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 provides that there “shall” be personal jurisdiction over a foreign state whenever there is (a) subject matter jurisdiction plus (b) effective service of process. 28 U.S.C. § 1330(b).
  2. The D.C. Circuit recently held that the statutory requirements for personal jurisdiction under the FSIA are all that is required. See TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 302-303 (D.C. Cir. 2005) (foreign state is not a “person” entitled to due process protections, but must look instead to protections of customary international law, which cannot override express provisions of the FSIA).
  3. Other circuits still regard it as an “open issue.” E.g. The Boeing Co. v. Egyptair, 2007 WL 1315716 (2d Cir. May 7, 2007) (citing Hanil Bank v. PT. Bank Negara Indonesia, 148 F.3d 127, 134 (2d Cir.1998))
  4. In any event, any due process requirements generally are deemed to be met under the two most commonly applied FSIA exceptions – waiver and commercial activities. See, e.g. Hanil Bank, 148 F.3d at 134 (breach of loan agreement payable in New York sufficient for minimum contacts).
  5. Personal jurisdiction also may be waived under an applicable agreement or contract.
  6. Practice Tip: Jurisdiction cannot be obtained by seizing or attaching the foreign state’s property because the FSIA generally makes the property of foreign states immune from such seizures pre-judgment. 28 U.S.C. § 1609-1610.

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