Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. The FSIA purposefully restricts sovereign immunity so that private parties dealing with or injured by foreign states, particularly in commercial transactions, may obtain judicial relief. See, e.g. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 487 (1983); See also H.R. Rep. 94-1487, reprinted in 1976 U.S.C.C.A.N. 6604, 6605 (Sep. 9. 1976) (FSIA “codif[ies]” principle that immunity “does not extend to suits based on its commercial or private acts (jure gestionis).”).
  2. Importantly, unlike other types of immunity, since 1976, the FSIA places immunity decisions solely in the hands of the courts and solely as a matter of statutory interpretation. See, e.g., Dole Food v. Patickson, 538 U.S. 468, 479 (2003) (rejecting policy-based arguments in favor of ordinary application of statute).
  3. The shift to statutory-based immunity provides an argument that diplomatic and foreign policy considerations are irrelevant. Id.

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