Foreign Sovereign Immunity

1
Foreign Sovereign Immunity

• April 14

2
Schooner Exchange v. McFaddon

• Who are the libellants in this case? What is
  their claim?
• How did the court resolve that claim?
• Is this a ruling on the merits? Or on
  jurisdictional grounds?
• Be prepared to summarize the courts rationale.
• Why does it matter that the vessel is a public
  armed ship?

3
Schooner Exchange (cont.)

• How important was the political context? Was
  this a political decision?
• See note 1, pg. 833.
• Be prepared to discuss the questions in notes 2
  and 3, pg. 833-34.

4
Victory Transport v. Comisaria General

• Spain claimed sovereign immunity. The Court
  rejected that claim.
• Why? How is this different from Schooner
  Exchange?
• What is the relevance of the treaties cited by
  the court?
• Note that the State Department did not take a
  position in this case.
• If it had, should the court necessarily accept
  the State Depts position?

5
Victory Transport

• What explains/justifies the shift from absolute
  immunity to the restrictive theory?
• Why not abandon sovereign immunity altogether?
• Be prepared to discuss the questions in notes 2
  and 3 on page 838.

6
Foreign Sovereign Immunities Act

• Why did Congress enact this statute? Were they
  unhappy with the developing case law?
• Consider note 4, pg. 850.
• Study the statute carefully (CB, pg. 839-42). In
  class, you will be asked to apply the statute to
  a couple of hypothetical cases.
• A more complete version of the statute is in the
  Supplement, at 596-605.

7
Foreign Sovereign Immunities Act

• Note the reference to a specific case in section
  1605(a)(7)(A)
• Why did Congress add this language?
• Is this constitutional?
• Which states have been designated as a state
  sponsor of terrorism?

8
Texas Trading v. Nigeria

• The court holds that Nigeria is not entitled to
  sovereign immunity.
• Why not? How important is
• Statutory language?
• Legislative history?
• Prior case law?
• Rules of international law?

9
Texas Trading v. Nigeria

• Should the court have applied the FSIA
  retroactively? (See note 1, pg. 848.)
• See note 3, pg. 849-50.
• Does the case law make sense?
• Is this case less important to Nigeria than
  Schooner Exchange was to France? If not, how do
  you explain the different outcomes?

10
Argentina v. Amerada Hess

• The Court held that the FSIA provides the sole
  basis for jurisdiction over a foreign state in
  U.S. courts.
• Why?
• Is the courts rationale persuasive?

11
Argentina v. Amerada Hess

• The Court also held that none of the FSIA
  exceptions applied in this case.
• Do you agree?
• Consider notes 4 and 5, pg. 857.
• Be prepared to discuss the questions raised in
  notes 1, 6, and 10 on pages 856-59.

12
Act of State Doctrine

• April 15

13
Underhill v. Hernandez

• What are the underlying facts?
• What is the main holding of the court?
• Why does the court arrive at that result?
• If the US had a bilateral treaty with Venezuela
  in which each country promised protection for
  citizens of the other, would the result be
  different?
• Be prepared to discuss note 1, pg. 868.

14
Banco Nacional v. Sabbatino

• What are the underlying facts?
• Note the Courts justification for the act of
  state doctrine
• Its not international law
• Its not constitutional law
• What is it?
• Is the Courts rationale persuasive?

15
Banco Nacional v. Sabbatino

• The Court suggests that there would be severe
  negative consequences if a U.S. court declared
  the Cuban governments act of expropriation
  illegal.
• What is the Court worried about?
• Is that concern justified?
• What guidance does the Court give to help lower
  courts apply the act of state doctrine in future
  cases?
• Is the Courts guidance likely to produce a
  consistent body of case law in the future?

16
Banco Nacional v. Sabbatino

• See note 3, pg. 869. If you were a Member of
  Congress in 1964, would you have voted for the
  Second Hickenlooper Amendment?
• Why or why not?
• Be prepared to discuss the questions raised in
  note 4, pg. 870.

17
Kirkpatrick v. Environmental Tectonics

• The Court holds that the factual predicate for
  application of the act of state doctrine does not
  exist.
• What is the basis for that holding?
• Is the Courts rationale persuasive?
• Assume, for the moment, that the factual
  predicate does exist.
• Are there good reasons NOT to apply the act of
  state doctrine in this case? What are those
  reasons?

18
Act of State Doctrine

• Should the act of state doctrine be abolished?
• If so, what doctrine(s) could be used to
  accomplish the legitimate purposes the doctrine
  was designed to promote?
• Should the doctrine be retained, but
  reformulated? If so, how?
• Consider note 2, page 875-76.