Introduction

• Author: Ernesto Sanchez
• Pages: 295-296

295

LI A BI L IT Y , DA M AG E S, A N D

ENFORCI NG JU DG ME NTS

INTRODUCTION

Part VI concludes this book with a description of a lawsuit’s ultimate goals— establishing

defendants’ liability, determining damages, and obtaining compensation or other enforcement

of a judgment—in an FSIA context. An FSIA action’s liability and damages phases do not

greatly dier from those of a dispute between private parties, including disputes with cross-bor-

der implications (e.g., methods for discovery abroad, proof of non-U.S. law, legal ethics issues).

Quite simply, defendants that the FSIA does not ultimately immunize can be held liable to

the same degree as private parties under similar circumstances, with the caveat that courts, save

for terrorism cases, cannot order foreign states and their political subdivisions to pay punitive

damages.1

Chapters 26 and 27, then, discuss some very important issues immediately surrounding this

framework—ascertaining the law governing a dispute, how a defendant’s nonimmunity aects

pretrial discovery, default judgments, and the assessment of damages. Two other issues—the

possibility of a case’s dismissal under the act of state doctrine and defendants’ rights to trial

without a jury—merit more detail and are discussed in Chapters 28 and 29 respectively.

Chapter 30 brings this examination of the FSIA to a close on what could well be a very

disappointing note for a potential plainti. As Chapter 1’s description of enforcing judgments

in a foreign sovereign immunity context noted,2 enforcement measures’ inherently intrusive

aspects, evident in, for example, seizures of property or funds, raise thorny diplomatic issues.

e FSIA, like other countries’ foreign sovereign immunity laws, reects a paradox common to

many other legal disputes—the dierence between liability and money. Just because a defendant

is found liable for wrongdoing does not mean that a plainti will be able to secure compensation

from the defendant much-deserved relief.3 Chapter 30 consequently homes in on one central

principle—a defendant’s U.S. property in an FSIA dispute, subject to international agreements

to which the United States is a party, remains immune from the enforcement measures of

attachment arrest and execution, unless that property is used for a commercial activity.4 If a

defendant’s U.S. property is not used for a commercial activity, then the plainti, no matter how

aggrieved, will literally remain empty-handed.

Adding to the security of foreign sovereign property in the United States from seizure is the

fact that the FSIA specically protects property belonging to foreign central banks and property

1. See 28 U.S.C. §§ 1605A(c)-(d) (cause of action and damages for terrorism acts), 1606 (standard FSIA provision

for liability and damages).

2. See supra Pt. I, Ch. 1, § 1.3(2).

3. e author would like to extend credit for this analysis to his former contracts and international trade professor,

Curtis Reitz of the University of Pennsylvania Law School, who often presented perspectives to this eect.

4. See generally 28 U.S.C. §§ 1609-10.

PART VI

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