International Takings Exception in the United States

Expropriations in the Foreign Sovereign Immunities Act of 1976

Taken in violation of international law

According to research about International Takings Exception from the Federal Judicial Center:The term “taken” is not defined in the FSIA, but the provision was intended to refer to the nationalization or expropriation of property by a foreign sovereign without payment of prompt, adequate, and effective compensation as required by international law.160 Judicial administration and sale of a financially struggling company does not constitute a “taking.”161 The reference to takings “in violation of international law” is therefore properly read as a reference to the international law of expropriation and state responsibility, not to other bodies of international law, such as human rights law.162 Thus, this exception does not reach takings by a foreign government of its own nationals’ property. As recently stated by the U.S. District Court for the District of Columbia, a taking violates international law if “(1) it was not for a public purpose, (2) it was discriminatory, or (3) no just compensation was provided for the property taken.”164 In contrast to the terrorism provision, § 1605(a)(3) does not textually require a plaintiff to exhaust foreign remedies before bringing a suit against a foreign state or its agency or instrumentality, even though such a requirement is generally said to exist in international law.165 Several U.S. courts have suggested, however, that exhaustion might be appropriate as a prudential matter.166 In Abelesz v. Magyar Nemzeti Bank, the Seventh Circuit recently required plaintiffs either to exhaust remedies available to them in the foreign jurisdiction or to provide a “legally compelling explanation” for their failure to do so.167 The term “taking” refers to acts of a sovereign government, not those of private individuals or entities.168 In a case of first impression, the Ninth Circuit concluded that nothing in the plain language of § 1605(a)(3) requires that the foreign state against which the claim is made be the same foreign state that took property in violation of international law.169 Thus, a suit could proceed against the Kingdom of Spain for the recovery of a Camille Pissarro painting on display at a museum in Madrid, even though the painting was taken from the plaintiff’s grandmother in violation of international law in 1939 by an agent of the government of Nazi Germany.

More about Taken in violation of international law

See also Non-Economic Quasi-Property Rights Under Section 1605(a)(3) and Smith Rocke Ltd. v. República Bolivariana de Venezuela.

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