The Noncommercial Tort Exception

• Author: Ernesto Sanchez
• Pages: 167-177

167

THE NON CO M M ER CI A L TOR T

EXC EP T I ON

§ 13.1 INTRODUCTION

Torts are civil wrongs, other than breaches of contract, for which courts provide remedies in

the form of actions for damages.1 e text of the FSIA’s noncommercial tort exception does not

cover commercial torts, which arise in the course of claimants’ businesses or professions and do

not include damages arising from personal injuries or death.2

§ 13.2 PERTINENT STATUTORY TEXT

28 U.S.C.§ 1605(a)(5) states:

A foreign state shall not be immune from the jurisdiction of courts of the United States

or of the States in any case . . . not otherwise encompassed in paragraph (2) above [i.e.,

the commercial activity exception], in which money damages are sought against a foreign

state for personal injury or death, or damage to or loss of property, occurring in the United

States and caused by the tortious act or omission of that foreign state or of any ocial or

employee of that foreign state while acting within the scope of his oce or employment;

except this paragraph shall not apply to—

(A) any claim based upon the exercise or performance or the failure to exercise or per-

form a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, mis-

representation, deceit, or interference with contract rights . . .3

§ 13.3 DEFINING NONCOMMERCIAL TORTS FOR FSIA

PURPOSES

e FSIA’s legislative history construes the phrase “tortious act or omission” to encompasses

numerous causes of action, including those based on strict liability and negligence.4 But the

scope of the FSIA noncommercial tort exception’s prohibition on claims arising from malicious

prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with con-

1. United States v. Burke, 504 U.S. 229, 235 (1992) (citation omitted), superseded by statute on other grounds, Small

Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1605, 110 Stat. 1838.

2. See, e.g., U.C.C. § 9-102(13).

3. 28 U.S.C. § 1605(a)(5).

4. See, e.g., House Report at 6619.

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