Ambassadorial Waiver of Foreign StateSovereign Immunity to DomesticAdjudication in United States Courts

I Introduction In an increasingly global marketplace, in which international economic transactions are growing in prominence, there is greater potential for suits involving foreign parties and governments.1 Technological advancements and transportational improvements are making the world a much smaller place, further increasing overall levels of contact between private parties and the governments of foreign nations.2 These heightened levels of interaction and the corresponding increase in potential litigation between private parties and foreign entities have created a greater need for uniformity and predictability in the law of sovereign immunity.3 Foreign state enterprises engage in commercial activities with U.S. businesses and corporations on a daily basis.4 In the event of a foreign government's breach of contract, such U.S. businesses and corporations would need to know the requirements for seeking redress in domestic courts.5 For example, U.S. businesses may seek judicial recourse to settle price disputes concerning goods sold to foreign state trading companies.6 An American property owner who sells real estate to a foreign government entity may desire to sue the foreign government entity in the event of a breach of the contract of sale.7 A U.S. motorist injured in a traffic accident involving a foreign embassy's vehicle may seek recovery for damages in a local court.8 There are numerous examples of such litigation between private parties and foreign governments.9 Such litigation often involves the issue of whether the foreign sovereign is immune from domestic adjudication.10 The doctrine of sovereign immunity conceptualizes the fundamental principle of international law that the foreign government of a nation, state, political subdivision, or agent or instrumentality thereof shall not be subjected to domestic adjudication without the foreign government's consent.11 Sovereign immunity is different from diplomatic immunity.12 Under diplomatic immunity, the sending nation's diplomatic agent is immune from the civil jurisdiction of the receiving state and shall not be compelled to give evidence as a witness." The sending state may waive its diplomatic agent's immunity only through an express waiver." Sovereign immunity is also different from head of state immunity, which involves the immunity from suit of a foreign government's legitimate and constitutional leadership.15 Under the U.S. Foreign Sovereign Immunities Act (FSIA),16 foreign governments are entitled to sovereign immunity from suit unless one of the FSIA's exceptions allows a U.S. court to assert jurisdiction.17 One such exception is waiver of immunity.18 The FSIA provides in pertinent part that the government of a foreign nation shall not be immune from litigation in the courts of the United States or in the courts of any of its individual states when the foreign government either expressly or implicitly waives its sovereign immunity.19 Such an expressed or implied waiver is valid even though the foreign government may attempt to withdraw the waiver at a later date, unless such withdrawal complies with the terms of the original waiver of immunity.20 The Supreme Court generally has defined waiver as "an intentional relinquishment or abandonment of a known right or privilege."21 For a court to give effect to an explicit waiver, the waiver must express the "`clear, complete, unambiguous, and unmistakable"' manifestation of the foreign sovereign's intent to waive its immunity.22 In the international arena, ambassadors traditionally have possessed broad powers to bind the governments they represent. 23 Such powers include the authority to represent the official position of the ambassador's nation before foreign tribunals and to waive or assert sovereign immunity from suit.24 At least one U.S. court has held that domestic tribunals should presome that foreign ambassadors possess authority to appear before them and waive their nation's sovereign immunity absent compelling evidence to the contrary. …