state is not entitled to immunity either under sections 1605–1607 of this 

or under any applicable international agreement.43

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

risdiction, a court must first determine whether the defendan

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

falls within one of the stated exceptions to immunity 

§ 1605(a), § 1605A, or § 1605B. If the defendant qualifies and 

ception applies, it is immune and the court lacks both perso

subject-matter jurisdiction (even if proper service has been m

contrast, if the claim falls within an exception to immunity 

proper service has been made), the court has personal and s

matter jurisdiction. 

This unusual formula—conditioning subject-matter juris

on the absence of immunity—creates some unique consequen

most important of which is that it imposes an obligation on th

to determine the question of immunity as a first order of busine

cases. “[E]ven if the foreign state does not enter an appearance t

an immunity defense, a District Court still must determine t

munity is unavailable under this Act.”44

 

43. 28 U.S.C. § 1330(a) (2010).

44. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 n.2

See also 28 U.S.C. § 1604: “Under the Act, a foreign state is presumptively 

from the jurisdiction of United States courts; unless a specified exception 

a federal court lacks subject-matter jurisdiction over a claim against a 

state.” Cf. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993).
18

At the same time, because immunity can be waived (see the 

sion of § 1605(a)(1) in Part V.A infra), a foreign state defendan

fect has the ability to provide the court with “subject-matter j

tion” it might otherwise lack in the given case. 

B. Personal Jurisdiction: Service of Process

Under the statute, subject-matter jurisdiction together with va

vice equals personal jurisdiction. As stated in § 1330(b), “[p]

jurisdiction over a foreign state shall exist as to every claim fo

over which the district courts have jurisdiction under subsec

where service has been made under section 1608 of this title.”45

Section 1608 prescribes the exclusive means of service on b

eign states and their agencies and instrumentalities.46These pro

are mandatory, but alternatives are specified in descending o

preference. 

Under § 1608(d), both states and their agencies and instru

ities have sixty days from date of service to answer or respond to 

plaint. In practice, however, effecting (and establishing proof 

vice can be time-consuming and fraught with delays.

1. Foreign states and political subdivisions

Service on a foreign state or its political subdivisions must fol

requirements of § 1608(a). While compliance is mandatory, t

tion offers four alternative service methods, in a descending hie

1. pursuant to a special arrangement between the plaintiff 

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

2. under an international convention (such as the Hague 

Convention); or

 

45. 28 U.S.C. § 1330(b) (2010). Cf. Chettri v. Nepal Rastra Bank, 834 

(2d Cir. 2016).

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

Fed. R. Civ. P. 4(j). On service of process, venue, and removal, see Res

(Fourth) of Foreign Relations Law § 461 (Am. Law Inst. 2018).
19

3. if not possible under the first two methods, then the 

court may send the summons, complaint, and notice of 

any form of mail requiring a signed receipt to the relev

eign ministry; or 

4. if service cannot be made under (3) above within thir

then at the plaintiff’s request, the clerk may send the sum

complaint, and notice of suit to the Department of S

transmission via diplomatic channels.47

The third and fourth alternatives require the summons, compla

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

Service on a foreign state under § 1608(a) has been interprete

quire strict adherence to the statutory provisions.

49

If service of process on a foreign state is made by mai

§ 1608(a)(3), the complaint must be sent to the head of the min

foreign affairs of the foreign state concerned. Whether § 1608(a

be satisfied by service of a complaint addressed to the foreign m

but delivered to the foreign state’s embassy in the United State

rently before the U.S. Supreme Court.50

 

47. Service by U.S. diplomatic channels is governed by 22 C.F.R. § 9

Additional information on service under the FSIA is available on the Dep

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

48. 28 U.S.C. § 1608(a)(3) and (4).

49. Kumar v. Republic of Sudan, 880 F.3d 144, 154 (4th Cir. 2018)

for cert. docketed, Mar. 9, 2018; Barot v. Embassy of the Republic of Zam

F.3d 26 (D.C. Cir. 2015).

50. Compare Harrison v. Republic of Sudan, 802 F.3d 399 (2d Cir. 20

denied, 838 F.3d 86 (2016), petition for cert. granted, 138 S. Ct 2621, No. 

(Jan. 25, 2018), with Kumar, 880 F.3d 144 (service on embassy is not su

The executive branch has taken the position that § 1608(a) of the FSIA 

permit service to be made via direct delivery to an embassy. See Brief of th

States of America as Amicus Curiae, Republic of Sudan v. Harrison, No. 

2018 WL 2357724 (U.S. Sup. Ct. May 22, 2018). 
20

2. Agencies and instrumentalities

By contrast, service of process on agencies and instrumenta

governed by § 1608(b) and may be made as follows:

1. under any special arrangement between the parties; or

2. by personal delivery to an officer or authorized agen

United States; or

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

copy of the summons and complaint as directed by lette

tory, or by any form of mail requiring signed receipt, or 

rected by order of the court consistent with the law of th

where service is to be made.”51

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

by mail (including under the Hague Service Convention).52

In contrast to the strict compliance required under § 1608(

stantial compliance will generally suffice under § 1608(b) as lon

tual notice is achieved.

53

3. Minimum contacts

Under 28 U.S.C. § 1330(b), personal jurisdiction over a forei

exists as to every claim for relief over which the district cour

subject-matter jurisdiction under § 1330(a), when service h

properly made under § 1608. Thus, “[n]either compliance with 

rum state’s long-arm statute nor minimum contacts between 

fendant and the forum state are required.”54

 

51. 28 U.S.C. § 1608(b).

52. Convention on the Service Abroad of Judicial and Extrajudic

uments in Civil or Commercial Matters, Nov. 15, 1965, avai

https://www.hcch.net/en/instruments/specialised-sections/service. On 

abroad generally, see U.S. Department of State, Judicial Assistance—S

Process Abroad, at https://travel.state.gov/content/travel/en/legal/trav

considerations/internl-judicial-asst/Service-of-Process.html. 

53. See, e.g., Kumar v. Republic of Sudan, 880 F.3d 144 (4th Cir. 20

tion for cert. filed, Mar. 9, 2018; Flanagan v. Islamic Republic of Iran, 190 

3d 138 (D.D.C. 2016). 

54. Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1553 (11th Ci
21

At the same time, all of the exceptions to immunity do requ

cific connections to the United States. In this sense, the FSIA 

own internal “long arm” provisions.55

In Republic of Argentina v. Weltover, the U.S. Supreme Co

sumed (without deciding) that foreign states could be “perso

purposes of jurisdictional due process requirements.

56 Since th

eral circuits have held that foreign states are not persons wit

meaning of the Fifth Amendment and are thus not entitled to d

cess protections with respect to the requirement for “minimu

tacts” with the jurisdiction.57 As the D.C. Circuit put it, as 

subject-matter jurisdiction exists under the FSIA and serv

proper, there is no “need to examine whether [a foreign state 

dant] has the minimum contacts that would otherwise be a prer

for personal jurisdiction under the Due Process Clause of th

Amendment.”58

Whether the same conclusion applies to “agencies and inst

talities” appears to remain a debated issue. On the one hand, s

term “state” includes the state’s agencies and instrumentalities, t

utory logic would suggest that a separate corporation that m

 

55. See generally Restatement (Fourth) of Foreign Relations La

cmt.(f) and Reporters’ Note 9 (Am. Law Inst. 2018).

56. 504 U.S. 607, 619 (1992). It has long been clear that the word “pe

the context of Fifth Amendment due process does not include states of th

State of South Carolina v. Katzenbach, 383 U.S. 301 (1966). At the same t

axiomatic that all parties to litigation in U.S. courts (including foreign st

entitled to procedural due process.

57. See Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan R

582 F.3d 393, 399–400 (2d Cir. 2009); Price v. Socialist People’s Liby

Jamahiriya, 294 F.3d 82, 95–100 (D.C. Cir. 2002); cf. Livnat v. Palestinia

851 F.3d 45 (D.C. Cir. 2017); Corporacion Mexicana De Mantenimiento 

S. De R.L. De C.V. v. Pemex-Exploracion Y Produccion, 832 F.3d 92 

2016), cert. dismissed, 137 S. Ct. 1622 (2017); McEachern v. Inter-Countr

tion Bd., 62 F. Supp. 3d 187 (D. Mass. 2014). See also Brief of United 

Amicus Curiae, Sokolow v. Palestine Liberation Org., No. 16-1071, 2

1256160 (Feb. 22, 2018).

58. I.T. Consultants, Inc. v. Islamic Republic of Pakistan, 351 F.3d 11

(D.C. Cir. 2003).
22

definition is not entitled to the “minimum contacts” requirem

the Due Process Clause for jurisdictional purposes.

59

On the other hand, for some courts, the question appears 

on whether the state exercised sufficient or “plenary” control o

entity in question to make it an “agent of the [s]tate.”60 In TMR 

Ltd. v. State Property Fund of Ukraine,for example, the court fou

the State of Ukraine had “plenary control” over the State Proper

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

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

in the area of privatization” and “[i]n the course of its activit

[SPF] shall be subordinated and accountable to the Supreme R

The activities of the [SPF] shall be governed by the Constitut

legislative acts of Ukraine, the Cabinet of Ministers of Ukra

these Regulations.”61

C. Venue 

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

tions against a “foreign state” may be brought

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

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

is the subject of the action is situated; 

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

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 lice

to do business or is doing business, if the action is brought against an ag

or instrumentality of a foreign state as defined in section 1603(b) of this 

or 

 

59. Corporacion Mexicana De Mantenimiento Integral, 832 F.3d 92.

60. BCB Holdings Ltd. v. Government of Belize, 232 F. Supp. 3

(D.D.C. 2017) (finding foreign sovereigns and their extensively controlle

mentalities are not “persons” under the Fifth Amendment’s Due Proces

and citing GSS Group Ltd. v. National Port Auth., 680 F.3d 805 (D.C. Cir

see also Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 71 n.13 

2010).

61. 411 F.3d 296, 301–02 (D.C. Cir. 2005) (cited in Shoham v. Islami

lic of Iran, Civil No. 12-cv-508 (RCC), 2017 WL 2399454 (D.D.C. June 1
23

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

action is brought against a foreign state or political subdivision thereof

Accordingly, foreign states are most frequently sued in the Di

Columbia regardless of where the claim arose.

A number of courts have considered motions to dismiss FS

under the forum non conveniens doctrine, typically when the de

state or entity argues that its own courts offer a more appropria

for adjudication.63

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

§ 1441(d) gives foreign states (and their agencies and instrumen

the right to remove to federal court any action filed against th

state court. Removal is to the district court “for the district and d

embracing the place where such action is pending.”64 If the pe

does not qualify as a “foreign state,” the federal court may order 

remanded. Such orders are subject to substantially limited appe

view under 28 U.S.C. § 1447(d).

65

D. Applicable Law

An action against a foreign sovereign arises under federal law f

poses of Article III jurisdiction.66 Jurisdiction and procedure a

erned by the FSIA. However, for most purposes, the statute its

not supply the substantive law but instead provides, in 28 

§ 1606, that where no immunity exists, foreign states “shall be l

 

62. 28 U.S.C. § 1391(f), discussed in Luxexpress 2016 Corp. v. Govern

Ukraine, No. 15-CV-4880 (VSB), 2018 WL 1626143 (S.D.N.Y. Mar. 30, 20

Corporacion Mexicana De Mantenimiento Integral, 832 F.3d 92.

63. See, e.g., Azima v. RAK Inv. Auth., 305 F. Supp. 3d 149 (D.D.C

Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 20

neft v. Ukraine, 301 F. Supp. 3d 175 (D.D.C. 2018). See also Brief of th

Amicus Curiae, Simon v. Republic of Hungary, 2018 WL 2461996 (June 

(expropriation exception).

64. 28 U.S.C. § 1441(d) (2010). See Smith v. Overseas Korean Cultur

age Found., 279 F. Supp. 3d 293 (D.D.C. 2018); Lindsay v. Ports Am. G

Inc., Civil Action No. 16-3054, 2016 WL 3765459 (E.D. La. July 14, 2016

65. Cf. Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 23

66. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983).
24

the same manner and to the same extent as a private individua

like circumstances.” 

Thus, state substantive law is controlling on most issues of 

in FSIA cases.67 The exceptions are in the areas of expropriatio

der § 1605(a)(3), a court must determine whether the “taki

curred in violation of international law) and state-sponsored te

(under current § 1605A, the statute provides a federal cause of 

but state law will also be relevant).68

However, the circuits have split on the question of which 

of-law rule should be used by federal courts in deciding which s

tive state law to apply in a suit under the FSIA. The Ninth Cir

plies the federal rule,69 while the Second, Fifth, Sixth, and Seven

cuits have applied the choice-of-law rule of the state in wh

federal court sits.70

 

67. See First Nat’l City Bank v. Banco Para El Comercio Exterior de C

U.S. 611, 620, 622 n.11 (1983) [Bancec] (“The Act was not intended to a

substantive law determining the liability of a foreign state or instrumen

the attribution of liability among instrumentalities of a foreign state. . . . 

state law provides a rule of liability governing private individuals, the 

quires the application of that rule to foreign states in like circumstances.

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

infra. In reference to international law generally, see Aquamar S.A. v. D

Fresh Produce N.A., Inc., 179 F.3d 1279, 1294–95 (11th Cir. 1999): “We m

to international law as a guide to the meaning of the FSIA’s provisions. 

the FSIA particularly amenable to interpretation in light of the law of na

two reasons. First, Congress intended international law to inform the 

their reading of the statute’s provisions. . . . Second, the FSIA’s purposes 

‘promot[ing] harmonious international relations. . . .’” The United Nat

adopted a convention incorporating the “restrictive” view of sovereign im

but the treaty is not yet in force (and the United States has not yet signe

less ratified it). See United Nations Convention on the Jurisdictional Im

of States and Their Property, G.A. Res. 59/38, Annex, U.N. Doc. A/R

(Dec. 2, 2004), http://untreaty.un.org/ilc/texts/instruments/english/conv

4_1_2004.pdf.

69. See Cassirer v. Thyssen-Bornemisza Collection Found., 862 F.3d 

Cir. 2017), cert. denied, 138 S. Ct. 1992 (May 14, 2018).

70. See Baylay v. Etihad Airways P.J.S.C., 881 F.3d 1032 (7th Cir. 20

denied, 139 S. Ct. 175 (2018); Atlantica Holdings v. Sovereign Weal
25

E. Procedural and Evidentiary Issues

Because the issue is jurisdictional, a federal court must always 

at the outset whether the defendant is entitled to immunity.71 I

cases, the issue will arise on motion to dismiss under Federal 

Civil Procedure 12(b)(1), although sometimes it may be dealt w

der Federal Rule of Civil Procedure 12(b)(6) as a failure to state 

upon which relief can be granted. It may also be presented on 

for summary judgment under Federal Rule of Civil Procedure 

the basis that no genuine dispute exists as to any material fact 

movant is entitled to judgment as a matter of law. 

A defendant moving for dismissal for lack of subject-matte

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

term is defined by the statute. Once the defendant establish

prima facie case, the burden shifts to the plaintiff to show tha

the exceptions articulated in the FSIA applies. Nevertheless, 

fendant retains the ultimate burden of persuasion to demonstra

preponderance of the evidence, that an exception does not app

 

Samruk-Kazyna JSC, 813 F.3d 98 (2d Cir.), cert. denied, 137 S. Ct. 49

O’Bryan v. Holy See, 556 F.3d 361, 381 (6th Cir. 2009); Northrop Grumm

Sys., Inc. v. Ministry of Def. of Republic of Venezuela, 575 F.3d 491, 498 

2009). Cf. Miango v. Democratic Republic of Congo, 288 F. Supp. 3d 117 

2018); Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22 (D.D.C. 20

71. Verlinden, 461 U.S. at 493–94 (“At the threshold of every action 

trict Court against a foreign state, therefore, the court must satisfy itself 

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

standards set forth in the Act.”). 

72. See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 298 F. Supp

(S.D.N.Y. 2018); Frank v. Commonwealth of Antigua & Barbuda, 842 

(5th Cir. 2016); DRFP L.L.C. v. Republica Bolivariana de Venezuela, 622 

(6th Cir. 2010); Tatneft v. Ukraine, 301 F. Supp. 3d 175 (D.D.C. 2018); S

Romania, No. CV 15-1946 FMO (JCx), 2017 WL 6550588 (C.D. Cal. 

2017); Figueroa v. Ministry of Foreign Affairs of Sweden, 222 F. Supp

(S.D.N.Y. 2016).
26

As described by the court in Arch Trading Corp. v. Republ

uador,

73 questions of subject-matter jurisdiction under the FS

resolved through a three-part burden shifting framework. . . . F

defendant must make a prima facie showing that it is a foreig

thereby becoming ‘presumptively immune from the jurisdic

United States courts; unless a specified exception applies.’. . . N

plaintiff must ‘sufficiently alleg[e] or proffer[ ] evidence’ of a F

ception. . . . Finally, if the plaintiff satisfies its burden of product

defendant bears ‘[t]he ultimate burden of persuasion by a prep

ance of the evidence” that the FSIA exception does not apply.’”

1. Pleading standards

In Verlinden, the U.S. Supreme Court held that “[a]t the thres

every action in a District Court against a foreign state, . . . th

must satisfy itself that one of the exceptions applies—and in do

must apply the detailed federal law standards set forth in the 

Some lower courts had interpreted this statement to mean that 

plaintiff’s substantive claims mirror the relevant statutory stand

plaintiff must only show that they are “non-frivolous.”75

In Bolivarian Republic of Venezuela v. Helmerich & Payne I

tional Drilling Co.,

76 however, the Court held that, in order to e

jurisdiction under the expropriation exception (§ 1605(a)(3)), 

tiff “must make out a legally valid claim that a certain kind of ri

issue (property rights) and that the relevant property was tak

certain way (in violation of international law).” A “good argum

that effect is not sufficient,” it said, and “[t]he nonfrivolous-ar

 

73. No. 13 cv 4445 (PAC), 2015 WL 3443906, at *2 (S.D.N.Y. May 2

aff’d, 839 F.3d 193 (2d Cir. 2016) (citations omitted); cf. Azima v. RAK In

305 F. Supp. 3d 149 (D.D.C. 2018).

74. Verlinden, 461 U.S. at 493–94.

75. See, e.g., Simon v. Republic of Hungary, 812 F.3d 127, 140–41 (

2016); Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Ve

784 F.3d 804, 812 (D.C. Cir. 2015), vacated and remanded, 137 S. Ct. 131

76. 137 S. Ct. 1312, 1316 (2017). The decision cited neither Ashcroft 

556 U.S. 662 (2009), nor Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (20
27

standard is not consistent with the statute.”77 “[C]onsistent w

eign sovereign immunity’s basic objective, namely, to free a 

sovereign from suit, the court should normally resolve . . . fact

putes and reach a decision about immunity as near to the outse

case as is reasonably possible.”78

Narrowly construed, the decision addresses only the exprop

exception, yet the reasoning seems to apply with equal force 

FSIA’s other exceptions—at least to the extent that the jurisd

requirements replicate the underlying substantive (merits) r

ments. In Schermerhorn v. Israel, for example, the district court 

guished the noncommercial tort exception from the expropria

ception on that basis, noting that under the former, “the merits 

does not mirror the jurisdictional standard.”79

 

77. Bolivarian Republic of Venezuela, 137 S. Ct. at 1316 (a “nonfrivo

ultimately incorrect, argument” that property was taken in violation 

national law is insufficient to confer jurisdiction). Thus, whether the pro

which the party claims to hold rights was “property taken in violation of 

tional law” should be resolved “[a]t the threshold” of the action. Id. at 

distinction, a court normally need not resolve, as a jurisdictional matter, q

about whether a party actually held rights in that property; those question

for the merits phase. 

78. Id. at 1317. Cf. Brief of the U.S. as Amicus Curiae in Bolivarian 

of Venezuela, No. 15-423, 2016 WL 4524346 (U.S.) (Appellate Brief) (

2016).

79. 235 F. Supp. 3d 249, 257 (D.D.C. 2017), aff’d on other grounds, 

351 (D.C. Cir. 2017); cf. MMA Consultants 1, Inc. v. Republic of Per

App’x 47 (2d Cir. 2017) (commercial activity). See also Cathode Ray Tub

Antitrust Litig., MDL No. 1917, No. C-07-5944 JST, ECF Nos. 5183, 52

WL 659084 (N.D. Cal. Feb. 1, 2018) (commercial activity and waiver); I

rorist Attacks on Sept. 11, 2001, 298 F. Supp. 3d 631 (S.D.N.Y. 2018) (ter

The D.C. Circuit had previously embraced the nonfrivolous jurisdiction

ard under § 1605A in Agudas Chasidei Chabad of U.S. v. Russian Federa

F.3d 934 (D.C. Cir. 2008). In Shoham v. Islamic Republic of Iran, No. 1

(RCL), 2017 WL 2399454, at *11 n.14 (June 1, 2017), the court distingu

requirements for “jurisdictional causation” from the requirements to su

the merits, noting that the latter could be higher.
28

2. Jurisdictional discovery

The complaint itself should contain sufficient factual allegation

fying jurisdictional discovery.

80 The court must review those 

tions as well as any undisputed facts presented by the parties. W

FSIA aims to protect foreign sovereigns and their agencies and 

mentalities from not only liability but also discovery and other b

of litigation, limited jurisdictional discovery may be allowed.81

The most widely stated standard specifies that discovery m

ordered “circumspectly and only to verify allegations of speci

crucial to the immunity determination.”82Absent specific facts 

ing a “reasonable basis for assuming jurisdiction,” jurisdictio

covery may be refused.83

Courts generally recognize two competing interests here: 

one hand, allowing plaintiffs sufficient discovery to establish th

causes of action fall within the statutory exceptions to immun

on the other hand, protecting the defendants’ legitimate claim

munity, including from discovery. Thus, 

 

80. See de Csepel v. Republic of Hungary, 808 F. Supp. 2d 113, 127 

2011), aff’d in part, 714 F.3d 591 (D.C. Cir. 2013) (“To the extent that jur

depends on factual propositions independent of the merits, the plaintiff 

a challenge by the defendant, present adequate supporting evidence.”). 

81. Rubin v. Islamic Republic of Iran, 637 F.3d 783, 795 (7th Cir. 20

is widely recognized that the FSIA’s immunity provisions aim to protec

sovereigns from the burdens of litigation, including the cost and aggrav

discovery.”); Reiss v. Société Centrale du Groupe des Assurance Nation

F.3d 738, 748 (2d Cir. 2000) (“We think it essential for the district court 

the parties the opportunity to present evidentiary material at a hearin

question of FSIA jurisdiction. The district court should afford broad la

both sides in this regard and resolve disputed factual matters by issuing 

of fact.”). On discovery in FSIA proceedings, see Restatement (Fourth) o

Relations Law § 462 (Am. Law Inst. 2018).

82. Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193, 207 

2016); EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207, 210 (2d C

aff’d, Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250 (2014)

83. Cf. In re Terrorist Attacks on Sept. 11, 2001, 298 F. Supp. 3d 

(S.D.N.Y. 2018).
29

jurisdictional discovery should be permitted only if it is possible tha

plaintiff could demonstrate the requisite jurisdictional facts sufficien

constitute a basis for jurisdiction[,] and it should not be allowed when 

covery would be futile [and] . . . only if the plaintiff presents non-conclu

allegations that, if supplemented with additional information, will ma

ally affect the court’s analysis with regard to the applicability of the FSI

The question whether the FSIA applies to discovery requ

rected at non-parties that may be entitled to immunity does n

to have been resolved definitively. One decision authorized issu

letters rogatory to a foreign court requesting production of do

tary and testimonial evidence from a foreign governmental inst

tality despite the latter’s claims of immunity.85

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

quests against the U.S. government in an action filed under th

sponsored terrorism exception in § 1605A. These rules are discu

Part VII infra. In brief, § 1605(g) requires the court, upon req

the Attorney General, to stay 

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

Attorney General certifies would significantly interfere with a crimina

vestigation or prosecution, or a national security operation, related to 

incident that gave rise to the cause of action, until such time as the Atto

General advises the court that such request, demand, or order will no lo

so interfere.86

In addition to various time limits and other limitations, § 160

provides that “a stay of discovery under this subsection shall co

a bar to the granting of a motion to dismiss under rules 12(b)(6) 

of the Federal Rules of Civil Procedure.”87

Post-judgment discovery (in aid of execution) is discussed 

tion VI.B.4 infra. 

84. Peterson v. Islamic Republic of Iran, 563 F. Supp. 2d 268, 274 

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

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

85. Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp

(S.D.N.Y. 2012).

86. 28 U.S.C. § 1605(g) (2010).

87. Id.
30

3. Interpleader

In Republic of Philippines v. Pimentel, the U.S. Supreme Court 

ered the operation of Federal Rule of Civil Procedure 19 in the 

of foreign sovereign immunity.88 Because “[g]iving full effect to 

eign immunity promotes the comity interests that have contrib

the development of the immunity doctrine,” the Court held tha

sovereign immunity has been asserted by parties whose particip

required by Rule 19(a), the entire action must be dismissed un

sovereign’s substantive defenses are frivolous or its interests wo

be prejudiced if the litigation proceeded without its participatio

4. Non-jury trial

Under 28 U.S.C. § 1330(a), the district courts have original juris

(without regard to the amount in controversy) over “any nonju

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

claim for relief in personam” for which the foreign state is not 

to immunity.

90 Under § 1441(d), “[u]pon removal the action 

tried by the court without jury.”91

5. Damages

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

nitive damages, but this limitation does not apply to agencies 

strumentalities. In addition, a different rule applies under th

sponsored terrorism exception.92

 

88. 553 U.S. 851 (2008).

89. Id. at 866.

90. Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88 (D.D.C. 2017

91. A waiver of immunity is not a waiver of immunity from trial by 

Aboeid v. Saudi Arabian Airlines, Inc., No. CV-10-2518 (SJ)(VVP), 2

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

92. Section 1605A authorizes the award of punitive damages as we

nomic damages, solatium, and compensation for pain and suffering. See i

tion VII.C.7.
31

6. Default

Section 1608(e) states that a court may not enter judgment by 

against a foreign state “unless the claimant establishes his claim 

to relief by evidence satisfactory to the court.”93Thus, even if a 

state does not enter an appearance, the court must determine 

exception to immunity applies and that an adequate legal and 

basis exists for the plaintiff’s claims.94 A copy of the proposed 

judgment must first be sent to the foreign state in accordan

§ 1608(a).95

7. Appeal

While denial of a motion to dismiss for lack of personal or s

matter jurisdiction is generally not subject to interlocutory re

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

munity is immediately appealable under the collateral order d

in order to prevent parties from having to litigate claims over wh

court lacks jurisdiction.96An order granting a motion to dismis

 

93. 28 U.S.C. § 1608(e) (2010). See H.R. Rep. No. 94-1487, at 26 (19

tion 1608(e) establishes “the same requirement applicable to default ju

against the U.S. Government under rule 55(e), F.R. Civ. P.”). See also 

Islamic Republic of Iran, 228 F. Supp. 3d 64, 74 (D.D.C. 2017).

94. See Restatement (Fourth) of Foreign Relations Law § 463 (Am. L

2018).

95. Under § 1608(e), service must be made on all parties, and an opp

given to respond, before entry of default; service on the state alone is ins

when an agency or instrumentality is also named. Murphy v. Islamic Re

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

96. See, e.g., De Csepel v. Republic of Hungary, 859 F.3d 1094 (D

2017), petition for cert. docketed (No. 17-1165); Atlantica Holdings v. S

Wealth Fund Samruk-Kazyna JSC, 813 F.3d 98 (2d Cir. 2016), cert. denie

Ct. 493 (2016); Global Tech., Inc. v. Yubei (XinXiang) Power Steering 

807 F.3d 806 (6th Cir. 2015); Terenkian v. Republic of Iraq, 694 F.3d 1

Cir. 2012); Abelesz v. OTP Bank, 692 F.3d 661 (7th Cir. 2012); Hansen v. 

Negara Indonesia (Persero), TBK, 601 F.3d 1059 (10th Cir. 2010). See als

the United States as Amicus Curiae Supporting Defendant-Appellants, 

Curacao, Nos. 11-15909, 11-15910, 11-15944, 2012 WL 3264655, at *8–

Cir. June 21, 2012).
32

basis of immunity is a final order from which an interlocutory 

may be taken under the collateral order doctrine under 28 

§ 1291.97

 

97. Petersen Energia Inversora S.A.U. v. Argentine Republic & YPF 

F.3d 194 (2d Cir. 2018); de Csepel v. Republic of Hungary, 859 F.3d 10

Cir. 2017); Frank v. Commonwealth of Antigua & Barbuda, 842 F.3d 362 

2016).
33

IV. Entities and Persons Entitled to Immunity

In virtually every litigation under the FSIA, the first issue is whe

entity claiming the protection of the statute qualifies as a “

state.” In this regard, the statute makes several important defi

distinctions.

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

political subdivision of a foreign state and (2) an agency or inst

tality of a foreign state. This fundamental distinction is r

throughout the FSIA and has concrete legal consequences, si

statute provides for differing treatment of the two categories in 

ways, including with respect to service of process, venue, punitiv

ages, execution, and attachment. 

In practice, however, the distinction to be made is almost 

between a foreign state proper (including its integral govern

components and political subdivisions) and its separate agenc

instrumentalities. 

A. Foreign States, Components, and Political Subdivisio

Despite the practical importance of the basic distinction, neith

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

1. Foreign state or government

Clearly the FSIA applies to a suit against the sovereign entit

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

Kingdom of Y, the State of Z, or any other independent coun

tion, union, principality, confederation, etc.), as well as to its 

ment (which may be a named defendant even if not a separate j

entity).98

 

98. Not every entity aspiring to “statehood” qualifies (for example, th

cipality of Seborga”). One possibly useful reference is the CIA’s World F

https://www.cia.gov/library/publications/the-world-factbook. The Offic

Legal Adviser at the U.S. Department of State is another. Generally spea

term “state,” as used in international law, denotes “[a] sovereign indepen

tit[y] that ha[s] a permanent population, a defined territory, a governm
34

Formal diplomatic or political recognition of the foreign 

government by the United States is not a statutory prerequisite

ever, in some circumstances, the fact that the U.S. governm

given formal recognition to a named defendant as a “foreign st

been found relevant.

99

Full membership in the United Nations can also be a reliab

cator that an entity is a foreign state (since the UN Charter prov

Articles 3 and 4, that membership is open to “states”). Howe

fact that an entity has only “observer status” or lesser ri

participation would not necessarily be conclusive proof of 

“statehood.” Some cases require difficult factual determination

2. Internal government components

As used in the statute, the term “foreign state” encompasses n

the national government but also internal governmental or ad

trative units, such as provinces, prefectures and parishes, canto

counties, governorates, states, autonomous republics or region

tal districts, territories, dependencies, and possessions. As a m

international law, such units are a parts of the “state” just as 

and the District of Columbia are rightly considered parts of the 

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

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

the FSIA they are best considered as integral parts of their pare

as a whole. In Rong v. Liaoning Provincial Government, for exam

 

the capacity to enter into relations with [other] states.” Restatement (Fo

Foreign Relations Law § 452, cmt. a (Am. Law Inst. 2018).

99. See, e.g., O’Bryan v. Holy See, 556 F.3d 361, 372–73 (6th Cir. 200

100. Cf. Waldman v. Palestine Liberation Org., 835 F.3d 317, 329 (

2016), cert. denied sub nom. Sokolow v. Palestine Liberation Org., 138 S. 

(2018) (“[N]either the PLO nor the PLA is recognized by the United St

sovereign state, and the executive’s determination of such a matter is con

thus, due process principles apply to assertion of personal jurisdiction ov

See also Ungar v. Palestine Liberation Org., 402 F.3d 274, 292 (1st Cir. 2005
35

defendant (“a sovereign political subdivision of China”) was p

treated as the foreign state for FSIA purposes.101

3. Government departments and ministries

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

partments or ministries of defense, foreign affairs, finance, com

or interior, as well as the armed forces, police, and intelligence s

are also properly considered part of the state itself.102 The same 

of central banks.103

Foreign embassies, consulates, and the permanent miss

member states to the United Nations, the OAS, or other intern

organizations in the United States will normally be included wi

 

101. 362 F. Supp. 2d 83 (D.D.C. 2005). The distinctions are sometime

Consider Ben-Haim v. Edri, No. 15-3877 (JLL), 2015 WL 12839772 (D.N

2015), in which the court determined for purposes of removal that the 

istration of the Rabbinical Courts of the State of Israel constituted “an off

ernment agency of the State of Israel” as well as “part of the Israeli Mi

Justice and the State of Israel’s official judicial system.”

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

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

poses [as] an inseparable part of the Iranian State”); Wye Oak Tech., In

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

forces are not legally separate for jurisdictional purposes”); Roeder v. Isl

public of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003) (foreign ministry); Tr

Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (D.C. Cir. 1994) (arme

Gomes v. ANGOP, Angola Press Agency, No. 11-CV-0580 (DLI) (JO), 2

3637453 (E.D.N.Y. Aug. 22, 2012) (ministries); Jerez v. Republic of Cub

Supp. 2d 6, 20 (D.D.C. 2011) (armed forces, ministry of interior). How

decisions are not uniform. See, e.g., Magness v. Russian Fed’n, 247 F.3d 

n.7 (5th Cir. 2001) (Russian Ministry of Culture is a “political subdivi

purposes of service requirements of § 1608). See generally Compagnie No

portation et D’Exportation, S.A. v. Russian Fed’n, 361 F.3d 676, 687–90 

2004).

