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Globalization has enabled national governments to expand the scope of their traditionally political and diplomatic activities into the commercial sphere. As a result of such phenomena as state-controlled enterprises playing major roles in the international energy or financial sectors, legal systems across the globe have increasingly recognized that where foreign governments act as private entities, they should be treated as such to at least some extent in the event of subsequent litigation. In the United States, litigation against foreign governments and government-controlled entities is governed by the 1976 Foreign Sovereign Immunities Act (FSIA), which presumptively immunizes foreign governments from claims in U.S. courts absent specified exceptions to this immunity (which will allow such claims to proceed).
Very significantly, the FSIA allows suits against foreign governments in more instances than problems arising from commercial activities, having formed the basis for a fluid jurisprudence since its enactment with which even transactional attorneys should be familiar so as to know what to expect should a transaction with a foreign government enterprise result in litigation. These disputes have implicated the reclamation of property lost during the Holocaust, litigation against the Holy See arising from clerical abuse allegations, foreign government expropriations of property, and litigation against U.S. government-designated state sponsors of terrorism (e.g., Iran). The statute thus touches upon other areas of law ranging from torts and maritime issues to national security matters.
Ernesto J. Sanchez, author of The Foreign Sovereign Immunities Act Deskbook, will describe the FSIA and the circumstances when U.S. law views foreign government-controlled entities or their agents the same as private defendants and parties. Topics to be addressed include:
- The FSIA's purpose of allowing claims arising from dealings with foreign sovereigns akin to private transactions
- Who can sue or be sued under the statute
- Guidelines for establishing foreign sovereign immunity and the exceptions thereto that allow for U.S. subject matter jurisdiction
- Proper courts in which to sue a foreign sovereign
- Service of process and the establishment of personal jurisdiction
- Liability, damages, and enforcing judgments under the FSIA