The Foreign Sovereign Immunities Act places limitations on lawsuits that involve foreign sovereign nations. This lesson explores the Foreign Sovereign Immunities Act and explains when immunity is applicable.
Let's say that Abby slips and falls while at her local branch of the United States Post Office. The sidewalks were icy and hadn't been shoveled or salted. Abby wants to sue the post office in order to recover her medical fees. Can Abby sue an office of the federal government? Let's take a closer look at this issue.
Our federal government has sovereign immunity. This means our government and its agencies enjoy legal protection, preventing many lawsuits. Generally speaking, a sovereign entity can't be sued without that entity's consent.
The doctrine of sovereign immunity is historically rooted in English common law. Under the ancient English principle, it was assumed that the monarch could do no wrong. Early United States law adopted this general principle, requiring congressional authorization before the federal government could be sued by a state or by a private individual.
However, over time, our federal government chipped away at its own sovereign immunity by adding numerous exceptions. It first waived sovereign immunity in cases involving contracts and eventually waived immunity for many types of torts.
Today, the general rule is that our federal government, its agencies, officers and employees have some immunity. Our government has immunity from causes of action that arise while carrying out their official government duties. Otherwise, most claims aren't precluded by sovereign immunity. Abby wasn't injured by someone carrying out an official government duty, so Abby will likely be allowed to sue the post office for negligently causing an unsafe environment.
Foreign Sovereign Immunity
Now let's say Abby is an artist. She lives in California but is hired to create and install a mural in a French government office located in Paris. After she creates the mural, the French government cancels her contract. Abby wants to sue for her lost expenses.
This case involves foreign sovereign immunity. This type of immunity means other governments enjoy legal protection, preventing many lawsuits brought here in the United States. Historically, international law principles dictated that nations are immune from the court jurisdiction of other nations. This principle is known as absolute immunity.
In the U.S., the court protections and limitations provided to foreign entities are governed by the Foreign Sovereign Immunities Act, or FSIA, enacted in 1976. This act sets specific limitations on suing a foreign sovereign nation, its agencies or its instrumentalities in U.S. courts.
The FSIA serves as the main vehicle available for bringing a lawsuit against a foreign sovereign entity in a U.S. court. Under the FSIA, the U.S. court determines the applicability of foreign sovereign immunity. When an entity is sued in the U.S., that entity must raise foreign sovereign immunity as a defense in order for immunity to be considered. The court will then determine the applicability and scope of the entity's immunity.
If the lawsuit is allowed to go forward, the FSIA outlines the specific procedures that must be followed throughout the suit. For example, the FSIA details the procedures for service of process on foreign sovereign entities, for the attachment of foreign property and for collecting a judgment.
Exceptions to FSIA
Now let's take a look at why a lawsuit like Abby's might be allowed to go forward. Foreign nations are no longer completely immune from lawsuits brought in U.S. courts. After World War II, many exceptions evolved in order to remove unfair commercial advantages provided to foreign nations through their immunity. This principle is known as restrictive immunity because courts now limit the use of foreign sovereign immunity.
The exceptions were originally codified in 1976 through the enactment of FSIA, though many revisions and amendments expanded that list. Generally, a foreign sovereign entity or its agent may be sued when:
- The entity waives its immunity
- The entity conducts commercial activities in or directly affecting the U.S.
- The lawsuit involves property taken in violation of international law
- The lawsuit involves immovable property located in the U.S.
- The lawsuit seeks money damages for a tort that occurred in the U.S.
- The lawsuit seeks to enforce an arbitration agreement made between the entity and a private person
- The lawsuit seeks money damages for personal injury or death related to terrorism and the entity is a designated sponsor of terrorism
- The lawsuit seeks to enforce a maritime lien against the entity's vessel or cargo
When the French government contracted with Abby, France conducted commercial activity in the U.S. This is an exception to foreign sovereign immunity. Also note that Abby's lawsuit is for breach of contract, which is a tort. She's seeking money damages for her expenses. This is another exception to foreign sovereign immunity. Abby will likely be allowed to move forward with her lawsuit.
Let's review. Sovereign immunity means that our federal government and its agencies enjoy legal protection preventing many lawsuits. However, the general rule is that our federal government, its agencies, officers and employees have immunity only from those causes of action that arise while carrying out their official government duties.
Foreign sovereign immunity means that our governments enjoy legal protection, preventing many lawsuits brought in the United States. Nations are generally considered to be immune from the court jurisdiction of other nations. In the U.S., the Foreign Sovereign Immunities Act, or FSIA, governs the scope and applicability of foreign sovereign immunity.
The FSIA sets specific limitations on suing a foreign sovereign nation, its agencies or its instrumentalities in U.S. courts. It also lists several exceptions to foreign sovereign immunity. In cases involving an exception, the FSIA dictates the procedures that must be followed throughout the lawsuit.
When this lesson is over, you could:
- Discuss aspects of Sovereign immunity
- Recall the reason that the U. S. government can only be sued in certain cases
- Relate facts about the exceptions to suing foreign governments in U.S. courtsvi