The Foreign Sovereign Immunities Act

Transcription

1 MARCH 2005 The Foreign Sovereign Immunities Act Assessing the Immunity of Foreign States in U.S. Litigation By Hugh R. Koss, Brooke C. Galardi, and Eric B. Strain The Foreign Sovereign Immunities Act of 1976 [FSIA] 1 defines the jurisdiction of the courts of the United States in actions involving foreign sovereigns and their agencies and instrumentalities, including government-owned commercial entities. The FSIA codified the so-called restrictive theory of foreign sovereign immunity, which granted foreign sovereigns and their instrumentalities jurisdictional immunity in cases founded upon acts of a governmental, as opposed to commercial, nature. Before its enactment, decisions regarding immunity were, in the first instance at least, made on an ad hoc basis by the U.S. Department of State. The FSIA was intended to make uniform the treatment of cases involving foreign sovereigns, given the implications for the foreign relations of the United States and the need for consistency in the litigation process. In the global community, foreign states and their instrumentalities increasingly are players in U.S. litigation arising from myriad commercial transactions, including those related to transportation industries. Foreign sovereigns and their instrumentalities are especially active in the airline and shipping sectors, in addition to the commercial space vehicle, aircraft, ship, and rail manufacturing sectors. This article highlights significant recent appellate decisions addressing the FSIA. These decisions will be of interest to those practitioners representing foreign states and to those representing parties with adverse interest whose position in litigation will be affected by the rights and procedures prescribed by the Act. The recent decisions rendered under the FSIA have far-ranging consequences for those seeking its protections and advantages such as an unfettered right to a federal forum, only nonjury trials, and certain limitations on the recovery of punitive damages and those denied these benefits. Page 1 of 11

2 Hugh R. Koss is a member of Nixon Peabody LLP, in the firm s San Francisco office. Eric C. Strain is an associate in the same office. Brooke C. Galardi was formerly associated with the same office. Hugh and Eric practice in the areas of complex aviation, products liability, commercial litigation, and federal jurisdiction, as did, Brooke when she was associated with the firm. The authors can be reached at hkoss@nixonpeabody.com, estrain@nixonpeabody.com, and brookegalardi@yahom.com. In the global community, foreign states and their instrumentalities increasingly are players in U.S. litigation arising from myriad commercial transactions, including those related to transportation industries. Foreign sovereigns and their instrumentalities are especially active in the airline and shipping sectors, in addition to the commercial space vehicle, aircraft, ship, and rail manufacturing sectors. This article highlights significant recent appellate decisions addressing the FSIA. These decisions will be of interest to those practitioners representing foreign states and to those representing parties with adverse interests whose position in litigation will be affected by the rights and procedures prescribed by the Act. The recent decisions rendered under the FSIA have far-ranging consequences for those seeking its protections and advantages such as an unfettered right to a federal forum, only nonjury trials, and certain limitations on the recovery of punitive damages and those denied these benefits. Status as a Foreign State Without doubt, the most significant recent development in FSIA law was the U.S. Supreme Court s decision in Dole Food Co. v. Patrickson,2 which overruled directly contrary decisions rendered by several circuit courts of appeal and very severely circumscribed those foreign government-owned entities that qualify as foreign states under the Act. In Dole, the Court held that a majority of a foreign corporation s shares must be directly owned by a foreign sovereign in order for the corporation to qualify as a foreign government instrumentality, and hence as a foreign state under the FSIA.3 The Court s decision was assertedly based on the plain language of the controlling statute, 28 U.S.C. 1603(b). In so holding, the Court overruled some twenty-five years of almost uniform district and appellate authority granting foreign state status to entities majority-owned by foreign sovereigns, whether directly or indirectly through other entities. Of the many appellate courts to consider the issue, only the Ninth Circuit Court of Appeals, which rendered the appellate decision in Dole that was affirmed, had circumscribed status to those entities owned directly by foreign governments. The Court further held that instrumentality status is determined at the time of the filing of the complaint, clarifying several inconsistent district court and appellate decisions variously holding that the time of filing controlled, the time of the conduct underlying the claim controlled, or that either time controlled.4 As expressly recognized in the dissent written by Justice Breyer and joined by Justice O Connor, Dole is also of analytical interest for at least two distinct reasons. First, it applies American corporate law ownership concepts to a sui generis statute, the FSIA, enacted specifically to address foreign entities. Second, it fails to even mention, much less analyze, any of the contrary appellate decisions or the statute s legislative history, illustrating that it was to have broad application to ensure the uniform treatment of foreign sovereigns and their instrumentalities in U.S. courts. Dole also rests on analogies to other statutes making Page 2 of 11