103. See, e.g., Howland v. Hertz Corp., 431 F. Supp. 2d 1238, 1242 (

2006).
36

definition of “foreign state” because they are integral parts of th

ernments and typically lack separate legal identities and the cap

sue or be sued in their own right.104

B. Agencies and Instrumentalities

Section 1603(b) does provide a definition of the term “agency 

strumentality of a foreign state”—if not an entirely unambiguo

The term includes any entity that

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

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

a majority of its ownership interest is owned by a forei

or political subdivision thereof; and

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

der the laws of a third country.105

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

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

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

1. Separate legal entity

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

instrumentality” was meant to be interpreted broadly: 

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

clude a corporation, association, foundation, or any other entity which

der the law of the foreign state where it was created, can sue or be sued i

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

 

104. USAA Cas. Ins. Co. v. Permanent Mission of the Republic of N

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

United Nations is indisputably the ‘embodiment’ of that state.”); Nwoke 

sulate of Nigeria, No. 17-cv-00140, 2018 WL 1071445 (N.D. Ill. Feb. 2

aff’d, 729 F. App’x 478 (7th Cir. 2018) (citing Gray v. Permanent Missio

People’s Republic of the Congo, 443 F. Supp. 816, 820 (S.D.N.Y.), aff’d, 

1044 (2d Cir. 1978)).

105. 28 U.S.C. § 1603(b) (2010).

106. See EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 

635, 639 (9th Cir. 2003).
37

As a general matter, entities which meet the definition of an “agency o

strumentality of a foreign state” could assume a variety of forms, inclu

a state trading corporation, a mining enterprise, a transport organiza

such as a shipping line or airline, a steel company, a central bank, an ex

association, a governmental procurement agency or a department or m

istry which acts and is suable in its own name.107

In this regard, the statute reflects a fundamental policy of r

ing the distinction between the state itself and its separate crea

appendages. This policy was elucidated in First National City 

Banco Para El Comercio Exterior de Cuba,

108 where the U.S. S

Court noted Congress’s intent that “duly created instrumentali

foreign state are to be accorded a presumption of independent 

It also said:

Freely ignoring the separate status of government instrumentalities w

result in substantial uncertainty over whether an instrumentality’s a

would be diverted to satisfy a claim against the sovereign, and might the

cause third parties to hesitate before extending credit to a governmen

strumentality without the government’s guarantee. As a result, the effor

sovereign nations to structure their governmental activities in a ma

deemed necessary to promote economic development and efficient adm

istration would surely be frustrated.109

This presumption can be overcome, however, when the sta

cises sufficient control over the instrumentality that it can be 

terized as the “alter ego” of the state. As stated by the district c

Seijas v. Republic of Argentina:

 

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

U.S.C.C.A.N. 6604, 6614.

108. 462 U.S. 611 (1983) (hereinafter Bancec), The opinion conta

scription of a “typical governmental instrumentality.” Id. at 626–27. 

109. Id. at 626. As stated in Foremost-McKesson, Inc. v. Islamic Re

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

It is not enough to show that various governmental entities or officials 

resent a majority of the shareholders or constitute a majority of the b

of directors of the applicable agency or instrumentality; in other w

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

does not answer the question whether the agency or instrumentality is 

trolled by the state for purposes of FSIA.
38

The principal-agent exception of Bancec has generally been characterize

referring to the question of whether the instrumentality is an “alter ego

the sovereign. The alter ego relationship may exist if (1) the instrument

was established to shield the sovereign from liability, (2) the sovereig

nored corporate formalities in running the instrumentality and the so

eign exercised excessive control over the instrumentality, or (3) the so

eign has directed the instrumentality to act on its behalf, and 

instrumentality has done so. An alter ego finding is not, however, just

merely because the sovereign wholly owns the instrumentality or exer

its power as a controlling shareholder.110

The Court’s reasoning in Bancec was guided by its unders

of the underlying goal of including agencies or instrumentalitie

FSIA. In so doing, Congress intended primarily to focus on 

commercial enterprises”—such as state trading corporations 

for the purpose of doing business on behalf of the state. The d

treatment of agencies and instrumentalities (as opposed to the 

self) serves two purposes in this regard: (1) it acknowledges 

portance of separate corporate forms (and the need to treat su

ties as separate from the government itself), and (2) it perm

judicial resolution of disputes arising from commercial trans

and events for which no immunity is provided.

In Bancec, the specific question was whether the separate 

mentality could be held liable (as an “alter ego”) for the action

foreign state. Bancec had been created as an official, autonomou

institution for foreign trade, wholly owned by the Cuban gover

When it sued in U.S. court to collect on a letter of credit issue

favor by First National City Bank, the bank counterclaimed 

serted a right to set off the value of its assets in Cuba which h

nationalized by the government. Under the circumstances, th

held, the presumption of separate status could be overcome.

 

110. Seijas v. Republic of Argentina, No. 10 Civ. 4300 (TPG), 2

1137942, at *11 (S.D.N.Y. March 28, 2011), aff’d, 502 F. App’x 19 (2d C

The presumption can also be overridden when recognition would work a 

injustice. Bancec, 462 U.S. 611 at 629. For an extensive discussion of Ba

tors, see Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, C.A

mc-151-LPS, 2018 WL 3812153 (D. Del. Aug. 10, 2018).
39

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

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

liable for the actions of the other. . . . In addition, our cases have long re

nized “the broader equitable principle that the doctrine of corporate en

recognized generally and for most purposes, will not be regarded whe

do so would work fraud or injustice.”. . . Giving effect to Bancec’s sepa

juridical status . . . would permit the real beneficiary of such an action

Government of the Republic of Cuba, to obtain relief in our courts th

could not obtain in its own right without waiving its sovereign immu

and answering for the seizure of Citibank’s assets—a seizure previously 

by the Court of Appeals to have violated international law.111

Courts occasionally confront the reverse situation, that is, w

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

Ninth Circuit addressed that issue, noting that the presumptio

foreign state’s separate juridical status can only be overcome w

complaint alleges “day-to-day, routine involvement” by that stat

separate entity’s affairs, or when the presumption would work 

or an injustice.112

2. Second criterion

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

arate legal entity in question must also be either (a) an organ o

eign state or political subdivision thereof, or (b) an entity a maj

whose ownership interest is owned by a foreign state or politi

division thereof.

a. State-owned corporations

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

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

(or a political subdivision of that state) will typically qualif

“agency or instrumentality” under the second criterion of § 1

The drafters of the statute specifically had in mind state trading 

rations, but state-owned commercial banks are another (incre

 

111. Bancec, 462 U.S. at 629, 632.

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

other grounds, OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015).
40

common) example.113 Of course, as explained below, to the ext

its activities fall within the “commercial activity” exception, the 

ration will not enjoy immunity. 

b. Tiering

In certain fields, the question of separate entities arises in the 

of complex organizational structures involving a series of holdin

panies and subsidiaries. Under Dole Food Co. v. Patrickson, a

qualifies under the majority ownership clause of § 1603(b)(2) 

the foreign state (or political subdivision) itself directly owns a m

of the entity’s shares (“one tier only”).114

The reasoning is that a corporation and its shareholders are 

entities, and therefore “[a] corporate parent which owns the sha

subsidiary does not, for that reason alone, own or have legal titl

assets of the subsidiary; and, it follows with even greater fo

parent does not own or have legal title to the subsidiaries 

subsidiary.”115

Thus, an entity wholly owned by a corporate parent, whi

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

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

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

tort or other actionable conduct occurred.116)

In some situations, the separate entity in question may be m

owned by more than one foreign state. Such “pooled entities” m

the definition of “agency or instrumentality” under § 1603(b)(2

 

113. See, e.g., Fir Tree Capital Opportunity Master Fund, LP v. An

Bank, Ltd., No. 11 Civ. 0955 (PGG), 2011 WL 6187077 (S.D.N.Y. Nov. 2

114. 538 U.S. 468, 477 (2003).

115. Id. at 475.

116. Id. at 479–80.

117. See LeDonne v. Gulf Air, Inc., 700 F. Supp. 1400 (E.D. Va. 

European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129 (2d Cir. 2014), rev’d 

grounds, 136 S. Ct. 2090 (2016).
41

c. Organs or political subdivisions

In practice, the more difficult task has been applying the first br

the second criterion of the definition of “agency or instrument

that is, determining whether a particular defendant is properly 

ered an organ of a foreign state or a distinct political subdivision 

when it is a separate entity but not one in which the governme

majority ownership interest. 

The distinction arose from a recognition that not all “publ

mercial enterprises” created by foreign governments take indep

corporate form as understood in U.S. law. The point was that 

corporate structure—one as to which the notion of “ownershi

est” was inapposite—could still fall within the meaning of “ag

instrumentality” if it met the separate entity and nationality cri

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

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

son” may be an “organ” and therefore an agency or instrumenta

titled to immunity even if it is neither a corporation nor 

“owned” by a state. To be an “organ” for these purposes, the s

entity must have a clear measure of independence and autonom

the foreign government.

To determine whether an entity satisfies this definition

courts typically examine 

• the circumstances surrounding the entity’s creation;

• the entity’s organizational structure;

• the purpose of its activities;

• the level of government supervision and financial suppo

• whether the foreign state requires the hiring of public em

and pays their salaries; and 

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

 

118. See, e.g., CapitalKeys, LLC v. Democratic Rep. of Congo, 278 F. 

265, 282 (D.D.C. 2017) (“the Central Bank may be characterized as an a

instrumentality of the Congo, as it is evidently a separate legal entity, bu
42

Political subdivision. Section 1603(b)(3) covers organiza

separate components of a foreign government’s structure that a

properly considered “political subdivisions” than “organs.” L

gans, such entities must still have a separate legal identity or “pe

ity” and the capacity to engage in commercial transactions, b

must also function as part of the government structure itself. T

ference between the two is admittedly unclear. Moreover, us

term “political subdivision” here, as part of the definition of 

and instrumentality,” as well as part of the definition of “foreig

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

confusion.119

Core functions. More generally, the predominant mechan

making the broad distinction between “foreign state” and “ag

instrumentality” has been the so-called “core functions” test. T

was initially developed with regard to the service provisions of 

not the distinctions in § 1603.120 However, the test has subse

been applied in additional contexts. 

 

the agent and alter ego of Congo,’ thus arguably qualifying as an organ o

eign state”); Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 F.3d 

Cir. 2016), cert. denied sub nom. Alavi Found. v. Kirschenbaum, 137 S. 

(2017). For a discussion of the various balancing approaches to the ques

Restatement (Fourth) of Foreign Relations Law § 452, Reporters’ Note 5 (

Inst. 2018).

119. The court in California Department of Water Resources v. Power

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

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

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

(2003), the court held that an entity is an organ of a foreign state (or polit

division thereof) if it “engages in a public activity on behalf of the foreign 

ment.” The fact that Powerex was a “second tier” subsidiary of the pr

government was not dispositive of the question whether it qualified as an 

the court said, so that “[t]here is no reason to think Congress cared a

manner in which foreign states interacted with their organs—i.e., whethe

eign state supervises the organ directly, or through an incorporated ag

F.3d at 1101. 

120. In Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 1

Cir. 1994), the D.C. Circuit had to decide whether the Bolivian Air For
43

In Garb v. Republic of Poland, for example, the Second Cir

ferred to the core functions test in determining, for purpose

“takings” exception, that Poland’s Ministry of the Treasury is “

gral part of Poland’s political structure” and not an agency or 

mentality.121 Similarly, in the D.C. Circuit, an entity that is an “

part” of a foreign state’s political structure is treated as the sta

but an entity that is commercial in its structure and “core funct

treated as an “agency or instrumentality.”122

Agents. Although not expressly addressed in the statut

agents of foreign governments may also be covered. For exam

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

to invoke the commercial activity exception, a government

must have acted with actual authority.123The Fourth Circuit con

in Velasco v. Government of Indonesia, stating that “[w]hether 

party reasonably perceives that the sovereign has empowered i

to engage in a transaction . . . is irrelevant if the sovereign’s cons

 

“foreign state” or an “agency or instrumentality” for purposes of § 1608

than relying on the specific factors listed in the legislative history cited ab

could the entity sue and be sued in its own name, contract in its own n

hold property in its own name, under its own law), the court considered “

the core functions of the foreign entity are predominantly governmental 

mercial.” Id. at 151–52. See also Magness v. Russian Fed’n, 247 F.3d 609

(5th Cir. 2001) (“Whether an entity is a ‘separate legal person’ depends 

nature of its ‘core functions—governmental vs. commercial’—and whe

entity is treated as a separate legal entity under the laws of the foreign sta

121. 440 F.3d 579, 594–95 (2d Cir. 2006) (finding the ministry’s “c

tion—to hold and administer the property of the Polish state—was ind

governmental”). In Servaas Inc. v. Republic of Iraq, 653 F. App’x 22, 24 

2011), the Second Circuit noted that “the Bancec presumption of separaten

not apply where the instrumentality exists as a political organ of the st

that ‘no meaningful legal distinction’ can be drawn between the two.” (cit

v. Republic of Poland, 440 F.3d 579, 592 (2d Cir. 2006).

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

Cir. 2005). See also Restatement (Fourth) of Foreign Relations Law § 452

ers’ Note 4 (Am. Law Inst. 2018).

123. 106 F.3d 302, 308 (9th Cir. 1997); see also EduMoz, LLC v. Re

Mozambique, 686 F. App’x 486 (9th Cir. 2017).
44

or laws proscribe or do not authorize the agent’s conduct and th

party fails to make a proper inquiry.”124

As they have in the domestic context, courts have acknow

that holding private agents liable for carrying out the direction 

eign sovereigns might, in some circumstances, directly imp

completion of legitimate governmental work.125

3. Non-U.S. nationality

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

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

narily presents no difficulties. Generally speaking, for purpose

ternational law, a corporation has the nationality of the state un

laws of which the corporation is organized.126

C. Individual Foreign Officials and Agents

For some years, courts debated whether the FSIA should a

claims against individual foreign government officials for action

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

cuits said yes, following the so-called Chuidian doctrine, which 

individual officials as “agencies or instrumentalities” for FSI

poses; other circuits held the opposite.127

 

124. 370 F.3d 392, 410 (4th Cir. 2004). See also SACE S.p.A. v. Re

Paraguay, 243 F. Supp. 3d 21 (D.D.C. 2017).

125. E.g., Salman v. Saudi Arabian Cultural Mission, No. 1:16cv10

IDD), 2017 WL 176576 (E.D. Va. Jan. 17, 2017); Butters v. Vance Int’l, 

F.3d 462, 466 (4th Cir. 2000) (a private security company hired by a fore

ernment was entitled to derivative immunity under the FSIA).

126. Rowell v. Franconia Minerals Corp., 706 F. Supp. 2d 891, 895 

2010) (citing Restatement (Third) of Foreign Relations Law § 213 (Am. L

1986)).

127. In Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th C

the appellate court held that FSIA immunity extends to individual officia

eign states acting in their official capacity, since these officials are prop

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

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

81 (2d Cir. 2008), abrogated by Samantar v. Yousuf, 560 U.S. 305 (2010); 

Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008); Keller v. Central Bank of Nig
45

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

minority view, rejecting the Chuidian doctrine and holding in 

tar v. Yousuf that an individual foreign official sued for conduct 

taken in his or her personal capacity is not a “foreign state” ent

immunity from suit within the meaning of the FSIA.

128 The 

found nothing in the text or legislative history of the statute to 

that the term “foreign state” should be read to include an officia

on the state’s behalf, nor any reason to presume that when C

codified state immunity, it also intended to codify the immunit

dividual foreign government officials.

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

official may nonetheless be precluded by common-law princ

foreign sovereign immunity, following the practice that had go

the immunity of individual foreign government officials p

1976.129Accordingly, it remanded the suit for a determination w

Samantar might be entitled to such immunity or have other v

fenses.130 The common-law doctrine of “foreign official imm

 

F.3d 811 (6th Cir. 2002); Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y

The Seventh Circuit explicitly rejected Chuidian, noting that “[i]f Congre

to include individuals acting in the official capacity in the scope of the 

would have done so in clear and unmistakable terms” (Enahoro v. Abub

F.3d 877, 881–82 (7th Cir. 2005)), and the Fourth Circuit concluded on 

of the FSIA’s “language and structure” that it does not apply to “individua

government agents.” Yousuf v. Samantar, 552 F.3d 371, 381 (4th Cir. 200

128. 560 U.S. 305, 130 S. Ct. 2278 (2010). 

129. Id. at 325.

130. Id. “[N]ot every suit can successfully be pleaded against an in

official alone. Even when a plaintiff names only a foreign official, it ma

case that the foreign state itself, its political subdivision, or an agency o

mentality is a required party, because that party has ‘an interest relatin

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

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

. . . . Or it may be the case that some actions against an official in his of

pacity should be treated as actions against the foreign state itself, as the st

real party in interest.” Id. at 324–25. On remand, the Fourth Circuit det

that the district court had properly deferred to the State Department’s 
46

which covers foreign government officials for conduct undert

the exercise of their official duties, has since been addressed in 

decisions.131

 

that Samantar was not entitled to head of state immunity and that he wa

titled to immunity for jus cogens violations. Yousuf v. Samantar, 699 F.3d 

Cir. 2012).

131. See, e.g., Lewis v. Mutond, 258 F. Supp. 3d 168 (D.D.C. 2017

dants’ actions were carried out in their official capacities so that exercisi

diction would have effect of enforcing a rule of law against the foreign so

Nnaka v. Federal Republic of Nigeria, 238 F. Supp. 3d 17, 30–31 (D.D.

(suit against individuals in their official capacities made Nigeria the real 

interest); Dogan v. Barak, No. 2:15-cv-08130-ODW (GSJx), 2016 WL 

(C.D. Cal. Oct. 13, 2016) (defendant’s “irrefutably ‘official public acts’ . 

him to immunity” and “there is no jus cogens exception to foreign off

munity” (citing Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009))); Rose

Pasha, 577 F. App’x 22 (2d Cir. 2014) (applying Matar); Odhiambo v. Re

Kenya, 930 F. Supp. 2d 17, 34 (D.D.C. 2013), aff’d, 764 F.3d 31 (D.C. C

cert. denied, 136 S. Ct. 2504 (2016) (suit governed by the FSIA because it 

respects a suit against the Kenyan government”).
47

V. Exceptions to Immunity

The FSIA creates nine distinct and independent categories of 

tions to immunity from jurisdiction. Six of them are found in 28 

§ 1605(a), as amended: (1) waiver, (2) commercial activity, (3) 

priations, (4) rights in certain kinds of property in the United S

(5) noncommercial torts, and (6) enforcement of arbitral agre

and awards. The seventh category involves cases arising from 

acts of state-sponsored terrorism; formerly covered in § 160

this exception is now codified separately at § 1605A.133 The eigh

egory involves maritime liens and preferred mortgages and 

with in § 1605(b), (c), and (d). Counterclaims under § 1607 co

the ninth category.134

The most commonly invoked exceptions are waiver, com

activity, expropriations, noncommercial torts, enforcement of 

awards, and acts of state-sponsored terrorism. These exceptions 

dressed briefly in this part, and citations are provided to facilit

ther research as needed.

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

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

one of the exceptions applies.”135

 

132. While the “immovable property” exception in § 1605(a)(4) 

quently invoked, it was interpreted by the U.S. Supreme Court to include 

to establish the validity of a tax lien. See Permanent Mission of India to th

Nations v. City of New York, 551 U.S. 193 (2007).

133. The terrorism exception is discussed in Part VII infra. 

134. Section 1607 provides that a foreign state “shall not be accorded 

ity with respect to any counterclaim—(a) for which a foreign state wou

entitled to immunity under section 1605 or 1605A of this chapter had su

been brought in a separate action against the foreign state; or (b) arising o

transaction or occurrence that is the subject matter of the claim of th

state; or (c) to the extent that the counterclaim does not seek relief exce

amount or differing in kind from that sought by the foreign state.”

135. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 483 (1
48

A. Waiver 

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

eign state has waived its immunity “either explicitly or by impl

notwithstanding any withdrawal of the waiver which the forei

may purport to effect except in accordance with the terms 

waiver.”136 Like the other exceptions, this provision operates 

the statutory grant of federal question jurisdiction under § 133

1. Express waivers

Express (or explicit) waivers are typically found in contractua

sions, although they could arise from independent statements 

ample, by a duly authorized governmental official). Express 

must be clear, complete, and unambiguous, and they are norma

strued narrowly by U.S. courts in favor of the sovereign.138 In so

uations, relevant treaty provisions may also qualify, although t

Supreme Court cautioned in Argentine Republic v. Amerada He

ping Corp. that federal courts should not lightly imply a waive

upon ambiguous treaty language.139

 

136. 28 U.S.C. § 1605(a)(1) (2010).

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

n.4 (D.C. Cir. 2008); see generally Restatement (Fourth) of Foreign Relat

§ 453 (Am. Law Inst. 2018).

138. BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def. Ac

Program Admin., 884 F.3d 463 (4th Cir. 2018), cert. denied, No. 18-19, 2

3241795 (U.S. Sup. Ct. Oct. 1, 2018); GDG Acquisitions LLC v. Govern

Belize, 849 F.3d 1299 (11th Cir. 2017) (government ratification of co

waiver); Williams v. National Gallery of Art, London, No. 16-CV-697

2017 WL 4221084 (S.D.N.Y. Sept. 21, 2017), aff’d on other grounds, No. 

cv, 2018 WL 4293327 (2d Cir. Sept. 10, 2018).

139. 488 U.S. 428, 442 (1989). See also Odhiambo v. Republic of Ke

F.3d 31 (D.C. Cir. 2014) (accession to 1951 Convention Relating to the 

Refugees was not waiver); Carpenter v. Republic of Chile, 610 F.3d 776

Cir. 2010) (waiver by treaty must be “clear and unambiguous” and treat

ence did not qualify).
49

2. Implied waivers

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

ereign immunity, requiring strong evidence of the foreign state

to subject itself to the jurisdiction of U.S. courts.140 As noted 

Republic of the Philippines,

141 implied waivers have in practic

found only when (1) a foreign state has agreed to arbitration 

United States,142 (2) a foreign state has agreed that a contract 

erned by U.S. law,143 or (3) a foreign state has filed a responsiv

ing in a case in U.S. courts without raising the defense of so

immunity.144

A recent decision in the Southern District of New York is 

tive.145 In that case, SI Group, an Israeli company, entered into 

of waste disposal contracts with a component of the Ukrainian 

ment (DFIC), providing that all disputes would be resolved “i

under the laws of Ukraine” and “[a]ll disputes meant to be se

court shall be settled at the location of the Client” (meaning the 

Frankivsk State in Ukraine). After a dispute arose over paym

 

140. Cf. Barapind v. Government of Republic of India, 844 F.3d 824 

2016); Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012).

141. 309 F.3d 1143, 1151 (9th Cir. 2002).

142. Af-Cap Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 200

2008, the lack of immunity resulting from agreements to arbitrate is no 

matter of “waiver” but is separately addressed in § 1605(a)(6); see infra P

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

Cir. 2002); Phoenix Consulting, Inc. v. Republic of Angola, 35 F. Supp. 

(D.D.C. 1999).

144. See, e.g., BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Kor

Acquisition Program Admin., 884 F.3d 463, 474 (4th Cir. 2018) (responsi

ing). While the test is often phrased to encompass agreements to arbit

“foreign” country or to apply “foreign” law, courts properly require evi

the state’s intent to subject itself to U.S. law and U.S. jurisdiction. For pu

the waiver exception, a motion to dismiss or to compel discovery is not 

considered a responsive pleading. 

145. SI Group Consort Ltd. v. Ukraine, Ivano-Frankivsk State Adm

15 CV 3047-LTS, 2017 WL 398400 (S.D.N.Y. Jan. 30, 2017).
50

Group sued DFIC in Ukrainian court and prevailed.The judgm

affirmed on appeal but was never paid. 

SI Group then sued in U.S. court to enforce its judgment 

the defendants’ assets in the United States, claiming that DFIC h

plicitly waived its immunity by consenting broadly to resolve d

“in court.” Noting that the waiver exception “must be constru

rowly,” the court rejected that argument. Consent to resolve s

court under the laws of Ukraine,” it said, does not evidence an 

intent to waive sovereign immunity from suit in U.S. courts

§ 1605(a)(1), a waiver need not contain an explicit reference 

United States but must evidence “an intent to waive sovereign i

ity in United States courts.” Such an intent could not be inferre

either the relevant contractual language or the defendants’ con

(and participation in) the Ukrainian litigation.

146

Generally speaking, a foreign state’s initiating litigation (

suit) in U.S. court will be treated as an implied waiver of its im

with respect to the subject matter of that litigation.

Suits alleging implicit waiver by a foreign government’s con

violation of the norms of international law (including acts alleg

contrary to jus cogens, such as torture or genocide) have n

successful.147

Even where they are clearly established, waivers of immuni

jurisdiction to adjudicate are not considered waivers of immuni

enforcement of a resulting judgment.

B. Commercial Activity 

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

the restrictive theory of immunity, and not surprisingly, it is th

 

146. The court also rejected the argument that DFIC’s consent to 

before the International Centre for Settlement of Investment Disputes u

Ukraine-Israel bilateral investment treaty evidenced a waiver.

147. See, e.g., Dogan v. Barak, No. 2:15-cv-08130-ODW (GSJx), 2

6024416, at *10–11 (C.D. Cal. Oct. 13, 2016); Restatement (Fourth) of 

Relations Law § 453, Reporters’ Note 10 (Am. Law Inst. 2018).
51

litigated exception. Availability of the exception rests on the ans

several related questions: 

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

as a “commercial activity”?

2. Is the plaintiff’s specific claim “based upon” that acti

upon an act in connection with that activity)?

3. Does the activity in question have a sufficient jurisd

nexus to the United States? 

1. Definition of commercial activity

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

course of commercial conduct or a particular commercial tran

or act.”148 It is important to note that the provision also provid

“[t]he commercial character of the activity shall be determined 

erence to the nature of the course of conduct or particular tran

or act, rather than by reference to its purpose” (emphasis added

This “nature not purpose” criterion is fundamental to the 

tion. In Republic of Argentina v. Weltover, the U.S. Supreme 

stated:

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

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

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

provides that the commercial character of an act is to be determined by 

erence to its “nature” rather than its “purpose,” 28 U.S.C. § 1603(d)

question is not whether the foreign government is acting with a profit 

tive or instead with the aim of fulfilling uniquely sovereign objectives

ther, the issue is whether the particular actions that the foreign state 

forms (whatever the motive behind them) are the type of actions by wh

private party engages in “trade and traffic or commerce.”149

Thus, a state remains immune with respect to its sovereign 

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

commercial in character (jure gestionis).

 

148. 28 U.S.C. § 1603(d) (2010). See generally Restatement (Fourth

eign Relations Law § 454 (Am. Law Inst. 2018).

149. 504 U.S. 607, 614 (1992).
52

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

it exercises “only those powers that can also be exercised by private citize

as distinct from those “powers peculiar to sovereigns.” Put differently, a 

eign state engages in commercial activity for purposes of the restri

theory only where it acts “in the manner of a private player within” 

market.150

The phrase “commercial activity” thus refers to “the characte

foreign state’s exercise of power”rather than its purpose or its ef

Applying these criteria in given factual situations has gene

substantial body of case law. A few of the main issues are summ

here.

a. Contracts

A contract between a foreign state and a private party for the p

and sale of goods and services is presumptively commercial.152 

contract to buy army boots or even bullets is a ‘commercial’ 

because private companies can similarly use sales contracts to 

goods.”153 A motor vehicle lease is a “commercial” activity, even 

usage is limited to official business of a foreign government mi

the United Nations.

154Contracts for legal services have been hel

 

150. Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993). 

151. Rong v. Liaoning Provincial Gov’t, 452 F.3d 883, 888 (D.C. C

“[T]he question is not whether the foreign government is acting with a pr

tive or instead with the aim of fulfilling uniquely sovereign objectives. Ra

issue is whether the particular actions that the foreign state performs (w

the motive behind them) are the type of actions by which a private party 

in ‘trade and traffic or commerce’. . . .” Republic of Argentina v. Welto

504 U.S. 607, 614 (1992). 

152. See Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 15

(D.C. Cir. 1987).

153. Weltover, 504 U.S. at 614–15. See also Rote v. Zel Custom Mfg. 

F.3d 383 (9th Cir. 2016); Singh v. Singapore Hous. & Dev. Bd., No. 1:15-c

DAP, 2017 WL 2378120 (N.D. Ohio June 1, 2017).

154. Ford Motor Co. v. Russian Fed’n, No. 09 Civ. 1646 (JGK), 2

2010867, at *4 (S.D.N.Y. May 10, 2010).
53

within this exception.155Repudiation of a contract is “precisely t

of activity in which a private player in the market engages.”156

Distinctions are fact-based and sometimes difficult. In Glo

clear Services and Supply GNSS, Ltd. v. AO Techsnabexport, a 

company wholly owned by the Russian Federation was not en

immunity with respect to its contract to supply an American co

with uranium hexafluoride extracted from dismantled nucle

heads, because the transaction was the type of commerce engag

private parties.157 The court rejected the defendant’s argumen

was not merely dealing in uranium but was regulating its sup

manner that no private party could do.158

In UNC Lear Services, Inc. v. Kingdom of Saudi Arabia, a c

for the provision of training and support services to the Roya

Air Force for its fleet of F-5 fighter aircraft (including, for ex

flight operations services; training in survival skills; and ejecti

sea, desert, or mountain terrain) was deemed noncommercial, 

related contract for repair services, parts, and components fo

aircraft was found to fall within the commercial activities excep

In contrast, a private firm’s acts in providing basic health in

to foreign government workers and monitoring compliance w

governmental mandate under the national social security p

were held to be noncommercial.

160

 

155. Dentons U.S. LLP v. The Republic of Guinea, 134 F. Supp. 3d 5, 9 

2015); Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp

140–41 (D.D.C. 2012). 

156. De Csepel v. Republic of Hungary, 714 F.3d 591, 599 (D.C. Cir. 

157. 376 F.3d 282 (4th Cir. 2004). See also Guevara v. Republic of P

F.3d 1297 (11th Cir. 2010) (offer of reward for information leading to c

fugitive was commercial activity but not “based upon” commercial 

within the United States). 

158. Globe Nuclear Servs., 376 F.3d at 289.

159. 581 F.3d 210 (5th Cir. 2009). See also Odyssey Marine Explora

v. Unidentified Shipwrecked Vessel, 657 F.3d 1159 (11th Cir. 2011) (sunk

ish naval vessel entitled to immunity despite carrying private cargo). 

160. Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamosostek (Pers

F.3d 171 (2d Cir. 2010). See also Nwoke v. Consulate of Nigeria, 729 F. A
54

In at least some circumstances, defamatory statements 

within the commercial activity exception if made as part of an e

collect on a debt.161

b. Illegal acts

While a commercial activity (at least for FSIA purposes) is pr

tively one in which a private person can engage lawfully, in som

ations even illegal or unenforceable contracts may be considere

mercial. For instance, criminal acts in the course of business o

such as bribery, forgery, or fraud, can constitute commercial ac

they are conduct in which private parties can engage.162 Mone

dering, however, has been held not to fall within the commerci

ity exception.163 As recently stated by one court, “abuses of 

power for corrupt ends . . . could not be undertaken by private 

in a marketplace” and therefore cannot fall within the commer

tivity exception.164

c. Employment contracts

Employment relationships with foreign governments, embassi

sions, or other offices may or may not be considered “commerc

pending on whether the duties in question involve official or “c

vice” functions.165

 

(7th Cir. 2018) (issuance of passports not a commercial activity even i

alleged to have made a profit from fraudulent activity).

161. Batra v. State Bank of India, No. 15 Civ. 2678 (CGS), 2016 WL 

(S.D.N.Y. May 25, 2016).

162. See, e.g., Keller v. Central Bank of Nigeria, 277 F.3d 811, 816 

2002).

163. See In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 

(S.D.N.Y. 2005); Letelier v. Republic of Chile, 748 F.2d 790, 797–98 (2d C

(alleged participation in an assassination is not a lawful activity and ther

a commercial activity for FSIA purposes).

164. S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 111 (D.D.C. 

165. See, e.g., Salman v. Saudi Arabian Cultural Mission, No. 1:1

(JCC/IDD), 2017 WL 176576 (E.D. Va. Jan. 17, 2017); Figueroa v. Min

Foreign Affairs of Sweden, 222 F. Supp. 3d 304 (S.D.N.Y. 2016); La

Embassy of the Arab Republic of Egypt, 485 F. App’x 203 (9th Cir. 2012)
55

d. Charitable donations

While a charitable intent behind a purchase is irrelevant under t

ture, not purpose” rule, a donation to charity may not be a “com

activity.”166

e. Trade promotion

A government’s effort to foster or promote trade, commerce, 

vestment with a particular region within its territory is a “quin

tial” government function and therefore not commercial activi

f. Regulatory or “police powers”

Governmental regulation of the market, licensing the export of 

resources, seizure of goods for law enforcement purposes, and 

exercises of state authority (including eminent domain) are t

found to be noncommercial, since they are not the kinds of act

which private parties engage in trade, traffic, or commerce.168 

to investigate allegations of fraudulent commercial activity h

held to fall outside this exception.169

In Elbasir v. Kingdom of Saudi Arabia, the court conclude

government’s provision of health care to its citizens and resi

not a “commercial” activity, but it left open the possibility that 

ises of financial assistance might be, depending on the 

circumstances.170

 

166. See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71 (2d C

abrogated by Samantar v. Yousuf, 560 U.S. 305 (2010) (donation to ch

“part of the trade and commerce engaged in by a merchant in the marke

167. El Omari v. Kreab (USA) Inc., 735 F. App’x 30 (2d Cir. 2018); B

Belgium, Inc. v. Kingdom of Belgium, 913 F. Supp. 2d 230, 237–38 (

2012).

