The Waiver Exception

• Author: Ernesto Sanchez
• Pages: 115-126

115

THE WA I V E R EX CE P T IO N

§ 9.1 INTRODUCTION

An entity qualifying as a “foreign state” becomes subject to U.S. courts’ subject matter jurisdic-

tion if it has waived its foreign sovereign immunity. Courts have some discretion in determining

whether waivers have occurred.1 Moreover, the extent of a waiver can correspondingly expand

or restrict the scope of a defendant’s immunity, potentially allowing any legal action against a

foreign sovereign to proceed.

§ 9.2 PERTINENT STATUTORY TEXT

28 U.S.C. § 1605(a)(1) states:

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

or of the States in any case . . . in which the foreign state has waived its immunity either

explicitly or by implication, notwithstanding any withdrawal of the waiver which the

foreign state may purport to eect except in accordance with the terms of the waiver . . .2

§ 9.3 EXPLICIT AND IMPLICIT WAIVERS

e FSIA’s “explicit waiver” requirement is meant to preclude inadvertent or constructive waiv-

ers where a defendant’s intent is ambiguous.3 Given the importance attached to unambiguous

intent, then, courts are even more cautious with respect to nding that implicit (i.e., implied)

waivers have taken place.4 Case law provides extensive guidance in both respects.

(1) Explicit Waivers

An explicit waiver of immunity constitutes an “intentional and knowing relinquishment of the

legal right.”5 In general, courts narrowly construe these waivers in “favor of the sovereign” and do

1. Drexel Burnham Lambert Group Inc. v. Committee of Receivers for Galadari, 12 F.3d 317, 324 (2d Cir. 1993)

(“[W]e have recognized some discretion on the part of district courts to deter mine whether a waiver of FSIA immunity

has occurred in a particular case . . .”), cert. denied, 511 U.S. 1069 (1994).

2. 28 U.S.C. § 1605(a)(1).

3. Capital Ventures Int’l v. Republic of Argentina, 552 F.3d 289, 293 (2d Cir. 2009), cert. denied, 130 S. Ct. 202

(2009).

4. See Cargill Int ’l, S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1017 (1993) (stating that waivers should not be

implied “absent strong evidence of the sovereign’s intent”); Gutch v. Federal Republic of Germany, 444 F. Supp. 2d 1, 8

(D.D.C. 2006) (stating that courts generally require waivers to be explicit) (citing In re Terrorist Attacks on Sept. 11,

2001, 349 F. Supp. 2d 765, 803 n. 31 (S.D.N.Y.2005) (citing Banco de Seguros del Estado v. Mutual Marine Oce,

Inc., 344 F.3d 255, 261 (2d Cir.2003)).

5. Walker Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229, 234 (5th Cir. 2004); see also World Wide Miner-

als, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir. 2002) (foreign sovereign will not be found to have

waived its immunity under FSIA unless it has clearly and unambiguously done so).

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