3 express distinction between direct and indirect ownership and the argument that Congress knew how to include both types of ownership in Section 1603(b) had it wanted to. But, as also recognized by the dissent, the FSIA makes no such distinction. Dole s Ninth Circuit underpinnings may also be suspect in that that court first raised the supposed requirement of direct ownership in a case not involving ownership at all, but rather an organ of a foreign sovereign. Ironically, in that case the panel itself also failed to mention, much less analyze, several prior Ninth Circuit decisions recognizing the foreign state status of indirectly majority-owned entities. Dole s ironical result is manifest. An entity directly owned 51 percent by a foreign sovereign would qualify under the Act. An entity owned 100 percent by a foreign sovereign but held through another 100 percent-owned holding entity would not qualify even though the foreign sovereign s interests are likely more affected by legal process against the latter. Dole will also likely result in more litigation over whether a given entity may qualify as a foreign state under the Act as an organ of a foreign sovereign, as opposed to an instrumentality. Dole s holding regarding the necessity of direct foreign government corporate ownership was followed in Filler v. Hanvit Bank,5 and its holding concerning the operative time of ownership was followed in Abrams v. Société Nationale des Chemins de Fer François.6 Acts of Agents Exception to Immunity In Section 1604, the FSIA confers presumptive jurisdictional immunity from suit in the United States upon foreign state[s] as defined by the Act. The commercial exception to jurisdictional immunity, prescribed by Section 1605(a)(2), strips a foreign immunity when the action is based upon commercial activity in the United States. carried on in the United States. The exception may be established foreign state engages in commercial activity even abroad that has substantial contact with the United States. In BP Chemicals v. Jiangsu Sopo Corp. Ltd.,7 a corporation wholly owned by the Chinese government engaged another government-owned corporation to procure sophisticated engineering products and equipment from American firms to further the construction of a Chinese chemical plant that also employed trade secrets and designs owned by the plaintiff. In the course of procuring the equipment and products, the agent disclosed the plaintiff s trade secrets, ill-gotten to begin with, to the American firms with which it transacted business. The plaintiff then sued both the principal and agent for violation of the Missouri Uniform Trade Secrets Act. The court held that the principal was not entitled to jurisdictional immunity under the FSIA because, by employing an agent to procure the necessary equipment from American firms, it engaged in commercial activity and enjoyed substantial contact with the United States. A foreign state may thus lose its immunity by virtue of activities of its agent. 8 No proof of the principal s contacts with the United States is required. Direct Effect in the United States Exception to Immunity The commercial activity exception to jurisdictional immunity also grants jurisdiction in actions based upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. In Republic of Argentina v. Weltover,9 the Supreme Court held that an Page 3 of 11

