Establishing Liability

• Author: Ernesto Sanchez
• Pages: 297-311

297

EST ABL IS HIN G LI A BI LI T Y

§ 26.1 INTRODUCTION

A foreign sovereign defendant that the FSIA does not ultimately immunize will qualify as

the equivalent of a private defendant for purposes of establishing liability.1 is legal frame-

work directly aects what substantive law governs the determination of liability, crystallizes the

causes of action a plainti can raise, inuences pretrial discovery, and works in tandem with the

FSIA’s provision for default judgments.

§ 26.2 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 . . .2

§ 26.3 GOVERNING LAW AND CAUSES OF ACTION

To bring a claim under the FSIA, a plainti only needs to determine if, subject to an interna-

tional agreement to which the United States is a party, a cause of action—state or federal—

falls under one of the statute’s exceptions to foreign sovereign immunity from subject matter

jurisdiction. Absent such provisions as those for terrorism-related lawsuits and others blocking

certain claims (e.g., suits in tort for malicious prosecution),3 as well as the previously discussed

separate bankruptcy laws,4 the FSIA and other U.S. law do not explicitly dene the actual claims

a plainti can bring against a foreign state, a political subdivision of a foreign state, or an agency

or instrumentality of a foreign state or political subdivision thereof. Unless the FSIA otherwise

species, the laws governing the establishment of liability in an FSIA matter—state or fed-

eral—are the same laws that would govern if a private party were a defendant.5

(1) Choice of Law

Absent specic contractual, statutory, or treaty direction, where two or more U.S. or foreign

jurisdictions have legitimate interests in a given dispute and the laws of those jurisdictions dier

or would produce a dierent result, determining the substantive law governing liability under

1. See 28 U.S.C. § 1606.

2. Id.

3. See id. §§ 1605(a)(5), 1605A(c).

4. See 11 U.S.C. § 106(a).

5. See, e.g., First 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.”); Pescatore v. Pan American World Airways, 97 F.3d 1, 12 (2d Cir.

1996) (“[T]he FSIA . . . operates as a ‘pass-through’ to state law principles.”).

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