Sovereign Immunity in United States

Sovereign Immunity Definition

Governmental Immunity in this legal Encyclopedia
Sovereign Immunity definition in the Law Dictionary

Sovereign Immunity in Foreign Legal Encyclopedias

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Suggestion of Immunity

The term “suggestion of immunity” denotes the formal communication
by which the executive branch traditionally communicates its decision to recognize
a defendant’s immunity (for example, as a head of state or a foreign diplomat
or other governmental official) without either intervening as a party or taking
sides on an issue otherwise to be decided by the court. In contrast, when the
views of the government are offered at the trial level in any case to which it is not
a party, they are typically submitted in a “statement of interest.” The specific
label, however, is not necessarily determinative. See generally 28 U.S.C § 517
(2006).

Basic Rules of Application

The basic rule, stated in 28 U.S.C. § 1604, is that, subject “to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state is immune from suit in any civil action in any court of the United States unless, and to the extent that, one of the exceptions set forth in §§ 1605–1607 applies.”

See also Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Because immunity under the FSIA is expressly made “[s]ubject to existing international agreements to which the United States [was] a party at the time of” the statute’s enactment, immunity may in rare cases also be based in international agreements to which the United States was a party in 1976, to the extent they conflict with the statute’s immunity provisions. See, e.g., Moore v. United Kingdom, 384 F.3d 1079 (9th Cir. 2004) (discussing NATO Status of Forces Agreement); 767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 F.2d 295 (2d Cir. 1993) (discussing UN Charter, UN Headquarters Agreement, Convention on Privileges and Immunities of the United Nations, and Vienna Convention on Diplomatic Relations). Later-in-time treaties, such as bilateral investment treaties, are clearly excluded. See, e.g., S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 114–15 (D.D.C. 2012).

United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled SOVEREIGN IMMUNITYAt common law the sovereign, although subject to the law, was immune from the jurisdiction of its own courts. The English doctrine of sovereign immunity was established at an early time, probably in the thirteenth century; but long before the American Revolution the jurisdictional
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Applicable Law

In 28 U.S.C. § 1606, that where no immunity exists, foreign states “shall be liable in the same manner and to the same extent as a private individual under like circumstances.”. There are a few eceptions. In reference to international law generally, see Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1294–95 (11th Cir. 1999): “We may look to international law as a guide to the meaning of the FSIA’s provisions. We find the FSIA particularly amenable to interpretation in light of the law of nations for two reasons. First, Congress intended
international law to inform the courts in their reading of the statute’s provisions. . . . Second, the FSIA’s purposes included ‘promot[ing] harmonious international relations. . . .’” The United Nations has adopted a convention incorporating the “restrictive” view of sovereign immunity, but the treaty is not yet in force (and the United States has not yet signed, much less ratified, it). See United Nations Convention on the Jurisdictional Immunities of States and Their Property, G.A. Res. 59/38, Annex, U.N. Doc. A/RES/59/38 (Dec. 2, 2004).

United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled SOVEREIGN IMMUNITY The doctrine of sovereign immunity holds that a sovereign cannot be sued without its consent. Although the Constitution nowhere refers to the sovereign immunity either of the states or the United States, the doctrine is well-entrenched for both levels of government and
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Sovereign Immunity meaning

See Immunity, Sovereign; Governmental Immunity

Sovereign Immunity in the Context of Federal Question Jurisdiction

Sovereign Immunity and Judicial Jurisdiction Under the Foreign Sovereign Immunities Act in International Civil Litigation

Analysis of the Sovereign Immunity and Judicial Jurisdiction Under the Foreign Sovereign Immunities Act, VERLINDEN BV v. CENTRAL BANK OF NIGERIA Notes on Verlinden in relation to the Subject Matter Jurisdiction of U.S. Courts in International Disputes.

Meaning of Sovereign Immunity

In plain or simple terms, Sovereign Immunity means: The doctrine that you can’t sue the government.