4 effect is direct if it follows as an immediate consequence of the defendant s... activity. 10 This standard has been adopted in the products liability context in Lyon v. Agusta S.P.A.11 Hence, particularly where failure of a manufactured product is concerned, a more appropriate reading of [direct effect] should focus on whether some intervening act broke the chain of causation leading from the asserted wrongful act to its impact in the United States. 12 Under this reasoning, the Ninth Circuit concluded that the failure of a defectively manufactured product, which defect resulted in injury to its user in the United States, was a direct effect of the product s defective production and constituted commercial activity excluded from immunity under Section 1605(a)(2).13 In Lyon, the defendant airplane manufacturer first sold and delivered the involved aircraft some twenty-three years before the accident. The aircraft was the subject of multiple ownership transfers between the time of its original sale and the accident. Finding that a direct effect had nonetheless been established for purposes of FSIA jurisdiction, the court noted that while the multiple transfers and significant passage of time could affect issues of causation, they did not affect jurisdiction under the FSIA. The court ultimately held, however, that the General Aviation Revitalization Act of 1994 precluded manufacturer liability for the accident. The scope of the direct effect requirement was also addressed in the opinion of the Second Circuit Court of Appeals in Virtual Countries, Inc. v. Republic of South Africa.14 In Virtual Countries, South Africa issued a press release that revealed its intention to initiate arbitration proceedings against the owner of the domain name southafrica.com and to submit proposals on how to protect countries rights to their own domain names from parties that obtain the names for their personal economic gain. The owner of the domain name, an American company called Virtual Countries, brought a declaratory relief action against South Africa and its Ministry of Tourism, alleging that the press release, issued outside of the United States, had a direct effect on the owner s operations in the United States by limiting its ability to raise capital. Moreover, the plaintiff claimed that it had lost a possible strategic alliance with a South African firm that withdrew as a potential partner due to fear of reprisals from the South African government. 15 Virtual Countries argued that the preparation and release of the press statement caused a direct effect in the United States... by having a devastating and direct effect... on [its] business operations. 16 Relying on the Supreme Court s decision in Weltover, the court disagreed, holding that the press release s effect fell at the end of a long chain of causation and [was] mediated by numerous actions by third parties, including members of the press and the investors that later declined to invest in Virtual Countries.17 In essence, the press release s claimed effect was dependent on too many variables independent of South Africa s action for the court to conclude that a direct causal link existed between it and the damage claimed. Derivative Jurisdictional Immunity A private agent of a foreign state, even one located in the United States, is entitled to derivative jurisdictional immunity under the FSIA when it is faithfully following the commands of a foreign state performing a traditional state function, as opposed to a commercial activity. In Butters v. Vance international Inc., 18 the plaintiff was an employee of a Page 4 of 11

5 private security company hired by the Saudi government to aid in the protection of a member of its royal family while staying in Los Angeles. The plaintiff, a woman, had enjoyed several minor promotions while on the Saudi job, but when the private security agency sought to promote her to a more senior security post, the Saudi client refused to agree or the basis that such a position was inappropriate for a woman. The decision was that of the Saudi client. After the denial of her promotion, the plaintiff brought suit against her employer in state court, claiming that the defendant discriminated against her on the basis of gender. The defendant removed to federal court based on diversity. The Fourth Circuit Court of Appeals held that the employer, an independent contracting security company, was entitled to jurisdictional immunity because it was acting as an agent of the Saudi government engaged in activity peculiar to a sovereign, i.e., ensuring the safety of the royal family. 19 Thus, in determining the scope of jurisdictional immunity, the court focused on the nature of the function being performed 20 rather than the office or position of the person performing it. The court also analogized to the derivative immunity afforded agents of the United States. The fact that the defendant was engaged in the provision of security for profit was irrelevant to the assessment of immunity in light of the purpose and function of its engagement by the Saudi government. The holding of Butters was also applied more recently in Velasco v. Government of Indonesia. 21 The FSIA and Arbitration Several recent appellate decisions address the application of the FSIA in the context of the enforcement of arbitration awards. The Second Circuit recently held in In re Arbitration Between: Monegasque De Reassurances S.A.M. v. NAK Naftogaz of Ukraine and State of Ukraine 22 that notwithstanding the United States s adoption of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), as implemented by the Federal Arbitration Act (FAA), the doctrine of forum non conveniens may be applied to dismiss an action brought to enforce a foreign arbitration award properly within the jurisdiction of U.S. courts pursuant to both the FAA and the FSIA. The Convention provides that each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon. The Second Circuit interpreted this provision to permit application of the doctrine of forum non conveniens, a procedural rather than substantive doctrine, when jurisdiction should be rejected on the basis of convenience, judicial economy, and in the interest of justice. Therefore, where a foreign insurer brought an action to enforce an arbitration award obtained from a Moscow arbitration panel against a Ukrainian company and Ukraine itself, the defendants were entitled to dismissal on the basis of forum non conveniens, upon making the appropriate showing. The court reasoned that the case had no connection with the United States other than the fact that the United States was a Convention signatory, and the facts and circumstances weighed heavily in favor of enforcement in either Russia or Ukraine. Of note, too, was the court s express relaxation of the requirement that the district court s FSIA subject matter be established prior to dismissal. Page 5 of 11

