Immunity from Enforcement of Judgments

AuthorErnesto Sanchez
Just as the FSIA presumptively immunizes entities it denes as a “foreign state” from U.S. courts’
subject matter jurisdiction,1 so too does the statute, subject to international agreements to which
the United States is a party, presumptively immunize those same entities from the enforcement
of judgments via attachment arrests and execution.2 Indeed, the FSIA’s enforcement provisions
are straightforward in that their text often mirrors the statute’s exceptions to foreign sovereign
immunity from subject matter jurisdiction. ese similarities enable an examination of the stat-
ute’s prejudgment or postjudgment remedies that is much simpler than analyses of, for example,
its provisions for subject matter jurisdiction.
To this eect, ve general categories encompass the FSIA’s enforcement guidelines. First,
there is the matter of how courts will view intangible, as opposed to tangible, property. at said,
courts may only apply judgments against defendants’ properties that are used for or engaged
in commercial activities in the United States.3 But the FSIA’s provisions concerning state-
sponsored terrorism establish their own set of remedies, thus necessitating a separate analysis.4
e FSIA also has an enforcement provision specically concerning actions arising under
the preferred ship mortgage exception to subject matter jurisdictional immunity.5 But the FSIA
always immunizes from attachment or execution:
• funds disbursed from international organizations to foreign states;
• the properties of foreign central banks or monetary authorities whose immunity is not
waived; and
1. 28 U.S.C. § 1604 (“Subject to existing international agreements to which the United States is a party at the time
of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of
the States except as provided in sections 1605 to 1607 of this chapter.”).
2. Id. § 1609 (“Subject to existing international agreements to which the United States is a party at the time of
enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and
execution except as provided in sections 1610 and 1611 of this chapter.”); but see Weinstein v. Islamic Republic of Iran,
609 F.3d 43, 52-54 (2d Cir. 2010) (concluding that even if Terrorism Risk Insurance Act (TRIA) provision allowing for
attachment of Iranian assets in satisfaction of terrorism-related judgment conicted with provision of U.S.-Iran Treaty
of Amity giving each country’s corporations signatory legal status in other party’s territory, TRIA would have to be
read as abrogating that portion of the Treaty, since TRIA’s use of phrase “notwithstanding any other provision of law”
demonstrated a clear congressional purpose to abrogate or modify treaty); cf. also Trans World Airlines, Inc. v. Franklin
Mint Corp., 466 U.S. 243, 252 (1984) (“‘[A] treaty will not be deemed to have been abrogated or modied by a later
statute unless such purpose on the part of Congress has been clearly expressed.’”) (quoting Cook v. United States, 288
U.S. 102, 120 (1933)).
3. 28 U.S.C. § 1610(a), (b).
4. See id. at (f); see also id. § 1605A(g).
5. See id. § 1610(e).
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