168. See Chettri v. Nepal Rastra Bank, 834 F.3d 50 (2d Cir. 2016); F

chants Collection Corp. v. Republic of Argentina, 190 F. Supp. 2d 1336, 1

Fla. 2002); MOL, Inc. v. People’s Republic of Bangladesh, 736 F.2d 1326 

1984).

169. Community Fin. Group, Inc. v. Republic of Kenya, 663 F.3d 977 

2011).

170. 468 F. Supp. 2d 155, 161–62 (D.D.C. 2007).
56

Governmental expropriations and nationalizations of 

property by foreign governments are presumptively considere

commercial.

171

g. Human rights violations and terrorism

Efforts to use the commercial activity exception in § 1605(a

reach human rights violations and terrorist activities have n

successful.172

2. “Based upon”

To fall within § 1605(a)(2), the complaint must be “based upon” 

mercial activity.173 In Saudi Arabia v. Nelson, the Supreme Co

that an action is “based upon” the particular conduct that the p

needs to prove in order to satisfy the elements of a claim entitl

relief under its theory of the case (“something more than a me

nection with, or relation to, commercial activity”).174

In OBB Personenverhehr AG v. Sachs,

175 the Supreme Cou

fied that the cause of action must form the “gravamen” of the su

Sachs, a California resident, was seriously injured when she fel

a train in Austria owned by the state-owned railroad. She sued t

road in U.S. court for breach of a contractual duty of care un

commercial activity exception. She contended that the suit was 

upon” her purchase of a Eurail pass over the Internet from a Ma

setts-based travel agent acting on behalf of the railroad. Relying 

son, the Court rejected that argument, concluding that her act

 

171. Cf. Devengoechea v. Bolivarian Republic of Venezuela, 889 F

1228 (11th Cir. 2018) (expropriation is a uniquely sovereign act, as opp

private act”); Garb v. Republic of Poland, 440 F.3d 579, 586 (2d Cir. 200

Rong v. Liaoning Prov. Gov’t, 452 F.3d 883, 889–91 (D.C. Cir. 2006).

172. See, e.g., Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. C

(hostage taking for profit did not fall within commercial activity exceptio

173. See 28 U.S.C. § 1605(a)(2) (exception to immunity for action

upon a commercial activity”).

174. 507 U.S. 349, 358 (1993).

175. 136 S. Ct. 390 (2015).
57

“based upon” the railway’s alleged negligence in Innsbruck and 

fore fell outside the commercial activity exception. “All of her 

turn on the same tragic episode in Austria, allegedly caused by 

ful conduct and dangerous conditions in Austria, which led to 

suffered in Austria. . . . Under any theory of the case that Sac

sents, however, there is nothing wrongful about the sale of th

pass standing alone.”176

Relying on Sachs, in MMA Consultants 1, Inc. v. Republic of 

the Second Circuit described “gravamen” asthe “basis” or “foun

of a claim, meaning “those elements . . . that, if proven, would e

plaintiff to relief,” thus requiring the court to “zero in” on the 

the suit in order to determine its foundation. In that case, it s

“gravamen” of the suit was the alleged refusal of the governm

Peru to pay the principal and interest due on certain bonds. “[

not conduct the gravamen test by engaging in an ‘exhaustive cla

claim, element-by-element analysis’ of a plaintiff’s suit. . . . Inst

ask one simple question: what action of the foreign state ‘actu

jured’ the plaintiff.”178

3. Jurisdictional nexus

Under § 1605(a)(2), a foreign state is not immune if the action b

against that state is based upon commercial activity having one 

types of connections with the United States:

(1) A commercial activity carried on in the United States by the for

state; or 

(2) An act performed in the United States in connection with a comme

activity of the foreign state elsewhere (i.e., outside the United States); o

(3) An act outside the United States that was taken in connection w

commercial activity of the foreign state outside of the U.S. and that ca

a direct effect in the United States.179

 

176. Id. at 396.

177. 719 F. App’x 47, 52 (2d Cir. 2017), cert. denied, 139 S. Ct. 85 (20

178. Id.

179. 28 U.S.C. § 1605(a)(2) (2010).
58

These three alternatives reflect, in descending order, different 

of jurisdictional connection to the United States. The Ninth Cir

distinguished the standards applicable to the three clau

§ 1605(a)(2) as follows: the first entails a “nexus” requirement; 

ond, a “material connection” requirement; and the third, a “leg

nificant acts” requirement.180

The first clause (commercial activities in the United Sta

quires the most substantial contacts and would presumptively b

fied (for example) by import–export transactions involving sal

purchases from parties in the United States, the negotiation or 

tion of a loan agreement in the United States, or the receipt of fin

from a private or public lending institution located in the United 

At least one court has implied a de minimis element (“substant

tact”) in this context.181

The second alternative contemplates noncommercial acts 

United States that relate to commercial acts abroad. It might b

fied, therefore, by acts that violate federal securities laws or inv

unlawful discharge of an employee in the United States worki

commercial activity carried on in a third country.

The third alternative, which requires (a) an act outside the 

States taken in connection with (b) a foreign state’s commercial 

outside the United States that (c) caused a “direct effect” in the 

States, has occasioned the most judicial analysis and commen

Republic of Argentina v. Weltover, the U.S. Supreme Court ex

that the required “direct effect” in the United States must follow 

immediate consequence” of the defendant’s activity.182 Howeve

180. Terenkian v. Republic of Iraq, 694 F.3d 1122, 1127 (9th Cir. 20

denied, 704 F.3d 814 (9th Cir. 2013), cert. denied sub nom. Pentonville De

Inc. v. Republic of Iraq, 571 U.S. 818 (2013).

181. Under § 1608(e), a “commercial activity carried on in the Unit

by a foreign state” means commercial activity carried on by such state an

substantial contact with the United States. See Crystallex Int’l Corp. v. Ve

251 F. Supp. 3d 758 (D. Del. 2017); cf. Triple A Int’l, Inc. v. Democratic 

of the Congo, 721 F.3d 415 (6th Cir. 2013).

182. 504 U.S. 607, 618 (1992). In Weltover, the issuance of sovereig

and the rescheduling of their repayment by the foreign government wer
59

courts have declined to read “direct effect” quite so literally and 

require a “legally significant act” occurring in the United State

a “direct effect” can be found.183

Other courts have interpreted the “direct effect” test to re

contractual clause mandating the fulfillment of commercial 

tions in the United States.184 For example, a default by a foreig

agency, or instrumentality on a contractual obligation to pay 

United States has been held to have a direct effect in the 

States.

185 Alleged financial losses suffered in the United States as 

sult of a failed investment opportunity abroad, a foreign govern

default on bonds, or breach of a contract to be performed abro

been held insufficiently direct to satisfy § 1605(a)(2).186

 

be commercial activities with a direct effect in the United States because p

were due in dollars in New York. The Court rejected “any unexpressed 

ment” of foreseeability or substantiality. See also Frank v. Commonwealt

tigua & Barbuda, 842 F.3d 363 (5th Cir. 2016) (“no intervening element”

tica Holdings Inc. v. Sovereign Wealth Fund Samruk-Kazyna JSC, 813 

108 (2d Cir. 2016).

183. See MMA Consultants 1, Inc. v. Republic of Peru, 245 F. Supp

(S.D.N.Y. 2017); Farhang v. Indian Inst. of Tech., Kharagpur, 529 F. Ap

813 (9th Cir. 2013); Kettey v. Saudi Ministry of Educ., 53 F. Supp. 3d 40 

2014). Contra Frank v. Commonwealth of Antigua & Barbuda, 842 F.3d 

Cir. 2016).

184. Atlantic Tele-Network Inc. v. Inter-American Dev. Bank, 251 

2d 126, 134 (D.D.C. 2003). Cf. Samco Global Arms, Inc. v. Arita, 395 F

(11th Cir. 2005).

185. See, e.g., Skanga Energy & Marine Ltd. v. Avervenca S.A., 875 

2d 264 (S.D.N.Y. June 21, 2012). In contrast, the “direct effect” requirem

been held unsatisfied in the absence of a contractual requirement for pay

be made in the United States and a provision permitting the holder to de

place of performance. Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131 

2012).

186. See Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t, 

1183 (10th Cir. 2008); Can-Am Int’l, LLC v. Republic of Trinidad & Tob

F. App’x 396 (5th Cir. 2006). In the Second Circuit, “direct effect” is int

liberally; see Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131, 138–40 

2012); Securities Investor Prot. v. Bernard L. Madoff Inv. Sec. LLC, 480 

513 (S.D.N.Y. 2012). However, “the mere fact that a foreign state’s com
60

In 2010, the D.C. Circuit held that the alleged breach of a c

to provide cruise ship services in Canada had a direct effec

United States because

• the plaintiff experienced financial losses caused by the te

tion of the contract;

• the contract had been negotiated in the United States;

• one of the cruise ships under the contract would have t

through United States waters;

• the contract’s termination resulted in up to $40 million 

cruise-related business in the United States; and

• contracts related to the terminated contract called for 

mance in the United States.187

The Sixth Circuit has also taken a more liberal approach, hold

because notes issued by a foreign government allowed the holde

mand payment anywhere, the government’s failure to pay a dem

Ohio created a “direct effect” in the United States.188

The difficulties that can arise in applying this exception a

trated in two recent decisions. In Crystallex International Corp. 

ezuela,

189 the trial court dismissed the complaint for failure to m

criteria specified by § 1605(a)(2). The action arose from allegatio

Venezuela (through its state-owned oil company PDVSA) had 

fully expropriated certain mining rights and investments belon

Crystallex, a Canadian company, and had then orchestrated a 

in Venezuela to monetize PDVSA’s $2.8 billion of American ass

 

activity outside the United States caused physical or financial injury to 

States citizen is not itself sufficient to constitute a direct effect in th

States.” Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69, 74 (2d Cir. 20

187. Cruise Connections Charter 1, LP v. Attorney Gen. of Canada, 

661 (D.C. Cir. 2010).

188. DRFP L.L.C. v. Republica Bolivariana de Venezuela, 622 F.3d 

Cir. 2010); but see Westfield v. Federal Republic of Germany, 633 F.3d 

Cir. 2011).

189. 251 F. Supp. 3d 758 (D. Del. 2017).
61

transfer them out of the United States, with the goal of evading 

tial creditors, including Crystallex. 

The court had no difficulty in concluding that the transac

question constituted “commercial activity” within the FSIA’s 

tion. But it ruled that the complaint failed to satisfy the additi

quirements under the exception. Regarding the first clause, th

said that the relevant activity had neither taken place in nor had 

stantial connection to” the United States. The “gravamen” o

tallex’s claim, it said, was PDVSA’s “particular act” of direct

transfers with allegedly fraudulent intent. The complaint itself 

specify where that act took place, but since PDVSA itself was lo

Venezuela and was not alleged to have any operations in the 

States, the court concluded that the alleged fraudulent intent mu

been formed and executed in Venezuela. The “substantial conn

requirement also requires some conduct by the foreign nation, 

mentality, or agency in the United States.190Mere ownership an

trol of U.S. subsidiaries, and “overlapping management,” cann

fice for this purpose. 

Absent any allegation that PDVSA had performed any ac

United States, the court said, the complaint necessarily failed to 

the second clause of the exception (requiring an act performe

United States “in connection with” commercial activity else

which is generally understood to apply to noncommercial act

United States that relate to commercial acts abroad. 

Turning to the third clause of the exception (actions base

“an act outside the territory of the United States in connection 

commercial activity of the foreign state elsewhere” and that act 

a direct effect in the United States”), the court noted that 

Weltover, an effect is direct if it follows as an immediate conse

of the defendant’s activity. The impact need not be “substan

 

190. Id. at 766–68 (citing, inter alia, Rubin v. Islamic Republic of Ir

Supp. 3d 1003, 1009 (N.D. Ill. 2014), and Terenkian v. Republic of Iraq, 

1122, 1132 (9th Cir. 2012)).
62

“foreseeable,” but must have no intervening element, flowin

straight line without deviation or interruption.”191

However, the court said, the complaint alleged only that th

fers in question (while substantial) were undertaken in light of 

ing arbitral proceeding in order to hinder Crystallex’s ability 

United States to collect on an “anticipated, but [then] non-exist

bitral award” against Venezuela. Alleged interference with an 

pated arbitral award (or judgment) does not have a “direct effec

United States “because neither Venezuela nor PDVSA has any 

tion to pay the award or judgment in the United States.”192 N

PDVSA’s or its subsidiaries’ alleged conduct had a direct, “straig

impact on Crystallex.193

In contrast, consider Azima v. RAK Investment Authority

other recent case involving the third clause of the exception. Az

American citizen and resident, sued RAKIA, a commercial inve

entity that is part of the government of Ras Al Khaimah, on

emirates in the United Arab Emirates. He claimed that RAK

commissioned the repeated surreptitious hacking of his perso

business laptops and then published disparaging material 

gleaned from his computers. RAKIA and Azima had an ongo

active business relationship for many years, and during the relev

riod, Azima had worked as a mediator on a dispute between 

and its CEO outside the United States. The allegation was t

hackers repeatedly accessed his business and personal compute

context of that mediation. 

In denying RAKIA’s motion to dismiss, the court noted t

phrase “in connection with” as used in § 1605(a)(2) has typica

given a “narrow meaning,” requiring some substantive connect

 

191. Crystallex, 251 F. Supp. 3d at 770 (citing Cruise Connections 

Mgmt. 1, LP v. Attorney Gen. of Canada, 600 F.3d 661, 664 (D.C. Cir. 20

Princz v. Federal Republic of Germany, 26 F.3d 1166, 1172 (D.C. Cir. 19

192. Crystallex, 251 F. Supp. 3d at 771. 

193. Id.

194. 305 F. Supp. 3d 149 (D.D.C. 2018).
63

causal link to the commercial activity.

195 Therefore, a tangentia

tenuated connection between the act and the commercial activ

not suffice.

Moreover, in the D.C. Circuit, courts apply different tests d

ing on whether the claims are grounded in contract law or tor

Because Azima’s claims primarily sounded in tort, the court s

“direct effect” focus must be on “the locus of the tort,” that is, “th

where the last event necessary to make an actor liable for an alle

takes place.”197 In such cases, the direct-effect question is often w

the plaintiff sustained the cognizable injury in the United State

if a court determines that the locus of the tort at issue is the 

States, it must also conclude that the effect felt therein was “mo

purely trivial.”198

Because hacking (and the installation of malware) affected 

geted computer systems and because Azima’s allegations suppo

inference that at least one of his U.S.-based personal and busin

tops was in the United States when the hacking occurred, th

concluded that he had sufficiently pled the necessary “direct 

The court also said that although the loss to an American ind

and firm resulting from a foreign tort is not sufficient to cause 

effect within the United States, the alleged destruction of d

Azima’s computers inside the United States was sufficient to 

jurisdiction over his conversion claim.199

 

195. Id. at 165 (citing Garb v. Republic of Poland, 440 F.3d 579, 587 

2006)); Adler v. Federal Republic of Nigeria, 107 F.3d 720, 726 (9th Cir. 

196. Odhiambo v. Republic of Kenya, 764 F.3d 31, 38 (D.C. Cir. 2

contract cases, a court looks to the contract’s specified “place of perfor

Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 11

(D.C. Cir. 2013) (explaining that in a tort case, the court determines w

“locus of the tort” occurred).

197. Azima, 305 F. Supp. 3d at 167 (citing Atlantica Holdings v. S

Wealth Fund Samruk-Kazyna JSC, 813 F.3d 98, 109 (2d Cir. 2016)).

198. Azima, 305 F. Supp. 3d at 167 (citing Princz v. Federal Republi

many, 26 F.3d 1166, 1172 (D.C. Cir. 1994)).

199. Azima, 305 F. Supp. 3d at 169–70.
64

Accordingly, the court concluded, it was unnecessary to res

parties’ dispute over the location of the hacking. The text, str

and purpose of the FSIA’s commercial activity exception all p

the conclusion that Congress’s primary concern is ensuring tha

suit can be maintained if a foreign sovereign acts in a commer

pacity and undertakes a harmful act that occurs in, or impa

United States. The exact location of that act is not crucial.200

C. Expropriations

Section1605(a)(3) grants jurisdiction over foreign states in any 

which rights in property taken in violation of international law 

issue.” In addition to these three elements—(1) “rights in pr

(2) that have been “taken” and (3) “in violation of internationa

§ 1605(a)(3) imposes a “commercial nexus” requirement (som

referred to as the “fourth prong”): 

• either the seized property in question (or property exc

for such property) must be present in the United States 

nection with a commercial activity carried on by the 

state in the United States, or

• if that property (or property exchanged for it) is owned o

ated by an agency or instrumentality of the foreign sta

agency or instrumentality must be engaged in commer

tivity in the United States.201

To invoke this exception, the U.S. Supreme Court has held that 

tiff must make a “legally valid claim that a certain kind of rig

issue (property rights) and that the relevant property was tak

certain way (in violation of international law).” Neither a 

frivolous” assertion nor a “good argument to that effect” suffice

 

200. Id. at 170–72.

201. 28 U.S.C. § 1605(a)(3) (2010). See generally Restatement (Fourth

eign Relations Law § 455 (Am. Law Inst. 2018).

202. Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l 

Co., 137 S. Ct. 1312, 1316 (2017).
65

The D.C. Circuit has held that the two parts of the “com

nexus” requirement must be read disjunctively. In other word

diction over a foreign state under § 1605(a)(3) can be sustained 

the claim against it satisfies the exception by way of the first c

the commercial-activity nexus requirement; by contrast, an ag

instrumentality loses its immunity if the claim against it satis

exception by way of the second clause.”203 The executive bran

pears to agree with this interpretation.204

1. Rights in property

The statute itself does not define the term “rights in property

recently, most courts had concluded that for purposes of this 

tion, the alleged “taking” in question must relate to physical or 

property, not the right to receive payment. Thus, bank accoun

form of intangible property) were held not to come within the s

the expropriation exception.205However, in Nemariam v. Federa

ocratic Republic of Ethiopia,

206 the D.C. Circuit noted that neit

text of § 1605(a)(3) nor its legislative history expressly states t

expropriation exception applies only to tangible property. “

 

203. De Csepel v. Federal Republic of Hungary, 859 F.3d 1094, 11

Cir. 2017), petition for cert. docketed, No. 17-1165 (Feb. 16, 2018); see als

v. Federal Republic of Germany, 894 F.3d 406, 414 (D.C. Cir. 2018).

204. See Brief for the U.S. as Amicus Curiae on Petition for a Writ o

rari to the United States Court of Appeals for the Ninth Circuit at 15, Kin

Spain v. Estate of Cassirer, 564 U.S. 1037 (2011) (No. 10-786); Brief for th

Amicus Curiae on Petition for a Writ of Certiorari to the United States 

Appeals for the Seventh Circuit at 19–21, Rubin v. Islamic Republic of 

S. Ct. 2326 (2017) (No. 16-534). See also Restatement (Fourth) of Forei

tions Law § 452, Reporters’ Note 9 (Am. Law Inst. 2018).

205. See generally Lord Day & Lord v. Socialist Republic of Vietnam

Supp. 2d 549, 560–61 (S.D.N.Y. 2001); Peterson v. Royal Kingdom of Sa

bia, 332 F. Supp. 2d 189, 197 (D.D.C. 2004), aff’d, 416 F.3d 83 (D.C. Cir. 

claim under § 1605(a)(3) based on the alleged confiscation of shares held 

was rejected in Yang Rong v. Liaoning Provincial Government, 362 F. Sup

100–101 (D.D.C. 2005), aff’d on other grounds, 452 F.3d 883 (D.C. Cir. 2

206. 491 F.3d 470 (D.C. Cir. 2007).
66

seems to us to be no reason to distinguish between tangible and 

gible property when the operative phrase is ‘rights in proper

therefore conclude that the expropriation exception applies to 

pellants’ bank accounts.”207 Some courts have found the term 

compass shareholders’ rights.208

2. Taken in violation of international law

The term “taken” is also not defined in the FSIA, but the provis

undeniably intended to refer to the nationalization or expropri

property by a foreign sovereign “without payment of the prom

quate and effective compensation [as] required by intern

law.”209 The reference to takings “in violation of international 

therefore properly read as a reference to the international law o

priation and state responsibility, not to other bodies of intern

law, such as human rights law, nor to alleged violations of cus

international law in general.

210

 

207. Id. at 480. See also Abelesz v. Magyai Nemzeti Bank, 692 F.3d 

Cir. 2012).

208. Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic 

zuela, 784 F. 3d 804 (D.C. Cir. 2015), vacated and remanded on other grou

S. Ct. 1312 (2017).

209. See Chettri v. Nepal Rastra Bank, 834 F.3d 50, 58 (2d Cir. 2016

Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 251 (2d C

(“[T]he legislative history makes clear that the phrase ‘taken in violation 

national law’ refers to ‘the nationalization or expropriation of property 

payment of the prompt, adequate and effective compensation required 

national law,’ including ‘takings which are arbitrary or discriminatory in 

(quoting H.R. Rep. No. 94-1487, at 19 (1976), as reprinted in 1976 U.S.C

6004, 6618).

210. On treaty violations, see Kalamazoo Spice Extraction Co. v. P

Military Gov’t of Socialist Ethiopia, 729 F.2d 422 (6th Cir. 1984) (alleg

tions of a bilateral treaty of friendship, commerce, and navigation); M

Corp. v. Islamic Republic of Iran, 539 F.3d 485, 491 (D.C. Cir. 2008) (tre

provide or be intended for judicial enforcement). The court in McKesson 

Islamic Republic of Iran, Civ. Action No. 82-0220 (RJL), 2009 WL 425076

4 (D.D.C. Nov. 23, 2009), found that the FSIA’s commercial activities e

permits an expropriation claim based on customary international law. 

government argued that, to the contrary, the commercial activities except
67

In this context, the term “taking” refers to acts of a soverei

ernment, not those of private individuals or entities.211 More

stated by the U.S. District Court for the District of Columbia, a 

violates international law if “(1) it was not for a public purpos

was discriminatory; or (3) no just compensation was provided 

property taken.”212

Judicial administration and sale of a financially strugglin

pany does not constitute a “taking.”213

The exception has generally been interpreted not to reach a 

government’s taking of its own nationals’ property, because i

tional law does not prohibit such takings (under the so-called “

tic takings” rule).

214 However, several courts have recently held 

rule can be overcome when the property was taken in the con

egregious human rights violations (for example, during a ge

campaign).215 In the Restatement (Fourth) of Foreign Relatio

(Am. Law Inst. 2018), Reporters’ Note 6 to section 455 (

 

not authorize U.S. courts to create a new federal common-law cause of a

looking to customary international law. See Brief of the U.S. as Amicu

McKesson Corp. v. Islamic Republic of Iran, No. 10-7174, 2011 WL 32

*6–15 (D.C. Cir. July 27, 2011).

211. Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 12

(11th Cir. 2018).

212. De Csepel v. Republic of Hungary, 808 F. Supp. 2d 113, 128 

2011), aff’d in part, 714 F.3d 591 (D.C. Cir. 2013). See also Comparelli v. R

Bolivariana De Venezuela, 891 F.3d 1311, 1326 (11th Cir. 2018). 

213. Best Med. Belgium, Inc. v. Kingdom of Belgium, 913 F. Supp. 2d 

(E.D. Va. 2012). Nor does “expropriation to satisfy a debt declared valid 

eign court.” Id.

214. Mezerhane v. Republica Bolivariana de Venezuela, 785 F.3d 

(11th Cir. 2015); cf. Restatement (Fourth) of Foreign Relations Law § 455

ers’ Note 6 (Am. Law Inst. 2018). See also Brief of the United States as 

Curiae, Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Ve

No. 13-7169, 2018 WL 460639 (Jan. 17, 2018).

215. E.g., Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2

also de Csepel v. Republic of Hungary, 859 F.3d 1094 (D.C. Cir. 2017), pe

cert. docketed, No. 17-1165 (Feb. 21, 2018); Philipp v. Federal Republic 

many, 894 F.3d 406 (D.C. Cir. 2018).
68

“Claims Concerning Property Taken in Violation of Intern

Law”) expresses some concern about these decisions, noting th

[b]y eliminating the “domestic takings” rule and permitting claims to 

ceed on the basis of allegations that the takings occurred in the conte

egregious violations of international law, this line of decisions appea

expand the scope of § 1605(a)(3) well beyond the original intent of the C

gress, potentially opening courts in the United States to a wide rang

property-related claims arising out of foreign internal (as well as inte

tional) conflicts characterized by widespread human rights violations. 

By distinction, claims under the expropriation exception 

solely on alleged violations of human-rights treaties hav

rejected.216

In contrast to the terrorism provision, § 1605(a)(3) does no

ally require a plaintiff to exhaust foreign remedies before bringin

against a foreign state or its agency or instrumentality. Such a r

ment is generally said to exist in international law before a claim 

asserted at the intergovernment level (or before an internationa

nal) by one state (on behalf of its nationals) against another 

Several U.S. courts have suggested that exhaustion of domesti

dies in foreign courts or related proceduresmight be appropriat

§ 1605(a)(3) as a prudential matter.218 Others have rejected such 

proach, as has the executive branch.

219

 

216. See Mezerhane v. Republica Bolivariana de Venezuela, 785 

(11th Cir. 2015); de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1

Cir. 1985); cf. Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3

(D.C. Cir. 2002) (“The original FSIA was not intended as human right

tion.”). Whether § 1605(a)(3) is limited to takings that result in “econom

ries” was recently examined, inconclusively, by the court in LaLop v. Unit

29 F. Supp. 3d 530 (E.D. Pa. 2014).

217. See Restatement (Third) of Foreign Relations Law § 713 cmt. f 

porters’ Note 3 (Am. Law Inst. 1987).

218. See, e.g., Fischer v. Magyar Allamvasutak ZRT, 777 F.3d 847, 

Cir. 2015); Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 671–95 (7th C

219. Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1034–37 (2011)

Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934 (D.C. Cir. 2008); c

v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016); Brief of the Unit

as Amicus Curiae, Kingdom of Spain v. Estate of Cassirer, No. 10-786, 2
69

In the Restatement (Fourth) of Foreign Relations Law (A

Inst. 2018), Reporters’ Note 11 to section 455 observ

§ 1605(a)(3) contains no requirement that a claimant attemp

haust available local remedies before bringing an action against 

eign state under the “expropriation” exception, in contrast to t

portunity to arbitrate” precondition that was explicitly include

text of the state-sponsored terrorism exception at §1605A(a)(2)

Noting that in international law, the exhaustion requirement 

by its terms to “international,” not domestic, proceedings, t

concluded that “the interpretation of the statute that does not 

exhaustion appears to be the proper one. Cf. Republic of Arge

NML Capital, Inc., 134 S. Ct. 2250, 2256 (2014) (‘Any sort of im

defense made by a foreign sovereign in an American court mu

on the Act’s text. Or it must fall.’); Simon v. Republic of Hunga

F. Supp. 3d 42 (D.D.C. 2017).” 

In a case of first impression, the NinthCircuit concluded tha

ing in the plain language of § 1605(a)(3) requires that the state 

which the claim is made be the same state that took property i

tion of international law.220 Thus, a suit could proceed agai

Kingdom of Spain for the recovery of a Camille Pissarro pain

display at a museum in Madrid, even though the painting ha

taken from the plaintiff’s grandmother in violation of internatio

in 1939 by an agent of the government of Nazi Germany. 

3. Commercial nexus

The so-called “fourth prong” of this exception requires (for j

tional purposes) a connection between the taking and commer

tivity in the United States. As is often the case under the FSIA

ards established for the foreign state differ from those establis

 

2135028, at *16–17 (U.S. Sup. Ct. on petition for writ of certiorari, May 2

See also Restatement (Fourth) of Foreign Relations Law § 455 Reporters

(Am. Law Inst. 2018).

220. Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1057 (9th Cir. 20

in part on reh’g en banc, 616 F.3d 1019, 1031 (2010), cert. denied, 131 S. 

(2011).
70

its agencies and instrumentalities. If the suit is against the forei

itself, the seized property in question (or property exchanged f

property) must be present in the United States in connection 

commercial activity carried on by that foreign state in the 

States. If the property in question (or property exchanged fo

owned or operated by an agency or instrumentality of the foreig

then all that is required is for that agency or instrumentality to 

gaged in commercial activity in the United States.221

In de Csepel v. Republic of Hungary,

222 the D.C. Circuit held 

two standards operate independently of each other, so that 

§ 1605(a)(3), a foreign state loses its immunity only if its own a

satisfy the requirements of the first clause of the “commercial a

requirement, and not the commercial activities of its agen

instrumentalities.

D. Noncommercial Torts in the United States 

Under § 1605(a)(5), a foreign state is not immune from suits (n

erwise covered by the commercial activity exception) in which 

damages are sought for personal injury or death, or for dama

loss of property, occurring in the United States and caused by 

tious act or omission of that foreign state or of any official or em

of that foreign state while acting within the scope of his or her o

employment. Prototypical cases include injuries resulting from 

tomobile accident involving an embassy vehicle and a “slip and 

a foreign consulate. 

 

221. “[U]nder the second clause of the expropriation exception, a 

must show current commercial activity in the United States.” Sukyas v. R

No. CV 15-1946 FMO (JCx), 2017 WL 6550588, at *5 (C.D. Cal. Sept. 21

222. 859 F.3d 1094, 1107 (D.C. Cir. 2017), petition for cert. docketed

1165, Feb. 21, 2018 (a foreign state retains its immunity unless the first 

the commercial-activity nexus in § 1605(a)(3) is met). In so ruling, the c

lowed its prior decision in Simon v. Republic of Hungary, 812 F.3d 127 (

2016), and distinguished Agudas Chasidei Chabad of United States v. Rus

eration, 528 F.3d 934 (D.C. Cir. 2008).
71

1. Discretionary functions excluded

The noncommercial tort exception does not apply to two im

categories of claims, namely those

• “based upon the exercise or performance or the failure 

cise or perform a discretionary function regardless of w

the discretion is abused”; and

• “arising out of malicious prosecution, abuse of proces

slander, misrepresentation, deceit, or interference with c

rights.”223

2. Not extraterritorial

The exception covers only torts occurring “entirely” within the 

rial jurisdiction of the United States.224 Thus, the exception d

 

223. 28 U.S.C. § 1605(a)(5)(A–B) (2010). See Nwoke v. Consulate of 

No. 17-CV-00140, 2018 WL 1071445 (N.D. Ill. Feb. 27, 2018) (passport is

Merlini v. Canada, 280 F. Supp. 3d 254 (D. Mass. 2017) (provision of emp

benefits); Fagot Rodriquez v. Republic of Costa Rica, 297 F.3d 1, 8 (1st C

(trespass claims based upon exercise or performance of discretionary fu

Cabiri v. Government of the Republic of Ghana, 165 F.3d 193 (2d Cir. 19

Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 794 (S.D.N.Y. 200

FSIA’s discretionary function exception replicates the discretionary fun

ception in the Federal Tort Claims Act.”). In Doe v. Holy See, a complaint 

injury inflicted by a sexually abusive priest was held not to fall within t

mercial activity exception, but it was sufficient to sustain jurisdiction ag

Holy See under the tort exception on a theory of respondeat superior; th

failure to warn parishioners about a known danger did not qualify as the 

of a discretionary function. 434 F. Supp. 2d 925 (D. Or. 2006), aff’d in p

in part, 557 F.3d 1066 (9th Cir. 2009), cert. denied sub nom. Holy See v. 

S. Ct. 3497 (mem.) (2010).

224. Section 1603(c) defines “United States” to include “all territory 

ters, continental and insular, subject to the jurisdiction of the United Stat

sels flying the American flag are thus excluded. See Schermerhorn v. Is

F.3d 351 (D.C. Cir. 2017).
72

apply to torts occurring abroad, even if the tort is said to have be

tially performed (or to have had an “effect”) in the United S

Most courts have concluded that “both the injury and the tort

or omission must occur in the United States.”226Claims based 

sonal injury and death occurring at a U.S. embassy overseas ha

held not to fall within § 1605(a)(5).

227

3. Damages

If the criteria in § 1605(a)(5) are met, ordinary tort law applie

substantive issues of liability. Under 28 U.S.C. § 1606, “a forei

is liable in the same manner and to the same extent as a priva

vidual under like circumstances,” except that a foreign state “s

be liable for punitive damages.” (Punitive damages are reco

however, against an agency or instrumentality, and as noted 

V.F. infra, special rules apply to damages in actions under § 

against state sponsors of terrorism.) The statute does not provid

eral standard for assessing liability, so liability must be determ

reference to otherwise applicable tort law.228

4. Examples

In Miango v. Democratic Republic of Congo,

229 the plaintiffs 

damages against the Democratic Republic of the Congo (and s

its officials) arising from their actions in responding (violent

 

225. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 

(1989) (exception inapplicable when injury occurs outside the United S

Schermerhorn v. State of Israel, 876 F.3d 351 (D.C. Cir. 2017).

226. Doe I v. State of Israel, 400 F. Supp. 2d 86, 108 (D.D.C. 2005); 

v. Holy See, 556 F.3d 361, 382 (6th Cir. 2009); Jerez v. Republic of Cuba, 

419, 424 (D.C. Cir. 2014).

227. Abur v. Republic of Sudan, 437 F. Supp. 2d 166, 174–75 (D.D.C

228. Cf. Newman v. Republic of Bulgaria, No. 16 Civ. 9268 (JFK), 

1655248 (S.D.N.Y. May 2, 2017); Doe v. Holy See, 434 F. Supp. 2d 925, 94

2006), aff’d in part, rev’d in part, 557 F.3d 1066 (9th Cir. 2009), cert. de

nom. Holy See v. Doe, 130 S. Ct. 3497 (mem.) (2010). See generally Res

(Fourth) of Foreign Relations Law § 457 (Am. Law Inst. 2018).