6 The Seventh Circuit Court of Appeals also recently addressed the FSIA and arbitration in dicta in International Insurance Co. v. Caja Nacional de Ahorro y Seguro. 23 In that case, the plaintiff reinsured with the defendant, an instrumentality of Argentina, which thereafter refused to fulfill its obligations to indemnify the plaintiff. The plaintiff initiated an arbitration proceeding in Chicago, as was required by its contract with the defendant. After the defendant failed to respond, the arbitration panel entered a final default in the plaintiff s favor. The plaintiff then filed a petition to enforce the award in federal district court; the defendant sought to set the award aside. The district court, consistent with the applicable state insurance code, ordered the defendant to post prejudgment security. The defendant refused and appealed the order on the ground that the FSIA provided it with immunity from posting prejudgment security, under Sections 1609 and 1610(d), which permit prejudgment attachment or execution on the property of a foreign state or its agencies or instrumentalities that is located in the United States only in the pre-scribed circumstances. Relying on Section 1605(a)(6)(A), which provides that a foreign state shall not be jurisdictionally immune in any proceeding to confirm an arbitral award rendered pursuant to an agreement to arbitrate in the United States, the Seventh Circuit noted that Argentina was a signatory to the Convention, as implemented by the FAA, and to the Inter-American Convention on International Commercial Arbitration (Panama Convention). Both the Convention and the Panama Convention authorize the courts of signatory countries to require suitable security or appropriate guarantees from parties seeking to set aside or suspend an arbitral award rendered within their jurisdiction. The Seventh Circuit found that, by signing both conventions and agreeing to arbitrate in the United States, Argentina had waived the prejudgment attachment protections afforded by the FSIA for its instrumentalities when one seeks to set aside or suspend an arbitral award. 24 Foreign Court Appearance No Waiver of Immunity A foreign state s amenability or submission to suit in its own country does not automatically subject it to jurisdiction in the United States under the FSIA. In Corzo v. Banco Central de Reserva Del Peru, 25 the plaintiff sued the monetary authority of Peru in a Peruvian court after it denied the plaintiff s application for compensation for losses it suffered when the exchange rate between Peru and the United States shifted unfavorably. The highest court in Peru affirmed a judgment rendered in the plaintiff s favor and then reversed itself in unprecedented fashion, claiming that the justices had mistakenly signed the opinion believing it to have reflected the opposite outcome. The plaintiff s assignee (Corzo) there-after sought to enforce the judgment in U.S. federal district court. Corzo argued that the Peruvian monetary authority had waived jurisdictional immunity under the FSIA both by being subject to the jurisdiction of the courts of Peru pursuant to the Peruvian Constitution and by submitting to the jurisdiction of those same courts. The Ninth Circuit held that the FSIA s waiver exception to immunity is to be narrowly construed and that a foreign state s submission to the jurisdiction of the courts of its own country does not constitute, nor warrant, sub-mission to the jurisdiction of the courts of a different sovereign. 26 The court noted that its holding was consistent with the approach of the Fifth, Seventh, and Eighth Circuits to the issue. Moreover, the court noted that the rule was also consistent with the U.S. House of Representatives Report on the FSIA, which states that instrumentalities of foreign states that are entitled to immunity may include those Page 6 of 11

7 entities that under the law of the foreign state where it was created, can sue or be sued in its own name. 27 Joinder in State Action Federal Forum Remains The Ninth Circuit held in EIE Guam Corp. v. The Long Term Credit Bank of Japan, Ltd. 28 that a foreign state that acquires a defendant s interest in state court litigation by assignment may remove the case to federal court under the FSIA, even if the foreign state joins the litigation voluntarily. The court based its holding on the language of the Act s removal provision, Section 1441(d), which provides in part that any civil action brought in state court against a foreign state may be removed by it to federal district court. The court reasoned that nothing in the statute prohibited a voluntarily joined party against whom claims were asserted (by assignment) from removing and that the policy leading Congress to provide a federal forum to foreign states is just as strong when those states acquire an interest in ongoing litigation, and when they voluntarily join such litigation, as when they are named originally as defendants. 29 In EIE Guam Corp., a debtor in default brought an action against its lender, a Japanese bank. The bank assigned all of its rights and claims in the litigation to a collection corporation that was held to be an organ of the State of Japan, as defined by the FSIA. The plaintiff-debtor stipulated to the collection corporation s joinder in the litigation as a defendant. Thereafter, the collection corporation removed the action to federal court under the FSIA. After a lengthy discussion of the policies underlying the Act and its broad grant of federal jurisdiction over actions involving foreign sovereigns, the court held that the collection corporation was entitled to assert its right of removal under the Act even though it was not originally named as a defendant and had voluntarily joined the litigation. FSIA Jurisdictional Immunity and RICO The Sixth Circuit Court of Appeals has held that, absent an international agreement providing otherwise, the FSIA affords jurisdictional immunity from the criminal jurisdiction of the courts of the United States. In Keller v. Central Bank of Nigeria, 30 the court began its analysis by noting that under the FSIA a sovereign s commercial activity does not lose its commercial nature merely because the activity was simultaneously fraudulent or otherwise criminal. The court also held, however, that in order to prosecute a civil RICO claim the defendant must be indictable in the United States for the listed predicate offenses. 31 Consequently, even though the foreign state had engaged in commercial activity as defined by the FSIA, a civil RICO action would fail absent jurisdiction over necessary predicate criminal offenses. Service under the Act In Schroder-Magness v. Russian Federation, 32 the Fifth Circuit Court of Appeals held that to properly effectuate service of a process upon a foreign sovereign or a political subdivision thereof, a party must strictly comply with the requirements of the FSIA s service provision, Section 1608(a). However, in effectuating service of process upon an agency or instrumentality of a foreign state as defined by the Act, a party need only substantially comply with Section 1608(b); service will be deemed proper if it gives actual notice of the Page 7 of 11

