International Dispute Resolution Update: Foreign Sovereign Immunity
By James E. Berger
On June 1, 2010, the U.S. Supreme Court issued its decision in Samantar v. Yousuf, a case in which it was asked to decide whether officials of foreign states are entitled to the protections of the Foreign Sovereign Immunities Act (the FSIA). The Court, through an opinion written by Justice Stevens, held that officials are not covered by the FSIA. This update provides a brief background on the FSIA, as well as a discussion of Samantar and other notable recent decisions involving the doctrine of foreign sovereign immunity.
Foreign sovereign immunity the doctrine holding that states are presumptively immune from the jurisdiction of another states courts is one of the most venerable and universal concepts in international law. While virtually every nation recognizes the basic doctrine of foreign sovereign immunity, the doctrines application varies among states. Some states extend foreign sovereign immunity strictly as a matter of international comity, while others have codified the doctrine in their jurisdictional statutes. Some states, such as the Peoples Republic of China, afford foreign states absolute immunity, while others, such as the United States, follow a more restrictive approach that immunizes foreign states and their instrumentalities from suit in connection with sovereign acts, but leaves them amenable to suit in connection with commercial acts.