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 does not generally affect the substantive law applicable to the underlying dispute.
  2. Limitations on default judgments. 28 U.S.C. § 1608(e)
    1. Once served, a foreign state has 60 days to respond to the Complaint.
    2. If no response is filed, the FSIA permits a default judgment, but only if “the claimant establishes his claim or right to relief by evidence satisfactory to the court.”
      1. Conclusory allegations are insufficient
      2. Written submissions likely suffice, although the court may order a hearing.
    3. Practice Tip: If a default judgment is obtained, plaintiff must serve a copy on the foreign state using the service of process rules.
  3. No punitive damages: The FSIA expressly bars recovery of punitive damages against a “foreign state.” 28 U.S.C. § 1606. Punitive damages are permitted, however, against “agencies and instrumentalities.”

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