8 suit and the consequences thereof to the proper individuals within the agency or instrumentality. 33 The latter holding is consistent with those rendered by the Third, Sixth, Ninth, and D.C. Circuits. Applying the substantial compliance standard for service upon an instrumentality of a foreign state, the court determined that the plaintiffs failure to include a notice of suit in the service documents, the failure to effect service via a letter rogatory or other method provided by the statute, and the complete lack of evidence that the defendant had actual notice of the suit amounted to insufficient compliance with even the lesser requirements of Section 1608(b). Jurisdiction to Enforce Judgments First City, Texas Houston, N.A. v. Rafidain Bank 34 holds that when an exception to jurisdictional immunity applies, jurisdiction continues to aid in the enforcement of a money judgment obtained in the action. Postjudgment jurisdiction extends to permit discovery against the judgment debtor regarding sources of assets, including possible alter egos, necessary to satisfy the judgment. In First City, an Iraqi state-owned bank, Rafidain Bank, defaulted on letters of credit issued by it in favor of the plaintiff, First City. First City also named another bank, Central Bank, which it believed to be the alter ego of the defaulting bank. After obtaining a default judgment against the Iraqi banks, the plaintiff-creditor served discovery on both banks, seeking alter ego and asset information. Following a convoluted series of proceedings, including civil contempt proceedings, the Second Circuit affirmed the district court s decision, finding that, having engaged in commercial banking activity the issuing Iraqi bank, at least, had waived immunity as to both the action and later discovery needed to enforce the default judgment entered against it. 35 Discovery and FSIA Immunity In Kelly v. Syrian Shell Petroleum Development B.V., 36 the Fifth Circuit held that district courts presiding over actions in which the defendant claims jurisdictional immunity under the FSIA are not required to defer ruling on jurisdictional motions until the completion of discovery contemplated by the plaintiff. Rather, for a court to rule on a jurisdictional motion, the plaintiff need only have been afforded an opportunity for discovery. 37 Courts need not defer rulings on dismissal motions because plaintiffs fail to propound discovery that may have helped establish jurisdiction. Accordingly, when FSIA immunity has been claimed, unlimited jurisdictional discovery is not permitted as a matter of course; discovery should be ordered circumspectly and only to verify allegations of specific fact crucial to an immunity determination. 38 Kelly s circumscription of discovery to the facts underlying immunity was followed in Connecticut Bank of Commerce v. Republic of Congo. 39 Evidentiary issues under the FSIA In Hill v. Republic of Iraq and Saddam Hussein, 40 the District of Columbia Court of Appeals addressed the standard of proof necessary for a plaintiff to obtain an award of damages based on a default judgment entered against a foreign state. Applying Section 1606, which Page 8 of 11

