The Court returned to unanimity in Cassirer v. Thyssen-Bornemisza Collection Foundation. In yet another application of textualism, now adopted by at least two of the liberals, particularly Justice Kagan, who wrote the opinion, the Court analyzed the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1602 et seq., which governs whether a foreign state or instrumentality is amenable to suit in an American court, to decide the question of what choice-of-law rule a court should use to determine the applicable substantive law in an FSIA suit raising non-federal claims. Art lovers might know that the case arose in a dispute concerning the ownership of Camille Pissarro’s Impressionist painting: Rue Saint-Honoré in the Afternoon, Effect of Rain.

The FSIA precludes US courts from exercising jurisdiction over foreign sovereigns unless: (a) the sovereign has waived its immunity, either explicitly or by implication; or (b) the subject litigation arises from one of the exceptions to the immunity, such as where the foreign sovereign is engaging in “commercial activity” in the United States and the dispute directly flows from that activity. 28 U.S.C. §§ 1602 et seq.CapitalKeys, LLC v. Democratic Republic of Congo, No. 15-CV-2079 at *49.See EM Ltd. v. Banco Cent. De La Republica Argentina, 800 F.3d 78 (2d Cir. 2015).

devices (as defined by Section 201 of the Federal Food, Drug, and Cosmetic Act), subject to certain restrictions such as a prohibition on U.S. persons extending any credit terms to Cuban buyers, meaning such buyers can only make such purchases on a cash basis or can otherwise use financing from a non-U.S. bank in a third country without involving any U.S. persons in that credit facility. Moreover, there is also a statutory exemption under CACR Section 515.206(a) that excludes the export of “information and informational materials” to Cuba and the import of such materials from Cuba, and that exemption will remain in force in spite of this designation of Cuba to the State Department list.3One fundamental change, however, resulting from Cuba’s redesignation on the state sponsor of terrorism list is that it will now lose the shield of sovereign immunity that normally protects most foreign countries from litigation in U.S. courts under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 USC § 1602 et seq. Once that FSIA immunity is gone, then Cuba can be sued in U.S. courts under laws such as the Antiterrorism Act of 1990 (“ATA”) that allow plaintiffs to lodge tort claims against any nation on the State Department list for injuries or losses due to the terrorist acts of a listed nation or the agents or instrumentalities of such a nation.

On May 18, 2020, the Supreme Court handed a victory to plaintiffs seeking compensation from the Republic of Sudan for its part in the terrorist attacks taking place outside U.S. embassies in Kenya and Tanzania in 1998. The Court held that legislation passed as an exception to the Foreign Sovereign Immunities Act (28 U.S.C. § 1602 et seq.) after the terrorist attacks that took place can nevertheless be applied retroactively to the acts of Sudan, exposing the nation to punitive damages.

On May 18, 2020, the Supreme Court handed a victory to plaintiffs seeking compensation from the Republic of Sudan for its part in the terrorist attacks taking place outside U.S. embassies in Kenya and Tanzania in 1998. The Court held that legislation passed as an exception to the Foreign Sovereign Immunities Act (28 U.S.C. § 1602 et seq.) after the terrorist attacks that took place can nevertheless be applied retroactively to the acts of Sudan, exposing the nation to punitive damages.

severity of the virus, underreported the number of deaths from the virus, failed to contain the outbreak within the country, destroyed data about the virus, misled the World Health Organization (“WHO”) about the virus, censored social media references to the disease, prevented doctors and the press from reporting about the virus, and made misleading and false public statements about the status and severity of the outbreak in China. The complaints further aver the Chinese government admitted that several of its actions were wrong or misleading. Plaintiffs also allege the PRC runs two bio-weapons laboratories in Wuhan, one of which works with deadly viruses, close to the wild animal wet market where the virus originated, and workers at the labs sold lab animals to the market after experimenting with them, instead of cremating the infected animals, as required by law.These cases face a series of hurdles.First, defendants may be immune from suit under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. (“FSIA”). The FSIA provides immunity to foreign countries, including their agencies and instrumentalities, from suit in the U.S. barring a few exceptions.

However, by agreeing to arbitrate, all of a foreign state’s property in the United States used for a commercial activity is subject to execution to satisfy the arbitration award, whereas if a foreign state does not agree to arbitrate and jurisdiction is based on the commercial activity exception, then only the foreign state’s property that is the subject of the underlying suit is subject to execution, and only if it is used for a commercial activity. 28 U.S.C. §1602, et seq.

None of these methods is foolproof. But they could potentially give a party contracting with a foreign official a better chance at enforcing the agreement in court.1. 28 U.S.C. §§ 1602 et seq. 2. First Fidelity Bank, N.A. v. Government of Antigua & Baruda-Permanent Mission, 877 F.2d 189 (2d Cir. 1989).

Sovereign immunity for tribes has a different basis. The pre-independence practice of governing relations with Native American tribes by treaties continued after independence (see Marshall J. in Worcester v. Georgia, 31 USC 515 (1832) Cuozzo Speed Techs., LLC v. Lee, 579 U.S. ___ (2016), 136 S. Ct. 2131, 195 L. Ed. 2d 423 (2016) 28 USC 1602 et seq. 28 USC 1605 (a)(2), Similar provisions are found in the UK State Immunity Act 1978, which in Section 7 also has specific provisions relating to intellectual property rights, and in the European Convention on State Immunity, which in Article 8 also has specific provisions relating to intellectual property 455 F. 3d 1364 79 USPQ2d 1508 (Fed. Cir. 2016) [View source.]

4 22 U.S.C. § 6023(11). An action against a foreign government (or government-owned entity) would, of course, have to come within an existing jurisdictional exception to sovereign immunity, as set forth in a separate statute, 28 U.S.C. § 1602-1611. 5 22 U.S.C. § 6082(c)(1).