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. Section 1330(a) provides original (but not exclusive) jurisdiction in federal court over claims governed by the FSIA.
  2. Basis for jurisdiction: jurisdiction exists if
    1. the claim is against a “foreign state” and
    2. one or more exception to sovereign immunity applies. See Exceptions below.
  3. Claims that are subject to the FSIA may also be removed from state to federal court under 28 U.S.C. § 1441(d).
    1. The ordinary 30-day time limit for removal of an action may be enlarged “for cause” under the FSIA. Id.
    2. Only the “foreign state” may invoke removal under the FSIA. However, claims against other defendants may also be removed along with the claims against the foreign state, particularly if the claims are based on a unified set of facts.
    3. Removal is available under the FSIA even where it might otherwise be unavailable – i.e. even when another defendant does not consent or one or more defendants is a citizen of the forum state.
  4. Where the FSIA provides original jurisdiction, supplemental jurisdiction may extend to claims against other non-state parties as to which there otherwise might be no federal subject matter jurisdiction. “The FSIA grants federal jurisdiction over entire cases where a foreign state is a party.” Teledyne, Inc. v. Kone Corp., 892 F.2d 1404, 1409 (9th Cir. 1989); see also Noonan v. Possfund Inv., Ltd., 1994 WL 515440, at *3 (S.D.N.Y. Sept. 3, 1993) (finding jurisdiction and denying remand).
  5. Jurisdiction disputes
    1. Unless challenged with facts, a plaintiff’s jurisdictional allegations are presumed to be true and the Court may make a determination of subject matter jurisdiction on the face of the complaint alone. See, e.g., Robinson v. Gov’t of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (plaintiff’s allegations in support of FSIA jurisdiction are presumed true unless challenged by a proffer of evidence); Gulf Resources Am., Inc. v. Republic of the Congo, 370 F.3d 65, 70-71 (D.C. Cir. 2004) (allegations of waiver presumed to be true and supported FSIA jurisdiction).
    2. Practice Note: Some of exceptions to sovereign immunity arguably turn solely on the nature of the claims being made and, therefore, may provide an argument that the court need not go beyond the pleadings to determine jurisdiction.
      1. Example: The “commercial activity” exception turns on what “the action is based upon,” meaning the plaintiff’s allegations. Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993) (“In denoting conduct that forms the “basis,” or “foundation” for a claim, the phrase is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case.”)
      2. Example: The “gifts and real property” exception turns on whether rights concerning a gift or immovable property “are in issue.”
    3. If jurisdiction is factually challenged, the plaintiff may be entitled to discovery either with respect to the jurisdictional issues or, where jurisdiction and merits overlap, on the merits.
    4. Where there is a sufficient basis for a threshold finding of FSIA jurisdiction, the case should proceed to merits discovery, even if facts developed in discovery might require reexamination of jurisdiction. See U.S. Fid. & Guar. Co. v. Braspetro Oil Servs., 199 F.3d 94, 99 (2d Cir. 1999).
    5. FSIA jurisdiction can be determined even when the foreign state does not appear in the action – or even if it is voluntarily dismissed (leaving other defendants in the lawsuit). Verlinden, 461 U.S. at 493 n. 20 (regardless of whether the foreign state “enter[s] an appearance to assert an immunity defense, a District Court still must determine that immunity is unavailable under the Act.”); see also Security Pac. Nat’l Bank v. Derderian, 872 F.2d 281, 283 (9th Cir. 1989) (determination of FSIA jurisdiction is required and made regardless of whether sovereign remained a party to the case).

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