Damages

• Author: Ernesto Sanchez
• Pages: 313-321

313

DA M AG ES

§ 27.1 INTRODUCTION

e FSIA precludes awards of punitive damages against foreign states or their political sub-

divisions, save for cases of (proven) state-sponsored terrorism. Agencies or instrumentalities

of foreign states or their political subdivisions, and individual agents committing acts of state-

sponsored terrorism, however, are liable for punitive damages in any event.1

§ 27.2 PERTINENT STATUTORY TEXT

28 U.S.C. § 1606 mandates:

As to any claim for relief with respect to which a foreign state is not entitled to immunity

under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same

manner and to the same extent as a private individual under like circumstances . . . but a

foreign state except for an agency or instrumentality thereof shall not be liable for punitive dam-

ages; if, however, in any case wherein death was caused, the law of the place where the action

or omission occurred provides, or has been construed to provide, for damages only punitive in

nature, the foreign state shall be liable for actual or compensatory damages measured by the pecu-

niary injuries resulting from such death which were incurred by the persons for whose bene t the

action was brought.2

§ 27.3 CALCULATING DAMAGES

e matter of damages in an FSIA action encompasses two areas—(1) damages for claims other

than those arising from state-sponsored terrorism and (2) damages for state-sponsored terror-

ism under an extensively enumerated framework.

(1) Damages Under Federal And State Law In General

e actual award of damages in an FSIA case will usually stem from the substantive laws gov-

erning the particular causes of action at bar. To that eect, the choice of law issues described

earlier still apply absent specic direction by contract, statute, or international agreement.3 If an

action implicates a U.S. state’s law, that state’s law of damages will also govern.4 Likewise, courts

have turned to federal common law to govern the award of damages in cases where plaintis

1. See 28 U.S.C. § 1606.

2. Id. (emphasis added).

3. See supra Ch. 26, § 26.3(1).

4. See F irst National City Bank v. Banco Para El Comercio Exterior de Cuba (“Bancec”), 462 U.S. 611, 622 n.11

(1983) (“[W]here state law provides a rule of liabilit y governing private individuals, the FSIA requires the application

of that rule to foreign states in like circumstances.”).

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