Unavailability of Jury Trials

• Author: Ernesto Sanchez
• Pages: 331-334

331

UNA VA IL A B I LI T Y OF JURY TRI A L S

§ 29.1 INTRODUCTION

e FSIA specically provides for federal original jurisdiction “over any nonjury civil action”

from which a “foreign state,” as dened by the statute, is not immune under subsequent speci-

cations and applicable international agreements.1 Actions against such defendants, if originally

led in state court, may be removed to federal court, for trial without a jury.2 Courts have con-

sequently, and almost unanimously, construed these provisions to mean that trial of an action

under the FSIA shall take place without a jury.

§ 29.2 PURPOSE AND CONSTITUTIONALITY

In barring jury trials when enacting the FSIA, akin to the general bar on jury trials in actions

against the U.S. government,3 Congress sought to “promote . . . uniformity in decision [making]

where foreign governments are involved.”4 is approach certainly makes the U.S. court system

less unfamiliar or intimidating to foreign sovereign defendants from states that disfavor jury

trials in civil cases, if not entirely. Indeed, courts have even construed the FSIA to bar jury trials

where such defendants have waived their immunity from U.S. legal action5 or where plaintis

demand jury trials in state court actions that are ultimately removed to federal court.6

is aspect of the FSIA might trouble a U.S.-trained litigator, especially given the increased

concern expressed by many bar associations and attorneys over the “vanishing jury trial.”7 And it

is indeed true that the Seventh Amendment to the U.S. Constitution mandates that “[i]n suits

at common law, where the value in controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved . . . 8 But U.S. courts and legal treatises have interpreted the phrase “suits

at common law” to mean the common law of England in 1791, when the Seventh Amend-

ment was adopted, which did not require jury trials for actions against corporations owned by

foreign sovereigns and which, consistent with absolute immunity, did not allow actions against

1. 28 U.S.C. § 1330(a).

2. Id. § 1441(d).

3. See id. § 2402.

4. House Report at 6612.

5. See Universal Consolidated Companies, Inc. v. Bank of China, 35 F.3d 243, 246-47 (6th Cir. 1994) (“[S]ince

Congress has legislated that the [FSIA] is the sole means by which the federal courts can have jurisdiction over the

[defendant], the nonjury provision of that jurisdictional requirement is mandatory.”).

6. Cf. Laor v. Air France, 51 F. Supp. 2d 505, 508 (S.D.N.Y. 1999) (nding that even if a jury demand had been made

upon ling in state court, airline passenger’s removed suit against agency or instrumentality of foreign state would be

tried without jury pursuant to FSIA).

7. See, e.g., generally A C  T L, T “V T:” T C, T P-

, T C J S (), available at http://www.actl.com/AM/Template.cfm?Section=All_Publica-

tions & Template=/CM/ContentDisplay.cfm&ContentFileID=57; A  C  T L, R

O T I O T T-M C J I T F C (), available at http://www.

actl.com/AM/Template.cfm?Section=All_Publications&Template=/CM/ContentDisplay.cfm & Content File ID=70.

8. U.S. C. amend. VII.

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