9 states that as to any claim for relief with respect to which a foreign state is not entitled to immunity, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances, the court held that a plaintiff that obtains a default judgment against a foreign state must meet the so-called common-law American rule.41 That essentially requires a plaintiff to prove that the projected consequences of its injury are reasonably certain (i.e., more likely than not) to occur and also the amount of damages by a reasonable estimate. 42 The court reasoned that this standard was both consistent with the FSIA and also assured the plaintiff a typical recovery proportionate to the harm suffered. Retroactive Application of the FSIA In Landgraf v. USI Film Products, 43 the Supreme Court established a two-step approach to determining whether a statute applies to events predating its enactment. First, a court must ask whether Congress has expressly prescribed the statute s proper reach. 44 If Congress has done so, the inquiry ends. If not, a court must determine whether applying the statute to preenactment events would impair rights a party possessed when he acted, increase a party s liability for past conduct, or impose new duties with respect to transactions already completed. 45 In Altman v. Republic of Austria, 46 the Landgraf test was used to deter-mine whether the FSIA applied to conduct predating the statute s enactment in In Altman, a U.S. plaintiff brought suit against the Austrian sovereign and a museum s instrumentality to recover paintings that were allegedly stolen by the Nazi armed forces during World War II. After recognizing that the FSIA does not expressly prescribe the statute s temporal reach, the Altman court examined the question of whether the Austrian government and its instrumentality would have been entitled to immunity for its alleged complicity in the pillaging and retention of treasured paintings from the home of a Jewish alien who was forced to flee for his life. 47 Relying on the international law of takings, including the Hague Convention (IV) on the Laws and Customs of War on Land, and Austria s Second Republic official repudiation of all Nazi transactions in 1946, the court held that Austria could neither expect nor would it have been entitled to immunity for its alleged actions when they occurred. 48 Thus, application of the FSIA to preenactment events would not attach new legal significance to these events, and since the international law of takings would govern the substantive claim, application of the FSIA s expropriations exception to immunity, Section 1605(a), would serve essentially to fix venue. The court thus applied the Act retroactively. Conclusion U.S. litigation involving foreign sovereigns and their instrumentalities arising from transportation industry transactions and events continues to grow with the increasingly global economy. Industry participants and practitioners should be well versed with the jurisdictional immunity and other protections afforded such entities by the FSIA and their effect on the vindication of adverse parties rights. Page 9 of 11

10 The Foreign Sovereign Immunities Act: Assessing the Immunity of Foreign States in U.S. Litigation was published in the American Bar Association s The Brief; Tort Trial and Insurance Practice Section, Fall 2004, Vol. 34, No. 1. This information or any portion thereof may not be copied or disseminated in anyform or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association U.S.C. 1330, 1441(d), 1602 et seq S. Ct (2003). 3 Id. at Id F.3d 213, 214 (2d Cir. 2004) F.3d 173, 180 (2d Cir 2003) F.3d 677 (8th Cit.), cert. denied, 123 S. Ct. 343 (2002). 8 Id. at U.S. 607 (1992). 10 Id. at F.3d 1078,1083 (9th Cir. 2001), cert. denied, 122 S. Ct. 809 (2002). 12 Id. at Id F.3d 230 (2d Cir. 2002). 15 Id. at Id. at Id. at F.3d 462 (4th Cir. 2000). 19 Id. at Id. at F.3d 392, 399 (4th Cir. 2004) F.3d 488, 497 (2d Cir. 2002) F.3d 392 (7th Cir. 2002). 24 Id. at F.3d 519 (9th Cir. 2001). 26 Id. at Id., (quoting H.R. REP No. 1487, at 15 (1976)) F.3d 635, 649. (9th Cir. 2003). 29 Id. at F.3d 811, 820 (6th Cir. 2002). 31 Id F.3d 609, (5th Cir. 2001). 33 Id. at F.3d 48, 54 (2d Cir.), cert. denied, 123 S. Ct. 75 (2002). 35 Id. at F.3d 841, (5th Cir.), cert. denied, 531 U.S. 979 (2000). 37 Id. at Id. at F.3d 240, 261 (5th Cir. 2002) F.3d 680, (D.C. Cir. 2003). 41 Id. at Id. at U.S. 244 (1994). Page 10 of 11

11 44 Id. at Id F.3d 954 (9th Or. 2002). 47 Id. at Id. at , 966. The Foreign Sovereign Immunities Act: Assessing the Immunity of Foreign States in U.S. Litigation was published in the American Bar Association s The Brief; Tort Trial and Insurance Practice Section, Fall 2004, Vol. 34, No. 1. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Page 11 of 11