229. 288 F. Supp. 3d 117 (D.D.C. 2018).
73

protest against human rights violations committed in the DR

protest took place across the street from the Washington, D.C

where then-visiting DRC President Kabila and his delegatio

staying. The plaintiffs alleged that they had been physically a

and beaten by DRC security forces during the protest, and they 

damages for, inter alia, assault, battery, and intentional inflic

emotional distress.

All relevant actions had clearly taken place within the United 

and the district court found that the plaintiffs had provided su

evidence to support the conclusion that the security officials h

acting within the scope of their employment when they commi

acts alleged in the complaint (in particular, that the alleged assa

place immediately after the plaintiffs were observed by the DRC 

dent and was carried out by individuals in his entourage).

In ruling on the motion for entry of a default judgment, th

looked to § 1606, and applying the relevant standards of D.C

awarded damages for, inter alia, common-law battery, pain and 

ing, and loss of consortium.

In contrast, consider the decision in Doe v. Federal Democr

public of Ethiopia.230 In that case, an Ethiopian asylee in the 

States (proceeding pseudonymously as “Kidane”) alleged that 

been tricked into downloading a program (FinSpy) that recor

activities of the users of his computer and then communicated 

server in Ethiopia, enabling Ethiopian authorities to spy on hi

abroad. The D.C. Circuit upheld the lower court’s dismissal of th

plaint on the ground that § 1605(a)(5) abrogates sovereign im

only for a tort occurring entirely in the United States.231

The court said that unlike the commercial activity except

noncommercial tort exception does not ask where the “gravam

curred, only where the “entire tort” occurred. Kidane’s claim r

part on Maryland’s tort of “intrusion-upon-seclusion,” which r

230. 851 F.3d 7 (D.C. Cir. 2017).

231. Id. at 10–11 (citing, inter alia, Jerez v. Republic of Cuba, 775 F

424 (D.C. Cir. 2014), and distinguishing Liu v. Republic of China, 892 F

(9th Cir. 1989), and Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C
74

proof of intentional intrusion. The tortious intent aimed at 

plainly lay abroad, and the tortious acts of computer programm

curred abroad. Moreover, Ethiopia’s placement of the FinSpy v

Kidane’s computer, although completed in the United State

Kidane opened the infected e-mail attachment, began outs

United States. It thus could not be said that the entire tort occu

the United States. 

It is unsurprising, the court observed, that transnational 

espionage should lie beyond § 1605(a)(5)’s reach, since “Congr

mary purpose in enacting the exception was to eliminate a 

state’s immunity for traffic accidents and other torts committe

United States, for which liability is imposed under domes

law.”232

E. Arbitration

Under § 1605(a)(6), which was added to the FSIA in 1988, a 

state, agency, or instrumentality is not immune from the juris

of U.S. courts in any proceeding to enforce an arbitration agr

made by the foreign state (with or for the benefit of a private p

to confirm an arbitration award pursuant to such an agreemen

underlying dispute is capable of settlement by arbitration un

laws of the United States and if

(A) the arbitration takes place, or is intended to take place, in the Un

States,

(B) the agreement or award is (or may be) governed by a treaty or inte

tional agreement in force for the United States which calls for the reco

tion and enforcement of arbitral awards, or

(C) the underlying claim could have been brought in a U.S. court bu

the agreement to arbitrate or if the foreign state has waived its immunit

Prior to the enactment of this exception, courts typically tr

foreign state’s agreement to arbitrate a given dispute (especially 

 

232. 851 F.3d at 11 (quoting Argentine Republic v. Amerada Hess 

Corp., 488 U.S. 428, 439–40 (1989)).

233. 28 U.S.C. § 1605(a)(6) (2010). See also Restatement (Fourth) o

Relations Law § 458 (Am. Law Inst. 2018).
75

a clearly commercial nature) as an implicit waiver of immun

respect to enforcement of the agreement and the resulting aw

With the adoption of § 1605(a)(6), the question of waiver no 

arises.

Courts have utilized this section to exercise jurisdiction o

eign states both to enforce arbitration agreements and to recogn

enforce arbitral awards under the U.N. Convention on the Reco

and Enforcement of Arbitral Awards (“New York Convention”

Inter-American Convention on International Commercial Arb

(“Panama Convention”),

236 and (more recently) the Internation

vention on the Settlement of Investment Disputes Between Sta

Nationals of Other States (“ICSID” or “Washington Conventio

The decision of the D.C. Circuit in Human v. Czech R

Ministry of Health238 is illustrative. In that case, the Czech Min

Health had entered into a “framework agreement” with Diag H

a blood plasma technologies and production company organi

der the law of Lichtenstein, aimed at ensuring “fractionation pr

from frozen human plasma for the Czechoslovak health care 

The Ministry of Health contracted to purchase technical equ

and to provide training for medical personnel to ensure fract

 

234. E.g., Birch Shipping Corp. v. Embassy of United Republic of T

507 F. Supp. 311 (D.D.C. 1980).

235. U.N. Convention on the Recognition and Enforcement of 

Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3, implemented by 

eral Arbitration Act, 9 U.S.C. §§ 201–207 (2010).

236. Inter-American Convention on International Commercial Arb

Jan. 30, 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336 (1975), implemented at 

§§ 301–307 (2010).

237. International Convention on the Settlement of Investment Disp

tween States and Nationals of Other States, Mar. 18, 1965, 575 U.N.T.S

U.S.T. 1291, T.I.A.S. No. 6090. Under 22 U.S.C. § 1650a, ICSID awards 

tled to “the same full faith and credit as if the award were a final judgm

court of general jurisdiction of one of the several States.”

238. 824 F.3d 131 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 1068 (201
76

blood products would be made available to transfusion wards th

out the Czech Republic; in return, Diag Human agreed to a

share of the total volume of fractionated plasma produced. 

Although Diag Human performed its part of the arrangeme

putes arose that it claimed prevented it from continuing to per

sued the Ministry of Health in the Prague Commercial Court, 

parties agreed to resolve their dispute in arbitration. The arbitra

cided in favor of Diag Human, awarding more than $325 millio

losses.

Diag Human then sought to enforce that award against the 

Republic in the United States under the Federal Arbitration Act 

which, inter alia, codifies the U.N. Convention on the Recognit

Enforcement of Foreign Arbitral Awards (the New York C

tion).239 The district court dismissed the case on the basis that 

relationship between Diag Human and the Ministry of Health 

“commercial” in nature, as required by the New York Conven

the convention did not apply, and (b) the Czech Republic h

waived its sovereign immunity under § 1605(a)(1).Although D

man had not specifically invoked the arbitration exception 

§ 1605(a)(6), the trial court found it inapplicable because the 

tion had taken place in the Czech Republic and because the und

claim could not have been brought in a U.S. court.

The court of appeals reversed, holding that the arbitration ex

did apply. The framework agreement, the court said, was suff

commercial to satisfy the convention’s requirements (“[t]he pr

of healthcare technology and medical services has an obvious c

tion to commerce”) and, while “relatively informal,” it was als

cient to satisfy the “defined legal relationship” requirement 

FSIA’s arbitration exception.240 “The FSIA explicitly contempla

some legal relationships will qualify under § 1605(a)(6) despite 

ing to the formality of a contractual arrangement.”241

 

239. 9 U.S.C. §§ 201–208, implementing the New York Convention.

240. 824 F.3d at 135, 137.

241. Id. at 135. In remanding the case for further proceedings, the cou

that whether the arbitration award was “final” for New York Convention 
77

The Second Circuit recently held that the FSIA provides th

sive mechanism for the enforcement of ICSID awards against 

sovereigns in federal court. The court rejected summary ex pa

ceedings as incompatible with the FSIA, since they are, by natu

ducted without required service on the foreign state.242

Suits to enforce arbitral awards against foreign sovereigns 

subject to dismissal on forum non conveniens grounds.243

F. State-Sponsored Terrorism

Since 1996, when Congress amended the FSIA to remove the i

ity of foreign states for certain acts of state-sponsored terrorism

and more cases have been brought under this provision. As initi

acted, § 1605(a)(7) provided that immunity did not apply in 

which money damages were sought for personal injury or death 

by acts of torture, extrajudicial killing, aircraft sabotage, hostage 

or the provision of material support or resources if those ac

taken at a time when the state in question was formally designa

sponsor of terrorism. That provision was repealed in 2008 and r

by an even broader exception, now codified at 28 U.S.C. § 16

That statute is summarized here; amore detailed discussion is p

 

was a merits question that could determine whether the arbitration awar

enforced under the FAA. The district court subsequently dismissed the 

the ground that the arbitration award in fact never became “final” or enf

279 F. Supp. 3d 114 (D.D.C. 2017).

242. Mobil Cerro Negro, Ltd. v. Venezuela, 863 F.3d 96 (2d Cir. 2

also Micula v. Government of Romania, 714 F. App’x 18 (2d Cir. 2017).

243. See Figueiredo Ferraz e Engenharia de Projecto Ltda. v. Republic 

665 F.3d 384 (2d Cir. 2011). The D.C. Circuit has held otherwise. TMR 

Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303 (D.C. Cir. 2005); c

Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 2018); 

RAK Inv. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018).

244. See National Defense Authorization Act for Fiscal Year 2008, Pu

110-181, Div. A, § 1083(a) and (b) (2008), 122 Stat. 338, 341 (codified at 2

§ 1605A). For a comprehensive review of the 2008 statute, see In re Islam

lic of Iran Terrorism Litigation, 659 F. Supp. 2d 31 (D.D.C. 2009).
78

in Part VII infra, along with a description of a new 2016 amen

known as JASTA and codified in relevant part at § 1605B.

1. Section 1605A

Under the 2008 amendment, a designated “state sponsor of ter

has no immunity in a case

in which money damages are sought for personal injury or death that 

caused by an act of torture, extrajudicial killing, aircraft sabotage, hos

taking, or the provision of material support or resources for such an a

such act or provision of material support or resources is engaged in b

official, employee, or agent of such foreign state while acting within 

scope of his or her office, employment, or agency.245

2. Limitations

As the quoted provision indicates, the exception applies only to 

for money damages arising from specifically enumerated categ

acts that were engaged in by foreign officials, employees, or agen

ing within the scope of [their] office, employment, or agency.” I

tion, the exception applies only if

1. the foreign state had been formally designated as a state s

of terrorism at the time of (or as a result of) the act in qu

2. the claimant or victim was a U.S. national, a member 

armed forces, or an employee or contractor of the Unite

government acting within the scope of employment; and 

3. (when the acts in question occurred in the designated 

state), thatstate was given a “reasonable opportunity to a

the claim in accordance with the accepted international 

arbitration.”246

3. Designated state sponsors

For these purposes, a foreign state must have been formally des

by the Secretary of State as a government that has “repeatedly p

 

245. 28 U.S.C. § 1605A(a)(1) (2010).

246. Id. § 1605A(a)(2). This section includes additional requirement
79

support for acts of international terrorism” pursuant to § 6(j) of 

port Administration Act of 1979,247 § 620A of the Foreign Ass

Act of 1961,248 § 40 of the Arms Export Control Act,249or any ot

evant provision of law. The list of designated state sponsors of 

ism is published officially. As of November 2018, four countri

on the list: Iran, North Korea, Sudan, and Syria.250

This exception is examined in greater detail in Part VII infr

 

247. Initially codified at 50 U.S.C. app. § 2405(j), later transferred to 5

§ 4605.

248. 22 U.S.C. § 2371.

249. 22 U.S.C. § 2780.

250. See U.S. Department of State, State Sponsors of Terrorism, http

state.gov/j/ct/list/c14151.htm. South Yemen was removed from the list 

Iraq in 2004, Libya in 2006, and Cuba in 2015. North Korea was removed 

but relisted in 2017.

81

VI. Attachment and Execution

In addition to immunity from jurisdiction, the FSIA provides 

munity from both pre-judgment attachment and post-ju

execution. 

The general rule under 28 U.S.C. § 1609 is that property of a 

state or its agencies and instrumentalities that is in the United S

immune from attachment, arrest, and execution except as prov

§§ 1610 and 1611 and as subject to existing international agre

to which the United States was a party at the time the FSIA was e

Thus, even when a valid judgment has been entered again

eign state, property of that foreign state that is located wit

United States remains immune from execution and attachmen

(a) the property meets the “commercial activity” requiremen

(b) additional statutory exceptions allowing for execution and 

ment against that property are satisfied. Certain categories of p

are exempt.

Courts must always satisfy themselves that they have juris

before considering requests for attachment, arrest, execution, o

judgment discovery, even when the foreign state, agency, or 

mentality fails to appear.251

As the Ninth Circuit has held, when a court is asked to att

property of a foreign state, it must raise and decide the issue of i

ity from execution on its own initiative even if the defendant d

appear. The court recognized a statutory presumption in favo

munity from attachment and execution where it is “apparent fr

pleadings or uncontested” that the defendant is a foreign state

 

251. Immunity under these provisions has been held to be “an affirm

fense that only the foreign state has standing to invoke.” Rubin v. Islamic 

of Iran, 408 F. Supp. 2d 549, 555 (N.D. Ill. 2005). But see Walker Int’l H

Ltd. v. Republic of Congo, 395 F.3d 229, 233 (5th Cir. 2004) (holding th

nishee may also raise a sovereign immunity claim under the FSIA). See 

Restatement (Fourth) of Foreign Relations Law § 464 (Am. Law Inst. 20
82

the court has determined that the defendant is a foreign state, t

den of production shifts to the plaintiff to offer evidence that an 

tion applies.”252

It is important to note that the FSIA provides narrower exc

to immunity with respect to attachment and execution than 

with respect to jurisdiction.253Accordingly, a court may have ju

tion to decide the case but not to enforce the resulting judgm

addition, the statute contains more protective rules for foreig

than for their agencies and instrumentalities.

A. Pre-judgment Attachment

Pre-judgment attachment of the property of states or their agenc

instrumentalities for purposes of acquiring jurisdiction is proh

Under § 1610(d)(1), pre-judgment attachment of a foreign 

property is available only for the purpose of securing satisfactio

eventual judgment, only against property used for a commerci

ity in the United States, and only if the foreign state in quest

explicitly waived its immunity from such attachment.

254 This pr

has been held to prohibit writs of garnishment.255

B. Post-judgment Attachment and Execution

Section 1610 sets forth limited exceptions to immunity for attac

in aid of execution and for execution of judgments obtained un

statute against foreign states (under § 1610(a)) and their agenc

 

252. Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1125 (9th C

accord, Walters v. Industrial & Commercial Bank of China, Ltd., 651 F.3d 

(2d Cir. 2011). 

253. The execution immunity afforded sovereign property is broader 

jurisdictional immunity afforded the sovereign itself. Walters, 651 F.3d a

254. See De Sousa v. Embassy of the Republic of Angola, 229 F. Sup

(D.D.C. 2017); Banco de Seguros del Estado v. Mutual Marine Office, 

F.3d 255, 262 (2d Cir. 2003).

255. FG Hemisphere Assocs. LLC v. République du Congo, 455 F.3d 

Cir. 2006).
83

instrumentalities (under § 1610(b)). In all cases, the property 

which execution is sought must be “in the United States.”256

Moreover, under § 1610(c), no attachment or execution aga

ther foreign states or their agencies or instrumentalities is pe

until the court has ordered such attachment and execution after 

determined that a reasonable period of time has elapsed follow

entry of judgment and the giving of any notice required 

§ 1608(e).257

In addition, before turning to the specific issues of exe

courts must take several important factors into consideration.

1. States vs. agencies and instrumentalities

As they do in deciding jurisdictional issues, courts must take 

enforcing judgments to respect the distinction between the 

state or government and its agencies and instrumentalities (cod

§§ 1610(a) and (b)). Under the Bancec principle,258 a separate j

entity cannot be held liable for a judgment against a foreign sta

ject to some narrow exceptions.

For example, in Alejandre v. Telefonica Larga Distancia de 

Rico, Inc., the Eleventh Circuit Court of Appeals vacated the 

court’s decision issuing writs of garnishment over amounts ow

Cuban telecommunications company that was majority-ow

 

256. Assets located outside the United States are presumptively be

jurisdiction of U.S. courts, and nothing in the FSIA indicates that it h

territorial application. Cf. Republic of Argentina v. NML Capital, Ltd., 1

2250 (2014).

257. Section 1608(e) states: “No judgment by default shall be ente

court of the United States or of a State against a foreign state, a political 

sion thereof, or an agency or instrumentality of a foreign state, unless the 

establishes his claim or right to relief by evidence satisfactory to the cour

of any such default judgment shall be sent to the foreign state or political 

sion in the manner prescribed for service in this section.”

258. First Nat’l City Bank v. Banco Para El Comercio Exterior de C

U.S. 611 (1983); cf. Bennett v. Islamic Republic of Iran, 825 F.3d 949 

2016), abrogated by Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (20
84

companies owned and controlled by the Cuban government

though the telecommunications company was found to be an 

mentality of the government of Cuba, it was held to be a separat

and therefore not liable for execution of a judgment against t

ernment of Cuba.

Relying on Bancec, the court held that in cases of attachmen

ecution, there is a presumption of separate juridical status for 

mental instrumentalities. That presumption can only be overc

ther by piercing the corporate veil under state law or by apply

broader equitable principle that “the doctrine of corporate en

not be regarded where to do so would work fraud or injustice o

overriding public policies.”260

2. Excepted categories of property

Under 28 U.S.C. § 1611, certain categories of property are exem

attachment and execution. These categories include the followi

• property of international organizations that have been 

nated under the International Organizations Immunitie

• property of a foreign central bank or monetary author

for its own account;

262 and

• property that is used or intended to be used in connecti

a military activity and that is of a military character or un

control of a military authority or defense agency.

263

 

259. 183 F.3d 1277, 1284–85 (11th Cir. 1999).

260. Id.

261. 22 U.S.C. § 288a–288f (1945). This would include funds being d

by the World Bank to a foreign state. 

262. See, e.g., Olympic Chartering S.A. v. Ministry of Indus. & Trad

dan, 134 F. Supp. 2d 528 (S.D.N.Y. 2000) (central bank); EM Ltd. v. Re

Argentina, 473 F.3d 463 (2d Cir. 2007) (central bank funds deposited 

accounts).

263. E.g., HWB Victoria Strategies Portfolio v. Republic of Argentina

1085-JTM, 2017 WL 1738065 (D. Kan. May 4, 2017) (jet engines belo

Fuerza Aérea Argentina); In re Ohntrup, 628 F. App’x 809 (3d Cir. 2015) 

nition); All Am. Trading Corp. v. Cuartel General Fuerza Aerea Guardia N
85

In addition, attachment and execution cannot be ordered again

erty that is otherwise inviolable or immune, such as embassies, 

lates, or their bank accounts falling under the Vienna Convent

Diplomatic or Consular Relations.264

In NML Capital, Ltd. v. Banco Central de la Republica Argen

the Second Circuit considered the language of § 1611(b)(1) pr

that property “of a foreign central bank or monetary authority 

its own account” is immune from attachment or execution. P

in that action had sought ex parte orders of pre-judgment atta

and post-judgment restraint over certain funds of Banco Cent

at the Federal Reserve Bank of New York. They argued that 

Banco Central was not in fact independent of the government (

its alter ego), the funds did not fall within the scope of that pro

The court of appeals disagreed, finding that

the plain language, history and structure of § 1611(b)(1) immunizes p

erty of a foreign central bank or monetary authority held for its own acc

without regard to whether the bank or authority is independent from 

parent state pursuant to Bancec. . . . [F]oreign central banks are not tre

as generic “agencies or instrumentalities” of a foreign state under the F

they are given “special protections” befitting the particular sovereign in

est in preventing the attachment and execution of central bank propert

3. Procedure

In enforcement actions under the FSIA, courts will generally ap

relevant procedures under applicable state law.267 However, § 

 

de Nicaragua, 818 F. Supp. 1552 (S.D. Fla. 1993) (foreign military ai

United States).

264. Vienna Convention on Diplomatic Relations, Apr. 18, 1961 [1

U.S.T. 3227, T.I.A.S. No. 7502 (entered into force for the United States 

1972); Vienna Convention on Consular Relations, Apr. 24, 1963 [1970], 2

77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 (entered into force for the U.S. 

1969).

265. 652 F.3d 172 (2d Cir. 2011), cert. denied, 567 U.S. 944 (2012). T

sumption is rebuttable, for example, where it can be demonstrated that t

are not in fact used for central bank functions. Id. 

266. Id. at 187–88.

267. See Fed. R. Civ. P. 69(a).
86

provides that “[n]o attachment or execution referred to in subs

(a) and (b) of this section shall be permitted until the court has o

such attachment and execution after having determined that a 

able period of time has elapsed following the entry of judgment 

giving of any notice required” under § 1608(e).

268

The purpose of this requirement is to give the foreign state i

tion time to react to the judgment. It has been accepted as man

According to the relevant House Report, the procedures mand

§ 1610(c) exist to afford sufficient protection to foreign stat

respect to efforts to attach or execute against their property 

United States (just as the United States would expect in rec

circumstances):

In some jurisdictions in the United States, attachment and execution to 

isfy a judgment may be had simply by applying to a clerk or a local sh

This would not afford sufficient protection to a foreign state. This sub

tion contemplates that the courts will exercise their discretion in permi

execution. Prior to ordering attachment and execution, the court mus

termine that a reasonable period of time has elapsed following the ent

judgment . . . . In determining whether the period has been reasonable

courts should take into account procedures, including legislation, that 

be necessary for payment of a judgment by a foreign state, which may 

several months; representations by the foreign state of steps being take

satisfy the judgment; or any steps being taken to satisfy the judgmen

evidence that the foreign state is about to remove assets from the juris

tion to frustrate satisfaction of the judgment.269

Consistent with this approach, courts have exercised their 

tion to prevent undue hardships to foreign states in a variety of c

stances. For instance, the Second Circuit noted with approval 

trict court’s stay of a lawsuit brought by a lone creditor aga

 

268. For a discussion of these requirements, see Agudas Chasidei C

U.S. v. Russian Federation, 798 F. Supp. 2d 260 (D.D.C. 2011). See also F

Tex. Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250, 256 (S.D.N.Y. 2000

269. H.R. Rep. No. 94-1487 (1976), at 30, as reprinted in 1976 U.S.

6604, 6629.
87

Peruvian government when the government was attempting to 

ate an exchange offer with its creditors.270

4. Post-judgment discovery

A court may order discovery of a foreign sovereign defendant f

poses of identifying assets against which a judgment might be ex

However, the same prudential considerations that apply in de

ing initial jurisdiction are relevant in determining the immunity 

ereign assets.

271

Until recently, there was some debate about the permissibl

of post-judgment discovery in aid of execution. In Rubin v. Isla

public of Iran,

272 the plaintiffs obtained a default judgment agai

for injuries sustained in a suicide bombing in Israel carried o

terrorist organization with the assistance of Iranian material 

and training. They registered that judgment in the Northern Di

Illinois for the purpose of attaching two collections of Persian a

ties owned by Iran but on long-term academic loan to the Un

of Chicago’s Oriental Institute, as well as a third collection of 

artifacts owned by Chicago’s Field Museum of Natural History

The court of appeals held that general-assets discovery of 

nian assets in the United States was inconsistent with the presu

of sovereign immunity under § 1609:

 

270. Pravin Banker Assocs. Ltd. v. Banco Popular del Peru, 109 F.3d 8

56 (2d Cir. 1997) (district court granted two stays before granting s

judgment). 

271. See generally Thai Lao Lignite (Thailand) Co. v. Government of 

ple’s Democratic Republic, No. 10 Civ. 5256 (KMJ), 2011 WL 4111504

(S.D.N.Y. Sept. 13, 2011); Walters v. People’s Republic of China, 672 F. 

573 (S.D.N.Y. 2009); Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 11

Ill. 2004). As the court said in Lasheen v. Loomis Co., No. 2:01-cv-0227-K

2017 WL 4410167, at *3 (E.D. Cal. Oct. 4, 2017), “[T]he FSIA’s exceptio

munity from execution are still informative of whether plaintiff’s disco

quests seek relevant information; e.g. information likely to lead to disc

executable property” (citing Republic of Argentina v. NML Capital, Ltd

Ct. 2250 at 2257 (2014).

272. 637 F.3d 783 (7th Cir. 2011).
88

To overcome the presumption of immunity, the plaintiff must identify 

particular foreign-state property he seeks to attach and then establish th

falls within a statutory exception. The district court’s general-asset dis

ery order turns this presumptive immunity on its head. Instead of confi

the proceedings to the specific property the plaintiffs had identified as 

tentially subject to an exception under the FSIA, the court gave the plain

a “blank check” entitlement to discovery regarding all Iranian assets in 

United States. This inverts the statutory scheme.273

In contrast, in EM Ltd. v. Republic of Argentina,274 the Seco

cuit upheld broad subpoenas duces tecum that sought infor

from two non-party banks about Argentina’s assets located out

United States. The court said, “[B]ecause the Discovery Order i

discovery, not attachment of sovereign property, and because 

rected at third-party banks, not at Argentina itself, Argentina’

eign immunity is not infringed.”275

The Supreme Court affirmed the Second Circuit’s approach 

public of Argentina v. NML Capital, Ltd.,

276 holding that the FS

not preclude discovery of Argentina’s assets outside the 

States—even if they might eventually be found entitled to im

The ordinarily applicable rules governing discovery in post-ju

execution proceedings are “quite permissive,”the Court noted, 

FSIA contains no provision forbidding or limiting the scope of 

ery in aid of execution of a foreign-sovereign judgment debtor’

whether they are located within the United States or in other co

The Court acknowledged that in some instances, sweeping di

orders might create worrisome international-relations conseq

but it said that such considerations are for the political branch

the courts. The Court held that “any sort of immunity defense m

 

273. Id. at 796.

274. 695 F.3d 201 (2d Cir. 2012).

275. Id. at 203. Still, the court noted that since “sovereign immunity 

a sovereign from the expense, intrusiveness, and hassle of litigation, a co

be ‘circumspect’ in allowing discovery before the plaintiff has established 

court has jurisdiction over a foreign sovereign under the FSIA.” Id. at 21

276. 134 S. Ct. 2250 (2014).
89

a foreign sovereign in an American court must stand on the Ac

Or it must fall.”277

In conclusion, it is clear that U.S. district courts may order 

ery related to assets abroad, even if plaintiffs may have to seek 

tion on those assets from a foreign court.278

5. Sanctions

Whether sanctions in general can be imposed on foreign states 

to debate. On the one hand, nothing in the FSIA expressly prov

such actions; on the other, nothing expressly precludes the exe

inherent judicial power.279

There is some support for the imposition of sanctions on a 

sovereign under Federal Rule of Civil Procedure 37 for failure t

ply with a discovery order.

280 At least one court has distinguis

imposition of those sanctions from the attempt to enforce them 

it said could be “problematic”).281

 

277. Id. at 2256.

278. Amduso v. Republic of Sudan, 288 F. Supp. 3d 90 (D.D.C. 2017

279. Compare Af-Cap, Inc. v. Republic of the Congo, 462 F.3d 417 

2006), and Autotech Techs. v. Integral Research & Dev., 499 F.3d 737 

2007). For the executive branch view, see Brief of the United States as Am

riae, SerVaas Inc. v. Mills, Nos. 14-385, 14-438, 14-569, 2014 WL 46569

9, 2014).

280. See, e.g., Funk v. Belneftekhim, 861 F.3d 354 (2d Cir. 2017)

Chasidei Chabad of United States v. Russian Fed’n, 128 F. Supp. 3d 242 

2015). See also Restatement (Fourth) of Foreign Relations Law § 464, R

Note 13 (Am. Law Inst. 2018).

281. FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 

373, 375 (D.C. Cir. 2011). In an amicus brief in that case, the U.S. gov

argued that the FSIA “does not permit the enforcement of monetary c

sanctions against a state.” See No. 10-7046, 2010 WL 4569107 (Oct. 7, 2

also Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 128 F. Supp

(D.D.C. 2015). In Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th C

the court concluded that a contempt order requiring a foreign sovereig

money into the court’s registry was inconsistent with the FSIA. 
90

C. Property of a Foreign State

Under § 1610(a), in order to be subject to attachment or execut

property of a foreign state must be (a) located in the United Sta

(b) “used for a commercial activity.”In contrast, under the sepa

of § 1610(b)(2), it is sufficient if the agency or instrumentality 

“engaged in commercial activity in the United States.” In b

stances, however, the property must be in the United States w

court authorizes attachment or execution.282

1. Location of the property

Federal courts generally lack the authority to compel execution 

property in other countries,

283 and nothing in the text or legislat

tory of the FSIA suggests that it was intended to apply to the p

and assets of a sovereign defendant located outsidethe United S

In general, the immunity of property (or lack thereof) depends 

law of the situs. In a reciprocal circumstance, it seems unlikely t

courts would consider themselves compelled to enforce a foreig

ment against U.S.-located assets which are otherwise entitled 

munity under the FSIA.

Determining the situs can of course raise questions. The Nin

cuit has held that the situs of an intangible right to payment, un

plicable state law, is the location of the debtor, so a debt obligat

French corporation to the Government of Iran did not co

“property in the United States” for purposes of § 1610(a)(7).285

In Peterson v. Islamic Republic of Iran,

286 the Second Circuit 

similar issue, in the context of an effort to enforce a judgmen

 

282. See FG Hemisphere Assocs., LLC v. République du Congo, 455 

588–89 (5th Cir. 2006).

283. Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 225

284. Walters v. People’s Republic of China, 672 F. Supp. 2d 573, 574 (

2009). (“[U]nder the FSIA, assets of foreign states located outside th

States retain their traditional immunity from execution to satisfy judgm

tered in United States courts.” (internal quotation marks omitted)). 

285. Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir. 20

286. 876 F.3d 63 (2d Cir. 2017).
91

§§ 1605(a)(7) and 1605A against $1.6 billion in assets allegedly 

by Iran’s central bank but held by a Luxembourg bank in Luxem

Under New York law, as under California law, the situs of an int

property interest (such as the right to payment) is the location 

party of whom performance is required by the contract in ques

that case, it was Luxembourg.

However, the court said, the authority of a federal court to 

judgments by attaching property does not derive from the FSIA 

pends instead on the law of the state in which the court sits. T

vant New York law287 permits a court to order a third-party ga

subject to its jurisdiction to turn over the assets of a judgment 

even if they are held outside the United States. Accordingly, si

district court in this case had personal jurisdiction over the L

bourg bank (which was not a state or agency or instrumenta

thus not entitled to immunity), it was empowered to orderthat 

repatriate the assets in question.

The Second Circuit recognized that if the assets, upon bei

duced in New York, qualified as sovereign assets of a foreign sta

would be subject to § 1609, and therefore the court would be r

to consider the relevant statutory exceptions (i.e., under § 1610 

Terrorism Risk Insurance Act (TRIA) § 201).

The court also acknowledged that the FSIA provides the ex

basis for obtaining subject-matter jurisdiction over a foreign st

was “aimed to facilitate and depoliticize litigation against foreig

and to minimize irritations in foreign relations arising out of s

gation.”288 It concluded, however, that the FSIA offers no text

pediment to an order directing the third party to bring the a

New York, since § 1604’s grant of jurisdictional immunity appli

 

287. N.Y. C.P.L.R. § 5225(b), as interpreted by Koehler v. Bank of Be

12 N.Y.3d 533, 541, 883 N.Y.S.2d 763 (2009) (a New York court with 

jurisdiction over a defendant may order him to turn over out-of-state 

regardless of whether the defendant is a judgment debtor or a garnishee)

288. Peterson, 876 F.3d at 94 (citing Cargill Int’l S.A. v. M/T Pavel D

991 F.2d 1012, 1016 (2d Cir. 1993)).
92

to “a foreign state” and only to assets located “in the United 

neither of which applied to the Luxembourg funds.289

Moreover, the court said, the Supreme Court’s decision i

Capitalstated clearly that “any sort of immunity defense made b

eign sovereign in an American court must stand on the Act’s te

must fall.”290 Decisions supporting the proposition that a forei

ereign’s extraterritorial assets are absolutely immune from exec

had been rendered prior to NML Capital and are therefore no 

binding on that discrete point.

292

Even if this interpretation of the law might present “wo

international-relations consequences,” “provoke reciprocal 

treatment of the United States in foreign courts,” or “threaten h

the United States’ foreign relations more generally,” the cou

such “apprehensions are better directed to that branch of the g

ment with authority to amend the Act.”293

2. Used for a commercial purpose

In a commercial activity case, the property of the foreign state m

“used for the commercial activity upon which the claim is ba

Accordingly, the statutory definition of “commercial activity

 

289. Peterson, 876 F.3d at 92.“Had Koehler arisen in the context of an 

of in personam jurisdiction over a foreign sovereign—it did not—the FSI

of jurisdictional immunity would supersede contrary state law. See Pete

F.3d at 1130 (applying state law ‘insofar as it does not conflict with the F

290. Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 225

291. E.g., EM Ltd. v. Republic of Argentina, 695 F.3d 201, 208 (2d C

Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 130 

2009).

292. In this regard, the court distinguished the decision in Rubin v

Republic of Iran, 830 F.3d 470, 475 (7th Cir. 2016) (To the effect that 

foreign sovereign’s assets are “even potentially subject to attachment 

cution,” it must be shown that the assets are “within the territorial jurisd

the district court.”).

