Foreign States in the United States

Foreign States in Entities and Persons Entitled to Immunity

In Transaero, Inc. v. La Fuerza Aerea Boliviana, 39 F.3d 148, 151 (D.C. Cir. 1994), for example, the D.C. Circuit had to decide whether the Bolivian Air Force was a “foreign state” or an “agency or instrumentality” for purposes of § 1608. Rather than relying on the factors listed in the legislative history cited above (e.g., could the entity sue and be sued in its own name, contract in its own name, or hold property in its own name, under its own law), it considered “whether the core functions of the foreign entity are predominantly governmental or commercial.” Id. at 151–52. See also Magness v. Russian Fed’n, 247 F.3d 609, 613 n.7 (5th Cir. 2001) (“[w]hether an entity is a ‘separate legal person’ depends upon the nature of its ‘core functions—governmental vs. commercial’— and whether the entity is treated as a separate legal entity under the laws of the foreign state.”).

In Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990), the appellate court held that FSIA immunity extends to individual officials of foreign states acting in their official capacity, since these officials are properly considered “agenc[ies] or instrumentalit[ies]” of the state and accordingly are protected by the FSIA. See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008); Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008); Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002); Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007). The Seventh Circuit explicitly rejected the Chuidian doctrine, noting that “[i]f Congress meant to include individuals acting in the official capacity in the scope of the FSIA, it would have done so in clear and unmistakable terms” (Enahoro v. Abubakar, 408 F.3d 877, 881–82 (7th Cir. 2005)), and the Fourth Circuit concluded on the basis of the FSIA’s “language and structure” that it does not apply to “individual foreign government agents” (Yousuf v. Samantar, 552 F.3d 371, 381 (4th Cir. 2009)).

In Samantar v. Yousuf, the U.S Supreme Court held that not “every suit can successfully be pleaded against an individual official alone. Even when a plaintiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because that party has ‘an interest relating to the subject of the action’ and ‘disposing of the action in the person’s absence may … as a practical matter impair or impede the person’s ability to protect the interest … Or it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.” 560 U.S. at 324–25, 130 S. Ct. at 2292. On remand, the Fourth Circuit determined that the district court had properly deferred to the State Department’s position that Samantar was not entitled to head of state immunity and furthermore that he was not entitled to immunity for jus cogens violations. (Yousuf v. Samantar, 699 F.3d 763 (2012)).

Foreign States and the State Laws

Select from the list of U.S. States below for state-specific information on Foreign States:

Foreign States in the Context of Foreign Sovereign Immunities Legislation

Foreign States Proper in International Civil Litigation

Analysis of the Foreign States Proper in relation with the Foreign Sovereign Immunity and Jurisdiction of U.S. Courts over Foreign States.

Foreign States in the Context of Foreign Countries

FSIA’s Specialized, Uniform Regime for Service on Foreign States in International Civil Litigation

Analysis of the Foreign Sovereign Immunities Act of 1976 (FSIA)’s Specialized, Uniform Regime for Service on Foreign States

Foreign States in the Context of Foreign Entities Immunity

Agencies and Instrumentalities of Foreign States in International Civil Litigation

Analysis of the Agencies and Instrumentalities of Foreign States in relation with the Foreign Sovereign Immunity and Jurisdiction of U.S. Courts over Foreign States.

Foreign States in the Context of Foreign Countries

Service of U.S. Process on Foreign States in International Civil Litigation

Analysis of the Service of U.S. Process on Foreign States

Foreign States

Foreign States in the United States

Foreign States in Entities and Persons Entitled to Immunity

Foreign States and the State Laws

Foreign States in the Context of Foreign Sovereign Immunities Legislation

Foreign States Proper in International Civil Litigation

Foreign States in the Context of Foreign Countries

FSIA’s Specialized, Uniform Regime for Service on Foreign States in International Civil Litigation

Foreign States in the Context of Foreign Entities Immunity

Agencies and Instrumentalities of Foreign States in International Civil Litigation

Foreign States in the Context of Foreign Countries

Service of U.S. Process on Foreign States in International Civil Litigation

Resources

See Also

Further Reading

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