Foreign Sovereign Immunity

Question 1

Sovereign Immunity

Answer 1

•Grounded on the principle or policy that suing foreign sovereigns in local courts or to challenge the legality of foreign sovereign acts could upset friendly relations between states.

Question 2

Schooner Exchange

Answer 2

Facts: Two guys ship is overtaken by French citizens acting on behalf of napoleon. The two bring suit asking ship to be returned.

Issue: Whether an American citizen can assert in an American court a title to an armed national vessel, found within the waters of the US?

Court says: ship became a French warship in the service of a foreign sovereign with whom the US is at peace having entered the port due to bad weather ships of war are generally thought to be in the foreign sovereign exception and is exempt from the jurisdiction of the country.

Question 3

What three principles of Sovereign immunity were highlights in Schooner?

Answer 3

Court highlighted three principles:
the exemption of the person of the sovereign from arrest or detention within a foreign country;

the immunity that all civilized nations allow to foreign ministers;

that a sovereign is understood to cede a portion of his territorial jurisdiction when he allows troops of a foreign prince to pass through his dominions

Question 4

Victory Transport

Answer 4

Facts: Spanish Ministry of Commerce contracts w/ US co. to buy wheat to ship home.

Issue: Can Spain be sued in US courts?

Court: Applies restrictive theory. “Commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than be reference to its purpose.” EX. Doesn’t matter if its to cure famine.

•Court decides this is commercial activity and is not subject to sovereign immunity. This is more like a contract between private parties.

Question 5

What is the restrictive theory of sovereign immunity?

Answer 5

Distinction between public and private acts. The court will deny immunity for private or commercial acts.
•Categories of political/public acts
-Internal administrative acts
- Legislative acts, such as nationalization
- Acts concerning the armed forces
- Acts concerning diplomatic activity
- Public loans.

Question 6

How is commercial activity determined?

Answer 6

Court/FSIA has held that commercial activity is determined by the nature of the act and not the purpose. International law applies this restrictive theory.

Question 7

FSIA 1976

Answer 7

FSIA says under what circumstances sovereign immunity will apply to a state and their actions, but did not give exact situation in which it would apply. Gives exceptions for immunity of a sovereign state under the FSIA

Exception: Foreign state shall not be immune from jurisdiction of courts of US or other states in any case: in which the action is based upon a commercial activity carried on in the US by the foreign state; upon an act performed in US in connection w/ a commercial activity of the foreign state elsewhere; or an act outside the territory of the US in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the US.

Question 8

Texas Trading v. Nigeria

Answer 8

Facts: Nigeria buys a shitload of cement and they are unable to fit it all into their port so they first tell the bank not to issue the money to the companies and then they enact legislation making it criminal for remaining cement ships to be in their port.

RULE: NO sovereign immunity for foreign states in an action based upon a commercial activity
• If the activity is one in which a private person could engage, it is not entitled to immunity.
• International law operates under the restrictive theory