293. Peterson, 876 F.3d at 94, n.24.

294. 28 U.S.C. § 1610(a)(2) (2010). Cf. Crystallex Int’l Corp. v. Boliva

public of Venezuela, No. 17-mc-151-LPS, 2018 WL 3812153 (D. Del. 

2018).
93

§ 1603(d)(discussed above) is applicable.295 This requirement e

such property as embassies and consulates, as well as military 

and aircraft.296

The Second Circuit has held that the property in question m

“used for a commercial activity” at the time the writ of attachm

execution is issued.297 The question arose in the context of attem

holders of defaulted bonds issued by the Republic of Argentina 

cute their judgments against certain investment accounts admin

in the United States by private corporations for the benefit of Ar

pensioners. The Argentine government had nationalized its 

pension system and thus claimed the funds in the investment ac

The district court determined that the assets were used for a co

cial activity and ordered their attachment. The appellate co

agreed, noting that when the attachment was ordered, the only 

that the republic had engaged in was the adoption of a law taki

control of the funds. Argentinian authorities had not had the 

tunity to use the funds for any commercial activity whatsoev

 

295. See also Republic of Argentina v. Weltover, 504 U.S. 607, 614 (1

296. However, the question can still pose difficult factual determinat

e.g., EM Ltd. v. Republic of Argentina, 473 F.3d 463, 482–83 (2d Cir. 200

ernment repayment of debt to IMF is not a “commercial activity”); Af-C

v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1091 (9th Cir. 2007) (

erty is ‘used for a commercial activity in the United States’ when the pro

question is put into action, put into service, availed or employed for a com

activity, not in connection with a commercial activity or in relation to a c

cial activity.”); Connecticut Bank of Commerce v. Republic of Congo, 

240, 260–61 (5th Cir. 2002) (royalty payments owed by oil companies in 

a foreign state not “used for a commercial activity in the United States”)

Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229, 235–36 (5th C

(signing bonuses and other payments owed by garnishee not used for “c

cial activity” within meaning of FSIA); NML Capital, Ltd. v. Spaceport S

L.P., 788 F. Supp. 2d 111 (C.D. Cal. 2011) (scientific applications sate

“used for commercial purposes”). 

297. Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 

(2d Cir. 2009), cert. denied, 130 S. Ct. 1691 (2010). See also EM Ltd., 47

484 (“The plain language of the statute suggests that the standard is ac

hypothetical, use.”). 
94

Second Circuit said, under § 1610(a), “a sovereign’s mere trans

governmental entity of legal control over an asset does not qua

property as being ‘used for a commercial activity.’”298

However, the Second Circuit has also held, in the context o

of scientific equipment by one private party to another, that a 

government’s remittance of the purchase price to the seller do

stitute market activity—even if the government purchased the 

ment in order to implement a national program of scientific r

and development, had no “profit motive,” and obtained no t

benefit from the transaction.299 Since the funds were used for 

mercial activity in the United States, they were accordingly su

attachment under § 1610(a).

Several courts have interpreted this requirement to apply to 

tirety of the funds at issue, so that, for example, the use of a po

a bank account for commercial purposes does not deprive th

account of its immunity.300

3. Additional requirements

It is not sufficient, in a case involving state-owned property, t

property is in the United States and used for a “commercial a

In addition, the moving party must also satisfy one of the sub

requirements in § 1610(a)(1)–(7), which correspond roughly to 

ceptions from jurisdictional immunity set forth in § 1605. The 

exception depends on the jurisdictional exception upon wh

judgment rests; in other words, the property must relate to th

on which judgment was rendered.

 

298. Aurelius Capital Partners, LP, 584 F.3d at 131, 132 ( “[W]e mus

the Act’s strict limitations on attaching and executing upon assets of a 

state.”).

299. NML Capital, Ltd. v. Republic of Argentina, 680 F.3d 254 (2d C

cert. denied, 133 S. Ct. 273 (2012).

300. Walker Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229

(5th Cir. 2004); Liberian E. Timber Corp. v. Government of the Repub

beria, 659 F. Supp. 606, 610 (D.D.C. 1987).
95

Different rules apply to judgments based on waivers and 

awards. Thus, § 1610(a)(1) addresses waivers. As in the case of j

tion, express waivers with respect to attachment and execut

sometimes found in the relevant underlying contracts but m

clearly made on behalf of the foreign state in question.301 

§ 1610(a)(6), property of a foreign state in the United States w

“used for a commercial activity in the United States” may be a

upon a judgment “based on an order confirming an arbitral awa

dered against the foreign state.”302

4. State sponsors of terrorism

As discussed at greater length in Part VII infra, execution of jud

against designated state sponsors of terrorism based on § 

(which has replaced § 1605(a)(7)) is governed by the provis

§ 1610(f). 

Execution of such judgments against certain “blocked as

permitted by § 201 of the Terrorism Risk Insurance Act o

(TRIA).

303 In Ministry of Defense and Support for Armed Force

Islamic Republic of Iran v. Elahi, the U.S. Supreme Court hel

judgment creditor of Iran could not execute against a separat

because (a) the latter judgment did not constitute a “blocked as

TRIA purposes at the time of the lower court decision, and (b

event, the judgment creditor had waived his right to attachm

electing to take partial payment under the Victims of Traffick

Violence Protection Act of 2000 judgment in favor of Iran.304

 

301. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak 

Bumi Negara, 313 F.3d 70, 82–83 (2d Cir. 2002). 

302. See TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 

(D.C. Cir. 2005).

303. Pub. L. No. 107-297, 116 Stat. 2322 (2002) (codified at 28 U.S.C

note) (2002); see Hegna v. Islamic Republic of Iran, 380 F.3d 1000, 1002

Cir. 2004); Weininger v. Castro, 462 F. Supp. 2d 457, 479 (S.D.N.Y. 2006

304. 556 U.S. 366, 369 (2009).
96

D. Agency or Instrumentality

Under § 1610(b), which applies to execution against propert

agency or instrumentality located in the United States, the ag

instrumentality itself must be “engaged in commercial activity 

United States.”305 The property itself need not be used for com

purposes.

In contrast to the rules regarding state-owned property, th

erty of a foreign agency or instrumentality engaged in commer

tivity in the United States is subject to execution, or attachmen

of execution, if that agency or instrumentality has specifically 

its immunity or if the judgment relates to a claim for which the 

or instrumentality is not immune by virtue of the exceptions co

ing commercial activity, noncommercial tort, or state-sponso

rorism, “regardless of whether the property is or was involved in 

upon which the claim is based.”306

 

305. Ministry of Def. & Support for the Armed Forces of the Republ

v. Elahi, 546 U.S. 450, 452 (2006).

306. 28 U.S.C. § 1610(b) (2010).
97

VII. The FSIA and State-Sponsored Terrorism

The Foreign Sovereign Immunities Act removes the immunity 

tain foreign states with respect to claims for damages resultin

death or injury caused by specific acts of state-sponsored terro

specifically, torture, extrajudicial killing, aircraft sabotage, host

ing, and the provision of material support or resources for such 

This particular exception is almost unique to the United 

since to date only one other country has adopted a comparable 

tion to the general rule of sovereign immunity.

307 The exception 

invoked frequently. It was first enacted in 1996 and was repl

2008; steadily growing numbers of plaintiffs have sought to t

vantage of its provisions. Most complaints have been filed (a

most decisions have been rendered) in the District of Colum

other courts are likely to encounter issues under this provision

ularly with regard to efforts to enforce judgments against the p

and assets of state sponsors of terrorism.

The terrorism exception was originally adopted in 1996 

U.S.C. § 1605(a)(7).

308 Cases initially proliferated against Ir

Cuba, but over time, cases were brought against Libya, Iraq, No

rea, Sudan, and Syria as well. In response to various problems e

tered by plaintiffs in litigating under that earlier provision, C

replaced it in 2008 with an expanded exception, codified at 28 

§ 1605A.

309 In late 2016, an additional provision was enacted, c

 

307. In March 2012, Canada amended its State Immunity Act to pe

tims of terrorism who are Canadian citizens and permanent residents of 

as well as others if the action has a “real and substantial” connection to 

to seek redress against designated state sponsors by way of a civil action 

rorist acts committed anywhere in the world on or after January 1, 1

http://laws-lois.justice.gc.ca/PDF/S-18.pdf. 

308. Anti-Terrorism and Effective Death Penalty Act of 1996, Pub

104-132, § 221, 110 Stat. 12241 (1996) (codified at 28 U.S.C. § 1605(a)(7)

309. National Defense Authorization Act for Fiscal Year 2008, Pu

110-181, Div. A, § 1083 (2008), 122 Stat. 338, 338–44 (NDAA) (codif

U.S.C. § 1605A).
98

at 28 U.S.C. § 1605B, to address acts of terrorism occurring 

United States (i.e., the attacks which occurred on 9/11).310

Taken as a whole, the terrorism exception is “anything but a 

of clarity,”311 and a substantial body of interpretive decisional 

emerged in the area.

312

This part of the guide provides an overview of the backgrou

purpose of the FSIA’s “terrorism exception” (in section A), d

the current exception (in section B), and discusses the main el

of a claim under the provision (in section C). Section D sum

issues related to execution of judgments against state sponsors 

rorism under § 1605A. Section E introduces the most recent st

amendment, the Justice Against Sponsors of Terrorism Act (J

This part of the guide builds upon and occasionally refers to th

sis offered in the rest of this guide.

Litigation against foreign states under these provisions mus

tinguished from civil suits against individuals and non-state 

under the provisions of the 1991 Torture Victims Protecti

(TVPA)313 and the Anti-Terrorism Act (ATA), enacted in 19

amended by JASTA.

314 However, although § 1605A provides 

 

310. Justice Against Sponsors of Terrorism Act (JASTA), Pub. L. No

§ 3(a), Sept. 28, 2016, 130 Stat. 853 (codified at 28 U.S.C. § 1605B).

311. Roeder v. Islamic Republic of Iran, 742 F. Supp. 2d 1, 13 (D.D

(citing the government’s brief).

312. A comprehensive review of the exception in its early years can 

in In re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp. 2d 31 

2009). See generally Restatement (Fourth) of Foreign Relations Law § 4

Law Inst. 2018).

313. Pub. L. No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 13

(1991). The TVPA provides a statutory cause of action against individu

under actual or apparent authority, or color of law, of any foreign nation

victims to torture or extrajudicial killing.

314. 18 U.S.C. § 2333(a). The ATAprovides that “[a]ny national of th

States injured in his or her person, property, or business by reason of 

international terrorism, or his or her estate, survivors, or heirs, may sue 

in any appropriate district court of the United States and shall recover 

the damages he or she sustains and the cost of the suit, including attorne
99

federal cause of action, it defines the terms “torture” and “extra

killing” by reference to the TVPA,315 and the term “material sup

resources” by reference to the ATA,316 so courts often refer to de

under those statutes in considering claims under § 1605A317 a

surely do so under § 1605B.

A. Background and Purpose

Although victims’ groups had long advocated for a “terrorist” 

tion to foreign sovereign immunity, no such provision was incl

the FSIA when it was originally enacted in 1976.318 Only after 

significant terrorist incidents in the 1980s and 1990s (for exam

kidnapping of Joseph Ciccipio in Beirut and the destruction of P

Flight 103 over Lockerbie, Scotland) did Congress amend the st

permit suits against state sponsors of terrorism.319

State sponsors of terrorism consider terrorism a legitimate instrumen

achieving their foreign policy goals. They have become better at hiding 

material support for their surrogates, which includes the provision of 

havens, funding, training, supplying weaponry, medical assistance, 

 

The statute contains a definition of “international terrorism,” and a relat

sion provides civil liability for those engaged in “material support” of ter

ganizations. See 18 U.S.C.A. §§ 2331 and 2339B (2009); Owens v. BNP 

S.A., 897 F.3d 266 (D.C. Cir. 2018); Linde v. Arab Bank, PLC, 882 F.3d 

Cir. 2018); Waldman v. Palestine Liberation Org., 835 F.3d 317 (D.C. Ci

315. 28 U.S.C. § 1605A(h)(7).

316. 28 U.S.C. § 1605(h)(3). The term “material support” is defin

U.S.C. § 2339A(b)(1).

317. On occasion, a particular terrorist incident may give rise to claim

more than one of these statutes. E.g., Thuneibat v. Syrian Arab Republi

Supp. 3d 22 (D.D.C. 2016).

318. The executive branch resisted, fearing that a terrorism exceptio

“cause other nations to respond in kind, thus potentially subjecting the A

government to suits in foreign countries for actions taken in the United 

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D

2002). See also H.R. Rep. No. 103-702, at 12 (1994); Owens v. Republic o

864 F.3d 751 (D.C. Cir. 2017), cert. petition docketed, April 10, 2018.

319. See Presidential Statement Upon Signing the Antiterrorism and 

Death Penalty Act of 1996, 32 Weekly Comp. of Pres. Doc. 719 (Apr. 29, 
100

travel documentation, and the like. . . . [A]llowing suits in the federal co

against countries responsible for terrorist acts where Americans an

their loved ones suffer injury or death at the hands of the terrorist stat

warranted. Section 804 will give American citizens an important econo

and financial weapon against these outlaw states.320

As originally enacted, § 1605(a)(7) removed the immunity 

eign states with respect to cases seeking money damages for p

injury or death caused by certain enumerated acts taken by thos

or their officials. The exception was limited to those few states t

been formally designated by the Secretary of State as sponsors 

rorism under § 6(j) of the Export Administration Act of 197

§ 620A of the Foreign Assistance Act of 1961322 at the time the 

question had occurred or as a result of such acts. In 1996, this 

cluded Cuba, Iran, Libya, North Korea, Sudan, Syria, and Iraq.3

In addition, the original exception only permitted suits 

from acts of torture, extrajudicial killing, aircraft sabotage, host

ing, or the provision of material support or resources, and only 

acts or provision of material support had been engaged in by an 

employee, or agent of the foreign state while acting within the s

his or her office, employment, or agency.

The impact of § 1605(a)(7) as initially enacted was further c

scribed when courts interpreted it as “merely a jurisdiction-con

provision” that did not create an independent private right of 

In Flatow v. Islamic Republic of Iran, for example, the distric

ruled that the statutory exception to foreign sovereign immun

 

320. H.R. Rep. No. 104-383, at 62 (1995).

321. Section 6(j) of the Export Administration Act of 1979 was codif

U.S.C. app. § 2405(j) and later transferred to 50 U.S.C. § 4605.

322. Section 620A of the Foreign Assistance Act of 1961 is codif

U.S.C. § 2371.

323. Iraq was removed in 2004, Libya in 2006, and North Korea in 

of November 2018, the designees are the Democratic Peoples’ Republic 

Korea, Iran, Sudan, and Syria. See the Department of State website at http

state.gov/j/ct/list/c14151.htm.
101

not itself create a federal cause of action.324 Instead, the statute o

merely as a “pass-through,” allowing plaintiffs to bring suit in 

court for claims based in state law.

Given the difficulties encountered by plaintiffs seeking to 

for injuries occurring abroad under state tort statutes or gener

mon law, this interpretation sharply limited the reach of the exc

Differences in state law produced disparate results for victim

same terrorist act, depending on their domicile at the time of the 

In response, Congress passed the so-called Flatow Amendm

This amendment sought to clarify the liability of any official, em

or agent of a designated state sponsor of terrorism for persona

or death caused to a U.S. national by acts of that official, emplo

agent while acting within the scope of his or her office, employm

agency. It also provided that money damages in FSIA suits co

clude economic damages, solatium, pain and suffering, and p

damages.

However, the Flatow Amendment failed to resolve the mos

icant obstacles facing plaintiffs under the statute. While some 

held that it provided a cause of action against a foreign state 

others found that it provided a cause of action only against the i

ual officials, employees, or agents of a foreign state. In Cicippio-

Islamic Republic of Iran, for example, the D.C. Circuit held that 

§ 1605(a)(7) nor the Flatow Amendment, nor the two taken in t

 

324. 999 F. Supp. 1 (D.D.C. 1998). Alisa Flatow, a Brandeis Unive

dent, was killed by a terrorist attack while traveling on a bus in the G

when a suicide bomber drove a van full of explosives into the bus. The 

the litigation provoked sufficient political pressure to prompt legislative 

325. See Civil Liability for Acts of State Sponsored Terrorism, Pub. L. 

208, Div. A, § 589, 110 Stat. 3009-172 (1996) (codified at 28 U.S.C. § 1

(2006)).

326. See, e.g., Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 214 

2003); Kilburn v. Republic of Iran, 277 F. Supp. 2d 24 (D.D.C. 2003); Pu

cialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d 54 (D.D.C. 2003
102

created a private right of action against foreign state sponsors of 

ism.327 In Acree v. Republic of Iraq, the same court held that p

could not state a cause of action under the “generic common 

merely allude “to the traditional torts . . . in their generic for

must identify a “particular cause of action arising out of a 

source of law.”328

In consequence, § 1605(a)(7) was repealed and replaced in 

the current version, codified at 28 U.S.C. § 1605A. Although i

respects its operative language is virtually identical to that of its 

cessor, the current provision clearly established a private righ

tion, recodified the provisions for the award of punitive da

authorized compensation for special masters to assist the cour

solving cases, and incorporated new mechanisms for the enfor

of judgments.329 In various ways, however, the revised statu

tinues to present interpretive challenges.

B. The Current Exception

By its terms, § 1605A provides that a foreign state is not immun

the jurisdiction of courts of the United States (or of the states

case in which money damages are sought for personal injury o

caused by an act of torture, extrajudicial killing, aircraft sabota

tage taking, or the provision of material support or resources f

an act.

More specifically, to establish subject-matter jurisdiction 

this exception,330 a plaintiff must prove three elements: 

 

327. 353 F.3d 1024 (D.C. Cir. 2004). In so doing, it removed the basi

nitive damage awards. 

328. 370 F.3d 41, 59–60 (D.C. Cir. 2004). For general background, see 

Bissell V & Joseph R. Schottenfeld, Exceptional Judgments: Revising the T

Exception to the Foreign Sovereign Immunities Act, 127 Yale L.J. 1890 (2

an example of “state-by-state” analysis of claims under § 1605(a)(7), see 

Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006) (He

329. In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2

(D.D.C. 2009).

330. Personal jurisdiction of course depends on proper service unde

See 28 U.S.C. § 1330(b).
103

1. that the foreign country was designated a “state sponso

rorism” at the time (or as a result) of the act; 

2. if the act in question occurred in the foreign state agains

the claim is brought, that the claimant has afforded tha

reasonable opportunity to arbitrate the claim; and 

3. that the plaintiff seeks monetary damages for personal in

death caused by an act of torture, extrajudicial killing, 

sabotage, hostage taking, or the provision of material sup

resources for such an act if “engaged in by an official, em

or agent” of that country while acting within the scope o

her office, employment, or agency.”331

Within this grant of jurisdiction under § 1605A(a), the cou

discerned a distinction between (1) suits brought by U.S. citiz

tims (and their legal representatives) and (2) suits brought by n

citizens. This distinction has, in turn, led to the need to resolv

tions of exclusivity and choice of law.

1. Federal cause of action

The statute creates a federal private right of action against des

state sponsors of terrorism for damages for personal injury o

resulting from the specified types of terrorist acts. Under § 16

however, such actions may only be pursued by four catego

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 individu

forming a contract awarded by the U.S. government

within the scope of the employee’s employment; or

4. a legal representative of such a person.332

 

331. 28 U.S.C. § 1605A(a).

332. The term “national,” as defined in 8 U.S.C. § 1101(a)(22), is broa

“citizen.” However, the courts have resisted accepting claims of perman

giance as qualifying under § 1605A(c). See, e.g., In re Terrorist Attacks 
104

For this purpose, the term “national” means a person who i

a U.S. citizen or owed allegiance to the United States at the tim

terrorist acts in question.333 Plaintiffs may include victims (de

“those who suffered injury or died as a result of the attack”) and 

ants (defined as “those whose claims arise out of those inju

deaths but who might not be victims themselves”).334 Under 

proach, claimants may include members of a victim’s immediat

who suffered from intentional (or negligent) infliction of em

distress. 

Whether the plaintiffs are victims or claimants, the nation

quirements must be satisfied as of the time of the attack. In A

Islamic Republic of Iran, for example, the claims arose from th

assassination of Israeli Rabbi Meir Kahane in New York City. B

Rabbi Kahane was not a U.S. citizen, claims on his behalf fell 

the statute, but claims for severe mental anguish of his wife and 

who were citizens, were allowed to proceed.335

Several courts have rejected claims by individuals who w

“immediate family members” at the time of the attack in ques

As one court stated, 

The very nature of a claim for solatium or intentional infliction of emoti

distress necessitates a relationship between the victim and the claima

the time of the attack. Intentional infliction of emotional distress requ

 

11, 2001, No. 03-MDL-1570 (GBD)(SN), 2017 WL 2671083 (S.D.N.Y. 

2017); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 14 (D.C. Cir. 

Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15, 26 (D.D.C. 2008) (C

did not intend that “a cause of action under § 1605A remain available 

persons who voluntarily and deliberately renounce American citizenship

333. Under § 1605A(h)(5), the term “national of the United States” i

by reference to 8 U.S.C. § 1101(a)(22) (either a “citizen of the United Sta

“person who, though not a citizen of the United States, owes permanent a

to the United States”). See, e.g., Mohammadi v. Islamic Republic of Iran, 

9 (D.C. Cir. 2015).

334. Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 65 (D.D.

335. Acosta, 574 F. Supp. 2d at 15.

336. See, e.g., Murphy, 740 F. Supp. 2d at 51; Peterson v. Islamic Re

Iran, 515 F. Supp. 2d 25, 45 (D.D.C. 2007); Bettis v. Islamic Republic of 

F.3d 325, 334–35 (D.C. Cir. 2003). 
105

an element of shock. If the definition of emotional distress were expan

to include claimants who were not immediate family members at the 

of the attack, the potential number of claimants would be unidentifi

changing with every new marriage or new child.337

Non-citizens and non-nationals can satisfy this requireme

if, at the relevant time, they were either members of the U.S

forces or “otherwise an employee of the Government of the 

States, or of an individual performing a contract awarded by the 

States Government, acting within the scope of the emp

employment.”338

2. Third-party (or indirect) actions

By distinction, the courts have held that § 1605A(a) also p

subject-matter jurisdiction over “third-party” (or “indirect”) 

brought by non-citizen family members (or representatives 

individuals) when authorized under “applicable state or loc

even though these individuals cannot invoke the federal c

action under § 1605A(c).339

The D.C. Circuit addressed this issue in Owens v. Rep

Sudan, noting that § 1605A(c)is restricted to “victims or their le

resentatives,” while § 1605A(a) applies to “the claimant or t

tim.”340 This difference in wording, it concluded, reflected c

sional intent to give the latter a broader scope than the forme

understood, § 1605A(c) is not exclusive. Section 1605A(a) “g

court jurisdiction to hear a claim brought by a third-party c

who is not the legal representative of a victim physically injur

terrorist attack.”341 Such claimants are not bound by the nat

337. Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 

(D.D.C. 2011).

338. 28 U.S.C. § 1605A(a)(2)(ii)(III) (2008).

339. See, e.g., Fraenkel v. Islamic Republic of Iran, 892 F.3d 348, 3

Cir. 2018).

340. 864 F.3d 751, 804–09 (D.C. Cir. 2017), petition for cert. docketed

1236 (Mar. 6, 2018). See also Fraenkel v. Islamic Republic of Iran, 892 F

353 (D.C. Cir. 2018).

341. Owens, 864 F.3d at 807.
106

requirements of § 1605A(a)(2)(A)(ii). Who may bring such a 

and for what, is therefore a matter of otherwise applicable sub

law. 

Most third-party claimants have been foreign national 

members of U.S.-citizen victims (not their “legal represent

seeking damages for intentional infliction of emotional distre

tium, and punitive damages.

3. Exclusivity

The FSIA is of course the exclusive basis for pursuing claims 

foreign states and their agencies and instrumentalities in U.S. 

The federal cause of action under § 1605A(c) is available exclus

individuals meeting the specified nationality requirements. H

the courts have had to address issues of exclusivity in severa

respects.

One question is whether the state-sponsored terrorism ex

provides the exclusive basis for bringing suits that fall within 

stantive scope. Initially, the Second Circuit answered in the affi

with respect to other FSIA provisions,so that if the conduct in q

constituted “terrorism” within the scope of the exception, then 

the FSIA’s other exceptions (such as the noncommercial tort 

tion) applied. In 2010, the court held that although the acts liste

terrorism exception are by definition “torts,” plaintiffs could no

their claims under § 1605(a)(5) if they properly fell under the te

exception, since to do so would “evade and frustrate that key 

tion” on the terrorism exception.342

 

342. In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 88–89 

2008), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 30

Similarly, the Fifth, Seventh, and Ninth Circuits also rejected attempts by 

tiff to “shoehorn” a claim properly brought under one exception into ano

de Sanchez v. Banco Central De Nicaragua, 770 F.2d 1385, 1398–99 

1985); Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 254 

1983); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1106 (9th Cir. 1
107

Subsequently, however, the Second Circuit took a differ

proach, holding that “the terrorism exception, rather than limi

jurisdiction conferred by the noncommercial tort exception, p

an additional basis for jurisdiction.”343 In so deciding, the court 

on the fact that in § 1605A(a)(1), Congress had expressly lim

exception to “any case not otherwise covered by [the FSIA],” m

that it was intended “to cover some injuries that the noncom

tort exception does not reach.”344

A second question is whether the availability of the federal c

action for specified claimants excludes the possibility for them 

recovery under state law. The answer appears to be yes: “For 

covered by the private right of action in § 1605A(c) state law cla

not actionable.”345

At the same time, non-citizen claimants are precluded fro

ceeding under § 1605A(c), although they “may continue to 

claims under applicable state and/or foreign law.”346

 

343. Doe v. Bin Laden, 663 F.3d 64, 70 (2d Cir. 2011). 

344. Id. at 70. The court acknowledged that its holding conflicted 

2010 decision, but said that the panel in that earlier case had been presen

sparse and one-sided argument on this point in the context of a very l

complex case that focused on other aspects of the FSIA.” Id. at n.10. See 

Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109 (2d Cir. 2013).

345. Fraenkel v. Islamic Republic of Iran, 248 F. Supp. 3d 21, 34 

2017); cf. Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53, 66 (D.D.

(“state law no longer controls the nature of the liability and damages tha

sought . . .; Congress has provided the ‘specific source of law’ for recover

v. Republic of Sudan, 672 F. Supp. 2d 726 (E.D. Va. 2009), aff’d, 410 F. A

(4th Cir. 2011) (holding, in a case arising from the bombing of the U.S.S

October 2000, that the federal Death on the High Seas Act provided plain

clusive cause of action and precluded reliance on state law as well as § 16

346. Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 153 (D.D.

(non-U.S.-citizen family members of foreign national employees of the 

bassy in Beirut who were killed or injured in terrorist attacks lacked a fede

of action under § 1605A).
108

4. Applicable law/choice of law

The existence of a federal cause of action under § 1605A(c)347 d

resolve the applicable law problem, however, since the statute p

no guidance on the substantive bases for liability in determinin

tiffs’ entitlement to damages. By definition, the same question a

third-party or derivative claims with respect to not only dama

also causes of action.

“Choice of law” questions are not determined by the FSIA it

(by operation of § 1606) must instead be determined with refer

the law of the forum (or the law of the place where the attac

place).

348 Consequently, courts have applied “general principle

law,” such as those articulated in the Restatement (Second) of T

determine liability for personal injury or death resulting fro

caused by the designated state sponsor or its officials, emplo

agents, as well as entitlement to pain and suffering, economic da

solatium, and punitive damages.

349

 

347. In establishing a private right of action and in specifying the 

that may be claimed, the amended provisions were intended to resolve t

created by Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D

2004) (holding that neither § 1605(a)(7) nor the Flatow Amendment, no

taken in tandem, created a private right of action against a foreign gove

and Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) (holding that 

could not state a right of action under the “generic common law” or mere

“to the traditional torts . . . in their generic form” but must identify a “p

cause of action arising out of a specific source of law”). See, e.g., the disc

Leibovitch v. Islamic Republic of Iran, 697 F.3d 561 (7th Cir. 2012).

348. Fraenkel, 248 F. Supp. 3d at 38–40; Thuneibat v. Syrian Arab R

167 F. Supp. 3d 22, 41–47 (D.D.C. 2016); Leibovitch v. Syrian Arab Rep

F. Supp. 3d 1071 (N.D. Ill. 2014).

349. Akins v. Islamic Republic of Iran, No. 17-675 (BAH), 2018 WL 

at *20 (D.D.C. Sept. 10, 2018); Roth v. Islamic Republic of Iran, 78 F. 

379, 399 (D.D.C. 2015) (citing Oveissi v. Islamic Republic of Iran, 879 F. 

44, 54 (D.D.C. 2012)).
109

5. Statute of limitations

Under § 1605A(b), suits under § 1605A are subject to a ten-ye

tations period: they must be brought or maintained no later t

years after the date on which the cause of action arose or after A

1996, whichever is later. This latter provision represented a sig

change from the previous version of the exception, under w

number of cases were dismissed because they had been filed a

ten-year period following the acts in question.350

6. Default

In the vast majority of state-sponsored terrorism cases brough

§ 1605A, neither the foreign state nor the individuals named as 

dants appear or answer. However, because jurisdiction under th

depends on a determination that the defendants in such cases 

entitled to immunity, the court must nonetheless determine w

the case falls within the terms of the exception and that the de

is not entitled to immunity.

Moreover, entry of default is not automatic. Section 1608

vides that a default judgment can be entered against a foreign st

after the plaintiff“establishes his claim or right to relief by evide

is satisfactory to the court.” This provision imposes an “affirma

ligation” on the court to determine whether it has subject-matt

diction.351 In making that determination, the court may not sim

cept the plaintiff’s unsupported allegations, but must conduct 

inquiry before entering judgment.352 It may accept as true un

verted evidence offered by the plaintiff and may take judicial n

 

350. See, e.g., Maalouf v. Islamic Republic of Iran, 306 F. Supp. 3d 203 

2018).

351. Sheikh v. Republic of Sudan, 308 F. Supp. 3d 46 (D.D.C. 2018); 

v. Islamic Republic of Iran, 248 F. Supp. 3d 21, 32 (D.D.C. 2017) (plain

present a legally sufficient prima facie case); Cohen v. Islamic Republic 

238 F. Supp. 3d 71 (D.D.C. 2017); Thuneibat v. Syrian Arab Republic, 167 

3d 22 (D.D.C. 2016).

352. Stansell v. Republic of Cuba, 217 F. Supp. 3d 320 (D.D.C. 2016)

v. Islamic Republic of Iran, 77 F. Supp. 3d 57 (D.D.C. 2015).
110

court records in related proceedings.353 Several recent decisio

addressed when and to what extent a court may take judicial n

prior findings of fact in related proceedings before the same co

7. Discovery

Since default is the norm, discovery requests directed to the defe

do not typically pose problems in terrorism cases. Regarding di

requests directed to the U.S. government, the special rules set 

§ 1605(g) remain applicable. That provision requires the cour

request of the U.S. Attorney General, to stay 

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

Attorney General certifies would significantly interfere with a crimina

vestigation or prosecution, or a national security operation, related to 

incident that gave rise to the cause of action, until such time as the Atto

General advises the court that such request, demand, or order will no lo

so interfere.

In addition to various time limits and other limi

§ 1605(g)(4) provides that “a stay of discovery under this sub

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

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

C. Main Elements of a Claim Under § 1605A

The following sections outline the main requirements of 

brought under § 1605A.

1. Designated state sponsor of terrorism

At the time of (or as a result of) the act of torture, extrajudicial 

aircraft sabotage, hostage taking, or the provision of material 

or resources in question, the Secretary of State must have forma

ignated the foreign state as a government that has “repeatedly p

 

353. Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24 (D.D.C

Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1 (D.D.C. 2011). 

354. E.g., Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186 (D.D.

Flanagan v. Islamic Republic of Iran, 87 F. Supp. 3d 93 (D.D.C. 2015)

Islamic Republic of Iran, 78 F. Supp. 3d 379 (D.D.C. 2015).
111

support for acts of international terrorism” pursuant to § 6(j) of 

port Administration Act of 1979, § 620A of the Foreign Assista

of 1961, § 40 of the Arms Export Control Act, or any other r

provision of law.

355

The list of designated state sponsors of terrorism is publis

April 30 of each year. If the foreign state is not on the list at the 

the act or acts in question (or as a result of them), the terrorism 

tion does not apply.356 As of November 2018, four countries w

the list: The Democratic Peoples’ Republic of Korea, Iran, Sud

Syria.

357

The removal of a state from the list of designated state sp

does not automatically result in the termination of pending li

against that state, but such termination can be accomplished 

tively. Following the overthrow of Saddam Hussein, for instanc

gress passed legislation that permitted the President to make 

rorism exception to immunity under former § 1605(a)(7) inap

to Iraq, depriving the courts of jurisdiction over then-pending 

In Republic of Iraq v. Beaty,

358 the U.S. Supreme Court uph

President’s exercise of this authority: “When the President ex

his authority to make inapplicable to Iraq all provisions of law 

ply to countries that have supported terrorism, the exception to 

sovereign immunity for state sponsors of terrorism became inop

as against Iraq.”359

 

355. 28 U.S.C. § 1605A(h)(6) (2008). See also 28 U.S.C. § 1605A(a)(

(II) (2008) (if the action is a “related” or “prior” action, the foreign state m

been designated as a state sponsor of terrorism when the original actio

related action was filed).

356. 28 U.S.C. § 1605A(a)(2)(A)(i)(I) (2008).

357. See U.S. Department of State, State Sponsors of Terrorism, http

state.gov/j/ct/list/c14151.htm. 

