2. Under Section 1604 of the FSIA (28 U.S.C. Section 1604), “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States,” subject to exceptions specified in Sections 1605 to 1608 of the FSIA. Under Section 1603(a) of the FSIA (28 U.S.C. §1603(a)), a “‘foreign state’. . .includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

28 U.S.C. §1604. The jurisdictional immunity provided in §1604 is unqualified; if none of the specific exceptions enumerated in §§1605–1607 apply, there is no subject matter jurisdiction and courts must dismiss the case. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); Amerada Hess, 488 U.S. at 434–35.

ARGUMENT The Immunities Act provides that “foreign states” are presumptively immune from the jurisdiction of United States courts. 28 U.S.C. § 1604; Nelson, 507 U.S. at 355. The statute defines a “foreign state” to include “an agency or instrumentality of a foreign state.”

ARGUMENT The Immunities Act provides that “foreign states” are presumptively immune from the jurisdiction of United States courts. 28 U.S.C. § 1604; Nelson, 507 U.S. at 355. The statute defines a “foreign state” to include “an agency or instrumentality of a foreign state.”

The grant of immunity under the FSIA is subject only to the exceptions expressly provided in the FSIA. See Doe v. Israel, 400 F. Supp. 2d 86, 104 (D.D.C. 2005); 28 U.S.C. § 1604. “Under the FSIA, a foreign state is immune from the jurisdiction of both the federal and the state courts except as provided by . . . nine specifically enumerated exceptions, see id., permitted by the Federal Rules of Civil Procedure.

It provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” 28 U.S.C. § 1604. Saudi Arabia and its instrumentalities are foreign sovereigns under the FSIA.

Under the Foreign Sovereign Immunities Act, a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States. Aboujdid v. Singapore Airlines, Ltd., 67 N.Y.2d 450, 456-57, 494 N.E.2d 1055, 1057-58 (1986) (citing 28 U.S.C. § 1604). Under the Foreign Sovereign Immunities Act, a foreign state includes its instrumentalities, including national museums.

Under Section 1604 of that statute, a foreign sovereign is presumptively immune from suit unless one of the enumerated exceptions set forth in Section 1605 apply. See 28 U.S.C. §§ 1604-1605. Plaintiffs allege in their Complaint that the Court has subject matter jurisdiction over this action Case 1:06-cv-07792-TPG Document 176 Filed 11/27/12 Page 11 of 29 6 under two of these exceptions: 1) that this suit falls under the Republic’s waiver of sovereign immunity “in connection with any action to enforce a judgment based on Plaintiffs’ bonds,” see TAC ¶ 11; 28 U.S.C § 1605(a)(1), and 2) that this alter ego suit is based “upon commercial activities that Argentina undertakes in the United States,” see TAC ¶ 12; 28 U.S.C § 1605(a)(2).

Case No. 3:08-mc-80030-JSW [PROPOSED] ORDER WHEREAS, this matter having come to be heard on non-party The Export-Import Bank of Korea's ("KEXIM's") opposition to plaintiffs' Motion for Assignment of Rights Pursuant to C.C.P. § 708.510(a) and F.R.C.P. 69(a) (the "Motion"); and WHEREAS, the Court finds that KEXIM: (a) is a "foreign state" as that term is defined in the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1603(a) (2006); and (b) enjoys sovereign immunity under the FSIA, 28 U.S.C. § 1604; Case 3:08-mc-80030-JSW Document 61-5 Filed 06/09/2008 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROPOSED ORDER OF THE IMPORT EXPORT BANK OF KOREA REGARDING PLAINTIFFS' MOTION FOR ASSIGNMENT OF RIGHTS CASE NO. 3:08-MC-80030-JSW LA1 - 119743.01 IT IS HEREBY ORDERED that the Motion is DENIED with regard to KEXIM; and IT IS FURTHER ORDERED that KEXIM, as an agency or instrumentality of a foreign sovereign, is exempt from the jurisdiction of this Court and shall not be required to participate in this matter.

The grant of immunity under the FSIA is subject only to the exceptions expressly provided in the FSIA. See, Doe v. Israel, 400 F. Supp.2d 86, 104 (D.D.C. 2005); 28 U.S.C. § 1604. “Under the FSIA, a foreign state is immune from the jurisdiction of both the federal and the state courts except as provided by . . . nine specifically enumerated exceptions, see id., § 1605(a)(1) through (7), (b), (d), . . . see, id., § 1607.