Sovereign Immunity Explained

References

See Also

• Civil Procedure
• Federal Courts

Sovereign immunity Background

Sovereign Immunity (Federal, State Interrelationships)

This section introduces, discusses and describes the basics of sovereign immunity. Then, cross references and a brief overview about Federal, State Interrelationships is provided. Finally, the subject of Civil Procedure in relation with sovereign immunity is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Sovereign Immunity (Jurisdiction)

This section introduces, discusses and describes the basics of sovereign immunity. Then, cross references and a brief overview about Jurisdiction is provided. Finally, the subject of Proceedings in relation with sovereign immunity is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Sovereign Immunity (Jurisdiction)

This section introduces, discusses and describes the basics of sovereign immunity. Then, cross references and a brief overview about Jurisdiction is provided. Finally, the subject of Practice in relation with sovereign immunity is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Sovereign Immunity (Administrative Law)

This section introduces, discusses and describes the basics of sovereign immunity. Then, cross references and a brief overview about Administrative Lawin relation to sovereign immunity is provided. Note that a list of bibliography resources and other aids appears at the end of this entry.

Resources

See Also

• Choice of Forum Provision
• Choice of Forum Clause Definition
• Choice of Forum Clause Sample
• Forum Selection
• Choice of Law

Sovereign Immunity in the Context of Judicial Jurisdiction Over Foreign Countries

Waiver of Sovereign Immunity in International Civil Litigation

Analysis of the Waiver of Sovereign Immunity, VERLINDEN BV v. CENTRAL BANK FO NIGERIA CARGILL INT?L, SA v. M/T PAVEL DYBENKO Notes on Verlinden and Cargill in relation with the Foreign Sovereign Immunity and Jurisdiction of U.S. Courts over Foreign States.

Meaning of Sovereign Immunity

In plain or simple terms, Sovereign Immunity means: The doctrine that you can’t sue the government.

Sovereign Immunity Explained

References

See Also

• Civil Procedure
• Federal Courts

Sovereign immunity Background

Resources

See Also

• Choice of Law Rule
• Judicial Branch Jurisdiction
• Legislative Jurisdiction
• Supreme Court Jurisdiction
• Judicial Jurisdiction Definition

Sovereign Immunity in the Context of International Disputes

Selected Historical materials Concerning Foreign Sovereign Immunity in International Civil Litigation

Analysis of the Selected Historical materials Concerning Foreign Sovereign Immunity, THE SCHOONER EXCHANGE v. MCFADDON BERIZZI BROS. CO. v. S.S. PESARO REPUBLIC OF MEXICO v. HOFFMAN (THE BAJA CALIFORNIA) LETTER OF ACTING LEGAL ADVISER, JACK TATE, TO DEPARTMENT OF JUSTICE, MAY 19, 1952 FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 REPUBLIC OF AUSTRIA v. ALTMANN UN CONVENTION ON JURISDICTION IMMUNITIES OF STATES AND THEIR PROPERTY in relation with the Foreign Sovereign Immunity and Jurisdiction of U.S. Courts over Foreign States.

Jurisdictional discovery

The most widely stated standard specifies that discovery must
be ordered “circumspectly and only to verify allegations of specific
facts crucial to the immunity determination” (Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534, 537 n.17 (5th Cir.1992). It also helds that a “necessary prerequisite to an order for limited discovery is a district
court’s clear understanding of the plaintiff’s claims against a sovereign entity … [and] discovery may be used to confirm specific facts that have been pleaded as a basis for enforcing the commercial activities exception, but it cannot supplant the pleader’s duty to state those facts at the outset of the case.”). See also Aero Union Corp. v. Aircraft Deconstructors Int’l LLC, No. 1:11-cv-00484-JAW, 2012 WL 3679627, at *8 (D. Maine Aug. 24, 2012); Doe v. Bin Laden, 580 F. Supp. 2d 93, 96 (D.D.C. 2008); Intelsat Global Sales & Mktg., Ltd. v. Cmty. of Yugoslav
Posts, 534 F. Supp. 2d 32, 34 (D.D.C. 2008); Gabay v. Mostazafan Found. of Iran, 151 F.R.D. 250, 257 (S.D.N.Y. 1993).

