“Commercial activity” is “either a regular course of commercial conduct or a particular commercial transaction or act.” 28 U.S.C. Sec. 1603(d). “[C]ommercial activity carried on in the United States by a foreign state” is commercial activity “having substantial contact with the United States.”

ed by controlling appellate precedent in the reviewing court’s circuit. As such, there is a chance that a foreign state could challenge the application of full faith and credit on the grounds that the court which recognized the arbitration award against the foreign state did not consider whether minimum contacts were present and, thus, did not properly establish that it had personal jurisdiction over that state.Footnotes[1] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 20-36024, 2024 WL 441110 (9th Cir. Feb. 6, 2024).[2] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-CV-01360, 2020 WL 6286813, at *1 (W.D. Wash. Oct. 27, 2020).[3] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd, No. 20-36024, 2024 WL 441110 at *5 (9th Cir. Feb. 6, 2024) (Bumatay, J., dissenting).[4] 28 U.S.C. § 1330(b).[5] See 28 U.S.C. §§ 1605, 1605A.[6] Respondent qualified as a “foreign state” for purposes of the FSIA because it was an agency or instrumentality of the foreign state. 28 U.S.C. § 1603(b).[7] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-CV-01360, 2020 WL 6286813, at *3 (W.D. Wash. Oct. 27, 2020).[8] Id.[9] Id. at *3—4.[10] Id. at *7.[11] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-CV-01360, 2022 WL 36731 at *2 (W.D. Wash. Jan. 3, 2022).[12] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 20-36024, 2023 WL 4884882 at *1 (9th Cir. Aug. 1, 2023).[13] 614 F.2d 1247, 1255 (9th Cir. 1980).[14] 28 U.S.C. § 1605(a)(2).[15] Id. (emphasis added).[16] Id.[17] Id. at 1255, n. 5 (citing H. Rep. No. 54-1487, 94th Cong., 2d Sess. 13-14 (1976), reprinted in 1976 U.S. Code Cong. & Admin. News at pp. 6604, 6612).[18] 504 U.S. 607, 619 (1992).[19] Weltover, 504 U.S. at 619 (citing South Carolina v. Katzenbach, 383 U.S. 301, 323 (1966) holding “States of the Union are not ‘persons’ for purposes of the Due Process Clause.”).[20] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 20-36024, 2023 WL 4884882 at *2 (9th Cir. Aug. 1, 2023).[21] D

n over criminal actions against foreign states or their agencies or instrumentalities and (2) whether the FSIA (a) grants foreign sovereigns immunity from criminal actions, and if it does, (b) whether the Section 1605 exceptions apply to both criminal and civil actions.ConclusionThe Supreme Court’s decision will provide clarity on whether and how foreign states or their agencies or instrumentalities are “indictable” in federal court. The Court’s ultimate decision will be of great interest to foreign government-owned institutions, specifically those that conduct USD transactions or have a U.S. nexus. A decision in this case is expected before the Court breaks for its summer recess in July 2023.United States v. Turkiye Halk Bankasi A.S., 16 F.4th 336 (2d Cir. 2021), cert. granted, 2022 U.S. Lexis 4151 (U.S. Oct. 3, 2021) (No. 21-1450). Petition for a Writ of Certiorari, Turkiye Halk Bankasi A.S. v. United States (No. 21-1450) at I. 18 U.S.C. § 3231. 28 U.S.C. § 1330(a) (emphasis added). 28 U.S.C. § 1603(a). 28 U.S.C. § 1603(b). 28 U.S.C. § 1604. 28 U.S.C. § 1605. 28 U.S.C. § 1605(a)(2) (emphasis added).Press Release, U.S. Dep’t of Justice, Turkish Bank Charged in Manhattan Federal Court for Its Participation in a Multibillion-Dollar Iranian Sanctions Evasion Scheme (Oct. 15, 2019).Press Release, U.S. Dep’t of Justice, Turkish Banker Convicted of Conspiring to Evade U.S. Sanctions Against Iran and Other Offenses (Jan. 3, 2018).Press Release, U.S. Dep’t of Justice, Turkish Banker Mehmet Hakan Atilla Sentenced to 32 Months for Conspiring to Violate U.S. Sanctions Against Iran and Other Offenses (May 16, 2018).United States v. Halkbank, No. 15-cr-867, 2020 U.S. Dist. LEXIS 182312, at *1 (S.D.N.Y. Oct. 1, 2020).Id. at *10–12.Id. at *11.Id. at *11–16.United States v. Halkbank,No. 15-cr-867, October 9, 2020 (ECF No. 679) (Notice of Appeal).United States v. Turkiye Halk Bankasi A.S., 16 F.4th 336, 347 (2d Cir. 2021) (“We think that the District Court plainly has subject matter jurisdiction over

Under the FSIA, a “foreign state” includes a body politic, as well as its “political subdivisions, agencies, and instrumentalities.” 28 U.S.C. §1603(a). And “agency or instrumentality” is defined to include “any entity [that] is a separate legal person, corporate or otherwise and ... which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof.”

[vii] Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983).[viii] 28 U.S.C. § 1604.[ix] 28 U.S.C. §§ 1603(a)-(b).[x] 28 U.S.C. § 1605(a)(3) (“A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue . . .”).[xi] Fed. Republic of Ger. v. Philipp, No. 19-351, slip op. at 5 (U.S. Feb. 3, 2021).

In particular, the owner and captain of the tanker wanted evidence relating to certain Declarations submitted on behalf of Spain in a legal action in the US and to use this evidence in separate legal actions in Spain relating to the same casualty. While the underlying motion to compel discovery was ultimately denied based on a review of the Intel Corp. considerations, the Second Circuit agreed with the District Court holding that the FSIA itself did not prevent discovery. Relying on the U.S. Supreme Court decision in Republic of Argentina v. NML Capital, Ltd., 134 S.Ct. 2250 (2014), the Second Circuit confirmed that FSIA only grants sovereign immunity to a foreign sovereign, or its "agency or instrumentality," which is "an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof," not a hired law firm. 28 U.S.C. § 1603(b)(2). As the Second Circuit acknowledged that certain circumstances could change in time and allow discovery under Intel Corp., the law firm for Spain was ordered to preserve the sought after materials for a period of five years.

As to the other alleged offenses, the court found that the European Community’s complaint alleges sufficiently important activity in the United States to give rise to a claim under RICO without reference to the extraterritorial conduct. Second, the Second Circuit also found that the European Community is an “agency or instrumentality of a foreign state” as that term is defined in 28 U.S.C. § 1603(b). It therefore qualifies as a “foreign state” for the purposes of 28 U.S.C. § 1332(a)(4), and its suit against “citizens of a State or of different States” comes within diversity jurisdiction.