358. 556 U.S. 848 (2009), upholding Pres. Determ. No. 2003-23, 68 F

26459 (May 7, 2003), under sections 1503 and 1504 of the Emergency 

Supplemental Act of 2003, Pub. L. No. 108–11, 117 Stat 559.

359. 556 U.S. at 866. In so doing, the Court overruled several lowe

See, e.g., Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 78 (D.D.C. 2006

acts in question occurred while the defendant was designated as a state sp
112

2. Listed acts 

Under § 1605A(a)(1), the plaintiff must sufficiently allege that 

the following specified acts has been committed: “an act of tort

trajudicial killing, aircraft sabotage, hostage taking, or the prov

material support or resources for such an act.”

a. Torture

For purposes of § 1605A, “torture” has the meaning given to th

in section 3 of the Torture Victim Protection Act of 1991:

Torture means any act, directed against an individual in the offender’s 

tody or physical control, by which severe pain or suffering (other than 

or suffering arising only from or inherent in, or incidental to, lawful s

tions), whether physical or mental, is intentionally inflicted on that ind

ual for such purposes as obtaining from that individual or a third pe

information or a confession, punishing that individual for an act that i

vidual or a third person has committed or is suspected of having commi

intimidating or coercing that individual or a third person, or for any re

based on discrimination of any kind.360

One of the most important elements of this definition is its 

requirement. Courts must examine the “degree of pain and su

that the alleged torturer intended to, and actually did, inflict u

victim.”361 The purpose is to ensure that the conduct proscribed 

1984 United Nations Convention Against Torture362 and the T

 

terrorism, and the Presidential Determination [removing Libya from the 

not divest the court of jurisdiction over the case.”); Fisher v. Great Socia

ple’s Libyan Arab Jamahiriya, 541 F. Supp. 2d 46, 51–52 (D.D.C. 2008).

360. 28 U.S.C. § 1605A(h)(7) (2008). The Torture Victim Protectio

1991, § 3(b)(1), Pub. L. No. 102-256, 106 Stat. 73, is codified at 28 U.S.C

note (1992).

361. Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 8

(D.C. Cir. 2002).

362. United Nations Convention Against Torture and Other Cruel, I

or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No

(1988), 1465 U.N.T.S. 85 (in force for the United States, Nov. 20, 1994).
113

Victim Protection Act is “sufficiently extreme and outrageous 

rant the universal condemnation that the term ‘torture’ both co

and invokes.”363

This examination will typically require a factual inquiry. 

court in Price v. Socialist People’s Libyan Arab Jamahiriya poin

torture does not automatically result whenever an individual 

tody is the subject of physical assault.364 However, deprivation 

quate food, light, toilet facilities, and medical care over a prolon

riod of captivity has been found to meet the statutory requirem

b. Extrajudicial killing

The term “extrajudicial killing” also has the meaning given in t

ture Victim Protection Act, namely, “a deliberate killing not aut

by a previous judgment pronounced by a regularly constitute

affording all the judicial guarantees which are recognized as in

sable by civilized peoples.”366An assassination qualifies.367

In Campuzano v. Islamic Republic of Iran, the U.S. Distric

for the District of Columbia held that suicide bombings resultin

jury to the plaintiffs constituted extrajudicial killings within th

 

363. Price, 294 F.3d at 92.

364. Id. at 93 (“Not all police brutality, not every instance of excess

used against prisoners, is torture under the FSIA.”). See also Han Kim v

cratic People’s Republic of Korea, 774 F.3d 1044, 1050 (D.C. Cir. 20

qualify as torture, the mistreatment must be purposeful . . . .”); Hekmati v

Republic of Iran, 278 F. Supp. 3d 145, 159–61 (D.D.C. 2017) (defin

torture).

365. See, e.g., Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27, 32 

2001), aff’d sub nom. Bettis v. Islamic Republic of Iran, 315 F.3d 325 (D

2003); Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27 (D.D

(The court found that the “deprivation of adequate food, light, toilet facil

medical care for over six years amounts to torture . . . .”).

366. 28 U.S.C. § 1605A(h)(7) (2008); Torture Victim Protection Act 

§ 3(a). See Owens v. Republic of Sudan, 864 F.3d 751 (D.C. Cir. 2017), cert

docketed, Mar. 6, 2018.

367. Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 107 (D.D.
114

of the state-sponsored terrorism exception.368 However, in W

Syrian Arab Republic, an extrajudicial killing claim did not 

when two soldiers, unknown and unrelated to the plaintiffs, wer

while attempting to rescue the plaintiff-hostages.369 The Wya

distinguished Campuzano by pointing out that the death of the 

in Wyatt caused no physical injury to the plaintiffs, whereas th

puzano suicide bombs physically injured the plaintiffs.

370

More recently, in Owens, the D.C. Circuit rejected the ar

that for purposes of § 1605A an extrajudicial killing may only b

mitted by a “state actor.”371 In Gill v. Islamic Republic of Iran, the 

court found that an attempted extrajudicial killing falls within t

utory definition “even if no one died as a result of that attempt.

c. Aircraft sabotage

The statute defines “aircraft sabotage” by reference to Article 

1971 Convention for the Suppression of Unlawful Acts Aga

Safety of Civil Aviation, commonly referred to as the Montre

vention.373Under that article, a person commits an offense if h

unlawfully and intentionally: 

(a) performs an act of violence against a person on board an aircraft in f

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 w

renders it incapable of flight or which is likely to endanger its safety in fl

 

368. 281 F. Supp. 2d 258, 269–70 (D.D.C. 2003); cf. Flanagan v. Re

Iran, 190 F. Supp. 3d 138 (D.D.C. 2016) (bombing of U.S.S. Cole).

369. 362 F. Supp. 2d 103, 111–12 (D.D.C. 2005).

370. Id. at 112.

371. Owens v. Republic of Sudan, 864 F.3d 751, 771–72 (D.C. Cir. 20

petition docketed, Mar. 6, 2018.

372. Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88 (D.D.C. 20

v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 83–85 (D.D.C. 2018).

373. 28 U.S.C. § 1605A(h)(1). Convention for the Suppression of U

Acts Against the Safety of Civil Aviation [hereinafter Montreal Conventio

23, 1971, 974 U.N.T.S. 178, 24 U.S.T. 564, T.I.A.S. No. 7570. The offenses 

ified at 18 U.S.C. § 32(a)(3) & (6) (2006).
115

(c) places or causes to be placed on an aircraft in service, by any m

whatsoever, a device or substance which is likely to destroy that aircraf

to cause damage to it which renders it incapable of flight, or to cause dam

to it which is likely to endanger its safety in flight;

(d) destroys or damages air navigation facilities or interferes with their 

eration, if any such act is likely to endanger the safety of aircraft in fligh

(e) communicates information which he knows to be false, thereby en

gering the safety of an aircraft in flight.374

A person also commits an offense if he or she (a) attempts to 

any of the offenses mentioned above or (b) is an accomplice of a 

who commits or attempts such an offense.

Aircraft sabotage claims were sustained in Pugh v. Socialist 

Libyan Arab Jamahiriya375 and Rein v. Socialist People’s Libya

Jamahiriya.

376 In Pugh, claims were brought on behalf of seven 

can citizens killed on September 19, 1989, when UTA Flight 

route from Brazzaville to Paris, exploded in mid-air over south

Niger, killing all aboard. Rein involved claims by the survivors a

resentatives of persons killed aboard Pan Am Flight 103 above 

bie, Scotland.

d. Hostage taking

The statute adopts the definition of “hostage taking” used in A

of the International Convention Against the Taking of Hosta

cording to which hostage taking occurs when a person “seize

tains and threatens to kill, to injure or to continue to detain 

person . . . in order to compel a third party . . . to do or absta

doing any act as an explicit or implicit condition for the releas

hostage.”377

 

374. Montreal Convention, at 1.

375. 290 F. Supp. 2d 54 (D.D.C. 2003).

376. 995 F. Supp. 325 (E.D.N.Y. 1998), aff’d in part, 162 F.3d 748 

1998).

377. 28 U.S.C. § 1605A(h)(2); International Convention Against th

of Hostages, G.A. Res. 146 (XXXIV), U.N. GAOR, 34th Sess., Supp. No. 

Doc. A/34/45, at 245 (June 3, 1983), 1316 U.N.T.S. 205, T.I.A.S. No. 1108

1456 (entered into force for the United States Jan. 6, 1985).
116

An essential element of this claim is that the “intended pur

the detention be to accomplish the sort of third-party compuls

scribed in the convention.”378 For instance, in Price v. Socialist P

Libyan Arab Jamahiriya, this compulsion element was not s

when the detention of the plaintiffs was undertaken to “expres

port for illegal behavior” rather than to compel a third party to 

Additionally, because the definition of “hostage taking” foc

the state of mind of the individual detaining the hostages, it is n

essary for the hostage-taker to communicate his or her intend

pose to a third party in order for the element to be fulfilled.380

e. Material support or resources

This statutory element incorporates the broad meaning given 

term “material support or resources” in the Anti-Terrorism Ac

cently amended by JASTA), which lists various types of supp

cluding “any property, tangible or intangible, or service, includ

rency or monetary instruments or financial securities, fi

services, lodging, training, expert advice or assistance, safe hous

documentation or identification, communications equipment

ties, weapons, lethal substances, explosives, personnel . . ., and 

portation, except medicine or religious materials.”381 A plaint

satisfy this requirement by identifying conduct by the defend

falls within the “meaning of any one of these listed forms of m

support.”382

Evidence that a foreign state has provided financial, techn

gistical, and other material support and resources to terrorist 

for the purpose of carrying out any of the above listed types of 

 

378. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 

(D.C. Cir. 2003).

379. 294 F.3d 82, 94 (D.C. Cir. 2002).

380. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 

(D.C. Cir. 2006); Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 4

(D.D.C. 2018).

381. 28 U.S.C. § 1605A(h)(3), referring to 18 U.S.C. § 2339A(b)(1).

382. Rux v. Republic of Sudan, 461 F.3d 461, 470 (4th Cir. 2006). 
117

is sufficient.383 It is important to note that it is not necessary 

material support to have directly contributed to the specific ac

which the claims arose.384 However, at least one of the acts liste

must occur as a result of the material support in order for the te

exception to apply.385

3. Scope of authority

The private right of action provided by § 1605A recognizes th

the foreign state itself and any official, employee, or agent of th

can be held liable for personal injury or death resulting from an

enumerated acts specified by the statute.386 The acts must hav

committed by the official, employee, or agent “while acting wit

scope of his or her office, employment or agency.” The statute ex

makes the foreign state “vicariously liable for the acts of its o

employees, or agents.”387

Whether the specific acts in question fall within “the scope 

fendant’s office, employment, or agency” appears to be addres

factual question. In Rux v. Republic of Sudan, for example, the 

Circuit found that plaintiffs had “easily” satisfied this requirem

alleging that Sudanese President Bashir had authorized Al-Qa

eratives to enter Sudan and had given Al-Qaeda special auth

 

383. See, e.g., Beer v. Islamic Republic of Iran, No. 08-cv-1807 (RC

WL 5105174, at *11–12 (D.D.C. Dec. 9, 2010).

384. Valencia v. Islamic Republic of Iran, 774 F. Supp. 2d 1 (D.D.C. 

385. “To determine whether a defendant sovereign has provided 

support to terrorism, courts consider first, whether a particular terrori

committed the terrorist act and second, whether the defendant foreign s

erally provided material support or resources to the terrorist organizatio

contributed to its ability to carry out the terrorist act.” Fraenkel v. Islami

lic of Iran, 248 F. Supp. 3d 21, 36 (D.D.C. 2017), aff’d in part, 892 F.3d 3

Cir. 2018).

386. 28 U.S.C. § 1605A(c) (2008). This distinguishes the terrorism e

from the other exceptions in the FSIA, since the Supreme Court held, in S

v. Yousuf, 560 U.S. 305, 324–25 (2010), that the statute does not apply to 

uals.

387. 28 U.S.C. § 1605A(c) (2010).
118

avoid paying taxes and duties.388 Bashir, the court said, was cle

official, employee, or agent” of Sudan by virtue of his elected p

and his alleged actions fell “within the scope of his . . . office, e

ment, or agency” because each involved the exercise of the gove

tal authority vested in the office of president by Sudan’s constitu

The court also acknowledged other actions that involved govern

officials acting within the scope of their offices, including usin

matic pouches, allowing the “establishment and operation of t

training camps, and establishing financial joint ventures betw

dan and Al-Qaeda.”390

In Taylor v. Islamic Republic of Iran, which arose from the b

of the U.S. Marine barracks in Beirut, the court determined th

had been “directly tied to the actions undertaken by the mem

Hezbollah” and played a “crucial and necessary role in plann

ordering” the attack.391

4. Causation

Causation is both a jurisdictional requirement and an elemen

substantive claim under the state-sponsored terrorism provisio

its predecessor, § 1605A(a)(1) states that the injury or death mu

been “caused by” one of the listed acts (and that such act was “e

in by an official, employee, or agent of such foreign state whil

within the scope of his or her office, employment, or agency”). 

not, however, provide a specific standard.

Accordingly, the courts have looked to traditional tort pr

from state law and the Restatement (Second) of Torts.

392 Both t

and Fourth Circuits have rejected a “but for” interpretation 

 

388. 461 F.3d 461, 472 (4th Cir. 2006).

389. Id. at 471.

390. Id. at 472 n.5.

391. 811 F. Supp. 2d 1, 9–10 (D.D.C. 2011). 

392. See, e.g., Stansell v. Republic of Cuba, 217 F. Supp. 3d 320 (D.D.

Thuniebat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 47–49 (D.D.C. 201

v. Islamic Republic of Iran, 203 F. Supp. 3d 1 (D.D.C. 2016).
119

“caused by” language found in both § 1605(a)(7) and § 1605A 

of “proximate cause” or “reasonable connection.”393

In Kilburn v. Socialist People’s Libyan Arab Jamahiriya, th

Circuit distinguished the issue of jurisdictional causation un

state-sponsored terrorism exception from the proof necessary 

vail on a substantive cause of action.394 With regard to the firs

which may arise on a motion to dismiss, the court of appeals s

proximate cause exists so long as there is “some reasonable con

between the act or omission of the defendant and the damage

the plaintiff has suffered.”395

According to one court, this “traditional test” contains two s

elements: (1) the defendant’s conduct “must be a ‘substantial fa

the sequence of events that led to the plaintiff’s injury” and 

plaintiff’s injury “must have been reasonably foreseeable or anti

as a natural consequence of”the defendant’s actions.396 The pro

cause requirement, it said, is designed “to preclude liability i

tions where the causal link between conduct and result is so atte

that the consequence is more aptly described as mere fortuity.”

In Rux v. Republic of Sudan, which involved claims agains

by the relatives of seventeen U.S. sailors killed in the terrorist b

of the U.S.S. Cole, the Fourth Circuit found the allegations suffi

 

393. Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.

1127–28 (D.C. Cir. 2004) (court considered extensively the question of u

for” versus “proximate cause” for the causation standard); accord, Rux v. 

of Sudan, 461 F.3d 461, 472 (4th Cir. 2006). See also Roth v. Syrian Arab R

Civ. No. 1:14-cv-01946-RCL, 2018 WL 4680270 (D.D.C. Sept. 28, 2018); 

Syrian Arab Republic, 736 F. Supp. 2d 106 (D.D.C. 2010) (proximate cau

394. 376 F.3d 1123, 1127–29 (D.C. Cir. 2004).

395. Id. at 1128–29 (citing Prosser & Keeton on the Law of Torts 263 

1984)). The courtreaffirmed this position (and rejected a “specific intent” 

ment) in Owens v. Republic of Sudan, 864 F.3d 751, 794–99 (D.C. Cir. 20

petition docketed, April 10, 2018.

396. In re Terrorist Attacks on Sept. 11, 2001, 298 Supp. 3d 631, 646 (

2018).

397. Id. at 646, citing Paroline v. United States, 572 U.S. 464 (2014).
120

satisfy jurisdictional causation.398The plaintiffs alleged that Sud

provided “material support or resources” to the al-Qaeda op

who planned the attack; Sudan challenged the sufficiency of the 

allegations. The court said that the statute only required the p

to allege facts “sufficient to establish a reasonable connection b

a country’s provision of material support to a terrorist organ

and the damage arising out of a terrorist attack.”399 It noted tha

jurisdictional stage, the “proximate cause” standard “serves sim

ously to weed out the most insubstantial cases without posing t

a hurdle to surmount at a threshold stage of the litigation.”400

In Miango v. Democratic Republic of Congo, the court not

while § 1608(e) governing default judgments is silent on da

the D.C. Circuit has held that “a FSIA default winner mus

damages ‘in the same manner and to the same extent’ as an

default winner.”401 Accordingly, a plaintiff may recover dama

past economic losses if such losses are “reasonably proved,

plaintiff may recover damages for future harm if the plaintiff 

that the projected consequences are “‘reasonably certain’ (i.e

likely than not) to occur” and proves “the amount of damages b

sonable estimate.’”402

Additional discussion of theories of recovery for wrongfu

survival, and intentional infliction of emotional distress can b

in Beer v. Islamic Republic of Iran.

403

 

398. 461 F.3d 461 (4th Cir. 2006).

399. Id. at 473. This decision applied § 1605(a)(7).

400. Id.

401. 288 F. Supp. 3d 117, 128 (D.D.C. 2018) (quoting Hill v. Republi

328 F.3d 680, 683–84 (D.C. Cir. 2003)).

402. 288 F. Supp. 3d at 128.

403. No. 08-cv-1807 (RCL), 2010 WL 5105174, at *11–12 (D.D.C

2010). For a discussion of causation under the civil-remedy provisions of t

Terrorism Act, 18 U.S.C. § 2333(a), see Gill v. Arab Bank, PLC, 893 F. 

474, 507–08 (E.D.N.Y. 2012).
121

5. Personal injury or death 

Section 1605A(a)(1) does not specifically state the elements r

for establishing “personal injury or death.” In interpreting the 

sions, courts have looked to “general principles of tort law,” in

the Restatement (Second) of Torts, as a “proxy for state co

law.”404 Courts accordingly describe the harm to plaintiffs 

stituting such torts as assault, battery, and intentional infliction 

tional distress. 

As the Valore court stated, “The FSIA does not restrict the p

injury or death element to injury or death suffered directly 

claimant; instead, such injury or death must merely be the bases 

a claim for which money damages are sought.”405 The court th

found claims were permissible not only for the deaths of the 2

vicemen killed in the attack on the Marine barracks in Beirut 

physical injuries suffered by those who survived the attack, but 

“emotional and financial injury to survivors, decedents, decede

tates, and decedent’s family members.”406

6. Opportunity to arbitrate 

When the act or acts in question took place in the foreign state

tory, the government in question must be given an opportunit

bitrate the claim before its immunity can be removed under 

 

404. Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2

also Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48 

2011); Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20, 24 (D.D.

(Heiser II) (noting that the application of general principles of tort la

approach that in effect looks no different from one that explicitly applie

common law” but “because these actions arise solely from statutory rig

are not in theory matters of federal common law”).

405. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.

406. Id. Under § 1605A(c), the estates of covered individuals are pe

plaintiffs. “[S]ection 1605A(a)(1) does not require that the injury to a pla

sult from the actual ‘extrajudicial killing,’ but rather from an ‘act of extr

killing.’ A deadly terrorist act, taken as a whole, clearly constitutes an ‘a

trajudicial killing.” Calderon-Cardona v. Democratic People’s Republic o

723 F. Supp. 2d 441, 459 (D.P.R. 2010). 
122

1605A.

407 In effect, the arbitration provision operates as a type 

haustion of remedies” requirement, giving the foreign state an 

tion alternative to litigation in U.S. courts. To date, no state spo

terrorism has agreed to such arbitration.

Nonetheless, the statutory requirement must be satisfie

court found it sufficient that the plaintiff had mailed to the forei

an offer to arbitrate subject to certain conditions. The condit

cluded demands that arbitration would be “conducted ‘by a thir

organization with extensive experience in arbitrating internatio

putes’ and that the arbitration would ‘not require [the plainti

sence from the United States.’”408 Notably, the plaintiff did not 

make the offer to arbitrate prior to the filing of the compliant.40

If the terrorist act in question occurred outside the defenda

the arbitration requirement does not apply.410

7. Damages 

The terrorism exception only provides for money damages. Al

section 1606 of the FSIA generally prohibits the award or reco

punitive or noncompensatory damages against foreign states (

their agencies or instrumentalities), § 1605A(c)(4) explicitly 

such damage awards. It provides that money damages against 

states as well as their officials, employees, and agents may 

“economic damages, solatium, pain and suffering, and p

damages.”411

 

407. 28 U.S.C. § 1605A(a)(2)(A)(iii) (2010). See Daliberti v. Republi

97 F. Supp. 2d 38, 44 (D.D.C. 2000) (act occurred inside Iraq and the 

properly offered to arbitrate).

408. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 

(D.C. Cir. 2003).

409. Id. at 233.

410. See Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1123 

2010); Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51 (D.D.C. 20

411. See Roth v. Syrian Arab Republic, Civ. No. 1:14-cv-01946-RCL, 

4680270 (D.D.C. Sept. 28, 2018). Survivors of an attack may recover co

tory damages for pain and suffering; family members may recover sola

emotional injury.
123

While § 1605A(a) provides a federal “cause of action,” it d

specify criteria for determining the amount of damages. Acco

the courts have looked to general principles of tort law.412The U

trict Court for the District of Columbia has adopted a standard

proach for calculating various categories of damages in stat

sored terrorism cases.413

Punitive damages are awarded both to punish defendants 

deter future terrorist acts. In calculating those damages, cour

generally looked to four factors: 

1. the character of the defendants’ act;

2. the nature and extent of harm to the plaintiffs;

3. the need for deterrence; and 

4. the wealth of the defendants.

414

Some courts impose a fixed amount, some apply a “multiplier

defendants’ annual expenditure on terrorism, and some calcu

award based on a ratio between the compensatory damages and 

nitive damages.415

In Beer v. Islamic Republic of Iran, then-Chief Judge Lamber

uated and sustained the “Flatow Method” in light of recent U

preme Court decisions.416 His decision in large part rested on d

nations that foreign states do not enjoy the same “due p

protections as individuals do under the U.S. Constitution.

417

 

412. Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64 (D.D.C. 2

413. See Fain v. Islamic Republic of Iran, 885 F. Supp. 2d 78 (D.D.C. 

414. Bluth v. Islamic Republic of Iran, 203 F. Supp. 3d 1 (D.D.C. 201

niebat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 53–54 (D.D.C. 2016)

v. Republic of Sudan, 60 F. Supp. 3d 84, 92 (D.D.C. 2014).

415. See, e.g., Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71 

2017).

416. 789 F. Supp. 2d 14, 18 (D.D.C. 2011) (“In awarding damages f

passage of the NDAA, courts have generally identified the Flatow Meth

procedure that best serves the retribution and deterrence interests that C

sought to promote in enacting the 2008 Amendments.”); cf. Braun v. Isl

public of Iran, 228 F. Supp. 3d 64 (D.D.C. 2017).

417. Beer, 789 F. Supp. 2d at 20–22.
124

Since the same terrorist incident may give rise to multiple 

under § 1605A, it is possible that a given defendant might be su

multiple punitive damage awards for the same conduct. This p

ity was addressed in Murphy v. Islamic Republic of Iran, where th

expressed concern about “over-punishing the same conduct t

repeated [punitive damage] awards with little additional deter

fect” but concluded that “when punitive damages are personal t

tiffs in a given case, they are not necessarily excessive when awa

a subsequent case, even arising out of the same fact, if the sub

case involves different plaintiffs.”418

In Owens, the D.C. Circuit held that although § 1605A(c) o

retroactively in the sense that the cause of action applies to pre

ment conduct, it does not authorize the award of punitive dam

such conduct.419

8. Application of § 1605A to prior suits

Cases filed after the effective date of the statute (January 28, 200

of course be considered on that basis alone. However, § 1605A 

tended to have at least some retroactive effect. The specific pro

are complicated.

420

If a party had filed a claim, but did not obtain relief under t

vious statute (§ 1605(a)(7)), the party could claim the benefits 

§ 1605A by filing a motion to convert its pending case to a new 

under § 1605A.

421 These have been called “prior actions.” The d

 

418. 740 F. Supp. 2d 51, 81–82 (D.D.C. 2010).

419. Owens v. Republic of Sudan, 864 F.3d 751, 812–17 (D.C. Cir. 2

lying on Landgraf v. USI Film Prods., 511 U.S. 244 (1994). The same co

was reached for punitive damages under state law.

420. For a comprehensive review, see In re Islamic Republic of Iran T

Litigation, 659 F. Supp. 2d 31 (D.D.C. 2009). See also Simon v. Republi

529 F.3d 1187, 1191 (D.C. Cir. 2008), rev’d on other grounds sub nom. Re

Iraq v. Beaty, 556 U.S. 848 (2009) (“[T]he new terrorism exception in § 1

its terms does not provide a substitute basis for jurisdiction over all cases 

under § 1605(a)(7) when § 1605A replaced it.”).

421. Section 1083(c)(2) of the National Defense Authorization Act 

Year 2008, Pub. L. No. 110–181, § 1083, 122 Stat. 3, defined a “prior actio
125

for filing them was sixty days after the effective date of the statu

is, March 28, 2008.

Alternatively, plaintiffs whose actions had been timely comm

under the prior statute and were pending or had gone to ju

when the new provision went into effect were permitted to refil

§ 1605A under certain circumstances. These suits were termed 

actions.”422 Plaintiffs relying on this provision must have sou

benefits of the new statute not later than sixty days after the dat

entry of judgment in the original action or January 28, 2008, wh

was later.423

The extent to which a court may take judicial notice of pri

ings of fact in related proceedings before the same court has b

dressed in several decisions. In Oveissi v. Islamic Republic of I

example, then-Chief Judge Lamberth said that “a FSIA court m

judicial notice of related proceedings and records in cases be

same court.’”424

 

in which the action (a) was brought under § 1605(a)(7) before January 

(b) relied upon § 1605(a)(7) as creating a cause of action; (c) was adversely 

on the grounds that the provision failed to create a cause of action ag

state; and (d) as of January 28, 2008, was before the courts in “any form.” 

422. § 1083(c)(3). A related action is any “action arising out of the 

or incident” that was timely commenced under § 1605(a)(7). See genera

of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1 (D.D.C. 2011).

423. § 1083(c)(3). Taylor v. Islamic Republic of Iran, 811 F. Supp. 2d 1 

2011), provides an example of a related action. For a comprehensive revi

issues, see In re Islamic Republic of Iran Terrorism Litigation, 659 F. Sup

(D.D.C. 2009) (no res judicata effect for prior actions). See also Simon v. 

of Iraq, 529 F.3d 1187, 1191 (D.C. Cir. 2008), rev’d sub nom. Republic o

Beaty, 556 U.S. 848 (2009).

424. 879 F. Supp. 2d 44, 49 (D.D.C. 2012) (quoting Valore v. Islamic 

of Iran, 700 F. Supp. 2d 52, 59 (D.D.C. 2010)). See also Akins v. Islamic 

of Iran, No. 17-675 (BAH), 2018 WL 4308584 (D.D.C. Sept. 10, 2018)

Syrian Arab Republic, Civ. No. 1:14-cv-01946-RCL, 2018 WL 4680270 

Sept. 28, 2018); Shoham v. Islamic Republic of Iran, No. 12-cv-508 (RC

WL 2399454 (D.D.C. June 1, 2017).
126

9. Challenges to the legality of the exception 

Defendants have repeatedly argued that the terrorism exceptio

constitutional, and courts have repeatedly rejected the claims. In 

v. Syrian Arab Republic, for example, the court denied the defe

claim that the exception “‘exposes’ the final judgments of Ar

courts to potential rescission by the president and Congress, 

violating the separation of powers between the judicial and p

branches.”425

Defendants have also argued that the terrorism exception 

international law. The D.C. Circuit has rejected the contention 

exception violates the United Nations Charter by abrogating 

sovereign immunity for those states designated as sponsors of 

ism and thereby denies such states “equality with others in viol

Article 2.1 of the United Nations Charter.”426

In Gates v. Syrian Arab Republic, the court rejected the de

government’s claim that the executive branch’s designation of a 

a sponsor of terrorism, which constitutes a critical element of th

gation of sovereign immunity under the statute, inherently con

a non-justiciable “political question” under Baker v. Carr.

427

D. Execution of Judgments in § 1605A Cases

Many of the judgments rendered under the terrorism exceptio

been substantial, sometimes exceeding $100 million.

428 Most ha

 

425. 736 F. Supp. 2d 106, 113 (D.D.C. 2010). See also Wultz v. Islami

lic of Iran, No. 08-cv-1460 (RCL), 2010 WL 4190277, at *3 (D.D.C. Oct. 2

Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79 (D.D.C. 2009); Owe

public of Sudan, 531 F.3d 884 (D.C. Cir. 2008) (addressing claim that t

exception was an unconstitutional delegation of power). 

426. Wyatt v. Syrian Arab Republic, 266 F. App’x 1 (D.C. Cir. 2008)

427. 646 F. Supp. 2d at 87–88; Baker v. Carr, 369 U.S. 186 (1962).

428. E.g.,Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15, 31–32 

2008) ($300 million in punitive damages); Beer v. Islamic Republic of Ira

Supp. 2d 14, 26 (D.D.C. 2011) ($300 million in punitive damages); Wu

lamic Republic of Iran, 864 F. Supp. 2d 24, 42 (D.D.C. 2012) ($300 millio

nitive damages); Wyatt v. Syrian Arab Republic, 908 F. Supp. 2d 216, 233 

2012) ($300 million in punitive damages).
127

default judgments. And most have remained unsatisfied. Des

FSIA’s specific provisions concerning the enforcement of te

judgments against state sponsors, successful plaintiffs have ha

difficulty with actual execution.429 Problems result partly from 

strictive provisions of the law itself, but more generally from 

that designated state sponsors of terrorism have taken steps t

mize or eliminate any property or assets in the United States tha

be subject to execution.

In response, the FSIA has been amended several times with 

to judgments against state sponsors of terrorism, and several s

but related statutes have also been enacted. This section provid

scription of these developments and the specific issues relatin

enforcement of judgments rendered in cases brought under § 

These issues are discussed within the context of the FSIA’s broad

visions concerning attachment and execution of judgments 

foreign states and their agencies and instrumentalities, and in 

successive statutory amendments. With a changing legislative 

work (which has in turn stimulated various judicial interpret

this area of law remains complicated and continues to evolve.43

1. Generally

Under the FSIA, the property of a foreign state (including its a

and instrumentalities) in the United States is presumptively im

and the lack (or waiver) of immunity of the state from jurisdict

der the FSIA does not guarantee that a resulting judgment wil

 

429. See In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 

(D.D.C. 2009), where the court concluded that “civil litigation against Ir

the FSIA state sponsor of terrorism exception represents a failed policy

cases do not achieve justice for victims, are not sustainable, and threate

dermine the President’s foreign policy initiatives.” (To support this asser

court noted that at the time of the decision, there were $45 million of Ir

sets in the United States and over $10 billion in outstanding court judgm

430. See generally Restatement (Fourth) of Foreign Relations Law § 

porters’ Note 10 (Am. Law Inst. 2018).
128

forceable against the foreign state’s assets. This is true because t

ute provides broader immunity from execution than from juris

Under § 1609, even if a valid judgment has been entered, the p

of a foreign state (or its agencies and instrumentalities) rema

mune and can only be subject to attachment and execution as 

cally provided in §§ 1610 and 1611.

Accordingly, the burden remains on the judgment cred

demonstrate that specific property is subject to attachment or 

tion. Limited discovery may be allowed to aid in the execution o

ments against foreign state property, but only with regard to 

property believed to be subject to attachment.

431

2. Protected properties

Section 1610 sets out the rules regarding attachment and exe

and they are discussed in detail in this section. However, ad

limitations apply. Specifically, § 1611 exempts certain catego

property from those rules. These categories include

1. the property of international organizations that have be

ignated under the International Organizations Imm

Act;

432

2. the property of a foreign central bank held for its own a

(as well as funds held in the name of a central bank or m

authority);

433

 

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

asset discovery order incompatible with FSIA; plaintiffs must identify 

property subject to attachment and plausibly allege an exception to § 160

432. 28 U.S.C. § 1611(a) (1996) (not subject to “attachment or any 

dicial process impeding the disbursement of funds to, or on the order of, 

state as the result of an action brought in the courts of the United States 

States”). The International Organizations Immunities Act (IOIA), Dec. 

ch. 652, Title I, 59 Stat. 669, is codified at 22 U.S.C. § 288–288l. The list o

izations designated under the IOIA can be found at 22 U.S.C. § 288 note

433. 28 U.S.C. § 1611(b)(1).
129

3. property of a military character or used for a military act

and

4. in actions brought under § 302 of the Cuban Liberty an

ocratic Solidarity (LIBERTAD) Act of 1996, a facility or 

lation used by an accredited diplomatic mission for 

purposes.435

In addition, certain types of property are protected by the 

tion of other rules. For example, foreign embassies, consulat

other missions, along with their bank accounts, are generally im

and inviolable under the Vienna Conventions on Diplomatic R

and Consular Relations.436

3. Section 1610

When the state-sponsored terrorism exception to jurisdic

§ 1605(a)(7) was initially adopted in 1996, a parallel provision 

cluded regarding enforcement of judgments rendered under t

tion. Thus, § 1610(a)(7) was added to permit execution of jud

related to claims for which foreign states were no longer immun

the new provision, but it allowed execution only against prop

that state used for commercial purposes in the United States “

less of whether the property in question was involved with the 

 

434. 28 U.S.C. § 1611(b)(2).