Default

From Title 28 U.S.C. § 1608(e), even if a foreign state does not enter an appearance, the court must determine that an exception to immunity applies and that an adequate legal and factual basis exists for the plaintiff’s claims. See Jerez v. Republic of Cuba, 777 F. Supp. 2d 6, 18–19 (D.D.C. 2011). Cf. Hill v. Republic of Iraq, 328 F.3d 680, 684–85 (D.C. Cir. 2003) (“[T]o recover damages a FSIA plaintiff must prove that the projected consequences are ‘reasonably certain’ (i.e., more likely than not) to occur, and must prove the amount of damages by a ‘reasonable estimate’ under this circuit’s application of [Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931)]. This is consistent with § 1606 and not inconsistent with § 1608(e), which is silent on damages, and assures that a FSIA plaintiff’s recovery of damages has some proportionality to the harm proved. It is fair to hold FSIA default-judgment winners to the same preponderance standard of damages as other default-judgment winners
with regard to future damages, as at the damages stage the FSIA plaintiff is no longer handicapped by the defendant’s absence and proof of future damages is likely in the plaintiff’s control.”).

Separate legal entity

As stated in Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 440 (D.C. Cir. 1990), it “is not enough to show that various governmental entities or officials represent a majority of the shareholders or constitute a majority of the board of directors of the applicable agency or instrumentality; in other words,
mere involvement by the state in the affairs of an agency or instrumentality does not answer the question whether the agency or instrumentality is controlled by the state for purposes of FSIA.”

Meaning of Sovereign Immunity

In plain or simple terms, Sovereign Immunity means: The doctrine that you can’t sue the government.

Sovereign Immunity Explained

References

See Also

• Civil Procedure
• Federal Courts

Sovereign immunity Background

Resources

See Also

• Abuse of Process
• International Judicial Assistance in Civil Matters
• International Judicial Assistance in Criminal Matters
• International Judicial Assistance in Administrative Matters
• Cross-Border Discovery
• Abroad Evidence

The FSIA and State-Sponsored Terrorism

According to research about Sovereign Immunity from the Federal Judicial Center:The Foreign Sovereign Immunities Act removes the immunity of certain foreign states with respect to specific acts of state-sponsored terrorism. This particular exception is almost unique to the United States, since to date only one other country has adopted a comparable limitation to the general rule of sovereign immunity.231 It is also invoked frequently. The exception was first enacted in 1996, and steadily growing numbers of plaintiffs have sought to take advantage of its provisions. Most complaints have been filed (and thus most decisions have been rendered) in the District of Columbia, but other courts are increasingly likely to encounter issues under this provision, particularly with regard to efforts to enforce judgments against the property and assets of state sponsors of terrorism. The terrorism exception was originally adopted as 28 U.S.C. § 1605(a)(7).232 In response to various problems encountered by plaintiffs in the course of their litigation under this earlier provision, Congress replaced it in 2008 with an expanded exception, codified at 28 U.S.C. § 1605A.233 Cases have proliferated against Iran and Cuba, but over time against Libya, Iraq, North Korea, Sudan, and Syria as well. A substantial body of interpretive decisional law has already emerged under the new statute.234 This Addendum provides an overview of the background and purpose of the FSIA’s “terrorism exception” (section A), describes the current statutory provision (section B), and then discusses in somewhat greater detail the main elements of a claim under the provision (section C). Section D summarizes the particular issues related to enforcement of judgments against state sponsors of terrorism under § 1605A. This Addendum builds upon and occasionally refers to, but endeavors not to repeat, the analysis offered in the rest of this guide. Litigation under the state-sponsored terrorism exception to the FSIA must be distinguished from suits against individuals and nonstate entities under the separate Anti-Terrorism Act (ATA), enacted in 1992. That statute provides that [a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. On occasion, a particular terrorist incident may give rise to claims under both statutes.

Meaning of Sovereign Immunity

In plain or simple terms, Sovereign Immunity means: The doctrine that you can’t sue the government.

Sovereign Immunity Explained

References

See Also

• Civil Procedure
• Federal Courts

Sovereign immunity Background

Resources

See Also

Popular Topics related with Sovereign Immunity

• Foreign Sovereign Immunities Act Definition
• Foreign Sovereign Immunities Legislative History
• Immunities and Privileges
• Immunities in International Criminal Law
• Immunity from Seizure
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