Entities Entitled to Immunity in the United States
Agencies or Instrumentalities
Title 28 U.S.C. § 1603(b) does provide a definition of the term “agency or instrumentality of a foreign state”—if not an entirely unambiguous one. The term includes any entity that:
- is a separate legal person, corporate or otherwise; and
- either is an organ of a foreign state or political subdivision thereof, or a majority of its ownership interest is owned by a foreign state or political subdivision thereof; and
- is neither a citizen of a state of the United States nor created under the laws of a third country.
To qualify under this provision, all entities must meet the first and third criteria, as well as one of the two branches of the second criterion (“organ or political subdivision” or “majority of state ownership”).
Separate legal entity
The FSIA’s legislative history clearly reflects that the term “agency or instrumentality” was intended to be interpreted broadly: [The] criterion, that the entity be a separate legal person, is intended to include a corporation, association, foundation, or any other entity which, under the law of the foreign state where it was created, can sue or be sued in its own name, contract in its own name or hold property in its own name.
Second criterion
As indicated above, to qualify as an agency or instrumentality, the separate legal entity in question must also be either an organ of a foreign state or political subdivision thereof, or an entity a majority of whose ownership interest is owned by a foreign state or political subdivision thereof.
Non-US nationality
Determining that the entity in question is neither a citizen of a state of the United States nor created under the laws of a third country ordinarily presents no difficulties. Generally speaking, for purposes of international law, a corporation has the nationality of the state under the laws of which the corporation is organized.
Foreign States, Components, and Political Subdivisions
Foreign state or government
For more information, see the doctrine and rules of state immunity.
Internal government components
For more information, see the doctrine and rules of state immunity.
Government departments and ministries
For more information, see the doctrine and rules of state immunity.
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