435. 28 U.S.C. § 1611(c).

436. Under Article 22 of the 1961 Vienna Convention on Diploma

tions, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95 (entered into 

the United States Dec. 13, 1972), the premises of the mission are inviol

are (together with their furnishings and other property) immune from sea

uisition, attachment, or execution. More limited protections are provided 

sular premises and property under the 1963 Vienna Convention on Con

lations, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 (entered into 

the United States Dec. 24, 1969).
130

which the claim was based.”437 Under the amended § 1610(b)(2

erty in the United States of an agency or instrumentality of a 

state engaged in commercial activity in the United States was no 

entitled to immunity from execution, or attachment in aid of 

tion, upon a U.S. judgment relating to a claim for which that ag

instrumentality was not immune by virtue of §§ 1605(a)(7). T

true regardless of whether the property was “involved in the ac

which the claim was based at any time.

In addition, the 1996 amendments included a provision per

execution against frozen or diplomatic assets of state sponsors 

rorism. Section 1610(f)(1) provided that, notwithstanding an

provision of law, “any property with respect to which financia

actions are prohibited or regulated” under various statutory a

ties, including the Trading With the Enemy Act (TWEA) and 

ternational Emergency Economic Powers Act (IEEPA), wa

subject to execution to satisfy any judgment relating to a cl

which a foreign state or its agency or instrumentality was not im

under § 1605(a)(7).438 However, recognizing that such executio

 

437. Pub. L. No. 104-132, § 221(b), 110 Stat. 1214 (April 24, 1996). T

mercial property exception under § 1610(a)(7) only applies when the for

ereign itself engages in the relevant commercial activity. See Rubin v. Isl

public of Iran, 456 F. Supp. 2d 228, 234 (D. Mass. 2006).

438. Specifically, 28 U.S.C. § 1610(f)(1)(A) (2010) stated: 

Notwithstanding any other provision of law . . . any property with res

to which financial transactions are prohibited or regulated pursuant to 

tion 5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b)), sec

620(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2370(a)), sections 

and 203 of the International Emergency Economic Powers Act (50 U

1701–1702), or any other proclamation, order, regulation, or license is

pursuant thereto, shall be subject to execution or attachment in aid of ex

tion of any judgment relating to a claim for which a foreign state (inclu

any agency or instrumentality or [sic] such state) claiming such proper

not immune under § 1605(a)(7) (as in effect before the enactment of sec

1605A) or 1605A.

The introductory “notwithstanding any other provision of law” phrase w

mined to override any immunity provided in the FSIA but not other s
131

cause significant foreign policy issues, the amendments also ex

authorized the President, in the interests of national security, t

that provision, which he did right after it was enacted.439 

1610(f)(1) has never become operative.

4. Terrorism Risk Insurance Act (TRIA)

Despite these 1996 amendments, most plaintiffs with jud

against state sponsors of terrorism remained unable to obtain s

tion because (a) the states in question typically did not engage i

mercial activity in the United States and (b) any assets they mig

had in the United States were typically seized or frozen as a r

government sanctions. 

To overcome this hurdle, Congress subsequently enacted t

rorism Risk Insurance Act of 2002 (TRIA). TRIA created a tem

federal program of “shared public and private compensation 

sured losses resulting from acts of terrorism,” and (in § 201) spe

allowed for attachment and execution of terrorism judgments fo

pensatory damages against the “blocked assets of the terroris

(including those of its agencies and instrumentalities) which 

otherwise have been immune.440

 

regimes (such as the Cuban Assets Control Regulations) or state law. See, 

deron-Cardona v. JPMorgan Chase Bank, N.A., 867 F. Supp. 2d 389 (

2011).

439. 28 U.S.C. § 1610(f)(3); Pres. Determ. No. 99-1, 63 Fed. Reg. 59,2

21, 1998). See also Pres. Determ. No. 2001-03, 63 Fed. Reg. 66,483 (Oct. 2

440. Pub. L. No. 107-297, §§ 101(b) and 201(a), 116 Stat. 2322, 233

(codified at 28 U.S.C. § 1610 note). Specifically, § 201(a) stated: 

Notwithstanding any other provision of law, . . . in every case in whi

person has obtained a judgment against a terrorist party on a claim b

upon an act of terrorism, . . . the blocked assets of the terrorist party (inc

ing the blocked assets of any agency or instrumentality of that terrorist p

shall be subject to execution or attachment in aid of execution in ord

satisfy such judgment to the extent of any compensatory damages for w

such terrorist party has been adjudged liable.

See Jerez v. Republic of Cuba, 777 F. Supp. 2d 6 (D.D.C. 2011). TRIA’s 

tionality was upheld in Weinstein v. Islamic Republic of Iran, 609 F.3d 43 

2010), cert. denied sub nom. Bank Melli Iran New York Representative 
132

The simplicity of this formulation is misleading. Each of th

ments is further defined in the statute, the relevant provisio

subsequently been amended, and their application has been the 

of continuing judicial interpretation, making this (to say the 

challenging area to summarize.

TRIA defined the term “terrorist party” to mean “a terroris

rorist organization . . . or a foreign state designated as a state spo

terrorism.”441 Moreover, the enforcement of judgments provisi

applied in cases based on (a) an “act of terrorism” or (b) an 

which the terrorist party lacks immunity under § 1605(a)(7).44

are separate requirements. The term “act of terrorism” was 

somewhat confusingly to mean either (a) any act certified by th

tary of the Treasury, in conjunction with the Secretary of State 

Attorney General, as provided in § 102 of the statute443or (b) to 

tent not covered by the preceding clause, any terrorist activity 

within the definition of terrorist activities, excluding certain cl

aliens under the Immigration and Nationality Act (INA).

444 V

that fails to meet the criteria in one or the other definition d

qualify as an “act of terrorism” for TRIA purposes.445

Finally, TRIA defined the term “blocked assets” to include

tinent part, “any asset seized or frozen by the United States” un

 

Weinstein, 133 S. Ct. 21 (2012). Section 201(a) also created an independ

dictional basis for post-judgment execution and attachment proceeding

property held by an agency or instrumentality of a terrorist party eve

agency or instrumentality is not named in the judgment. See Kirschenbau

Fifth Ave. & Related Props., 830 F.3d 107, 132 (2d Cir. 2016).

441. Pub. L. No. 107-297, § 201(d)(4). “Terrorist organization” has th

ing specified in § 212(a)(3)(B)(vi) of the Immigration and Nationalit

U.S.C. § 1182(a)(3)(B)(vi). The “designation” must be one under § 6(j) o

port Administration Act of 1979 (now codified at 50 U.S.C. § 4605) or § 

the Foreign Assistance Act of 1961 (codified at 22 U.S.C. § 2371).

442. Pub. L. No. 107-297, § 201(a).

443. See TRIA § 102(1) (codified as a note to 15 U.S.C. § 6701).

444. Specifically, those under INA § 212(a)(3)(B)(iii) (codified at 

§ 1182(a)(3)(B)(iii)).

445. Jerez v. Republic of Cuba, 777 F. Supp. 2d 6, 29 (D.D.C. 2011).
133

authority of relevant sections of the Trading With the Ene

(TWEA) or the International Emergency Economic Powe

(IEEPA).

446 At the same time, it explicitly excluded property su

a license issued by the U.S. government under IEEPA or the 

Nations Participation Act.447

For several reasons, these TRIA provisions were less than e

Generally, determining whether particular assets are blocked r

reference to Office of Foreign Assets Control (OFAC) regulat

When they are blocked, transactions in those assets are prohibit

the assets may thus not be available to judgment creditors of stat

sors of terrorism regardless of any sovereign immunity shield

transactions have been licensed, the assets are “unblocked” to 

tent of the license and thus by definition outside of TRIA § 201

One purpose of TRIA, of course, was to override OFAC’s 

tions and permit attachment and execution even when no O

cense had been issued. In any event, few assets of state sponsor

rorism that could be blocked remain in the United States. Mo

TRIA excluded property used exclusively for diplomatic or c

 

446. § 201(d)(2)(A), 116 Stat. at 2339. The specific provisions are § 5

Trading With the Enemy Act (formerly 50 app. U.S.C.A. § 5(b), now 5

§ 4305(b)) and § 202 or 203 of the International Emergency Economic Po

(50 U.S.C.A. §§ 1701 and 1702).

447. § 201(d)(2)(B)(i). The UN Participation Act of 1945, 59 Stat. 61

ified at 22 U.S.C. § 287–287e-3.

448. Sanctions under TWEA and IEEPA are administered by the 

Foreign Assets Control (OFAC) in the U.S. Department of the Treasury. A 

description of OFAC, its authorities, and its functions can be f

http://www.treasury.gov/about/organizational-structure/offices/Pages/O

Foreign-Assets-Control.aspx.

449. Estate of Heiser v. Islamic Republic of Iran, 807 F. Supp. 2d 9 n.6 

2011) (Heiser III). In Weinstein v. Islamic Republic of Iran, 299 F. Supp. 

(S.D.N.Y. 2004), the court rejected the argument that the term “blocke

includes all assets “regulated” or “licensed” under IEEPA by OFAC. I

Morgan Chase Bank, N.A., 899 F.3d 152 (2d Cir. 2018), electronic funds 

initiated by foreign terrorist organizations and blocked pursuant to TR

held not subject to attachment and execution.
134

purposes and thus entitled to immunity and inviolability under 

enna Conventions.450 As a result, the practical impact of TR

limited.

5. Post-TRIA legislation

When the FSIA was further amended in 2008 to replace § 160

with § 1605A, additional modifications were made with res

judgments.451 The most important changes were made by adop

§ 1610(g), in which Congress further expanded the category o

erty subject to attachment for cases involving state sponsors.

The first major change was to eliminate (for judgment pu

the distinction between the state itself and its agencies or instru

ities. Thus, § 1610(g)(1) provides that both the property of a 

state against which a judgment is entered under § 1605A and th

erty of an agency or instrumentality of such a state (including “p

that is a separate juridical entity or is an interest held directly 

rectly in a separate juridical entity”) are subject to attachme

execution.452

In addition, the statute states that this amenability to exec

to be determined regardless of

(A) the level of economic control over the property by the governmen

the foreign state; 

(B) whether the profits of the property go to that government; 

 

450. § 201(d)(2)(B)(ii). These terms were further defined in § 201(d)

cution is not permitted against diplomatic and consular property being 

those purposes. Bennett v. Islamic Republic of Iran, 618 F.3d 19 (D.C. C

Wyatt v. Syrian Arab Republic, 83 F. Supp. 3d 192 (D.D.C. 2015).

451. National Defense Authorization Act for Fiscal Year 2008, Pub

110-181, Div. A, § 1083 (2008), 122 Stat. 338 (codified at 28 U.S.C. § 160

452. This provision was an apparent effort to limit the effect of the 

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

611 (1983). Cf. Kirschenbaum v. 650 Fifth Avenue, 257 F. Supp. 3d 

(S.D.N.Y. 2017). Section 1610(g)(1) authorizes the attachment of the pr

a foreign state, and thus its application turns on the issue of ownership, 

generally a question of state law. See Levin v. JPMorgan Chase Bank, N.A

3854-cv, 2018 WL 4901585 (2d Cir. Oct. 9, 2018).
135

(C) the degree to which officials of that government manage the prop

or otherwise control its daily affairs; 

(D) whether that government is the sole beneficiary in interest of the p

erty; or 

(E) whether establishing the property as a separate entity would entitl

foreign state to benefits in United States courts while avoiding 

obligations.453

The property must still be used in commercial activity, but 

tinction between states and their agencies and instrumentaliti

tenuated. Judgment creditors proceeding under § 1610(g)(1

nonetheless establish that the entity in question meets the r

ments of “agency or instrumentality.”454

The 2008 amendment’s second change addressed the i

blocked assets. Under § 1610(g)(2), the fact that the U.S. gove

has regulated the property in some way, such as through enfor

under the Trading with the Enemy Act or the International Em

Economic Powers Act, does not shield it from execution. 

Finally, in an evident effort to provide a measure of prote

uninvolved third parties with interests in the property in qu

§ 1610(g)(3)reserved the authority of a court to “prevent appro

the impairment of an interest held by a person who is not liable

underlying action under § 1605A that gives rise to the judgm

question.455

In Rubin v. Islamic Republic of Iran,

456 the Supreme Court h

§ 1610(g) does not provide a “freestanding basis” for holdin

ments under § 1605A to attach and execute against the prope

foreign state, nor was it intended to divest all property of a forei

 

453. § 1610(g)(1).

454. See, e.g., Heiser III, 807 F. Supp. 2d at 9.

455. As stated by Chief Judge Lamberth in Estate of Heiser v. Islamic 

of Iran, 885 F. Supp. 2d 429, 443 (D.D.C. 2012) (Heiser IV), section 16

“provides courts with the important power to protect interests held by th

ties where Iran has some ownership of a property.”

456. 138 S. Ct. 816 (2018), affirming Rubin v. Islamic Republic of 

F.3d 470 (7th Cir. 2016).
136

or its agencies and instrumentalities of their immunity. “

1601(g) serves to identify property that will be available for atta

and execution in satisfaction of a § 1605A judgment, but it doe

itself divest property of immunity. Rather, . . . § 1610(g) operat

when the property at issue is exempt from immunity as provid

where in § 1610.”457

E. Justice Against Sponsors of Terrorism Act (JASTA)

In 2016, Congress enacted a new exception to foreign sovere

munity for domestic instances of“international terrorism.” The 

Against Sponsors of Terrorism Act458 (JASTA) is codified at 28 

§ 1605B and provides jurisdiction over any foreign state

in any case in which money damages are sought . . . for physical injur

person or property or death occurring in the United States and caused 

(1) an act of international terrorism in the United States; and 

(2) a tortious act or acts of the foreign state, or of any official, employe

agent of that foreign state while acting within the scope of his or her o

employment, or agency, regardless [of] where the tortious act or acts o

foreign state occurred.

459

Jurisdiction thus rests on four elements: (1) physical injury 

son or property or death occurring in the United States; (2) a

international terrorism in the United States and a tortious act 

by a foreign state or any official, employee, or agent of that stat

while acting within the scope of that person’s office, employm

agency; (3) causation; and (4) physical injury or death or dam

property in the United States.

460

JASTA is therefore both broader and narrower than § 

While it permits courts to consider cases against states that w

formally designated as “state sponsors of terrorism” at the tim

 

457. 138 S. Ct. at 820.

458. Pub. L. No. 114–222, 130 Stat. 852 (2016).

459. 28 U.S.C. § 1605B(b).

460. See discussion in In re Terrorist Attacks on Sept. 11, 2001, 298 

3d 631, 642–46 (S.D.N.Y. 2018).
137

acts in question, it is limited to “acts of international terroris

have occurred in the United States.

Moreover, it broadens the substantive basis for the suit to 

“tortious acts”—whether committed in the United States o

where—and thereby in effect expandsthe “noncommercial tort

tion by eliminating the “entire tort” rule but only with resp

narrow class of cases (acts of terrorism occurring in the United 

JASTA does not define what acts are “tortious” for these p

but clearly contemplates that liability can arise from acts of th

eign’s agents as well as its officers and employees. It thus engag

ciples of vicarious liability, which will presumably be resolved b

ence to state and local law, even though the torts in question w

arisen from acts of foreign government officials and individua

acting abroad within the scope of their respective office, emplo

or agency relationships with the government in question.

As to causation, it seems established that the standard for “j

tional causation” under the statute is necessarily lower than that 

termining substantive causation at the merits stage.461 For ju

tional purposes, the standard has been interpreted to mean “rea

connection” rather than “but for” causation.462

Other interpretive issues, however,remain to be resolved.46

regard, it is noteworthy that JASTA included the following stat

The purpose of this Act is to provide civil litigants with the broadest pos

basis, consistent with the Constitution of the United States, to seek r

against persons, entities, and foreign countries, wherever acting and w

 

461. In re Terrorist Attacks on Sept. 11, 2001, No. 03-MDL-1750 (GB

2017 WL 8639919 (S.D.N.Y. Nov. 9, 2017).

462. In re Terrorist Attacks, 298 F. Supp. 3d at 644–46 (also addre

“vicarious liability” of other associated entities in light of the Bancec pres

at id. at 631, 655–57).

463. Some constitutional challenges to JASTA, based on its alleged 

of the separation of powers doctrine and its retroactive application to a 

case, have been rejected. See In re Terrorist Attacks, 298 F. Supp. 3d at 66

re Terrorist Attacks on Sept. 11, 2001, No. 03 MDL 1570 (GBD) (FM), 2

8639919, at *75–76 (S.D.N.Y. Nov. 9, 2017).
138

ever they may be found, that have provided material support, directly o

directly, to foreign organizations or persons that engage in terrorist ac

ties against the United States.464

Here, it is important to note that, in addition to creating a n

ception to the FSIA, JASTA expanded the civil liability provis

the Anti-Terrorism Act to permit suits against “any person w

and abets, by knowingly providing substantial assistance [to], 

conspires with the person who committed such an act of intern

terrorism” that resulted in harm to a plaintiff.465

Congress specified that the “proper legal framework for ho

ing and abetting] liability should function” under the ATA is th

tified in Halberstam v. Welch.

466 In that decision, the District 

lumbia Circuit observed that in the civil context, aiding and a

liability requires proof of three elements: (1) “the party whom 

fendant aids must perform a wrongful act that causes an 

(2) “the defendant must be generally aware of his role as part of a

all illegal or tortious activity at the time that he provides the assi

and (3) “the defendant must knowingly and substantially as

principal violation.”467

Exactly how these expanded concepts of aiding and abett

secondary) liability will apply in the context of material support 

of international terrorism remains to be determined.468

 

464. Pub. L. No. 114-222 § 2(b).

465. Id. § 4(a), 18 U.S.C. § 2333(d)(2). Initially, the ATA afforded c

only against the principals perpetrating acts of international terrorism. It 

no civil action against secondary actors who, while not committing inter

terrorist acts themselves, facilitated such acts by others. See Rothstein v. 

708 F.3d 82, 97 (2d Cir. 2013) (holding that ATA’s “statutory silence on th

of secondary liability means there is none”); accord, In re Terrorist At

Sept. 11, 2001, 714 F.3d 118, 123–24 (2d Cir. 2013); Owens v. Bank Pari

235 F. Supp. 3d 85, 91–95 (D.D.C. 2017).

466. Halberstam, 705 F.2d 472 (D.C. Cir. 1983).

467. Id. at 487. Pub. L. No. 114-222 § 2(a)(5), specifying Halberstam

468. See Linde v. Arab Bank, PLC, 882 F.3d 314, 329 (2d Cir. 2018); 

v. HSBC Holdings PLC, 2018 WL 3616845 (E.D.N.Y. July 27, 2018). Taa

Twitter, Inc., 2018 WL 5729232 (N.D. Cal. Oct. 29, 2018).
139

Table of Authorities

Cases

767 Third Ave. Assocs. v. Permanent Mission of Republic of Za

F.2d 295 (2d Cir. 1993), 11

Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012), 49

Abelesz v. OTP Bank, 692 F.3d 661 (7th Cir. 2012), 31

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

WL 2222140 (E.D.N.Y. June 1, 2011), 30

Abur v. Republic of Sudan, 437 F. Supp. 2d 166 (D.D.C. 2006), 72

Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15 (D.D.C. 200

Acree v. Republic of Iraq, 271 F. Supp. 2d 179 (D.D.C. 2003), 101

Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), 102, 108

Adler v. Federal Republic of Nigeria, 107 F.3d 720 (9th Cir. 1997), 

Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080 (

2007), 93

Af-Cap Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006), 49

Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934 (D

2008), 13, 27, 48, 68, 70

Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 798 F. Supp. 

(D.D.C. 2011), 86

Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 128 F. Supp. 

(D.D.C. 2015), 89

Akins v. Islamic Republic of Iran, No. 17-675 (BAH), 2018 WL 4

(D.D.C. Sept. 10, 2018), 108, 125

Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250 (

1983), 106

Alejandre v. Telefonica Larga Distancia de Puerto Rico, Inc., 183 F.

(11th Cir. 1999), 83, 84

Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (

All Am. Trading Corp. v. Cuartel General Fuerza Aerea Guardia N

de Nicaragua, 818 F. Supp. 1552 (S.D. Fla. 1993), 85

Amduso v. Republic of Sudan, 288 F. Supp. 3d 90 (D.D.C. 2017), 8
140

Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamosostek (Perse

F.3d 171 (2d Cir. 2010), 53

Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 127

Cir. 1999), 24

Arch Trading Corp. v. Republic of Ecuador, No. 13 cv 4445 (PAC

WL 3443906 (S.D.N.Y. May 28, 2015), aff’d, 839 F.3d 193 (2d Ci

26, 28

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 

1, 5, 10, 48, 72, 74

Ashcroft v. Iqbal, 556 U.S. 662 (2009), 26

Atkinson v. Inter-American Development Bank, 156 F.3d 1335 

1998), 12

Atlantica Holdings v. Sovereign Wealth Fund Samruk-Kazyna J

F.3d 98 (2d Cir.), cert. denied, 137 S. Ct. 493 (2016), 25, 31, 59, 

Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 

Cir. 2009), 92, 93, 94

Autotech Techs. v. Integral Research & Dev., 499 F.3d 737 (7th Cir

89

Azima v. RAK Inv. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018), 23

63, 77

BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def. Acq

Program Admin., 884 F.3d 463 (4th Cir. 2018), cert. denied, No

2018 WL 3241795 (U.S. Sup. Ct. Oct. 1, 2018), 48, 49

Baker v. Carr, 369 U.S. 186 (1962), 14, 126

Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp

(D.D.C. 2011), 105, 121

Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 

2018), 23, 77

Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F

(2d Cir. 2003), 82

Banco National de Cuba v. Sabbatino, 376 U.S. 398 (1964), 14

Bank Melli Iran New York Representative Office v. Weinstein, 13

21 (2012), 132

Barapind v. Government of Republic of India, 844 F.3d 824 (9th Ci

49
141

Barot v. Embassy of the Republic of Zambia, 785 F.3d 26 (D.C. Cir

19

Batra v. State Bank of India, No. 15 Civ. 2678 (CGS), 2016 WL 3

(S.D.N.Y. May 25, 2016), 54

Baylay v. Etihad Airways P.J.S.C., 881 F.3d 1032 (7th Cir. 201

denied, 139 S. Ct. 175 (2018), 24

BCB Holdings Ltd. v. Government of Belize, 232 F. Supp. 3d 28 

2017), 22

Beer v. Islamic Republic of Iran, 789 F. Supp. 2d 14 (D.D.C. 201

123, 126

Beer v. Islamic Republic of Iran, No. 08-cv-1807 (RCL), 2010 WL 5

(D.D.C. Dec. 9, 2010), 117, 120

Belhas v. Ya’Alon, 515 F.3d 1279 (D.C. Cir. 2008), 44

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), 26

Bell Helicopter Textron Inc. v. Islamic Republic of Iran, 892 F. S

219 (D.D.C. 2012), 2

Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.

(D.C. Cir. 2013), 63

Ben-Haim v. Edri, No. 15-3877 (JLL), 2015 WL 12839772 (D.N.J

2015), 35

Bennett v. Islamic Republic of Iran, 618 F.3d 19 (D.C. Cir. 2010), 

Bennett v. Islamic Republic of Iran, 825 F.3d 949 (9th Cir. 2016), ab

by Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018), 83

Best Med. Belgium, Inc. v. Kingdom of Belgium, 913 F. Supp. 2d 2

Va. 2012), 55, 67

Bettis v. Islamic Republic of Iran, 315 F.3d 325 (D.C. Cir. 2003), 1

121

Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t, 533 F.

(10th Cir. 2008), 59

Birch Shipping Corp. v. Embassy of United Republic of Tanzania

Supp. 311 (D.D.C. 1980), 75

Bluth v. Islamic Republic of Iran, 203 F. Supp. 3d 1 (D.D.C. 2016), 

Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drill

137 S. Ct. 1312 (2017), 6, 7, 26, 27, 64
142

Bolivarian Republic of Venezuela, No. 15-423, 2016 WL 452434

(Appellate Brief) (Aug. 26, 2016), 27

Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64 (D.D.C. 20

123

Butters v. Vance Int’l, Inc., 225 F.3d 462 (4th Cir. 2000), 44

Cabiri v. Government of the Republic of Ghana, 165 F.3d 193 

1999), 71

Calderon-Cardona v. Democratic People’s Republic of Korea, 723 

2d 441 (D.P.R. 2010), 121

Calderon-Cardona v. JPMorgan Chase Bank, N.A., 867 F. Supp. 

(S.D.N.Y. 2011), 131

California Dep’t of Water Resources v. Powerex Corp., 533 F.3d 10

Cir. 2008), 42

Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (D.D.C

114

Can-Am Int’l, LLC v. Republic of Trinidad & Tobago, 169 F. Ap

(5th Cir. 2006), 59

CapitalKeys, LLC v. Democratic Republic of Congo, 278 F. Supp

(D.D.C. 2017), 41

Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012 (2d Cir. 19

Carpenter v. Republic of Chile, 610 F.3d 776 (2d Cir. 2010), 48

Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009), aff’d 

on reh’g en banc, 616 F.3d 1019 (2010), cert. denied, 131 S. C

(2011), 2, 68, 69

Cassirer v. Thyssen-Bornemisza Collection Found., 862 F.3d 951 (

2017), cert. denied, 138 S. Ct. 1992 (2018), 13, 24

Cathode Ray Tube (CRT) Antitrust Litig., MDL No. 1917, No. C-

JST, ECF Nos. 5183, 5215, 2018 WL 659084 (N.D. Cal. Feb. 1, 2

Chettri v. Nepal Rastra Bank, 834 F.3d 50 (2d Cir. 2016), 18, 55, 66

Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990), 

Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994), 

Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Ci

102, 108

Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71 (D.D.C. 201

123
143

Community Fin. Group, Inc. v. Republic of Kenya, 663 F.3d 977 (

2011), 55

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

361 F.3d 676 (2d Cir. 2004), 35

Comparelli v. Republica Bolivariana De Venezuela, 891 F.3d 131

Cir. 2018), 67

Connecticut Bank of Commerce v. Republic of Congo, 309 F.3d 2

Cir. 2002), 93

Corporacion Mexicana De Mantenimiento Integral, S. De R.L. De 

Pemex-Exploracion Y Produccion, 832 F.3d 92 (2d Cir. 201

dismissed, 137 S. Ct. 1622 (2017), 21, 22, 23

Cruise Connections Charter 1, LP v. Attorney Gen. of Canada, 6

661 (D.C. Cir. 2010), 60, 62

Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, C.A. 

mc-151-LPS, 2018 WL 3812153 (D. Del. Aug. 10, 2018), 38, 92

Crystallex Int’l Corp. v. Venezuela, 251 F. Supp. 3d 758 (D. Del. 20

60, 62

Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38 (D.D.C. 2000), 122

De Csepel v. Federal Republic of Hungary, 859 F.3d 1094 (D.C. Ci

petition for cert. docketed, No. 17-1165 (Feb. 16, 2018), 11, 31

67, 70

De Csepel v. Republic of Hungary, 714 F.3d 591 (D.C. Cir. 2013), 

De Csepel v. Republic of Hungary, 808 F. Supp. 2d 113 (D.D.C. 201

in part, 714 F.3d 591 (D.C. Cir. 2013), 28, 67

De Sanchez v. Banco Cent. De Nicaragua, 770 F.2d 1385 (5th Cir

68, 106

De Sousa v. Embassy of the Republic of Angola, 229 F. Supp. 3d 23 

2017), 82

Dentons U.S. LLP v. The Republic of Guinea, 134 F. Supp. 3d 5 

2015), 53

Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 121

Cir. 2018), 56, 67

Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005), 72

Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011), 107
144

Doe v. Federal Democratic Republic of Ethiopia, 851 F.3d 7 (D

2017), 73

Doe v. Holy See, 434 F. Supp. 2d 925 (D. Or. 2006), aff’d in part, 

part, 557 F.3d 1066 (9th Cir. 2009), cert. denied sub nom. Hol

Doe, 130 S. Ct. 3497 (mem.) (2010), 71, 72

Doe v. Morgan Chase Bank, N.A., 899 F.3d 152 (2d Cir. 2018), 133

Dogan v. Barak, No. 2:15-cv-08130-ODW (GSJx), 2016 WL 60244

Cal. Oct. 13, 2016), 46, 50

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003), 10

EduMoz, LLC v. Republic of Mozambique, 686 F. App’x 486 (

2017), 43

EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 F

(9th Cir. 2003), 36

El Omari v. Kreab (USA) Inc., 735 F. App’x 30 (2d Cir. 2018), 55

Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (D.D.C. 2000

Elbasir v. Kingdom of Saudi Arabia, 468 F. Supp. 2d 155 (D.D.C. 20

EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d Cir. 2007), 84, 

EM Ltd. v. Republic of Argentina, 695 F.3d 201 (2d Cir. 2012

Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250 (20

88, 92

Embassy of Federal Republic of Nigeria v. Ugwuonye, 901 F. Supp

(D.D.C. 2012), 53

Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005), 45

Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 

2006) (Heiser I), 102

Estate of Heiser v. Islamic Republic of Iran, 807 F. Supp. 2d 9 

2011) (Heiser III), 133, 135

Estate of Heiser v. Islamic Republic of Iran, 885 F. Supp. 2d 429 

2012) (Heiser IV), 135

European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129 (2d Cir. 2014), 

other grounds, 136 S. Ct. 2090 (2016), 40

European Cmty. v. RJR Nabisco, Inc., 814 F. Supp. 2d 189 (E.D.N.Y

(Appellate Brief for the U.S. as Amicus Curiae), 13

European Cmty. v. RJR Nabisco, No. 11-2475-CV, 2011 WL 4734

Cir. Oct. 5, 2011), 13
145

FG Hemisphere Assocs., LL.C. v. Democratic Republic of Congo, 6

373 (D.C. Cir. 2011), 89

FG Hemisphere Assocs. LL.C. v. République du Congo, 455 F.3d 5

Cir. 2006), 82, 90

Fagot Rodriquez v. Republic of Costa Rica, 297 F.3d 1 (1st Cir. 200

Fain v. Islamic Republic of Iran, 885 F. Supp. 2d 78 (D.D.C. 2012)

Farhang v. Indian Inst. of Tech., Kharagpur, 529 F. App’x 812 (

2013), 59

Figueirdo Ferraz e Engenharia de Projecto Ltda. v. Republic of P

F.3d 384 (2d Cir. 2011), 77

Figueroa v. Ministry for Foreign Affairs of Sweden, 222 F. Supp

(S.D.N.Y. 2016), 25, 54

Fir Tree Capital Opportunity Master Fund, LP v. Anglo Irish Ban

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

40

First City, Tex. Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250 (S

2000), 86

First City, Texas-Houston, N.A. v. Rafidain Bank, 281 F.3d 48 

2002), 89

First Merchants Collection Corp. v. Republic of Argentina, 190 F

2d 1336 (S.D. Fla. 2002), 55

First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 4

611 (1983) (Bancec), 24, 37, 38, 39, 83, 84, 134

Fischer v. Magyar Allamvasutak ZRT, 777 F.3d 847 (7th Cir. 2015

Fisher v. Great Socialist People’s Libyan Arab Jamahiriya, 541 F. S

46 (D.D.C. 2008), 112

Flanagan v. Islamic Republic of Iran, 190 F. Supp. 3d 138 (D.D.C

20

Flanagan v. Islamic Republic of Iran, 87 F. Supp. 3d 93 (D.D.C. 20

Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998), 1

Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186 (D.D.C. 2017), 

Ford Motor Co. v. Russian Fed’n, No. 09 Civ. 1646 (JGK), 20

2010867 (S.D.N.Y. May 10, 2010), 52

Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 43

Cir. 1990), 37
146

Fraenkel v. Islamic Republic of Iran, 248 F. Supp. 3d 21 (D.D.C

aff’d in part, 892 F.3d 348 (D.C. Cir. 2018), 105, 108, 109, 117

Frank v. Commonwealth of Antigua & Barbuda, 842 F.3d 362 (

2016), 25, 32, 59

Freeman v. HSBC Holdings PLC, No. 14-CV-6601 (DLI) (CLP), 2

3616845 (E.D.N.Y. July 27, 2018), 139

Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48 (D.D.C. 201

116

Frontera Resources Azerbaijan Corp. v. State Oil Co. of Az

Republic, 582 F.3d 393 (2d Cir. 2009), 21

Funk v. Belneftekhim, 861 F.3d 354 (2d Cir. 2017), 89

Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006), 43, 56, 63

Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008), 

Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79 (D.D.C. 2009), 

GDG Acquisitions LLC v. Government of Belize, 849 F.3d 1299 (1

2017), 48

Georges v. United Nations, 834 F.3d 88 (2d Cir. 2016), 12

Gill v. Arab Bank, PLC, 893 F. Supp. 2d 474 (E.D.N.Y. 2012), 120

Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88 (D.D.C. 2017), 

Giraldo v. Drummond, 808 F. Supp. 2d 247 (D.D.C. 2011), 11

Global Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 8

806 (6th Cir. 2015), 31

Globe Nuclear Servs. & Supply GNSS, Ltd. v. AO Techsnabexport, 3

282 (4th Cir. 2004), 53

Gomes v. ANGOP, Angola Press Agency, No. 11-CV-0580 (DL

2012 WL 3637453 (E.D.N.Y. Aug. 22, 2012), aff’d, 541 F. App’x 

Cir. 2013), 11–12, 35

Gray v. Permanent Mission of the People’s Republic of the Congo

Supp. 816 (S.D.N.Y.), aff’d, 580 F.2d 1044 (2d Cir. 1978), 36

GSS Group Ltd. v. National Port Auth., 680 F.3d 805 (D.C. Cir. 20

Guevara v. Republic of Peru, 608 F.3d 1297 (11th Cir. 2010), 53

Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69 (2d Cir. 2010), 

Habyarimana v. Kagame, 821 F. Supp. 2d 1244 (W.D. Okla. 201

696 F.3d 1029 (10th Cir. 2012), 11
147

Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1 (D.D.C. 2011)

