The FSIAThe FSIA affords a general grant of sovereign immunity to foreign states, subject to exceptions. The general exceptions are codified at 28 U.S.C. Sections 1605 and 1607, but the scope of a foreign state’s liability under those exceptions is limited by Section 1606, which explicitly removes the possibility of punitive damages as a remedy for “any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607.”Before 2008, the terrorism exception in the FSIA was codified in 1996 as a general exception, in Section 1605(a)(7), and was thus explicitly subject to Section 1606’s restriction on punitive damages.In 2008, Congress amended the FSIA, including by making substantive and structural changes to the terrorism exception.

Like Philipp, the respondents in Simon asserted the expropriation exception to prove jurisdiction.[i] 28 U.S.C. § 1605(a)(3).[ii] Fed. Republic of Ger. v. Philipp, 592 U.S. ___ (2021).

The only pertinent exception in this case is provided by section 1605(a)(3), "takings exception," where a foreign state is not immune if "right in property [was] taken in violation of international law . . . and that property . . . is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States." (28 U.S.C. § 1605(a)(3).) Against this background, the Ninth Circuit focused on three issues.(1) Does the FSIA’s takings exception apply to Spain, which did not expropriate the property?The court dismissed the defendants’ argument that the takings exception does not apply to Spain, which subsequently purchased the painting.

t issue in this scenario has been tested–namely, where the court that issued the judgment found that jurisdiction existed using a standard that was expressly rejected 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’

ors AbroadThe Ansary case is still in its early stages, and the outcome remains uncertain. However, Ansary's suit — and earlier litigation in McKesson — demonstrate that plaintiffs may seek to establish federal court jurisdiction through an FCN treaty.If the court rules in Ansary's favor and holds that the violation of a FCN treaty can create jurisdiction in a U.S. federal court, U.S. investors in foreign markets may be able to enforce their rights under FCN treaties in U.S. courts against foreign governments and government-owned entities.The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.References1 Compl., Ansary v. Central Bank of Curaçao & St. Maarten, 1:23-cv-00134 (D.D.C. Jan. 17, 2023).2 The Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3).3 Andreas Paulus, Treaties of Friendship, Commerce and Navigation, Oxford Pub. Int'l L., https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e14824 John F. Coyle, The Treaty of Friendship, Commerce and Navigation in the Modern Era, 51 Colum. J. Transnat'l L. 302, 304, 308 (2012).5 Coyle, supra note 5, at 329 ("The U.S. is currently a party to FCN treaties with Argentina, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Kosovo, Latvia, Liberia, Luxembourg, Macedonia, Montenegro, the Netherlands, Norway, Oman, Pakistan, Paraguay, Serbia, Slovenia, Spain, Suriname, Switzerland, Taiwan, Thailand, Togo and the United Kingdom. See 22 U.S.C. § 503 (2006) (giving formal legislative citations for many of the treaties, some of which are no longer in force)").6 Id. Trade and Investment Framework Agreements (TIFAs

“Under the [FSIA], a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (holding that Saudi Arabia was shielded by sovereign immunity because the action at issue did not qualify as “based upon a commercial activity” under the FSIA); see 28 U.S.C. §1604.The FSIA specifies a set of exceptions in 28 U.S.C. §§1605, 1605A, 1605B and 1607. Of these, the coronavirus-related lawsuits have alleged the commercial activity, tortious act, and state sponsorship of terrorism exceptions. The exceptions alleged in the complaints are unlikely to succeed as the law currently stands, but there remains the possibility that Congress might amend the FSIA to create a carve-out for coronavirus-related lawsuits.First, the “commercial activity” exception applies to “actions based upon commercial activities of the foreign sovereign carried on in the United States or causing a direct effect in the United States.

Opati v. Republic of Sudan, No. 17-1268: Victims of a 1998 al Qaeda attack outside the United States Embassies in Kenya and Tanzania brought suit in federal court against the Republic of Sudan, alleging that Sudan had assisted al Qaeda in the attack. The suit was filed pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, which codified an exception to foreign sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”) for state-sponsored terrorism at 28 U.S.C. §1605(a)(7). As first enacted, and at the time the plaintiffs brought suit, that exception to immunity was subject to §1606’s general bar on punitive damages in suits proceeding under any of the §1605 sovereign immunity exceptions.

Opati v. Republic of Sudan, No. 17-1268: Victims of a 1998 al Qaeda attack outside the United States Embassies in Kenya and Tanzania brought suit in federal court against the Republic of Sudan, alleging that Sudan had assisted al Qaeda in the attack. The suit was filed pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, which codified an exception to foreign sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”) for state-sponsored terrorism at 28 U.S.C. §1605(a)(7). As first enacted, and at the time the plaintiffs brought suit, that exception to immunity was subject to §1606’s general bar on punitive damages in suits proceeding under any of the §1605 sovereign immunity exceptions.

Expropriation Exception Saves Case, But District Court Holds Commercial Activity Exception Does Not Apply, Claims to Two of the Paintings at Issue are Dismissed as WellThe ongoing litigation between the heirs of Baron Mor Lipot Herzog and several state owned Hungarian museums has produced a new decision interpreting the scope of the Foreign Sovereign Immunities Act (FSIA), a frequent tool used to seek jurisdiction over Nazi-looted art claims brought in U.S. federal court. Relying on Supreme Court and D.C. Circuit cases in the last few months, the U.S. District Court held that claims for all but two of the paintings at issue can proceed under the FSIA’s “expropriation exception” codified in 28 U.S.C. § 1605(a)(3), but that the FSIA’s “commercial activity exception”—which the D.C. Circuit had held applicable in 2013 to the same case—could not be invoked based on the facts in the record developed in discovery. De Csepel v. Republic of Hungary, 2016 U.S. Dist. LEXIS 32111 (March 14, 2016).

cies 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 the federal criminal prosecution of Halkbank pursuant to