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), 138

Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 104

Cir. 2014), 113

Hansen v. PT Bank Negara Indonesia (Persero), TBK, 601 F.3d 10

Cir. 2010), 31

Harrison v. Republic of Sudan, 802 F.3d 399 (2d Cir. 2015), reh’g 

838 F.3d 86 (2016), petition for cert. granted, 138 S. Ct. 2621, 

1094 (Jan. 25, 2018), 19

Harrison v. Republic of Sudan, 838 F.3d 86 (2d Cir. 2016), petition 

docketed, Mar. 10, 2017 (No. 16-1094), 7

Hegna v. Islamic Republic of Iran, 380 F.3d 1000 (7th Cir. 2004), 9

Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20 (D.D.C. 2009) 

II), 121

Hekmati v. Islamic Republic of Iran, 278 F. Supp. 3d 145 (D.D.C

113

Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Ve

784 F. 3d 804 (D.C. Cir. 2015), vacated and remanded on other g

137 S. Ct. 1312 (2017), 26, 66

Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Ve

No. 13-7169, 2018 WL 460639 (Jan. 17, 2018) (Brief for the 

Amicus Curiae), 67

Hill v. Republic of Iraq, 328 F.3d 680 (D.C. Cir. 2003), 120

Hmong I v. Lao People’s Democratic Republic, No. 2:15-cv-2349 T

2016 WL 2901562 (E.D. Cal. May 17, 2016) , 11

Howland v. Hertz Corp., 431 F. Supp. 2d 1238 (M.D. Fla. 2006), 35

Human v. Czech Republic-Ministry of Health, 824 F.3d 131 (D

2016), cert. denied, 137 S. Ct. 1068 (2017), 75, 76

HWB Victoria Strategies Portfolio v. Republic of Argentina, No. 1

JTM, 2017 WL 1738065 (D. Kan. May 4, 2017), 84

I.T. Consultants, Inc. v. Islamic Republic of Pakistan, 351 F.3d 118

Cir. 2003), 21

In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31 

2009), 77, 98, 102, 124, 125, 127

In re Ohntrup, 628 F. App’x 809 (3d Cir. 2015), 84
148

In re Republic of the Philippines, 309 F.3d 1143 (9th Cir. 2002), 49

In re Terrorism Litig., 659 F. Supp. 2d 31 (D.D.C. 2009), 102

In Re: Terrorist Attacks, 298 F. Supp. 3d 6316 (S.D.N.Y. 2018), 13

In re Terrorist Attacks on Sept. 11, 2001, 298 F. Supp. 3d 631 (S

2018), 25, 27, 28, 119, 136, 137

In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765 (S

2005), 54, 71

In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71 (2d Cir. 2008)

106

In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109 (2d Cir. 201

138

In re Terrorist Attacks on Sept. 11, 2001, No. 03 MDL 1570 (GBD

2017 WL 8639919 (S.D.N.Y. Nov. 9, 2017), 137

In re Terrorist Attacks on Sept. 11, 2001, No. 03-MDL-1570 (GBD

2017 WL 2671083 (S.D.N.Y. June 21, 2017), 104

Jam v. International Fin. Corp., 860 F.3d 703 (D.C. Cir. 201

granted, 138 S. Ct. 2026, May 21, 2018, 12

Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27 (D.D.C. 200

sub nom. Bettis v. Islamic Republic of Iran, 315 F.3d 325 (D

2003), 113

Jerez v. Republic of Cuba, 777 F. Supp. 2d 6 (D.D.C. 2011), aff'd, 7

419 (D.C. Cir. 2014), 35, 72, 73, 131, 132

Kalamazoo Spice Extraction Co. v. Provincial Military Gov’t of S

Ethiopia, 729 F.2d 422 (6th Cir. 1984), 66

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak D

Bumi Negara, 313 F.3d 70 (2d Cir. 2002), 95

Keller v. Central Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002), 45

Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841 (5th Cir. 2000)

Kettey v. Saudi Ministry of Educ., 53 F. Supp. 3d 40 (D.D.C. 2014)

Kilburn v. Republic of Iran, 277 F. Supp. 2d 24 (D.D.C. 2003), 101

Kilburn v. Republic of Iran, 441 F. Supp. 2d 74 (D.D.C. 2006), 111

Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 112

Cir. 2004), 119
149

Kingdom of Spain v. Estate of Cassirer, No. 10-786, 2011 WL 2

(U.S. Sup. Ct. on petition for writ of certiorari, May 27, 2011) (B

the U.S. as Amicus Curiae), 68–69

Kingdom of Spain v. Estate of Cassirer, 564 U.S. 1037 (2011), 65

Kirschenbaum v. 650 Fifth Ave., 257 F. Supp. 3d 463 (S.D.N.Y. 20

Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 F.3d 107 

2016), 42, 132

Koehler v. Bank of Berm. Ltd., 12 N.Y.3d 533, 883 N.Y.S.2d 763 (2

Kumar v. Republic of Sudan, 880 F.3d 144 (4th Cir. 2018), petition 

docketed, Mar. 9, 2018, 19

LaLop v. United States, 29 F. Supp. 3d 530 (E.D. Pa. 2014), 68

Landgraf v. USI Film Prods., 511 U.S. 244 (1994), 124

Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp

(S.D.N.Y. 2012), 29

Lasheen v. Embassy of the Arab Republic of Egypt, 485 F. App’x 2

Cir. 2012), 54

Lasheen v. Loomis Co., No. 2:01-cv-0227-KJM-EFB, 2017 WL 4

(E.D. Cal. Oct. 4, 2017), 87

Laventure v. United Nations, 279 F. Supp. 3d 394 (E.D.N.Y. 201

pending), 12

LeDonne v. Gulf Air, Inc., 700 F. Supp. 1400 (E.D. Va. 1988), 40

Leibovitch v. Islamic Republic of Iran, 297 F. Supp. 3d 816 (N.D. Il

6

Leibovitch v. Islamic Republic of Iran, 697 F.3d 561 (7th Cir. 2012

Leibovitch v. Syrian Arab Republic, 25 F. Supp. 3d 1071 (N.D. Il

108

Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980), 73

Letelier v. Republic of Chile, 748 F.2d 790 (2d Cir. 1984), 54

Levin v. JPMorgan Chase Bank, N.A., No. 17-3854-cv, 2018 WL 4

(2d Cir. Oct. 9, 2018), 134

Lewis v. Mutond, 258 F. Supp. 3d 168 (D.D.C. 2017), 46

Liberian E. Timber Corp. v. Government of the Republic of Liberi

Supp. 606 (D.D.C. 1987), 94

Licea v. Curacao, Nos. 11-15909, 11-15910, 11-15944, 2012 WL 3

(11th Cir. June 21, 2012), 31
150

Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018), 99, 138

Lindsay v. Ports Am. Gulfport, Inc., Civil Action No. 16-3054, 2

3765459 (E.D. La. July 14, 2016), 23

Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989), 73

Livnat v. Palestinian Auth., 851 F.3d 45 (D.C. Cir. 2017), 21

Lord Day & Lord v. Socialist Republic of Vietnam, 134 F. Supp. 

(S.D.N.Y. 2001), 65

Luxexpress 2016 Corp. v. Government of Ukraine, No. 15-C

(VSB), 2018 WL 1626143 (S.D.N.Y. Mar. 30, 2018), 23

Maalouf v. Islamic Republic of Iran, 306 F. Supp. 3d 203 (D.D.C

109

Magness v. Russian Fed’n, 84 F. Supp. 2d 1357 (S.D. Ala. 2000), 13

Magness v. Russian Fed’n, 247 F.3d 609 (5th Cir. 2001), 35, 43

Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005

Malewicz v. City of Amsterdam, 517 F. Supp. 2d 322 (D.D.C. 2007

Manoharan v. Rajapaksa, 711 F.3d 178 (D.C. Cir. 2013), 11

Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007), aff’d o

grounds, 563 F.3d 9 (2d Cir. 2009), 15, 45, 46

McEachern v. Inter-Country Adoption Bd., 62 F. Supp. 3d 187 (D

2014), 21

McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485 (D.C. Ci

66

McKesson Corp. v. Islamic Republic of Iran, Civ. Action No. 

(RJL), 2009 WL 4250767 (D.D.C. Nov. 23, 2009), 66

McKesson Corp. v. Islamic Republic of Iran, No. 10-7174, 20

3209069 (D.C. Cir. July 27, 2011), 67

Merlini v. Canada, 280 F. Supp. 3d 254 (D. Mass. 2017), 71

Mezerhane v. Republica Bolivariana de Venezuela, 785 F.3d 545 (1

2015), cert. denied, 136 S. Ct. 800 (2016), 14, 67, 68

Miango v. Democratic Republic of Congo, 288 F. Supp. 3d 117 

2018), 25, 72, 120

Micula v. Government of Romania, 714 F. App’x 18 (2d Cir. 2017

Ministry of Def. & Support v. Elahi, 546 U.S. 450 (2006), 96
151

Ministry of Def. & Support for Armed Forces of the Islamic Rep

Iran v. Elahi, 556 U.S. 366 (2009), 35, 95

MMA Consultants 1, Inc. v. Republic of Peru, 245 F. Supp. 

(S.D.N.Y. 2017), 59

MMA Consultants 1, Inc. v. Republic of Peru, 719 F. App’x 47 (2d Ci

cert. denied, 139 S. Ct. 85 (2018), 27, 57

Mobil Cerro Negro, Ltd. v. Venezuela, 863 F.3d 96 (2d Cir. 2017), 

Mohammadi v. Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir. 201

MOL, Inc. v. People’s Republic of Bangladesh, 736 F.2d 1326 (

1984), 55

Moore v. United Kingdom, 384 F.3d 1079 (9th Cir. 2004), 11

Moradi v. Islamic Republic of Iran, 77 F. Supp. 3d 57 (D.D.C. 201

Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51 (D.D.C. 201

122, 124

Murphy v. Islamic Republic of Iran, 778 F. Supp. 2d 70 (D.D.C. 20

National City Bank of New York v. Republic of China, 348 U.S. 356 

5

Nemariam v. Federal Democratic Republic of Ethiopia, 491 F.3d 47

Cir. 2007), 65

Newman v. Republic of Bulgaria, No. 16 Civ. 9268 (JFK), 2017 WL 

(S.D.N.Y. May 2, 2017), 72

NML Capital, Ltd. v. Banco Central de la Republica Argentina, 652 F

(2d Cir. 2011), cert. denied, 567 U.S. 944 (2012), 85

NML Capital, Ltd. v. Republic of Argentina, 680 F.3d 254 (2d Cir

cert. denied, 133 S. Ct. 273 (2012), 94

NML Capital, Ltd. v. Spaceport Sys. Int’l, L.P., 788 F. Supp. 2d 11

Cal. 2011), 93

Nnaka v. Federal Republic of Nigeria, 238 F. Supp. 3d 17 (D.D.C

14, 46

Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of Rep

Venezuela, 575 F.3d 491 (5th Cir. 2009), 25

Nwoke v. Consulate of Nigeria, 729 F. App’x 478 (7th Cir. 2018), 5

Nwoke v. Consulate of Nigeria, No. 17-cv-00140, 2018 WL 107144

Ill. Feb. 27, 2018), 36, 71

O’Bryan v. Holy See, 556 F.3d 361, 381 (6th Cir. 2009), 25, 34, 72
152

OBB Personenverhehr AG v. Sachs, 136 S. Ct. 390 (2015), 2, 56

Odhiambo v. Republic of Kenya, 930 F. Supp. 2d 17 (D.D.C. 201

764 F.3d 31 (D.C. Cir. 2014), cert. denied, 136 S. Ct. 2504 (2016

Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Ve

F.3d 1159 (11th Cir. 2011), 53

Olympic Chartering S.A. v. Ministry of Indus. & Trade of Jordan

Supp. 2d 528 (S.D.N.Y. 2000), 84

Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44 (D.D.C. 201

125

Owens v. Bank Paribas S.A., 235 F. Supp. 3d 855 (D.D.C. 2017), 13

Owens v. BNP Paribas, S.A., 897 F.3d 266 (D.C. Cir. 2018), 99

Owens v. Republic of Sudan, 531 F.3d 885 (D.C. Cir. 2008), 126

Owens v. Republic of Sudan, 826 F. Supp. 2d 128 (D.D.C. 2011), 1

Owens v. Republic of Sudan, 864 F.3d 751 (D.C. Cir. 2017), petition 

docketed (Mar. 6, 2018), 99, 105, 113, 114, 119, 124

Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001), aff’d o

grounds, 538 U.S. 468 (2003), 42

Permanent Mission of India to the United Nations v. City of Ne

551 U.S. 193 (2007), 47

Petersen Energia Inversora S.A.U. v. Argentine Republic and YPF 

F.3d 194 (2d Cir. 2018), 32

Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (D.D.C. 20

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

29

Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir. 2010)

92, 122

Peterson v. Islamic Republic of Iran, 876 F.3d 63 (2d Cir. 2017), 90

Peterson v. Royal Kingdom of Saudi Arabia, 332 F. Supp. 2d 189 

2004), 65

Phaneuf v. Republic of Indonesia, 106 F.3d 302 (9th Cir. 1997), 43

Philipp v. Federal Republic of Germany, 894 F.3d 406 (D.C. Cir. 20

67

Phoenix Consulting Inc. v. Republic of Angola, 35 F. Supp. 2d 14 

1999), 49
153

Politis v. Gavriil, Civil Action No. H-08-2988, 2008 WL 4966914 (S

Nov. 19, 2008), 12

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007), 

Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543 (D

1987), 52

Pravin Banker Assocs. Ltd. v. Banco Popular del Peru, 109 F.3d 

Cir. 1997), 87

Prewitt Enters., Inc., v. Organization of Petroleum Exporting Co

353 F.3d 916 (11th Cir. 2003), 13

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D

2002), 21, 68, 99, 112, 113, 116 

Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 19

63

Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp

(D.D.C. 2003), 101, 115

Rana v. Islam, 305 F.R.D. 53 (S.D.N.Y. 2015), 11

Rein v. Socialist People’s Libyan Arab Jamahiriya, 995 F. Sup

(E.D.N.Y. 1998), aff’d in part, 162 F.3d 748 (2d Cir. 1998), 115

Reiss v. Société Centrale du Groupe Des Assurance Nationales, 2

738 (2d Cir. 2000), 28

Republic of Argentina v. NML Capital, Inc., 134 S. Ct. 2250 (2014), 6

88, 89, 90, 92

Republic of Argentina v. Weltover, 504 U.S. 607 (1992), 10, 21, 51

93

Republic of Austria v. Altmann, 541 U.S. 677 (2004), 5, 6, 7, 10, 14

Republic of Iraq v. Beaty, 556 U.S. 848, 129 S. Ct. 2183 (2009), 1

125

Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), 30

Republic of Sudan v. Harrison, No. 16-1094, 2018 WL 2357724 (U

Ct. May 22, 2018) (Brief for the U.S. as Amicus Curiae), 19

Ricaud v. American Metal Co., 246 U.S. 304 (1918), 14

Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003), 

Roeder v. Islamic Republic of Iran, 742 F. Supp. 2d 1 (D.D.C. 2010

Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131 (2d Cir. 2012), 59

Rong v. Liaoning Provincial Gov’t, 452 F.3d 883 (D.C. Cir. 2006), 
154

Rosenberg v. Pasha, 577 F. App’x 22 (2d Cir. 2014), 46

Rote v. Zel Custom Mfg. LLC, 816 F.3d 383 (9th Cir. 2016), 52

Roth v. Islamic Republic of Iran, 78 F. Supp. 3d 379 (D.D.C. 201

110

Roth v. Syrian Arab Republic, Civ. No. 1:14-cv-01946-RCL, 20

4680270 (D.D.C. Sept. 28, 2018), 119, 122, 125

Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013), 138

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

44

Rubin v. Islamic Republic of Iran, 137 S. Ct. 2326 (2017), 65

Rubin v. Islamic Republic of Iran, 33 F. Supp. 3d 1003 (N.D. Ill. 20

Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108 (N.D. Ill. 2

Rubin v. Islamic Republic of Iran, 408 F. Supp. 2d 549 (N.D. Ill. 20

Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228 (D. Mass. 20

Rubin v. Islamic Republic of Iran, 637 F.3d 783 (7th Cir. 2011), 28

128

Rubin v. Islamic Republic of Iran, 830 F.3d 470 (7th Cir. 2016), a

138 S. Ct. 816 (2018), 92, 135

Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006), 116, 117, 1

120

Rux v. Republic of Sudan, 672 F. Supp. 2d 726 (E.D. Va. 2009), 10

S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99 (D.D.C. 2012), 

SACE S.p.A. v. Republic of Paraguay, 243 F. Supp. 3d 21 (D.D.C. 2

Sachs v. Republic of Austria, 695 F.3d 1021 (9th Cir. 2012), 39

Salman v. Saudi Arabian Cultural Mission, No. 1:16cv1033 (JCC 

2017 WL 176576 (E.D. Va. Jan. 17, 2017), 44, 54

Samantar v. Yousuf, 560 U.S. 305 (2010), 7, 9, 12, 44, 45, 55, 106, 1

Saudi Arabia v. Nelson, 507 U.S. 349 (1993), 9, 17, 52, 56

Schermerhorn v. State of Israel, 235 F. Supp. 3d 249 (D.D.C. 201

on other grounds, 876 F.3d 351 (D.C. Cir. 2017), 7, 27, 71, 72

Sea Breeze Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064 (9th Cir. 2

Securities Investor Prot. v. Bernard L. Madoff Inv. Sec. LLC, 480 B

(S.D.N.Y. 2012), 59
155

Seijas v. Republic of Argentina, No. 10 Civ. 4300 (TPG), 2011 WL 1

(S.D.N.Y. March 28, 2011), aff’d, 502 F. App’x 19 (2d Cir. 2012

SerVaas Inc. v. Mills, Nos. 14-385, 14-438, 14-569, 2014 WL 4

(Sept. 9, 2014), 89

Servaas Inc. v. Republic of Iraq, 653 F. App’x 22 (2d Cir. 2011), 43

Sheikh v. Republic of Sudan, 308 F. Supp. 3d 46 (D.D.C. 2018), 10

Shoham v. Islamic Republic of Iran, Civil No. 12-cv-508 (RCL), 2

2399454 (D.D.C. June 1, 2017), 22, 27, 125

SI Group Consort Ltd. v. Ukraine, Ivano-Frankivsk State Admin.

CV 3047-LTS, 2017 WL 398400 (S.D.N.Y. Jan. 30, 2017), 49

Sikhs for Justice v. Singh, 64 F. Supp. 3d 190 (D.D.C. 2014), 11

Simon v. Republic of Hungary, 277 F. Supp. 3d 42 (D.D.C. 2017), 69

Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016), 11

67, 68, 70

Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 2008), 124, 12

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 23

Cir. 2003), 116, 122

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 35

Cir. 2006), 116

Singh v. Singapore Hous. & Dev. Bd., No. 1:15-cv-02240-DAP, 2

2378120 (N.D. Ohio June 1, 2017), 52

Skanga Energy & Marine Ltd. v. Avervenca S.A., 875 F. Supp. 

(S.D.N.Y. June 21, 2012), 59

Smith v. Overseas Korean Cultural Heritage Found., 279 F. Supp

(D.D.C. 2018), 23

Sokolow v. Palestine Liberation Org., No. 16-1071, 2018 WL 12561

22, 2018), 21

Stansell v. Republic of Cuba, 217 F. Supp. 3d 320 (D.D.C. 2016), 1

Sukyas v. Romania, No. CV 15-1946 FMO (JCx), 2017 WL 655058

Cal. Sept. 21, 2017), 25, 70

Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27 (D.D.C

113

Taamneh v. Twitter, Inc., No. 17-cv-04107-EMC, 2018 WL 572923

Cal. Oct. 29, 2018), 139

Tatneft v. Ukraine, 301 F. Supp. 3d 175 (D.D.C. 2018), 23, 25
156

Taylor v. Islamic Republic of Iran, 811 F. Supp. 2d 1 (D.D.C. 201

125

Terenkian v. Republic of Iraq, 694 F.3d 1122 (9th Cir. 2012), reh’g 

704 F.3d 814 (9th Cir. 2013), cert. denied sub nom. Pen

Developers, Inc. v. Republic of Iraq, 571 U.S. 818 (2013), 31, 58

Thai Lao Lignite (Thailand) Co. v. Government of the Lao 

Democratic Republic, No. 10 Civ. 5256 (KMJ), 2011 WL 4

(S.D.N.Y. Sept. 13, 2011), 87

The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812

Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22 (D.D.C. 20

99, 108, 109, 118, 123

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

2005), 22, 43, 77, 95

Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir

35, 42

Triple A Int’l, Inc. v. Democratic Republic of the Congo, 721 F.3d 4

Cir. 2013), 58

UNC Lear Services, Inc. v. Kingdom of Saudi Arabia, 581 F.3d 210 (

2009), 53

Ungar v. Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005), 34

United States v. Khobragade, 15 F. Supp. 3d 383 (S.D.N.Y. 2014), 

United States v. Al Sharaf, 183 F. Supp. 3d 45 (D.D.C. 2016), 11

USAA Cas. Ins. Co. v. Permanent Mission of the Republic of Nami

F.3d 103 (2d Cir. 2012), 36

Valencia v. Islamic Republic of Iran, 774 F. Supp. 2d 1 (D.D.C. 20

Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52 (D.D.C. 20

121, 125

Velasco v. Government of Indonesia, 370 F.3d 392 (4th Cir. 2004), 4

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983), 1, 

23, 25, 26, 47

Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534 (11th Cir. 1993)

Von Saher v. Norton Simon Museum of Art at Pasadena, 897 F.

(9th Cir. 2018), 14

W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U

(1990), 14
157

Waldman v. Palestine Liberation Org., 835 F.3d 317 (D.C. Cir. 201

denied sub nom. Sokolow v. Palestine Liberation Org., 138 S. C

(2018), 34, 99

Walker Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229 (

2004), 81, 93, 94

Walters v. Industrial and Commercial Bank of China, Ltd., 651 F

(2d Cir. 2011), 82

Walters v. People’s Republic of China, 672 F. Supp. 2d 573 (S.D.N.Y

87, 90

Wamai v. Republic of Sudan, 60 F. Supp. 3d 84 (D.D.C. 2014), 123

Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004), 11

Weininger v. Castro, 462 F. Supp. 2d 457 (S.D.N.Y. 2006), 95

Weinstein v. Islamic Republic of Iran, 299 F. Supp. 2d 63 (S.D.N.Y

133

Weinstein v. Islamic Republic of Iran, 609 F.3d 43 (2d Cir. 2010), 

Weinstein v. Islamic Republic of Iran, 831 F.3d 470 (D.C. Cir. 201

Westfield v. Federal Republic of Germany, 633 F.3d 409 (6th Cir. 2

Williams v. National Gallery of Art, London, No. 16-CV-6978 

2017 WL 4221084 (S.D.N.Y. Sept. 21, 2017), aff’d on other grou

17-3253-cv, 2018 WL 4293327 (2d Cir. Sept. 10, 2018), 48

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

2002), 49

Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24 (D.D.C. 201

126

Wultz v. Islamic Republic of Iran, No. 08-cv-1460 (RCL), 20

4190277 (D.D.C. Oct. 20, 2010), 126

Wyatt v. Syrian Arab Republic, 266 F. App’x 1 (D.C. Cir. 2008), 12

Wyatt v. Syrian Arab Republic, 362 F. Supp. 2d 103 (D.D.C. 2005)

Wyatt v. Syrian Arab Republic, 736 F. Supp. 2d 106 (D.D.C. 2010)

Wyatt v. Syrian Arab Republic, 83 F. Supp. 3d 192 (D.D.C. 2015), 

Wyatt v. Syrian Arab Republic, 908 F. Supp. 2d 216 (D.D.C. 2012)

Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205 (4th Cir. 20

Yang Rong v. Liaoning Provincial Gov’t, 362 F. Supp. 2d 83 (D.D.C

aff’d on other grounds, 452 F.3d 883 (D.C. Cir. 2006), 34–35, 56
158

Yousuf v. Samantar, 552 F.3d 371 (4th Cir. 2009), aff’d, Sam

Yousuf, 560 U.S. 305 (2010), 45

Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012), 46

Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 

Cir. 2000), 66

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012), 14

Other Authorities

Convention for the Suppression of Unlawful Acts Against the S

Civil Aviation (Montreal Convention), Sept. 23, 1971, 974 U.N.T

24 U.S.T. 564, T.I.A.S. No. 7570, 114, 115

Convention on Privileges and Immunities of the United Nations

for signature Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. No. 6900 (

into force with respect to the United States Apr. 29, 1970), 12

Convention on the Service Abroad of Judicial and Extrajudicia

ments in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S

T.I.A.S. No. 6638 (entered into force for the United States 

1969), 18, 20

H.R. Rep. No. 94-1487, at 19 (1976), as reprinted in 1976 U.S.C

6004, 6618, 6, 31, 37, 66, 86

H.R. Rep. No. 103-702, at 12 (1994), 99

H.R. Rep. No. 104-383, at 62 (1995), 100

Inter-American Convention on International Commercial Arb

Jan. 30, 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336 (1975), 75

International Convention Against the Taking of Hostages, G.A. R

(XXXIV), U.N. GAOR, 34th Sess., Supp. No. 45, U.N. Doc. A/3

245 (June 3, 1983), 1316 U.N.T.S. 205, T.I.A.S. No. 1108, 18 I.L.

(entered into force for the United States Jan. 6, 1985), 115

International Convention on the Settlement of Investment Disp

tween States and Nationals of Other States, Mar. 18, 1965, 575 U

159, 17 U.S.T. 1291, T.I.A.S. No. 6090, 75

Restatement (Fourth) of Foreign Relations Law § 441 (Am. La

2018), 14

Restatement (Fourth) of Foreign Relations Law § 452, cmt. a (A

Inst. 2018), 34
159

Restatement (Fourth) of Foreign Relations Law § 452, Reporters

(Am. Law Inst. 2018), 43

Restatement (Fourth) of Foreign Relations Law § 452, Reporters

(Am. L. Inst. 2018), 42

Restatement (Fourth) of Foreign Relations Law § 452, Reporters

(Am. Law Inst. 2018), 65

Restatement (Fourth) of Foreign Relations Law § 453 (Am. La

2018), 48

Restatement (Fourth) of Foreign Relations Law § 453, Reporters’ 

(Am. Law Inst. 2018), 50

Restatement (Fourth) of Foreign Relations Law § 454 (Am. La

2018), 51

Restatement (Fourth) of Foreign Relations Law, § 454, cmt.

Reporters’ Note 9 (Am. Law Inst. 2018), 21

Restatement (Fourth) of Foreign Relations Law § 455 (Am. La

2018), 64

Restatement (Fourth) of Foreign Relations Law § 455, Reporters

(Am. Law Inst. 2018), 67

Restatement (Fourth) of Foreign Relations Law § 455, Reporters’ 

(Am. Law Inst. 2018), 68, 69

Restatement (Fourth) of Foreign Relations Law § 457 (Am. La

2018), 72

Restatement (Fourth) of Foreign Relations Law § 458 (Am. La

2018), 74

Restatement (Fourth) of Foreign Relations Law § 460 (Am. La

2018), 98

Restatement (Fourth) of Foreign Relations Law § 461 (Am. La

2018), 18

Restatement (Fourth) of Foreign Relations Law § 462 (Am. La

2018), 28

Restatement (Fourth) of Foreign Relations Law § 463 (Am. La

2018), 31

Restatement (Fourth) of Foreign Relations Law § 464 (Am. La

2018), 81
160

Restatement (Fourth) of Foreign Relations Law § 464, Reporters’ 

(Am. Law Inst. 2018), 89

Restatement (Second) of Torts (Am. Law Inst. 1965), 118, 121

Restatement (Third) of Foreign Relations Law § 213 (Am. Law Ins

44

Restatement (Third) of Foreign Relations Law, § 713 cmt. f. and Re

Note 3 (Am. Law Inst. 1987), 68

United Nations Convention Against Torture and Other Cruel, In

or Degrading Treatment or Punishment, Dec. 10, 1984, S. Trea

No. 100-20 (1988), 1465 U.N.T.S. 85 (in force for the United 

Nov. 20, 1994), 112

United Nations Convention on the Jurisdictional Immunities of St

Their Property, G.A. Res. 59/38, Annex, U.N. Doc. A/RES/59/3

2, 2004), http://untreaty.un.org/ilc/texts/instruments/english/

tions/4_1_2004.pdf, 24

United Nations Convention on the Recognition and Enforcem

Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3, 

Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.

T.I.A.S. No. 6820, 596 U.N.T.S. 261 (entered into force for the 

States Dec. 24, 1969), 85, 129

Vienna Convention on Diplomatic Relations, Apr. 18, 1961 [19

U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95 (entered into f

the United States Dec. 13, 1972), 85, 129

Acts

Anti-Terrorism Act, 18 U.S.C. § 2333(a) (1992), 98, 120

Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. N

132, § 221, 110 Stat. 12241 (1996) (codified at 28 U.S.C. § 1605

97

Arms Export Control Act, 111

Civil Liability for Acts of State Sponsored Terrorism, Pub. L. No. 1

Div. A, § 589, 110 Stat. 3009-172 (1996) (codified at 28 U.S.C

note (2006)), 101

Emergency Wartime Supplemental Act of 2003, Pub. L. No. 108–

Stat. 559, 111
161

Export Administration Act of 1979, initially codified at 50 U.S

§ 2405(j), later transferred to 50 U.S.C. § 4605, 100, 111

Federal Arbitration Act, 9 U.S.C. §§ 201–207 (2010), 75

Foreign Assistance Act of 1961 (codified at 22 U.S.C. § 2371), 100, 

Foreign Cultural Exchange Jurisdictional Immunity Clarification 

2016, Pub. L. No. 114–319, Dec. 16, 2016, 130 Stat. 1618 (codifi

U.S.C. § 1608(h) (2016)), 13

Foreign Sovereign Immunities Act, Pub. L. No. 94-583, 90 Sta

(1976) (codified as amended at 28 U.S.C. §§ 1330, 1391(f), 1441

1602-11 (2000)), 1

Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-3

Stat. 1524 (2016) (codified at 22 U.S.C. § 1621 note), 13

Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)

Immunity from Seizure Act, 22 U.S.C. § 2459, 13

International Emergency Economic Powers Act (IEEPA) (50 U

§§ 1701 and 1702), 133

International Organizations Immunities Act (IOIA), Dec. 29, 1

652, Title I, 59 Stat. 669 (codified as amended at 22 U.S.C. §§ 28

12, 128

Justice Against Sponsors of Terrorism Act (JASTA), Pub. L. No. 1

Sept. 28, 2016, 130 Stat. 853 (codified at 28 U.S.C. § 1605B), 98, 

National Defense Authorization Act for Fiscal Year 2008, Pub. L. N

181, § 1083(a) and (b) (2008), 122 Stat. 338 (codified at 28 

§ 1605A), 77, 97, 124, 134

Terrorism Risk Insurance Act of 2002 (TRIA), Pub. L. No. 107-297, 1

2322 (2002) (codified at 28 U.S.C. § 1610 note) (2002), 95, 131, 

Torture Victim Protection Act (TVPA), Pub. L. No. 102-256, 106 

(codified at 28 U.S.C. § 1350 note) (1991), 98, 99, 112, 113

Trading With the Enemy Act (TWEA), Act of Oct. 6, 1917, 40 Stat

amended, 50 U.S.C. app. 4305, 133, 135

UN Participation Act of 1945 (codified at 22 U.S.C. § 287–287e-3)

Victims of Trafficking and Violence Protection Act of 2000, 95
162

Rules

Fed. R. Civ. P. 4(j), 18

Fed. R. Civ. P. 12 (b)(1), 25

Fed. R. Civ. P. 12(b)(6), 110

Fed. R. Civ. P. 19, 30

Fed. R. Civ. P. 37, 89

Fed. R. Civ. P. 56, 25, 110

Fed. R. Civ. P. 69(a), 85

Fed. R. Civ. P. 89, 37
163

About the Author

David P. Stewart is Professor from Practice at Georgetown Un

Law Center, where he has taught courses in public and private i

tional law, foreign relations law, international criminal law, i

tional human rights, international immunities, and internatio

in domestic courts. He joined the Georgetown faculty in 2008 

ing his retirement from the U.S. Department of State, where he 

in the Office of the Legal Adviser for thirty-three years. He se

Assistant Legal Adviser for Private International Law, for Dip

Law and Litigation, Law Enforcement and Intelligence, and for 

Rights and Refugees, among other positions. Before joining t

ernment, he was in private practice with Donovan Leisure Ne

Irvine in commercial and antitrust litigation.

Professor Stewart served as one of the co-reporters for the 

can Law Institute’s Restatement of the Law Fourth, the Foreign R

Law of the United States (2018). From 2008 to 2016, he was a m

of the Inter-American Juridical Committee, which advises the O

zation of American States on juridical matters of an internatio

ture and promotes the progressive development and codificatio

ternational law. From 2014 to 2018, he was President of the Am

Branch of the International Law Association, and he now ch

Board of Directors. He is a member of the Board of Editors 

American Journal of International Law and the Secretary of 

Advisory Committee on Private International Law. He pre

served on the Executive Councils of the American Society of I

tional Law and the ABA’s Section of International Law.

Comments and suggestions about this guide should be sen

author at stewartd@law.georgetown.edu.

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